Opinion
No. 2:03CR0921TC.
September 27, 2004
ORDER
The Grand Jury indicted the Defendant, Ms. Carrie Ann Thomas, on charges of possession of five grams or more of methamphetamine with the intent to distribute and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Ms. Thomas has moved to suppress evidence found at a hotel room in which she was staying and evidence found in the trunk of her car. Ms. Thomas contends that the searches of the hotel room and trunk were conducted in violation of the Fourth Amendment.
For the reasons set forth below, Ms. Thomas' motion is GRANTED IN PART and DENIED IN PART.
Findings of Fact
I. The Initial Encounter
On October 31, 2003, Detective Mike Ikemiyashiro and other police officers from the Salt Lake Area Gang Project were looking for a fugitive named James Wilson, who was wanted as a suspect in several recent armed bank robberies. Mr. Wilson was known to be the boyfriend of the Defendant, Ms. Carrie Ann Thomas. (Transcript of the March 29, 2004 Hearing on the Motion to Suppress at 5 (hereinafter the "Mar. 29, 2004 Tr.").) The officers received information from a confidential informant, and from a car dealership that had repossessed a car from Mr. Wilson, that Mr. Wilson might be at a Salt Lake City residence at 923 Genessee Street. In fact, according to the information given to the officers, either Mr. Wilson or Ms. Thomas, or both, had arranged to go to the car dealership to get the repossessed car (although neither Mr. Wilson nor Ms. Thomas did go to the car dealership). (Id. at 5-6.)
Detective Ikemiyashiro drove by the house at 923 Genessee and saw a Cadillac in the driveway. When Detective Ikemiyashiro checked the license plate number on the Cadillac, he learned it was registered to Ms. Thomas. (Id. at 7.) The officers knew that there was an outstanding $5,000 misdemeanor arrest warrant for Ms. Thomas. (Id. at 17, 25, and 55.)
Believing that Mr. Wilson might be there, Detective Ikemiyashiro arranged for surveillance of the house. During this time, a woman, later identified as Ms. Darcy Johner, and two children left the residence and got in the Cadillac. After starting the car and idling at the curb for several minutes, Ms. Johner drove away. (Mar. 29, 2004 Tr. at 8-9.)
Detective Ikemiyashiro followed the Cadillac and saw it stop at a convenience store before going to the Red Lion Hotel, where Ms. Johner parked near the south entrance and went into the hotel with the children. (Id. at 9-10.) Detective Ikemiyashiro hurried into the hotel and saw that an elevator had stopped on the eighth floor. Detective Ikemiyashiro checked with the hotel desk clerk and was told that nobody by the name of Carrie Thomas was registered as a guest. Further, the clerk told him that it was impossible to determine which guest had used a card key moments before to enter the hotel through the south door. After waiting a short while to see if the woman would come back down on the elevator, Detective Ikemiyashiro returned to the parking lot and continued to watch the Cadillac. (Id. at 10-11.)
After about five to ten minutes, Ms. Johner and the children, along with another woman later identified as Ms. Thomas, left the hotel. Ms. Thomas placed a bag in the trunk and got behind the wheel of the Cadillac. Ms. Johner got in the front passenger seat and the children got in the back seat. (Id. at 11.)
Detective Ikemiyashiro and other officers followed the Cadillac after it left the Red Lion Hotel. One of these officers, Detective Brent Jex, testified at the hearing that the Cadillac was speeding. (Mar. 29, 2004 Tr. at 74; Transcript of the June 17, 2004 Hearing on the Motion to Suppress at 5 (hereinafter the "June 17, 2004 Tr.").) Although he did not know the exact speed of the Cadillac or the exact speed limit, he knew the limit within five miles per hour and estimated the car to be traveling well beyond that. Detective Jex testified that he had made such speed estimations many times before and was accurate to within five miles per hour. Detectives Ikemiyashiro and Jex and another officer, Detective Trudy Cropper, also saw that the Cadillac had a broken brake or taillight, either when it was driven from 923 Genesse, or when it was driven from the Red Lion Hotel. (Mar. 29, 2004 Tr. at 26, 45, 74-75; June 17, 2004 Tr. at 4-9.)
