Opinion
TH 02-010-CR-01-T/L
January 27, 2003.
ENTRY ON THE DEFENDANT'S MOTION TO SUPPRESS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This case is before the court on the Defendant's Motion to Suppress. The court held a hearing on the motion on October 18, 2002. The court rules as follows.
To the extent that any of the findings of fact constitute conclusions of law and any of the conclusions of law constitute findings of fact, they are so deemed.
On July 16, 2001, Vincennes Police Department (the "Department") Detective Terry Johnson and Indiana State Police Detective Gregory Winkler were conducting an investigation in a missing person's case. As part of their investigation they wanted to talk with Anthony (Tony) McMillan and Larry James (also known as Jim) Ames. Detective Johnson had done a background check on Mr. Ames' driving status and criminal history. From that check Detective Johnson knew that Mr. Ames was unlicensed in the State of Indiana, there was an arrest warrant for him from the State of Illinois for operating without a license, and he had been arrested and convicted of felony burglary charges in Illinois.
Detective Johnson previously had received a facsimile transmission of information regarding Mr. Ames from the Coles County Sheriff's Department in Illinois. The facsimile included the handwritten word "caution" in all capital letters and indicated that Mr. Ames had made statements that he carries a .44 magnum gun with him and if someone tried to arrest him, that person would be shot. (See Govt.'s Ex. 13.)
Detectives Johnson and Winkler looked for Mr. Ames at his girlfriend's house the morning of July 16, but he was not there. In speaking with the girlfriend, they learned that Mr. Ames was driving a black and silver Ford Bronco II which was parked in front of her residence. They ran a registration history with the Indiana Bureau of Motor Vehicles and learned that the Bronco was registered to Tommy L. Rich.
Later that afternoon, the detectives went to Mr. McMillan's residence located at 3619 Old Highway 50, which is just outside Vincennes' city limits but within Knox County. The detectives arrived at the residence at approximately 3:33 p.m. They were in plain clothes and an unmarked vehicle. Mr. McMillan's residence is on a lot which is approximately one acre in size. A vehicle enters the yard of the residence by traveling on a long gravel driveway from the highway and passing through a set of iron gates approximately twenty to thirty feet from the highway. A gate must be open to gain access into the yard area. The detectives drove through the open gate and parked their vehicle inside the gates in front of the house on a graveled parking area. They went to the door of the residence and spoke with Mr. McMillan.
While the detectives were speaking with Mr. McMillan, he said something like "there's your boy," which prompted the detectives to turn around and look toward the highway. They observed Mr. Ames driving on the highway in front of the residence and pulling a vehicle, a black and silver Ford Bronco II, into the driveway. Mr. Ames stopped the vehicle in the vicinity of the gateway, exited it, and walked towards Detective Johnson who identified himself as a police officer and displayed his badge. At the same time Detective Johnson walked toward Mr. Ames and radioed for assistance because he did not have his firearm and had received information that Mr. Ames might be armed and a danger to law enforcement.
Detective Johnson spoke with Mr. Ames about the missing person's case. At the time, he and Mr. Ames were on the driveway, no more than ten feet from the Bronco. Detective Winkler was still speaking with Mr. McMillan at this time. Detective Johnson testified that from the time he first approached Mr. Ames, Ames was not free to go because he was under arrest for driving without a license.
Officer Tom Daugherty from the Department was the first officer to arrive on the scene in response to Detective Johnson's request for assistance. Officer Daugherty testified that he arrived at approximately 4:13 p.m. He was in full uniform and drove a fully marked police car. He parked his vehicle behind the Bronco, parallel to the roadway. When Officer Daugherty arrived, he saw Detectives Johnson and Winkler and Mr. Ames standing near the front of the right-hand (passenger) side of the Bronco. Officer Daugherty got out of his vehicle and approached Detective Johnson and asked him what he had. Detective Johnson advised him that Mr. Ames had operated the Bronco in his view and he knew Mr. Ames to be an unlicensed driver. Officer Daugherty obtained Mr. Ames' name and date of birth, August 19, 1972, and had his dispatcher run the information to determine Mr. Ames' driving status.
In the meantime, Officer Donald Halter of the Department arrived. He parked his police car behind Officer Daugherty's car, parallel with the highway. Officer Daugherty had Officer Halter stand by Mr. Ames and Detectives Johnson and Winkler. Earlier that day Detective Johnson had had a conversation with Officer Halter in which Johnson told Halter that Mr. Ames did not have a driver's license and he needed to talk to Ames about a missing person's case.
Officer Daugherty walked toward the Bronco, passing by the driver's side to look into the vehicle through an open window. He testified that he observed a single .38 round of ammunition on the console near a lighter, in "plain view." (Tr. at 46.) The court has no doubt that Officer Daugherty saw something that he thought was a round of ammunition, but the officer did not see a round of ammunition on the console.
This finding is explained below.
Immediately after seeing what he thought was a round of ammunition, Officer Daugherty asked Mr. Ames whether there was a weapon present. The officer testified that he asked this question because usually if there is ammunition, there is a weapon; the Defendant was not in restraints at the time; and, for officer safety, he wanted to know whether there was a weapon on Mr. Ames' person or in the vehicle. Mr. Ames answered, yes, there was a weapon. Officer Daugherty then asked him where the weapon was, and Mr. Ames responded that it was in the console area or under the seat, he could not remember which. Mr. Ames was not given Miranda warnings before he was asked these two questions about a weapon.
