Opinion
Case No. 02-40062-02-JAR
September 9, 2002
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTIONS
This matter is before the Court on defendant's Motion to Disclose Expert Testimony (Doc. 49), Motion to Suppress Vehicle Search (Doc. 45), Motion to Suppress Pre-Arrest Statements (oral motion) and Motion to Suppress Post-Arrest Statements (Doc. 56). The Court held an evidentiary hearing on August 26, 2002. The Court ruled from the bench as to the Motion to Disclose Expert Testimony and granted defendant's motion ordering the government to provide such disclosures as soon as possible. At the conclusion of the hearing, the Court took the remaining motions under advisement. After due consideration of the parties' filings and the admitted evidence, the Court is now prepared to rule on the motions.
Facts
On April 24, 2002, Emporia police received a dispatch call concerning questionable traveler's checks being used at "Outfitters," a local retail store. Upon arrival, Officer Davis spoke with an Outfitter's employee who described the individual using the traveler's checks as a black female, wearing black clothing and a lot of jewelry. The employee said the female was with a black male in a red, newer model, extended cab pickup.
Dispatch then advised Emporia police that a black female matching the description given by the Outfitter's employee was currently at the local J.C. Penney store attempting to pass a counterfeit traveler's check. Officer Davis made contact with the black female at J.C. Penneys. The female, later identified as Tracy Stafford a/k/a Liza Goodrich ("Stafford"), informed Officer Ross that she was from out of town and that she did not know her social security number. She admitted that she was using traveler's checks in the store and still had three identical checks, all bearing the same serial number on her person. Stafford told officers that she purchased the checks at a credit union on Kansas Avenue in Kansas City. Officer Ross of the Emporia police assisted Officer Davis at the store.
While speaking with Stafford, Officer Ross noticed a black male watching the conversation. The black male was holding a cellular phone to his ear but did not speak during the few minutes that Officer Ross observed him. The black male walked out of the store and into the parking lot. Officer Ross left the store to find the black male. A red, newer model, extended cab truck was parked outside the store on the west edge of the parking lot. The black male from inside the store was sitting behind the wheel. Officer Ross pulled his patrol vehicle in front of the red truck to prevent it from leaving. The truck was backed up to an embankment. Officer Ross then asked the man to turn off the engine, get out of the vehicle and produce a driver's license. The man responded that he did not have any identification on his person. Officer Ross observed a wallet in the man's back pocket. Officer Ross noticed the man's eyes were bloodshot and that he smelled of alcohol. The man then produced a driver's license identifying him as Paul E. Sharp.
After running a check on the truck registration, Officer Ross found that the vehicle belonged to Enterprise Rent-a-Car. A copy of the lease agreement showed he was the only authorized driver. (Govt. Exhibit 1 — Lease Agreement). Officer Ross told the defendant he was questioning him about counterfeit traveler's checks. The defendant denied any knowledge of counterfeit traveler's checks. Officer Ross observed several items, in plain view, in the back seat of the extended cab truck. He could see a shop-vac in a bag from Water's True Value (a local store), several paper sacks with expensive liquor bottles, cigarettes and numerous other shopping bags. When asked about the shop vac, defendant said he brought it from Kansas City. Officer Ross told the defendant that he had seen him in J.C. Penneys. Officer Ross described the defendant as fidgety and unable to make eye contact. Officer Ross was radioed by Officer Davis, from inside the store, that the male with Stafford had a first name of Paul. At this point, the defendant was placed under arrest. The defendant tossed his keys inside the truck and quickly locked the doors. He said he was alone and was told that Stafford had identified him and they were both carrying similar small, gold ID badges.