Despite the speeding and equipment violations, the officers did not stop the Cadillac. Detectives Jex and Cropper, riding in the same unmarked police car, pulled into a grocery store parking lot and stopped. The Cadillac, with Ms. Thomas driving, pulled up next to Detectives Jex's and Cropper's car. (Mar. 29, 2004 Tr. at 45, 72, 75 and 112.)
Ms. Johner explained at the hearing why Ms. Thomas did this. Ms. Johner testified that while she, Ms. Thomas, and the children were driving from the Red Lion Hotel, Ms. Thomas told her that she thought they were being followed. Ms. Johner testified that she and Ms. Thomas were "frightened," but that Ms. Thomas was also "kind of angry" and pulled into the grocery store parking lot because she either wanted to confront whoever was following them, or identify them to satisfy her curiosity. (Mar. 29, 2004 Tr. at 113-15.)
At the hearing on this motion, Ms. Johner testified that she is a friend of Ms. Thomas. She testified that at the time of this incident, she, her children, and her boyfriend had been living at Ms. Thomas' house at 923 Genessee for two months. While Ms. Johner and her boyfriend did contribute to the group's living expenses, it appears from the record that Ms. Thomas was the main source of financial support for the household. (Id. at 104-05.) Ms. Johner also admitted that she was approached by Ms. Thomas' investigator and counsel about testifying in this case, and that they discussed with her how her testimony could benefit Ms. Thomas. (Id. at 121-22.)
After the Cadillac parked next to them in the grocery store parking lot, the officers got out of their car, weapons drawn, announced that they were the "police" and ordered Ms. Thomas and Ms. Johner to place their hands in the air. (Id. at 115-16.)
The officers questioned Ms. Johner, who told them that she had rented a room at the Red Lion Hotel in her name using cash from Ms. Thomas. Ms. Johner had actually rented the room for Ms. Thomas for the nights of October 30, and 31, 2003. Ms. Johner did not pay for both nights at once, but when Ms. Thomas decided to stay another night, Ms. Johner went back on October 31 to pay for that night. When she rented the room, Ms. Johner told the hotel clerk that she, Ms. Johner, would be the only person in the room. This, of course, was false. Not only was the room for Ms. Thomas, not Ms. Johner, but it appears to the court that Ms. Johner was well aware that Mr. Wilson would be staying in the room: when she rented the room she got two keys which she gave to Ms. Thomas. (Mar. 29, 2004 Tr. at 13, 76, 84,91, 107-10, and 125-26.) Ms. Johner told the officers that she had seen the fugitive, Mr. Wilson, at the hotel room earlier that same night, although she claimed he was not there when the women had left the hotel.
II. The Searches
A. The Search of the Hotel Room
The parties dispute whether Ms. Johner consented to a search of the hotel room. Detective Jex testified that when he learned that Ms. Johner had rented the room at the Red Lion Hotel in her name, he asked her for consent to search the room for Mr. Wilson. The defense emphasizes that during his testimony, Detective Jex could not recall whether Ms. Thomas or Ms. Johner gave him the room key. He also could not remember Ms. Johner's specific response to his search request. But there is no question that Detective Jex testified unequivocally that she gave consent to search. (Mar. 29, 2004 Tr. at 76-77 and 85-87.)
Ms. Johner testified that the officers did not ask her for consent to search the room. According to Ms. Johner, an officer simply took the room key from the dashboard of the Cadillac and told her that the police would be searching the room. (Id. at 97 and 119.)
Detective Jex was a credible witness; Ms. Johner was not. By her own admission, Ms. Johner falsely told the hotel clerk that she alone would be using the hotel room. That falsehood makes clear that Ms. Johner, who was a friend of Ms. Thomas and had lived in Ms. Thomas' home for several months, would be willing to ignore the truth for Ms. Thomas. Further, the court found Ms. Johner's testimony about the reason Ms. Thomas did not rent the room in her name indicative of Ms. Johner's lack of candor. According to Ms. Johner, Ms. Thomas could not rent the room in her name because she had no identification. Ms. Johner testified, in response to a question by the court, that "apparently" Ms. Thomas did not have a drivers license. (Id. at 106.) But later during her examination, when Ms. Johner was asked why Ms. Thomas was driving the Cadillac if she didn't have a drivers license, Ms. Johner answered, "I'm not sure if she did or not." (Id. at 112.) Moreover, the court finds that Detective Jex's inability to remember minor details does not affect his credibility.