About the same time that Officer Daugherty was walking by the Bronco, the dispatcher radioed him that Mr. Ames was an unlicensed driver. Officer Daugherty testified that after receiving this information, Mr. Ames was placed into custody. Officer Daugherty directed Officer Halter to place Mr. Ames in restraints (or handcuffs) and transport him to the Knox County Law Enforcement Center (the "jail"). Officer Halter placed Mr. Ames in handcuffs and escorted him to and placed him inside his patrol car. After placing Mr. Ames in handcuffs, Officer Halter read him his Miranda rights and asked him if he would be willing to answer any questions that the officers may have. Mr. Ames responded by saying yes.
As soon as Mr. Ames was handcuffed and placed in Officer Halter's patrol car, Officer Daugherty began a vehicle inventory of the Bronco. Officer Daugherty testified that he searched the Bronco since it was going to be towed because Mr. Ames was arrested and in custody. (Tr. at 36.) Thus, the officer described the search of the vehicle as an inventory search and offered the purpose of an inventory as the justification for the search. Officer Daugherty also testified, however, that a vehicle should be searched and items found inventoried in order to protect against anything dangerous that may be located inside the vehicle such as weapons. (Tr. at 40.)
At the time, the Department had a Standard Operating Procedure ("SOP") regarding towing a vehicle, which identified several reasons for which "[v]ehicles may be towed[,]" one of which was that "[t]he driver of the vehicle has been arrested." (Govt.'s Ex. 12.) Under the Department's policy, a vehicle that is to be towed is to be inventoried, that is, thoroughly searched and items found are to be itemized on an inventory sheet. The inventory of the vehicle is performed in order to protect the police from anything dangerous in the vehicle as well as for liability purposes — to protect both the Department and the driver of the vehicle.
Officer Daugherty testified as to why the vehicle was to be towed: he saw no licensed drivers on the scene to whom he could release the vehicle. On cross-examination, however, he testified that he did not ask Mr. McMillan whether the Bronco could remain on his property and did not attempt to reach Tommy Rich, to whom the vehicle was registered. Officer Daugherty testified that he could have exercised his discretion not to tow the Bronco and the Department had no written policy regulating his discretion to decide whether to tow or not to tow the vehicle.
While searching the Bronco, Officer Daugherty prepared, in accordance with the Department policy, a written inventory of the items that he found in the vehicle which were not contraband or evidence. He testified that in searching of the Bronco he found a pill bottle containing a white substance which later tested positive for methamphetamine; a large bag containing several dozen rounds of ammunition for a .380 handgun; a loaded, stainless steel, colored Jennings .380 caliber handgun; and a clear plastic bag containing a green leafy substance. The handgun was lying on the passenger seat beneath and covered by a pillow which Officer Daugherty had moved to reveal the handgun. The pill bottle, plastic bag and tin canister were found in the console area and placed on the passenger seat near the handgun. The bag of ammunition was found inside the compartment area of the console which had been covered by a lid.
Items considered contraband or evidence, such as the controlled substances, ammunition and handgun, were not inventoried but were confiscated and secured.
The inventory form completed by Officer Daugherty states that the "reason for [the] tow" was "[n]arcotic arrest". (Def.'s Ex. 3.) Officer Daugherty, however, testified at the time he began the search, he had no reason to believe that Mr. Ames had any narcotics. He also testified that "narcotic arrest" was "one of the reasons" why the vehicle was towed, but conceded it was the only reason checked on the form. Another reason which can be marked on the form for towing a vehicle is "[o]ther (Explain below)." (Def.'s Ex. 3.) This reason was not checked on the form. Officer Daugherty explained on redirect examination that he checked the narcotics offense because he "instantly" discovered the narcotics when he first entered the vehicle. (Tr. at 64.)
After the handgun was found and Mr. Ames had been read his Miranda warnings, Officer Halter asked him whether he owned the handgun. Mr. Ames said it was his. Officer Halter then transported Mr. Ames to the jail and started the book-in process.
Officer Daugherty testified that Mr. Ames was booked on charges of possession of marijuana, possession of a controlled substance, and serious violent felon in possession of a firearm. In addition, Officer Daugherty issued a Uniform Traffic Ticket or misdemeanor ticket (the "ticket") to Mr. Ames. The ticket indicates that Mr. Ames committed the offense of "operator never licensed" in violation of Indiana Code § 9-24-18-1 and was jailed. (See Govt.'s Ex. 14.) Officer Daugherty testified that this was a misdemeanor offense. The ticket reflects that the day was July 16 and the time was 4:13 p.m.
