Opinion
No. CR01-0067.
December 27, 2002
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's motion to suppress evidence. The court held an evidentiary hearing on this motion on August 9, 2002, at which the defendant was present and represented by Raphael M. Scheetz, III. The government was represented by Assistant United States Attorney Patrick Reinert. It is recommended that the motion to suppress be granted.
The motion to suppress challenges traffic stops conducted on May 10, 2001, and June 15, 2001. The court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
On May 10, 2001, Detective Mark Fischer of the Cedar Rapids Police Department was assigned to execute a search warrant for an apartment at 1600 3rd Avenue Southeast in Cedar Rapids, Iowa. The apartment building at that location has six apartments that are accessed by one door in the front of the apartment building and one door in the rear. Detective Fischer was with Sgt. Thomas Jonker that evening.
The warrant authorized the search of apartment A "and all vehicles registered to anyone known to reside at 1600 3rd Avenue S.E. apartment A." The warrant was issued on May 3rd and detailed information received within 72 hours prior to the issuance of the warrant. Specifically, a confidential informant had been given money by the police and was able to purchase crack cocaine in apartment A.
As the police prepared to execute the warrant on the evening of May 10, 2001, they did not know who resided in apartment A. The police had "intelligence" indicating that the defendant, Wade Wilson, was supplying that location with crack cocaine. There was no evidence about the quantity or quality of this intelligence.
Detective Fischer and Sgt. Jonker were conducting surveillance of the apartment building from an alley between Second and Third Avenues. They could see the front of the apartment from the location at which they were parked. However, their observations were hindered in part by an extremely heavy rainstorm.
At approximately 7:30 p.m., Fischer and Jonker observed an automobile pull up in front of the apartment building. The driver of the vehicle left the car, went into the apartment for several minutes, and then returned to the car. The driver left the lights on the car while entering the apartment. The car then left and went eastbound on Third Avenue.
Detective Fischer believed that the apartment was a crack house. The warrant was supported by one delivery of cocaine at that location. He believed that the simple act of driving up to the apartment, parking a short period of time, leaving car lights on and then leaving was consistent with drug trafficking activity. Because of that belief, Fischer and Jonker began to follow the car and observed that it had made a right-hand turn on 17th Street SE. Fischer directed Officer Dan Jabens to stop the vehicle to determine who was in it. Jabens is a dog handling police officer who was in the vicinity specifically to assist Fischer that evening. Jabens stopped the car in the 1500 block of Bever Avenue SE. As Jabens approached the vehicle to pull it over, he observed two occupants in the vehicle. He also saw that there were no license plates on it. Because of the heavy rain and tinting on the rear window of the car, he did not observe any registration tags on the car. He did not observe the temporary registration in the back window until he got right next to the vehicle (Tr. 7, 12). He then observed that it had a dark yellow or orange Illinois registration.
The tinting was described by Officer Jabens as "fairly dark" but not like one would observe on a limousine (Tr. 7). He thought the tinting had been done by the manufacturer of the car (Tr. 11).
Officer Jabens approached the driver's side of the vehicle and determined that the defendant, Wade Wilson, was the driver and Tamika Burks was the passenger. Detective Fischer approached the passenger side. The defendant was asked to get out of his car and Officer Jabens explained that he was stopped because his license tag was not visible. He also explained that Detective Fischer wanted to talk to him about the search warrant that they were about to execute. The defendant was asked whether he had any weapons and the defendant responded that there was a gun underneath the passenger seat of the vehicle near Tamika Burks. He said that Tamika Burks had just purchased it.
Officer Jabens went around to the passenger side of the vehicle where Tamika Burks was sitting. She reached for the gun and was told by Detective Fischer to get her hands where he could see them. Officer Jabens then retrieved the 9mm semi-automatic handgun. The defendant and Ms. Burks were taken into custody and taken to the police station. At the police station, the defendant was advised of his Miranda rights and he executed a written waiver of those rights (Government's Exhibit 1). He also executed a cooperation agreement (Government's Exhibit 2). The defendant had been taken into custody for being a felon in possession of a firearm but he was not formally arrested or charged with that offense on May 10.