The defendant was patted down and several folds of various money amounts were found in his front pocket. When asked how much money he had, the defendant stated he did not know and that he had it individually folded so that he could easily loan money to family members without counting it all. Because of a lack of personnel, the car could not be searched incident to arrest in the parking lot. The car was impounded and taken to the police department. Officer Ross testified that the factors used to decide whether to impound the vehicle were the arrest of the driver, the need to secure the vehicle for safety of the items in it and to protect the police from liability. The truck was taken to the police department and immediately searched incident to arrest. Following the search, the truck doors and hood were sealed with evidence taped and initialed by Officer Ross. Officer Ross testified that his procedure of impounding the vehicle and conducting the subsequent search was pursuant to department impoundment policy. (Govt. Exhibit 2 — Motor Vehicle Impound Procedure). The truck was inventoried two days later, by Officer Ross, with the assistance of a Secret Service Agent.
Following his arrest, Emporia Police Sergeant Ryno took the defendant to a break room for an interview. Sergeant Ryno testified that he read the defendant his rights from a Miranda warning card. Sergeant Ryno then asked the defendant if he understood his rights, to which the defendant responded that he did. Sergeant Ryno testified that he asked him if he waived his rights. Specifically, Sergeant Ryno asked, "do you wish to talk to me now." The defendant responded affirmatively. The defendant did not ask for an attorney or to end the conversation.
At some point, Deputy Chief Williams came in the room and ended the interview. Two days later, on April 26, Secret Service Agent Smith ("Agent Smith") attempted to interview the defendant. Agent Smith testified that he advised the defendant of his Miranda rights. The defendant asked about possible deals. Agent Smith asked him if he wanted to talk and he advised that he did. Agent Smith testified that the defendant was uncooperative and deceitful upon the first question asked and he ended the interview.
A. Motion to Suppress Vehicle Search
Defendant argues that the search of his vehicle was an unlawful impoundment and subsequently, an unlawful inventory. Defendant also argues that the search was not justified as a search incident to arrest where the defendant was removed from the area and the truck transported to the police department.
First, the impoundment and inventory search of the vehicle were proper and will be discussed later in this order. Initially, the Court will address the validity of the first search. Vehicle searches, based on probable cause, are a well known exception to the warrant requirement. When officers have probable cause to believe contraband is contained in a vehicle, they may search it without a warrant and absent any exigent circumstances.
United States v. Lopez, 777 F.2d 543, 550 (10th Cir. 1985) (citing Katz v. Unite d States, 389 U.S. 347 (1967)).
Id.
In this case, the officer first searched the vehicle at the police station, immediately after the arrest of the defendant. The vehicle was not searched in the parking lot where the defendant was arrested. Officers testified at the evidentiary hearing that a shortage of personnel made it necessary to search the truck at the police station. It is without question that the officers had probable cause to search the truck. They were investigating the use of counterfeit traveler's checks at several stores in Emporia. The woman passing the checks had already been apprehended in the store and found in possession of several traveler's checks with identical serial numbers. The woman was described to officers by store clerks as being accompanied by a black male in a red, extended cab truck. The woman told officers that her male companion's first name was "Paul." Immediately before defendant's encounter with the officers, he was seen by Officer Ross inside the store where the co-defendant was apprehended. Officers observed defendant watching the incident and acting nervous. Defendant was located in the store parking lot, sitting behind the wheel of a red, extended cab truck. Upon approaching the truck, Officer Ross saw, in plain view, several bags from local merchant stores, as well as a new shop-vac in a sack from the local hardware store. When asked about the shop-vac, defendant told Officer Ross he brought it from Kansas City. Defendant produced an ID showing his name as "Paul" E. Sharp. At this point, officers had more than enough probable cause to search the vehicle, based on a totality of the circumstances. As a result, it is unnecessary to justify the search as one incident to arrest where probable cause exists. "[I]f police, while making an arrest, find probable cause to search the arrested individual's automobile, such a search then proceeds on a theory wholly different from that justifying the search incident to arrest." Further, "[b]ecause it is the probable cause, not the arrest, that is then the justification for the search of the automobile, the police may search the impounded vehicle at a later time."
Illinois v. Gates, 426 U.S. 213 (1983).