Detectives Johnson and Winkler arrived at the jail a short while later and continued the book-in process. They also conducted a tape-recorded interview of Mr. Ames. The transcript of the interview indicates that the interview began at approximately 5:25 p.m. (See Govt.'s Ex. 11 at 1.) After asking the Defendant whether he preferred to be called Larry or another name, Detective Winkler gave him his Miranda warning and asked him whether he understood his rights. (Id.) Mr. Ames gave an affirmative answer: "Yep." (Id.) The detectives then questioned the Defendant about the handgun found in the Bronco. Their questioning reveals an interest in the missing person's case. (Id. at 1-4, 5, 7.) During the interview at the jail, Mr. Ames admitted to possessing the Bronco as well as the firearm and the controlled substances found inside the vehicle. (Id. at 1-3, 6-8.) The transcript reveals that the interview was concluded at 6:40 p.m. (Id. at 12.)
Other evidence presented at the suppression hearing also suggests that the detectives' interest in Mr. Ames and the Bronco was because of the missing person's case. For example, Detective Johnson put evidence tape over the openings of the Bronco so he would know if anyone entered the vehicle later. When asked whether taping a vehicle was a normal procedure when the vehicle is towed due to an arrest, Officer Daugherty testified, "If there's contraband or we're going to be using the vehicle for evidence at a later time, yes. We do that once in a while." (Tr. at 59.) He also testified that to his knowledge there was no contraband in the vehicle after it was towed and Detective Johnson and Winkler were going to further the investigation from that point. (Id. at 59-60.) Evidence such as this indicates that one of the purposes of searching the Bronco and later impounding it was to find evidence related to the missing person's investigation.
Now for the reasons why the court believes that Officer Daugherty did not see a single round on the console. The officer initially testified at the suppression hearing that before photographs of the evidence were taken, some items found during his search of the vehicle had been moved, but no items had been removed from the Bronco. He specifically testified that the items which had been moved were the items displayed in Government's Exhibit 5, a photograph of the Bronco's console area: the pill bottle, plastic bag and tin. A single round is not depicted in Government's Exhibit 5. Officer Daugherty subsequently offered the explanation that before the photographs were taken, he had moved the single round and placed it in a bag with other ammunition, which bag was found during his search of the vehicle. (Tr. at 65-67.) It is significant that he previously testified that he did not know whether the bag of ammunition had been discovered before the photographs were taken. (Id. at 55.) The court finds that Officer Daugherty did not satisfactorily explain what happened to the single round he claimed to have seen on the console. Also, Detective Winkler, who took the items into evidence and took the photographs, had no recollection of seeing a round on the console and did not have a single round separate from the other items of evidence. These things lead to the conclusion that Officer Daugherty did not actually see a round on the console.
Government's Exhibit 5, however, shows what appears to be a penny laying right next to what appears to be a disposable cigarette lighter (plastic on the lower portion and a shiny metallic portion at the top), and Government's Exhibit 7, a photograph depicting the handgun on the passenger seat and the console, shows what appears to be a penny as well. The court believes that Officer Daugherty saw the penny and/or the metallic portion of the lighter and thought he saw a round of ammunition. These types of items are metallic, of the approximate same size, and may appear very similar, especially when viewed only momentarily. Having observed Officer Daugherty's demeanor while testifying, the court finds that the officer honestly believed that he viewed a round of ammunition on the console, though it turns out that what he saw was the penny and/or the lighter.
II. Conclusions of Law
Mr. Ames is charged in a two count indictment with possession of a firearm and ammunition on July 16, 2001, after a conviction of a felony. He contends that his Fourth Amendment right to be free from unreasonable searches and seizures was violated and moves for an order suppressing all evidence obtained as a result of the search of the Bronco and all statements made by him to law enforcement officers following his arrest.
The Fourth Amendment, applicable to the states through the Fourteenth Amendment, requires that all searches and seizures be reasonable. U.S. Const. amend. IV. A search or seizure without a warrant is per se unreasonable and, thus, in violation of the Fourth Amendment unless it is shown that the search or seizure "falls within one of a carefully defined set of exceptions. . . ." United States v. Mitchell, 82 F.3d 146, 151 (7th Cir. 1996) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971)). The Bronco was searched without a warrant; therefore, the burden is on the government to demonstrate that the search falls within one of the exceptions to the warrant requirement, see id. If the government fails to carry this burden, then the exclusionary rule would prohibit the government from introducing at the Defendant's criminal trial evidence seized during the search, see United States v. Leon, 468 U.S. 897, 906 (1984), and would also bar the introduction by the government of any fruits of the search, see Wong Sun v. United States, 371 U.S. 471, 488 (1963).
The government asserts several arguments in opposition to the suppression motion, only a few of which need to be addressed here: the search incident to a lawful custodial arrest exception applies to the search of the Bronco; the Defendant's statements about the weapon to Officer Daugherty should not be suppressed as they fall under the public safety exception of New York v. Quarles, 467 U.S. 649, 655 (1984); and the Defendant's statements to Officer Halter and Detectives Johnson and Winkler were voluntary and followed an implied waiver of the Defendant's Miranda rights.
A. Search of Vehicle Incident to Arrest
One exception to the warrant requirement is a search incident to a lawful arrest. The Supreme Court has held that the police may search the passenger compartment of a vehicle which search is incident to a lawful custodial arrest of an occupant of the vehicle. New York v. Belton, 453 U.S. 454, 459-60 (1981); see also United States v. Mitchell, 82 F.3d 146, 151-52 (7th Cir. 1996). In Belton, the Supreme Court said:
[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. Such a container may, of course, be searched whether it is open or closed. . . .