The defendant spoke with the police that evening about a Phil Parker in Chicago who had attempted to kill the defendant and who had shot the defendant seven times. The defendant was scheduled to testify in the trial of Phil Parker for attempted murder in Chicago.
Detective Fischer next met with the defendant on May 23 at a Burger King restaurant on Mt. Vernon Road SE, in Cedar Rapids. The defendant provided information concerning a drug trafficking connection between Chicago and Cedar Rapids.
On June 15, 2001, Detective Fischer and Officer Anthony Robinson were in the 3300 block of Pioneer Avenue S.E. where the defendant and Tamika Burks resided. Again, they saw the defendant in his automobile with Ms. Burks as the passenger. Detective Fischer stopped the defendant. He motioned that he wanted the defendant to pull over. Ms. Burks got out of the car and walked away. When the defendant got out of his car, Detective Fischer patted the defendant down. Detective Fischer found a large wad of money in the defendant's pocket. Detective Fischer seized the money believing it to be proceeds of drug dealing. Fischer then told the defendant that the defendant had made Fischer look bad by not cooperating with the Chicago Police Department. Fischer then told the defendant that if he did not cooperate at that time, the next time the defendant would be talking to Fischer, the defendant would be behind bars.
CONCLUSIONS OF LAW
Upon routine questioning of the defendant in a traffic stop situation, the police quickly learned that there was a gun in the car that was accessible to an occupant of the car. The police had an obvious right to retrieve that weapon for their continued safety during the traffic stop. Therefore, the motion to suppress hinges on the authority of the police to make the traffic stop and to continue it after the reason for the stop dissipated.
The government contends that its authority to stop the vehicle emanates from two sources. First, the search warrant permitted a search of all vehicles registered to the residents of the apartment being searched. Second, the officer stopping the vehicle could not see the vehicle's valid temporary registration until the vehicle was stopped.
This suppression issue needs to be decided on the fine line that separates two well-settled Fourth Amendment principles. First, upon conducting a legitimate traffic stop, the police have the right to ask basic questions necessary to identify the occupants and to observe license, registration, and proof of insurance papers. United States v. Ramos, 42 F.3d 1160 (8th Cir. 1994). Second, once the legitimate grounds for stopping a defendant have dissipated or have been dispelled, the police must let the defendants go unless articulable suspicion of other wrongdoing has arisen in the interim. This court finds the question presented here to be a very close one.
Two cases demonstrate the closeness of the issue presented here. InUnited States v. Peltier, 217 F.3d 608 (8th Cir. 2000), a police officer observed the defendant driving a pick-up with no license plates. Because of the darkly tinted truck's rear window, the police officer could not see the defendant's properly displayed temporary registration sticker. The defendant was stopped and the deputy explained to the defendant the reason for the stop. The defendant informed the deputy that he had been pulled over before for this same problem. The deputy then verified that the registration sticker was valid and appropriately displayed. However, in the interim, he observed that the defendant was not wearing a seatbelt. While writing a ticket for the seatbelt infraction, the police officer smelled the odor of marijuana emanating from the cab of the truck. This provided probable cause for a search of the truck which revealed drugs and drug paraphernalia.
In Peltier, the trial court suppressed the evidence finding that the police officer had dispelled his suspicion concerning the validity of the registration sticker before he approached the driver, observed the seatbelt violation, and smelled the marijuana while detaining the defendant for the seatbelt infraction. The uncontradicted evidence in the record established that the police officer approached the defendant first and only later determined the validity of the registration sticker. The Court of Appeals held:
Because the deputy lawfully stopped Peltier to investigate the possible registration violation, the deputy could properly detain and ticket Peltier for the seatbelt violation he observed while verifying that Peltier had a valid and properly displayed registration sticker.