Once Ms. Johner had consented to the search of the room, Detective Jex gave the room key to Detective Ikemiyashiro and told him that Ms. Johner had given her consent. Detective Ikemiyashiro, with other officers, went to the Red Lion Hotel to search the room.
After confirming with the hotel management that Ms. Johner was the only person who was registered, Detective Ikemiyashiro and the other officers went to the room. The officers opened the door using the room key, announced their identity, and after hearing no response, went in the room. (Id. at 14-15 and 87-88.)
The officers searched the room for Mr. Wilson. They saw that the mattress and boxspring of the bed rested on a wooden frame that appeared to be hollow. The officers, apparently believing that the hollow space in the bed frame was big enough to hold an adult, lifted the mattress and boxspring. In the hollow space, the officers found a box of baking soda (frequently used to "cut" cocaine) and metal filter material (frequently used to smoke cocaine). When they replaced the mattress and boxspring, they found cocaine between the two. (Mar. 29, 2004 Tr. at 16 and 35-36.)
Ms. Thomas contends that the officers exceeded the scope of their search of the hotel room. According to Ms. Thomas, because the officers expressly asked for consent to search for Mr. Wilson, it was unreasonable for them to look in the hollow space under the bed because an adult human body could not physically fit in that space. Ms. Thomas bases this argument on the opinion of a defense investigator, Ms. Brigitte Stevenson.
Ms. Stevenson testified that she went to the Red Lion Hotel on March 27, 2004. She took pictures of the bed, two of which were marked as Defendant's Exhibit B and show a portion of the hotel room and the bed, including the hollow space beneath the bed. Ms. Stevenson also testified that she thoroughly inspected the bed and looked under the mattress and the box spring. She testified that in her opinion, an adult body could not fit in the hollow space beneath the bed. (June 17, 2004 Tr. at 12.)
Defendant's Exhibit B does show a view of the hollow space under the bed, which Ms. Stevenson estimated at six to eight inches in depth. After viewing Exhibit B and taking into account the fact that Ms. Stevenson did not measure the depth of the hollow space, the court finds that the depth of the hollow space could be anywhere from six to twelve inches in depth. The court concludes that it would be reasonable for an officer, who was searching for a person, to look under the bed. In fact, the officers would be negligent if they failed to look in every possible hiding space, even if it later turns out that a person could not be hiding there.
B. The Search of the Car Trunk
Detective Ikemiyashiro returned to the grocery store parking lot. He found that Ms. Thomas had been arrested on the outstanding warrant and taken to jail. Because Ms. Thomas, who was the registered owner of the Cadillac, was on her way to jail, Detective Ikemiyashiro decided to impound the Cadillac. According to Detective Ikemiyashiro, his decision was based on departmental policy. Detective Cropper began an inventory search of the Cadillac.
Although Ms. Johner testified otherwise, the court finds that Detective Cropper searched the passenger area and then the trunk of the car while it was parked at the grocery store parking lot. Detectives Ikemiyashiro and Cropper both testified that the search of the car took place while it was parked at the parking lot. (Id. at 18-21 and 48-51.) Ms. Johner testified that she stood next to the car the entire time it was parked at the parking lot, and no officers searched it during this time. (Mar. 29, 2004 Tr. at 98-99.) As noted above, however, Ms. Johner's testimony is not credible. In the trunk, Detective Cropper found a bag that contained bottle of alcohol, methamphetamine, and a letter addressed to Ms. Thomas. (Mar. 29, 2004 Tr. at 20, 24 and 48-49.)
During this time, personnel at the jail where Ms. Thomas had been taken told Detective Ikemiyashiro that Ms. Thomas would not be kept there. Based on the overcrowding of the jail, female prisoners arrested for certain offenses were held, while others arrested for different, presumably less serious, offenses were released. After discovering this, Detective Ikemiyashiro told Detective Cropper that the Cadillac would not be impounded, but that Ms. Johner could drive it to Ms. Thomas' house at 923 Genessee. Detective Cropper had already searched the trunk and found the methamphetamine, alcohol, and letter. (Id. at 18-20 and 48-51.)