Belton, 453 U.S. at 460-61; see also Chimel v. California, 395 U.S. 752, 763 (1969) (the search must be limited to the area within the immediate control of the arrestee and his person); United States v. Edwards, 885 F.2d 377, 383 (7th Cir. 1989) (the search must be contemporaneous with the arrest and limited to the arrestee's person and area within his control and be for the purpose of securing weapons or preventing the destruction of evidence). A "container" is "any object capable of holding another object" and "includes glove compartments, consoles, or other receptacles located anywhere within the passenger compartment[.]" United States v. Richardson, 121 F.3d 1051, 1056 (7th Cir. 1997) (quoting Belton, 453 U.S. at 460-61 n. 4). Thus, the police may search the passenger compartment of a vehicle including any containers found within the vehicle incident to and contemporaneous with a lawful custodial arrest of an occupant of the vehicle.
Mr. Ames contends that the search incident exception to the warrant requirement is inapplicable here because his arrest was unlawful. The evidence establishes that the Defendant was arrested for driving without a license in violation of Indiana Code § 9-24-18-1, a Class C misdemeanor. Mr. Ames argues that pursuant to Indiana Code § 9-30-2-5, a person arrested for driving without a license is not subject to custodial arrest and must be released from custody by the police officer. Thus, according to the Defendant, his arrest violated Indiana law and cannot support a search incident to an arrest.
The statute provides in pertinent part:
(a) If a person who is an Indiana resident:
(1) is arrested for a misdemeanor regulating the use and operation of motor vehicles . . .; and
(2) is not immediately taken to court as provided in section 4 of this chapter; the person shall be released from custody by the arresting officer upon signing a written promise to appear in the proper court at a time and date indicated on the promise. . . .
(b) . . . [I]f a person who is not an Indiana resident is arrested for a violation of a traffic ordinance or a statute punishable as an infraction or a misdemeanor that regulates the use and operation of a motor vehicle and is not immediately taken to court as provided in section 4 of this chapter, the person shall be released upon the deposit of a security.
Ind. Code § 9-30-2-5(a), (b).
The government responds that Mr. Ames' understanding of Indiana Code § 9-30-2-5 is incorrect. Relying on the plain language of the statute, the government argues that the section provides for a person's release from custody following arrest for a misdemeanor traffic offense. The government's reading of § 9-30-2-5 is a reasonable one. As the government points out, the statute refers to an arresting officer and custody, as well as an arrest. Thus, the statute contemplates a custodial arrest to have taken place, albeit for a brief duration. The statute does not address whether a custodial arrest has been effected, but rather, provides for a person's release from such an arrest upon the satisfaction of certain conditions. See Ind. Code § 9-30-2-5. Further, Mr. Ames has offered no authority for the proposition that a very brief custodial arrest, such as that contemplated by Indiana Code § 9-30-2-5, cannot support a search incident to a lawful arrest.
Moreover, the determination of whether Mr. Ames' arrest was lawful for Fourth Amendment purposes does not turn on state law. Though one court has held to the contrary, see United States v. Mota, 982 F.2d 1384, 1387-89 (9th Cir. 1388) (holding lawfulness of search incident to arrest depends on the legality of the arrest which is governed by state law), other courts have concluded that "when a federal court must decide whether to exclude evidence obtained through an arrest, search, or seizure by state officers, the appropriate inquiry is whether the arrest, search, or seizure violated the Federal Constitution, not whether the arrest, search, or seizure violated state law." United States v. Lewis, 183 F.3d 791, 793-94 (8th Cir. 1999) (quotation omitted) (holding lawful a search of a person arrested for a misdemeanor offense despite Minnesota law which allowed custodial arrests for misdemeanors only in certain circumstances not present in the case), cert. denied, 528 U.S. 1163 (2000); see also People v. McKay, 27 Cal.4th 601, 618 (Cal. 2002) (holding that "so long as the officer has probable cause to believe that an individual has committed a criminal offense, a custodial arrest — even one effected in violation of state arrest procedures — does not violate the Fourth Amendment").
The reasoning of United States v. Bell, 54 F.3d 502 (8th Cir. 1995), cert. denied, 519 U.S. 955 (1996), is instructive. In that case, two police officers saw the defendant riding a bicycle without a headlight in violation of Iowa law. They stopped him, arrested him for that violation, and then searched him incident to his arrest. The officers found cocaine base for which the defendant was charged under federal drug laws. The defendant moved to suppress the cocaine under the Fourth Amendment. The district court granted the motion. The court construed Iowa law to allow the officers to issue the defendant a citation but not to arrest him. The court concluded that since Iowa law did not authorize the arrest, the cocaine could not have been lawfully seized incident to the defendant's arrest. Bell, 54 F.3d at 503. The Eighth Circuit reversed, explaining that the exclusionary rule only requires an examination of the Federal Constitution. The court said:
[W]e do not think Fourth Amendment analysis requires reference to an arrest's legality under state law. An arrest by state officers is reasonable in the Fourth Amendment sense if it is based on probable cause. Thus, the district court should not have looked to Iowa law in deciding the lawfulness of Bell's arrest.