In contrast to Peltier is the case of United States v. McSwain, 29 F.3d 558 (10th Cir. 1994). In that case, a trooper observed the defendant driving a vehicle without license plates. The trooper was unable to read the expiration on the registration sticker because it appeared to have been covered with reflective tape. The trooper stopped the car to verify the validity of the temporary sticker. As the trooper approached the vehicle, he noticed that the reflective tape was a device used by the State to prevent alteration of the expiration date. The trooper observed that the sticker was valid and had not expired. He then approached the defendant and asked questions about whether the defendant had just purchased the vehicle or was taking it for a test drive. The trooper examined the driver's identification and vehicle registration. The defendant admitted that he did not have a driver's license and the trooper became suspicious by an inconsistency in the driver's story as to where he had been. Subsequent responses of the defendant lead to a search of the vehicle and drugs, a gun, and drug paraphernalia were found. The Tenth Circuit Court of Appeals found that once the trooper observed that the temporary sticker was valid and had not expired, the purpose of the stop was satisfied. The continued detention of the vehicle exceeded the scope of the stop's underlying justification. The continued stop therefore exceeded the limits of a lawful investigative detention and violated the Fourth Amendment.
In United States v. Tipton, 3 F.3d 1119 (7th Cir. 1993), a Springfield police officer stopped a car because it had no license plates and its temporary license sticker had partially fallen off the rear window and was lying on the back shelf of the car. A police report concerning the incident stated that the police officers observed the sticker prior to questioning the occupants but the testimony of the police was that the driver informed the officers of the improperly displayed sticker after questioning of them had commenced. That questioning lead to the discovery of controlled substances in a hotel room. The Seventh Circuit Court of Appeals found that the failure to display prominently the registration sticker alone provided reasonable suspicion to support an investigatory stop. In Tipton, the officers were not obliged to abort the stop even if they had noticed the improperly displayed sticker prior to their questioning of the occupants. This is because the failure to display the sticker prominently was itself a violation of Illinois law.
The same traffic stop was presented twice to the Seventh Circuit Court of Appeals in United States v. Dumas, 94 F.3d 286 (7th Cir. 1996), andUnited States v. Dexter, 165 F.3d 1120 (7th Cir. 1999). In Dumas, the defendants were stopped in a maroon van on an interstate highway in Wisconsin when the police observed that their van did not display a license plate. The trooper could not see the temporary registration certificate affixed to the inside of the tinted rear window of the van. As the trooper approached the van, he observed a square cardboard with letters on it inside the rear window but it was not visible because the tinted windows obstructed the writing on the registration certificate. Because he could not read it, he investigated further. His subsequent investigation revealed that the defendant, Dumas, had presented the trooper with a false license for a person whose license had been suspended. During the course of this traffic stop, a one-gallon plastic bag containing cocaine fell out of the car and onto the highway.
The Court of Appeals in Dumas credited the police officer's testimony that he could not tell where the registration sticker was from or what it was because of the tinted rear window. The court then stated:
Because [the trooper] had not yet ascertained whether or not the card was a valid temporary registration, he was authorized to continue his investigation.Dumas, supra, at 290. In Dexter, the court further stated the following:
The traffic stop occurred in the early morning hours and was on an unlit portion of a rural interstate; trooper Lewis was not unreasonable in approaching the driver of the car first to observe with whom he was dealing rather than standing behind the car to examine the temporary registration tag. Trooper Lewis' activity after stopping the car, therefore, was reasonable under the circumstances and does not constitute a Fourth Amendment violation.Dexter, supra, at 1126.
Similarly, in United States v. Allegree, 175 F.3d 648 (8th Cir. 1999), a police officer stopped the defendant driving at 1:23 a.m. because it had blue headlines which are only permitted in Iowa on emergency vehicles. The trooper approached the driver of the vehicle and informed him of the reason for the stop. The defendant told the police officer that the lights were purple, not blue. The deputy then asked to see identification from both occupants of the car and the registration papers for the car. The confusion created by the fact that the defendant's license was too faded to read and other problems escalated into reasonable suspicion and, ultimately, consent to search the car.
The Eighth Circuit Court of Appeals in Allegree stated:
A reasonable investigation following a justifiable traffic stop may include asking for the driver's license and registration, asking the driver to sit in the patrol car, and asking about the driver's destination and purpose. . . . If an officer's suspicions are aroused in the course of such an investigation, the officer is entitled to expand the scope of the stop to ask questions unrelated to the original traffic offense, and consent given in the course of such questioning is valid so long as it is voluntary.Allegree, supra, at 650. In Allegree, the police officer was not obligated to dispel his own suspicion concerning the color of the lights before approaching the driver. He thought they were blue and only the defendant's statements lead him to consider whether they were another color.