United States v. McKinnel, 888 F.2d 669, 673 (10th Cir. 1989) (overruled on other grounds).
Id.
That is exactly the situation at hand. Officers had probable cause to search the vehicle, independent of the arrest. Additionally, a search that is based on probable cause is still valid if done at a later time. Probable cause to search the car does not disappear if it is moved and searched later. Generally, the automobile exception is allowed because of the reduced expectation of privacy in vehicles as well as the inherent mobility of the same. However, the United States Supreme Court states that "the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with. . . ." In fact, the United States Supreme Court has upheld searches based on probable cause that were conducted on a vehicle in police custody three days after its impoundment. Any doubt about whether the probable cause still existed at the police station is dismissed by Michigan v. Thomas and United States v. Johns. Accordingly, the first search of the vehicle at the station house, following the arrest of the defendant was justified based on probable cause and conducted pursuant to the automobile exception to the warrant requirement.
Michigan v. Thomas, 458 U.S. 259, 261 (1982).
United States v. Johns, 469 U.S. 478, 483-88 (1985).
Id; Thomas, 458 U.S. at 261.
As to the second search conducted two days after the arrest and first search, it is also justified under several theories. First, it is justified based on the probable cause established by locating items purchased from stores accepting the counterfeit traveler's checks. In Florida v. Meyers, the court held that a search conducted eight hours after an inventory search at the scene of the arrest was a valid search based on probable cause. Meyers' vehicle was searched before the tow truck impounded the vehicle. During the first search, several items were seized. During the subsequent search, eight hours later, officers seized additional evidence. The court based its ruling on Thomas, wherein an initial search revealed contraband and a later search, based on the probable cause obtained during the original search, uncovered more illegal items.
466 U.S. 380 (1984) (citing Thomas, 458 U.S. 259).
Id. at 382.
Thomas, 458 U.S. at 261.
The facts of the case at hand are strikingly similar. Regardless of the classification of the search by the officers, it is without doubt that the first search is justified by probable cause. Additionally, after finding the items purchased with counterfeit travelers checks inside the vehicle, the officers could conduct a second search two days later. The probable cause had not vanished; more likely it had risen based on the original findings. And as explained above, officers need not obtain a warrant even though they had custody of the vehicle.
See supra, n. 6 and accompanying text.
Second, the second search was a valid inventory search. Officers may search a lawfully impounded vehicle pursuant to a departmental policy. The validity of a search under this theory requires a two-part analysis. First, the car must be lawfully impounded. Defendant argues that the impound was unlawful because he was not allowed to leave the vehicle in the parking lot nor was he allowed to contact someone to make arrangements to take it away. Defendant's arguments rely on State v. Teeter, which is the leading Kansas case on vehicle impoundments. Under Kansas law, it is well settled that "[i]f police do not have express authority to impound a vehicle, they may still take lawful custody of a vehicle when there are reasonable grounds for impoundment." The Kansas Supreme Court had previously said that "[i]f a person responsible for a vehicle desires that the vehicle be left lawfully parked upon the streets or turned over to some other person's custody, then absent some other lawful reason for impounding the vehicle, his or her wishes must be followed." The Teeter court discusses several scenarios where impoundment is appropriate. One such scenario is when the vehicle is "used in the commission of a crime when its retention as evidence is necessary."
Colorado v. Berntine, 479 U.S. 367 (1987); South Dakota v. Opperman, 428 U.S. 364 (1976).
819 P.2d 651 (1991).
Id. at 653. (internal quotations omitted).
Id. (citing State v. Fortune, 689 P.2d 1196, 1203 (Kan. 1984)).
Id. at 654 (citing State v. Boster, 539 P.2d 294 (Kan. 1975)).