Id. at 504 (citations omitted).
The conclusion that the legality of an arrest for Fourth Amendment purposes does not turn on state law finds support in Supreme Court decisions. For example, in United States v. Robinson, 414 U.S. 218 (1973), the Court held "that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment." Id. at 235. Immediately preceding that holding, the Court wrote: "A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification." Id. This language seems to suggest that the Court intended "lawful" to mean an arrest based on probable cause. See 1 Wayne R. LaFave, Search and Seizure § 1.5(b), at 141 (3d ed. 1996).
Language in Michigan v. DeFillippo, 443 U.S. 31 (1978), states that "[w]hether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law." Id. at 36. This language, however, is dicta because the respondent did not argue his arrest was unauthorized under state law.
And, in Gustafson v. Florida, 414 U.S. 260 (1973), the petitioner was searched incident to his arrest for driving without a driver's license and was taken into custody to be transported for further questioning. Id. at 262. He attempted to distinguish his case from that of Robinson in part because there was no police regulation requiring the police to take him into custody and the officer had no fear for his safety or that of others. Id. at 263. The Court found these differences constitutionally insignificant, explaining that "[i]t is sufficient that the officer had probable cause to arrest the petitioner and that he lawfully effectuated the arrest and placed the petitioner in custody." Id. at 265.
More recently, in Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the Supreme Court held that the Fourth Amendment does not prohibit a warrantless arrest for a minor criminal offense such as a misdemeanor seatbelt violation. Id. at 354-55. The petitioner was driving her truck when she and her two young children were observed by a police officer. None was wearing a safety belt which violated Texas and was punishable by a fine. The officer arrested petitioner and took her into custody, pursuant to Texas law which authorized the warrantless arrest of a person found violating the seatbelt laws. Texas law also allowed police to issue citations in lieu of an arrest for a seatbelt law violation. Id. at 323-24.
The Court examined a law enforcement officer's authority under common law to make warrantless misdemeanor arrests. Id. at 327-45. The Court held that "the standard of probable cause applies to all arrests, without the need to balance the interests and circumstances involved in particular situations." Id. at 354. The Court left open the question of whether the Fourth Amendment requires that the misdemeanor be committed "in the presence" of the arresting officer. Id. at 340 n. 11 ("We need not, and thus do not, speculate whether the Fourth Amendment entails an `in the presence' requirement for purposes of misdemeanor arrests."). The Court held that the petitioner's arrest did not violate the Fourth Amendment because the arresting officer had probable cause to believe that she committed the seatbelt violation. Id. at 354. The fact that the officer was not required under Texas law to make the custodial arrest did not affect the Fourth Amendment analysis. Thus, under Atwater, a custodial arrest for a misdemeanor is lawful for Fourth Amendment purposes if based on probable cause.
The conclusion that state law does not determine the lawfulness of an arrest for Fourth Amendment purposes is consistent with Seventh Circuit case law. In United States v. Wilson, 169 F.3d 418 (7th Cir. 1999), for example, the court said:
Although the states retain a great deal of flexibility in the manner in which they conform their law enforcement procedures to the standards of the Fourth Amendment, our jurisprudence makes clear that federal standards apply to the interpretation of the Fourth Amendment. As Justice Black wrote for the Court in Cooper v. California, 386 U.S. 58, 61, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), "the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment."
Id. at 423 (footnote omitted). See also Ryan v. County of DuPage, 45 F.3d 1090, 1093 (7th Cir. 1995) (concluding that the legality under the Fourth Amendment of an arrest for a state law violation depends on state law in the sense that "there must be probable cause to believe that a state crime has been committed"); Gordon v. Degelmann, 29 F.3d 295, 301 (7th Cir. 1994) (holding that in determining whether there has been an unreasonable search and seizure by state officers a federal court examines only federal law); United States v. Singer, 943 F.2d 758, 761 (7th Cir. 1991) (holding that evidence seized by local authorities, whether or not in contravention of state law, is admissible in federal criminal proceeding if obtained in a manner consistent with the protections afforded by the United States Constitution and federal law).
Following the reasoning of these Supreme Court and Seventh Circuit decisions, the court concludes that the determination of whether the Defendant's arrest was lawful for Fourth Amendment purposes turns not on state law but on federal law. Thus, the arrest was lawful for Fourth Amendment purposes if it was based on probable cause that Mr. Ames committed or was committing a crime of driving without a license. See, e.g., Atwater, 532 U.S. at 354; Beck v. Ohio, 379 U.S. 89, 96-97 (1964).
"Probable cause" cannot be precisely defined and depends on the totality of circumstances in the case. Illinois v. Gates, 462 U.S. 213, 230 (1983). However, the Supreme Court has said that probable cause exists where "the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed[.]" Carroll v. United States, 267 U.S. 132, 161 (1924).