The above-described cases demonstrate clearly the authority of the police to ask routine questions during a traffic stop to identify the driver, any passengers, and required paperwork. They also make it clear that a police officer is not obligated to dispel suspicions of a traffic offense before engaging the driver and passengers in such routine questioning. However, none of the cases deviate from the general proposition that once the police's suspicions are dispelled, the defendant is free to leave.
In this case, the police decided to stop the defendant because he pulled up to a six-unit apartment house at which probable cause had been established a week earlier for the search of one of its units. The defendant stopped briefly at the apartment house and left his lights on, an obvious indication that he did not intend to stay long. The police did not know who was driving the car or which of the six apartment units he had visited. Officer Jabens was simply told to stop the car. However, Jabens found a better reason to stop the car than curiosity. Because of the tinted rear window and a pounding rainstorm, Jabens could not see the temporary registration sticker in the window. When referring to the registration sticker, Jabens testified, "I could not see it either until I got on top of the vehicle" (Tr. 12). He further stated, "You could see he had a license applied for tag — Illinois license applied for tag. Those were dark yellow and in the back window — or dark orange. They're kind of orange in color" (Tr. 7). From this testimony, the court finds that Officer Jabens had dispelled his suspicion about a lack of license plates as he approached the car. Because Officer Jabens' suspicion was dispelled as he approached the vehicle, the continued detention of the defendant was not warranted. The evidence gathered thereafter on May 10 should be suppressed.
The record on this important point is not explicit. However, the government bears the burden of proof for this warrantless search. This record certainly fails to demonstrate that the officer made inquiry of the driver before observing the valid temporary license tag.
The Search Warrant
The search warrant in this case permitted a search of Apartment A and all vehicles registered to anyone known to reside at that apartment. The problems with this warrant, as it pertains to cars, are obvious. First, although the warrant permitted the search of vehicles registered to anyone "known" to reside in Apartment A, the police did not know the name of anyone who resided there. Second, although drug warrants for single family residences typically permit the search of vehicles found on the premises, there is no indication in this warrant that the apartment has any off-street parking. Even worse, the warrant does not require the vehicles to even be on the premises. This is important because there is absolutely nothing in the warrant to indicate that vehicles were in any way involved in the transaction giving rise to probable cause to search Apartment A.
The government argues that the police were entitled to stop the defendant's car to determine whether it was a car that could be searched pursuant to the warrant. According to the government then, the police could stop every car that came to a six-unit apartment house for an entire week if it did not stay very long. This is exactly what the Fourth Amendment was designed to prohibit. Based on one drug transaction in Apartment A at least a week earlier, the police could not reasonably believe that this warrant permitted them to stop any car that later approached the six-unit apartment complex and left a short time later. The warrant provided no justification for the stop.
June 15 Search of the Defendant
The government attempts to characterize the June 15 stop, pat-down, and seizure of money from the defendant as a consensual encounter. However, the only thing consensual about it was that the defendant acquiesced with Detective Fischer's demands. The defendant was in his vehicle and pulled over at Detective Fischer's direction. He was then patted down by Detective Fischer who told the defendant that he had made Fischer look bad by not cooperating with the Chicago Police Department. Fischer then threatened that the defendant would be locked up if he did not immediately cooperate.
The government cites no cases in support of their theory that a traffic stop of a previously-cooperating individual is somehow not a seizure of that individual. When describing the circumstances that distinguish an encounter from a seizure, the Supreme Court has stated that the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person or the use of language or tone of voice indicating the compliance with the officer's request might be compelled, are indicators of a seizure. United States v. Mendenhall, 446 U.S. 544, 554 (1980). In this case, the police directed the defendant to pull his vehicle over. When the defendant got out, he was patted down and money was taken from him together with an allegation that it must have been drug related. The defendant was then told that he had made Detective Fischer look bad by not cooperating in Chicago and was later threatened with being sent to jail. Under these circumstances, the defendant's brief cooperation a month earlier does not lead this court to believe that the events of June 15, 2001, were some consensual encounter.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this Report and Recommendation, the defendant's motion to suppress be granted.
Objections must specify the parts of the Report and Recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).