Testimony and exhibits were presented at the hearing showing that the truck was rented from Enterprise Rent-a-Car and defendant was the only authorized driver. Further, the defendant was alone and from out of town. It is questionable whether he would have been able to turn the car over to the custody of someone else. While it is true that the cases cited above allow a defendant to leave a vehicle legally parked, if he so desires, doing so in this case ignores the circumstances of the vehicle. Defendant was arrested on suspicion of charges of purchasing goods with counterfeit traveler's checks. Those goods were located in the backseat of the truck. The truck had essentially become a mobile warehouse of ill-gotten goods. That alone justifies the police impounding the vehicle for evidentiary purposes as well as the general theory of protecting the property within the vehicle and the department from allegations of theft or neglect. The truck belonging to rental agents only adds to the officers' need to protect the vehicle. It did not belong to the defendant; he was merely the lessee; and police had no reason to believe he would be returning anytime soon to reclaim the truck. Thus, police had a lawful reason for impounding the vehicle and dispensing with the defendant's desires for care-taking.
See United States v. Kornegay, 885 F.2d 713, 716 (10th Cir. 1989) (finding a vehicle legally impounded where it was legally parked in a public parking lot but defendant was alone, was unlikely to be returning soon because of his arrest, and the car would have been left open to dangers of vandalism or theft).
The second step of the analysis is whether the inventory search was conducted pursuant to a valid departmental policy. At the hearing, Officer Ross produced a copy of the impoundment policy, which provides some guidelines for inventory procedures. Officer Ross testified that he was unaware of any other written inventory policy at the department. The impoundment policy speaks only about the reasons for impoundment, which include when the vehicle contains evidence of a crime and that evidence cannot be processed at the scene, and that an inventory is to be done at a safe place, using department forms. The inventory search was conducted at the police station, two days after the arrest, and department forms were used. Officer Ross testified that the form he used was the same form used for both inventory and investigatory searches. Defendant's central argument, assuming impoundment was lawful, is that the search was purely for investigatory purposes and therefore, unlawful. It is true that inventory searches cannot be a ruse for ulterior investigatory motives. However, it is often the case that mixed motives are present. And certainly, if a car is inventoried pursuant to standard procedures of a department and incriminating evidence is found, it need not be overlooked. In this case, the inventory of the truck, two days after the arrest, was lawful. Defendant relies on the forms used to support that the officers' motives were investigatory. However, Officer Ross testified that the forms are essentially the same. Further, throughout his narratives and the lists compiled during the search, the search is referred to as an "inventory search." Therefore, not only did probable cause still exist if the search was for evidence alone, but the police were within the law in conducting an inventory search, so any taint alleged by motives of the police is removed by the doctrine of inevitable discovery through a valid inventory search.
Johns, 469 U.S. at 483-88 (finding probable cause existed for warrantless search of impounded vehicle three days after the arrest.).
United States v. Haro-Salcedo, 107 F.3d 769, 773 (10th Cir. 1997) (holding that even though an inventory search was for improper motives, and thus suppressible, the evidence would be admitted because police had authority to conduct a lawful inventory search and, thus, the doctrine of inevitable discovery salvaged the evidence).
B. Motion to Suppress Pre-Arrest Statements
Following testimony at the evidentiary hearing, defendant made an oral motion to suppress statements made prior to his arrest while talking with officers in the parking lot of J.C. Penneys. Defendant argues that from the point that Officer Ross made contact with him in the parking lot until the time he was actually placed under arrest, he was never free to leave and an objective person would have felt that he was in custody. As such, defendant argues that any questioning by the police was unlawful because it was not preceded by a Miranda warning.To trigger the need for Miranda warnings, a suspect must be in custody and under interrogation. Custody occurs when a subject has his freedom restricted to a level often associated with formal arrest or he has actually been arrested. The question is not whether the defendant himself believed he was in custody, or whether he was actually in custody, but whether an objective analysis by a reasonable person would believe that their freedom was restricted to a level associated with formal arrest.
United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993).
See Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam); California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam).
United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993) (quoting Beheler, 463 U.S. at 1125 and Berkemer v. McCarty, 468 U.S. 420, 440 (1984)).