The Defendant's arrest for driving without a license was based on probable cause. Officer Daugherty and Officer Halter could reasonably rely on the information provided by Detective Johnson and confirmed by dispatch that Mr. Ames was unlicensed. See, e.g., United States v. Hensley, 469 U.S. 221, 231 (1985) (holding that if police make a stop in objective reliance on a flyer or bulletin then the evidence uncovered during the stop is admissible if the police who issued the flyer or bulletin possessed a reasonable suspicion justifying a stop"); United States v. Edwards, 885 F.2d 377, 382 (7th Cir. 1989) (explaining that one officer or agency's knowledge about a defendant can be relied upon to provide probable cause for an arrest where such knowledge was communicated to the officer who actually made or ordered the arrest). The officers also could reasonably rely on Detective Johnson's report that Mr. Ames had been driving the Bronco. This information was sufficient to give them a reasonable belief that Mr. Ames had committed the offense of driving without a license.
Even if this information was not conveyed to Officer Halter, because he placed Mr. Ames in custody at the direction of Officer Daugherty who knew that the Defendant had been driving the Bronco, Officer Halter also had probable cause to make the arrest. See, e.g., United States v. Swift, 220 F.3d 502, 508 (7th Cir. 2000) ("when a superior officer, in communication with an inferior officer, orders that officer to make an arrest, it is proper to consider the superior's knowledge in determining the overall reasonableness of the police conduct as it relates to probable cause."), cert. denied, 531 U.S. 1169 (2001); Tangwell v. Stuckey, 135 F.3d 510, 517 (7th Cir. 1998) ("[T]he police who actually make the arrest need not personally know all the facts that constitute probable cause if they reasonably are acting at the direction of another officer or police agency.").
That neither Officer Daugherty nor Officer Halter witnessed Mr. Ames driving the Bronco does not preclude a finding that they had probable cause to arrest him for a misdemeanor offense. See, e.g., Atwater v. City of Lago Vista, 195 F.3d 242, 245 n. 3 (5th Cir. 1999) (rejecting argument that a warrantless misdemeanor arrest otherwise supported by probable cause is invalid under the Fourth Amendment if the offense was not committed in the arresting officer's presence), aff'd, 532 U.S. 318 (2001); United States v. Fleming, 201 F. Supp.2d 760, 768-70 (E.D.Mich. 2002) (concluding that officers had probable cause to make arrest of defendant for misdemeanor offense of operating a vehicle without a driver's license even though they did not see him driving the vehicle); Davenport v. Rodriguez, 147 F. Supp.2d 630, 637 n. 3 (S.D.Tex. 2001) (concluding that although a misdemeanor offense was not committed in the presence of arresting officer, the defendant's custodial arrest did not violate the Fourth Amendment).
Anyway, in effect, Detective Johnson made the decision to arrest the Defendant, and the arrest was effectuated by Officers Daugherty and Halter, through the implicit direction of Johnson. The detective testified that as soon as he approached the Defendant, he was not free to go and was under arrest for driving without a license.
Detective Johnson knew that Mr. Ames did not have a driver's license and observed him driving the Bronco in his presence. Thus, even if the Fourth Amendment imposes an "in the presence" requirement for purposes of warrantless misdemeanor arrests, such a requirement was satisfied in this case.
The court concludes from the evidence that Detective Johnson, Officer Daugherty and Officer Halter had probable cause to arrest Mr. Ames for driving without a license. Therefore, the Defendant's custodial arrest for driving without a license was lawful under the Fourth Amendment.
Mr. Ames contends that the rationale for the search incident to arrest exception to the warrant requirement cannot be extended to the non-custodial arrest in this case. This contention presupposes that his arrest was not a custodial arrest. But it was: Mr. Ames was taken into custody, handcuffed, placed in a police vehicle and taken to jail, where he was booked. Because the Defendant's arrest was a custodial arrest, law enforcement had a sufficient reason to search him and the Bronco for weapons. See Knowles v. Iowa, 525 U.S. 113, 116-17 (1998) (discussing the rationales supporting the search incident exception, including the concern for officer safety).
In Knowles the defendant was stopped by a police officer for speeding, and the officer issued him a citation although he could have been arrested under state law. The issue presented was whether under such circumstances the officer could, consistent with the Fourth Amendment, conduct a full search of the car. The Supreme Court answered, "no," id. at 114, and concluded that the "search incident to arrest" exception could not be extended to such a situation, id. at 117-119. The Court reasoned that the threat to officer safety in issuing a traffic citation was "a good deal less" than that posed in effecting a custodial arrest, and all the evidence necessary to prosecute the offense had been obtained once the defendant was stopped for speeding. Id. at 117-18.
It could be argued that the search incident to arrest exception is inapplicable because Mr. Ames voluntarily exited the Bronco before Detectives Johnson and Winkler initiated contact with him. See, e.g., People v. Stehman, No. 92287, 2002 WL 31839220, at *4-6 (Ill. Dec. 19, 2002) (holding search of passenger compartment of defendant's vehicle was not justified as a search incident to arrest where defendant had exited the vehicle and was walking away from it when the officer initiated contact that led to the arrest). Such an argument would not prove successful under Seventh Circuit case law applying Belton, however, as discussed below. Moreover, in the court's view, whether an arrestee is arrested while physically in the vehicle searched or whether he is arrested shortly after exiting the vehicle, the concerns for officer and public safety justifying the search incident exception arise. As the Supreme Court emphasized in Knowles, it is "the fact of the arrest, and its attendant proximity, stress, and uncertainty" which give rise to the danger to the arresting officers. 525 U.S. at 117.