When Ms. Thomas returned to the grocery store parking lot after being released from jail, Detective Ikemiyashiro asked her for consent to search her bedroom at 923 Genessee. Detective Ikemiyashiro told Ms. Thomas that if she gave consent, she could withdraw that consent at any time. Initially Ms. Thomas consented to search of her bedroom and the police found a ballistic vest there. Later, Ms. Thomas revoked her consent and the searching stopped. (Mar. 29, 2004 Tr. at 19.)
Detective Ikemiyashiro also asked Ms. Johner for permission to search the house at 923 Genessee for Mr. Wilson. Ms. Johner admitted that she consented. (Id. at 100-01.)
Conclusions of Law
Ms. Thomas argues that the police violated her Fourth Amendment rights in several ways: (1) detaining her at the grocery store parking lot; (2) searching the hotel room; and (3) searching the trunk of the Cadillac.
I. The Detention
There is no question that the police did not stop Ms. Thomas' car. Instead, Ms. Thomas initiated the encounter with police by following the police car into the grocery store parking lot and parking beside the police car. But there is a question whether the police violated Ms. Thomas' Fourth Amendment rights when they, with weapons drawn, ordered her (and Ms. Johner) to step out of the Cadillac.
The initial encounter between Ms. Thomas and the officers was a "brief investigatory stop[s] of persons or vehicles that fall short of traditional arrest." United States v. Arivizu, 534 U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1 (1968)). An investigatory stop does not violate the Fourth Amendment if the officer has reasonable suspicion of criminal activity. Id. To determine whether a particular stop (or in this case, detention) is supported by reasonable suspicion, a court must look at the totality of the circumstances to see whether the officer had a "particularized and objective basis for suspecting legal wrongdoing." Id. (citations and quotations omitted). "This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." Id. (citations and quotations omitted). A court must be mindful that "[a]lthough an officer's reliance on a mere `hunch' is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." Id. at 274 (citations and quotations omitted).
Here, the officers ordered Ms. Thomas and Ms. Johner out of the car because the officers knew that Ms. Thomas was the girlfriend of Mr. Wilson, a fugitive who was wanted for armed bank robberies. They knew that Ms. Thomas and Mr. Wilson had recently been together. Officer Jex testified: "My particular concern was because we hadn't been able to establish whether the fugitive we were looking for [Mr. Wilson] had made it out to the car or not, so my underlying concern was that he may have been in the car." (Mar. 29, 2004 Tr. at 76.)
Although the government points to the fact that the Cadillac had a missing or burned-out taillight as justification for the detention, it is clear from the record that this was not the reason for the initial detention of Ms. Thomas and Ms. Johner.
Detective Trudy Cropper, who was one of the officers who detained Ms. Thomas in the Smith parking lot, explained her actions:
I stepped out of the vehicle. I was concerned at that time because we were searching for a violent gang member. I stepped out of the vehicle, made contact. And I did withdraw my duty weapon and pulled it to the side. I did not point it at anyone in the vehicle but I was concerned because they had pulled close to our vehicle and I didn't know what their intent was. . . . We were looking for a wanted fugitive. I had been told that possibly the person in the car had — that they were with the fugitive earlier in the day. My concern is that they pulled up next to us. I did not know what their intent was. I didn't know if they were a danger to me at that point, and I felt that they were a danger and so that is why I withdrew my firearm
(Id. at 46-47.)
The court finds that the officers had a reasonable suspicion that the occupants in the Cadillac were involved with Mr. Wilson, a wanted fugitive, and that when Ms. Thomas parked beside them in the Smith parking lot, the officers reasonably believed they could be in danger. Accordingly, the initial detention of Ms. Thomas and Ms. Johner did not violate the Fourth Amendment. (Once the officers confirmed that there was an outstanding warrant for Ms. Thomas, her continued detention and arrest were justified under the Fourth Amendment.)
II. The Search of the Hotel Room
The court has previously found that Ms. Johner consented to the search of the room. And Ms. Johner had apparent authority to consent to the officers' entry and search of the room. Although it was Ms. Thomas (and perhaps Mr. Wilson) who actually occupied the hotel room, it was Ms. Johner alone who had rented the room. Further, she told the hotel staff that only she would be staying there. As a result, Ms. Johner had authority to grant consent for the officers to enter and search the hotel room. See United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000) (authority to consent to search hotel room and all containers inside because woman who rented room had common authority even though other people used room and left belongings inside).