A totality of circumstances test is used to determine whether a subject is in custody for purposes of Miranda. Some of the factors weighed in this analysis are whether the subject was told he was free to leave or free to not answer questions, if the nature of the questioning goes beyond merely identification and dispelling the officer's suspicions, and whether the atmosphere is one of police domination.
Berkemer, 468 U.S. at 440.
Griffin, 7 F.3d at 1518-19.
Testimony from both Officer Ross and Sergeant Ryno indicated that the defendant was not free to leave. Further, he was not advised that he was free to leave; and he was not advised that he could terminate questioning at anytime. While this is not dispositive proof that the defendant was in custody, it contributes to the weight that a reasonable person would believe that he was restricted to a level associated with formal arrest. Officer Ross also testified that with each series of questions, the investigation deepened regarding the goods in the truck, the defendant's association with the female arrested in the store, and his knowledge about the counterfeit traveler's checks. Finally, while there were only two officers present in the parking lot, the location of their vehicles indicates a substantial restraint on the defendant's freedom.
United States v. Robinson, 2001 WL 912859, *4 (10th Cir. 2001) (officers not required to inform subject he is free to leave to render encounter consensual and not custodial) (unpublished opinion).
Officer Ross and Sergeant Ryno both testified that the defendant's truck was backed into an embankment. One patrol car was pulled up along side of the truck and the other parked in front of and perpendicular to the truck. This parking arrangement certainly prevented the defendant from leaving in his vehicle and would cause a reasonable person to believe he was in custody. Under a totality of the circumstances, defendant reasonably believed he was in custody for purposes of Miranda. The second requirement for Miranda is clearly met. The questions of Officer Ross continued to escalate throughout the conversation and Officer Ross knew or should have known that they would elicit incriminating information. Accordingly, all statements made by defendant in the parking lot of J.C. Penneys are suppressed and the defendant's motion granted.
Abrahams v. Kansas, 2002 WL 1610925 (D.Kan. July 19, 2002) (published opinion).
C. Motion to Suppress Post-Arrest Statements
Defendant was formally questioned on two occasions after his arrest. First, by Officer Ross and second by Agent Smith. Both officials testified that they orally read a Miranda waiver card to the defendant; that they asked him if he understood his rights, to which he responded affirmatively; and whether he was willing to talk at that time, to which he also responded affirmatively. Defendant's argument is that the government cannot meet its burden of showing a voluntary waiver of rights. He does not argue that he did not waive his rights nor that he waived them and it was involuntary.
"A suspect who has been informed of his Miranda rights may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. The government bears the burden of proving by a preponderance of the evidence that the defendant's waiver of rights was voluntary."
United States v. Cervine, 169 F. Supp.2d 1204, 1217 (D.Kan. 2001) (internal quotations and citations omitted).
At the evidentiary hearing, both officers' testimony was credible and established a valid and voluntary waiver of defendant's rights. Testimony from Officer Ross indicated that the defendant had prior experience with the arrest and interrogation process and both officials testified that he was of average or above average intelligence. Defendant's argument and thorough cross-examination on the lack of a written waiver is without merit. The Tenth Circuit has rejected the argument that a waiver is not valid, or provable, absent a written form. This Court finds the testimony of both Officer Ross and Agent Smith credible and that a valid waiver of defendant's Miranda rights occurred. Defendant's Motion to Suppress Post-Arrest Statements is denied.
United States v. Gell-Iren, 146 F.3d 827, 829 (10th Cir. 1998) (citing United States v. Austin, 933 F.2d 833, 835-36 (10th Cir. 1991)).
IT IS THEREFORE BY THE COURT ORDERED that the defendant's Motion to Suppress Vehicle Search and Motion to Suppress Post-Arrest Statements (Doc. 45 and 56) are denied.
IT IS FURTHER ORDERED that the defendant's Motion to Suppress Pre-Arrest Statements is granted.
IT IS FURTHER ORDERED that the defendant's Motion to Disclose Expert Testimony (Doc. 49) is granted.