The Seventh Circuit does not require that the arrestee be an occupant of the vehicle searched at the time of his arrest in order for the search incident exception to apply. What is required, rather, is that the arrestee have been an occupant of the vehicle or "positively linked" to the vehicle shortly before the arrest. A few cases are illustrative. In United States v. Sholola, 124 F.3d 803 (7th Cir. 1997), for example, the court upheld a search of the defendant's vehicle even though the defendant was not technically an "occupant" of the vehicle immediately before the search. Id. at 817. The defendant had not been inside the vehicle just before his arrest, but had walked over to the vehicle and opened the door with keys, claimed the vehicle was his, and was about to enter the vehicle. Id. at 807, 817. The court upheld the search under Belton as a search incident to a lawful arrest because the defendant was "positively linked" to the vehicle prior to his arrest. Id. at 817. The court reiterated that officers could conduct a search incident to a lawful arrest even when the arrestee is secured in a police car and unable to reach any weapons or destroy any evidence. Id. at 817-18.
In United States v. Willis, 37 F.3d 313 (7th Cir. 1984), the court rejected the defendant's argument that the search of his vehicle was not incident to his arrest because he was arrested outside the vehicle and at the time of the search had been in the police car for "some time." Id. at 317. The search was upheld as a search incident to arrest because the officer saw the defendant inside his vehicle and then exit the vehicle, the defendant was arrested "in an area immediately next to his vehicle," and the search occurred "shortly" after he was handcuffed and secured in the police car. Id. at 317-18. The search in United States v. Arango, 879 F.2d 1501 (7th Cir. 1989), was justified under the search incident exception because the defendant was arrested shortly after the police saw him exit his car, even though the defendant was arrested a block away from the car. Id. at 1505. The court rejected the argument that the search was impermissible because the arrest did not take place while the defendant was an occupant of the vehicle or within immediate "grabbing distance" of the vehicle. Id. The search was reasonable, the court concluded, because the defendant had been returned to the proximity of the vehicle, which return was necessitated because the arresting officer's partner had been assaulted by the defendant near the vehicle and needed medical attention. Id. at 1506.
The court recognizes that Arango did "not hold that officers may search by artificially creating a situation to fit within an exception to the fourth amendment's warrant requirement." Id. at 1506. That the Defendant happened to be driving the Bronco immediately before his arrest may have been fortuitous from the viewpoint of law enforcement and the government, but it cannot be said to have been orchestrated or artificially created by the officers.
United States v. Adams, 26 F.3d 702 (7th Cir. 1994), is illuminating because the court concluded that Belton's rationale did not justify the search in that case. Id. at 705-06. The defendant was neither an occupant of the vehicle searched nor positively linked to it immediately before his arrest; instead, he merely had been standing in the street between the vehicle searched and another vehicle. The defendant was not affirmatively linked to the vehicle until after his arrest when he accidentally deactivated the car alarm. Id. at 703, 705. Further, as should be apparent from this discussion of Seventh Circuit case law, the fact that Mr. Ames was in handcuffs and in a patrol car at the time of the search does not render the search incident exception inapplicable. See, e.g., Arango, 879 F.2d at 1505 ("our holding in [United States v.] Karlin [, 852 F.2d 968 (7th Cir. 1988)] forecloses Arangos' argument that Belton does not apply because he was secured in the rear seat of a squad car"); see also Karlin, 852 F.2d at 970-71 (rejecting the defendant's attempt to distinguish Belton on the ground that the arrestees in that case were less secure than he and closer to their car and stating "[i]t seems quite likely that, in instances where occupants of a car are arrested, they will be outside the car and will have been placed under some measure of security before the car is searched.").
The court concludes from the evidence that the search of the Bronco which led to the discovery of the weapon, ammunition and controlled substances was constitutionally permissible. Shortly after Mr. Ames was arrested and as soon as he was handcuffed and placed in the patrol car, the Bronco was searched. Just before the Defendant's arrest, he had been driving the Bronco and Detectives Johnson and Winkler saw him in the Bronco. Mr. Ames was within about ten feet of the Bronco when he was arrested. Thus, the court finds that Mr. Ames was an occupant of the Bronco "shortly" before his arrest and was arrested in "an area immediately next to his vehicle." In addition, the search was limited to the passenger compartment and containers such as the console and bag of ammunition found within the passenger compartment. The search also fulfilled the purpose of securing any weapons that might be within the Defendant's immediate control. Therefore, the court concludes that search of the Bronco was a search incident to the lawful custodial arrest of Mr. Ames for driving without a license and contemporaneous with that arrest. Accordingly, the Defendant's arrest was excepted from the Fourth Amendment's warrant requirement, and the search was a reasonable search under that Amendment.