Moreover, the officers did not exceed the scope of Ms. Johner's consent, which was limited to a search of the room for Mr. Wilson. As noted above, the court finds that it was reasonable for the officers to search the area under the bed because it was possible that a person could be hiding there. U.S. v. Ramstad, 308 F.3d 1139, 1146-47 (10th Cir. 2002) (consent not exceeded when officers search in places where it is reasonable that object of consent could be hidden). Accordingly, the search of the hotel room did not violate the Fourth Amendment.
III. The Search of the Trunk
Ms. Thomas argues next that the officers violated her Fourth Amendment rights when they searched the trunk of the Cadillac without a warrant. The government responds that the search was justified on two grounds: (1) as a search incident to a lawful arrest; and (2) as an inventory search performed after the car's owner, Ms. Thomas, had been arrested, even though Ms. Thomas was quickly released from jail.
A. Search Incident to Arrest
The government argues that the search of the trunk of Ms. Thomas' car is valid as a search incident to arrest. Such warrantless searches are allowed because they allow officers "to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape and [due to] the need to prevent the concealment or destruction of evidence." New York v. Belton, 453 U.S. 454, 457 (1981).
The government's justification fails, however, for at least two reasons. First, Ms. Thomas was already in custody and transported to the jail when the search was performed. Accordingly, there was no need to search the car during her arrest to protect officer safety or prevent the destruction of evidence. Belton, 453 U.S. at 460 (search incident to lawful arrest must occur "contemporaneous[ly]" with the arrest).
Second, when searching incident to a lawful arrest, officers may only search the "passenger compartment." Belton, 453 U.S. at 460. The officers' authority to search does not extend to the trunk. Id. at 461 n. 4; United States v. Wright, 932 F.2d 868, 878 (10th Cir. 1991). Here, the officers found the contraband sought to be suppressed in the trunk, which is an area not covered by this exception.
B. Inventory Search
The next issue is whether the search was a lawful inventory search done in connection with the impending impoundment of Ms. Thomas' car. Inventory searches of cars prior to impoundment are done for the "the protection of the owner's property while it remains in police custody, the protection of the police against claims or disputes over lost or stolen property, and the protection of the police from potential danger." U.S. v. Tueller, 349 F.3d 1239, 1243 (10th Cir. 2003) (quoting South Dakota v. Opperman, 428 U.S. 364, 369, 9 (1976) (citations omitted)).
After Ms. Thomas had been arrested and transported to jail, the officers believed she would be held there. The detective performing the inventory search did not learn of Ms. Thomas' release until after the search had revealed the contraband sought to be suppressed.
The search, however, cannot be upheld as an inventory search because the detectives had an adequate alternative to impounding the car — releasing the car to Ms. Johner. In United States v. Pappas, 735 F.2d 1232 (10th Cir. 1984), the court affirmed the trial court's ruling to grant the motion to suppress because the officers performed an inventory search without inquiring whether the defendant's friends could take the car. Pappas, 735 F.2d at 1234. The Pappas court cited with approval the following statement by the district court:
He (Pappas) had a . . . friend with him . . . who, if asked, might well have been able to take the car and . . . driven . . . it to the police station or something of that kind. He had other friends who were there who, if inquired of, might have taken it into custody. . . . A call could have protected the officers substantially, I would think.Id. In the present case, the officers knew Ms. Johner had driven the car earlier in the day. Further, the officers ultimately did allow Ms. Johner to drive the car back to Ms. Thomas' house from the parking lot of the grocery store. Accordingly, the officers had an adequate alternative to impounding the car — releasing it to Ms. Johner — that would have served all the purposes of an inventory search.
Accordingly, the search of the car trunk cannot be justified as a search incident to arrest, or as an inventory search. The court finds the search of the trunk of Ms. Thomas' car violated the Fourth Amendment, and suppresses the evidence found during that search.
ORDER
The court does not suppress evidence found during the search of the hotel room, but does suppress evidence found during the search of Ms. Thomas' car. Accordingly, Ms. Thomas' motion to suppress evidence is GRANTED IN PART and DENIED IN PART.
SO ORDERED.