Mr. Ames argues that the procedure allowed in Indiana Code § 9-30-2-5 is akin to a Terry stop, see Terry v. Ohio, 392 U.S. 1 (1968), and the officers had reason to believe that he might be armed, so they could frisk him to determine whether he was carrying a weapon in order to protect themselves. If he is correct that he was subjected to a Terry stop and the officers could have frisked him for a weapon, then the officers also could have conducted a patdown of the passenger compartment of the Bronco, see Michigan v. Long, 463 U.S. 1032, 1049 (1983), which would have included, among other areas, the passenger seat on which the weapon was found and the compartment of the console in which the bag of ammunition was found as well as the bag itself.
The Defendant argues that his arrest for driving without a license and the search of his vehicle were pretextual and the officers' true motive was to interrogate him and search his vehicle for evidence connected to the missing person's case. If a seizure "is used as a pretext to search for evidence, the search constitutes a violation of the Fourth Amendment." United States v. Williams, 106 F.3d 1362, 1365 (7th Cir. 1997). However, in the context of searches challenged under the Fourth Amendment, courts "have essentially equated the pretextual with the unreasonable[.]" Id. Courts apply an objective analysis to the police conduct when determining whether a search is unreasonable or pretextual. See id.; United States v. Trigg, 878 F.2d 1037, 1042 (7th Cir. 1989) (Ripple, J., concurring). Thus, an officer's subjective intent or ulterior motive is irrelevant as long as the search is legally justified. See United States v. Van Dreel, 155 F.3d 902, 905 (7th Cir. 1998) ("[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis") (quoting Whren v. United States, 517 U.S. 806, 813 (1996)). Thus, even assuming that the detectives and officers had an ulterior motive in questioning Mr. Ames and searching the Bronco, this alone would not invalidate the search incident to arrest as this court has found that the arrest and search were legally justified.
The government's other arguments to support the search, namely, the automobile and inventory exceptions to the warrant requirement, meet with troubling difficulties because of the facts presented at the suppression hearing. The justification of the search as incident to an arrest eliminates the need to discuss these other rationales, however.
A logical extension of the rule that an officer's subjective intent is irrelevant for Fourth Amendment purposes as long as the search is legally justified is the conclusion that it makes no difference in this case that the searching officer's stated justification for the search of the Bronco was as an inventory search rather than a search incident to arrest. In Whren, the Supreme Court emphasized that it had "never held . . . that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but . . . [had] repeatedly held and asserted the contrary." 517 U.S. at 812. The Court observed that the "Fourth Amendment's concern with `reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." Id. at 814. Whren applies here: If there was a constitutionally permissible justification for the search of the Bronco, then the search is reasonable under the Fourth Amendment even though the searching officer undertook the search for a different reason. The court has concluded that the search of the Bronco was permissible as a search incident to the lawful custodial arrest of the Defendant. Therefore, that Officer Daugherty conducted the search for inventory purposes and did not rely on the search incident exception matters not.
Whren involved a traffic stop, whereas, the issue here is whether the search incident to arrest was constitutionally permissible. Because both a traffic stop and a search incident to arrest are examined under the Fourth Amendment's reasonableness standard, the court believes that Whren's analysis is applicable.
B. The Defendant's Incriminating Statements
Mr. Ames contends that his incriminating statements to law enforcement are subject to exclusion as the fruits of his illegal arrest and an illegal search of the Bronco. See Brown v. Illinois, 422 U.S. 590 (1975). Because the court has concluded that neither his arrest nor the search of the Bronco was unlawful under the Fourth Amendment, this claim fails.
The Defendant also argues that his statements to Officer Daugherty that there was a weapon and it was located in the console area or under the seat were obtained in violation of his rights under the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). The government argues that Mr. Ames' responses to Officer Daugherty's questions about a weapon are admissible under the public safety exception to the requirements of Miranda set forth in New York v. Quarles, 467 U.S. 649 (1984).
An individual must both be "in custody" and subjected to "interrogation" to trigger the right to the Miranda warnings. United States v. Abdulla, 294 F.3d 830, 834 (7th Cir. 2002). "An individual is considered `in custody' when his movement is restrained to the degree comparable to a formal arrest." Id. "Interrogation" means "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980) (footnotes omitted). The government does not dispute that Mr. Ames was "in custody" when questioned about a weapon by Officer Daugherty and that this officer's questions constituted "interrogation." Therefore, the court assumes that Mr. Ames was in custody and subjected to interrogation when questioned by Officer Daugherty about a weapon.
Other than Officer Daugherty's testimony that he saw a round on the console, which this court cannot find accurate, the government offers no evidence to establish that Officer Daugherty had any reason to believe there might be a weapon present. The government argues that Detective Johnson's knowledge that Mr. Ames carried a .44 magnum and threatened to shoot anyone who arrested him should be imputed to Officer Daugherty under the collective knowledge doctrine and justifies application of the public safety exception.
It could be argued that Quarles' public safety exception applies when an officer honestly believes that he observed a round of ammunition in a vehicle recently exited by and in proximity to the arrestee. But the government has not taken this approach, instead simply asserting that Officer Daugherty's testimony about seeing the round is accurate. Given this, the court does not believe that this is the appropriate case in which to test the applicability of Quarles to a situation in which the questioning officer has an honest but mistaken basis for believing that ammunition and a weapon were present, particularly where the admissibility of subsequent statements to law enforcement and other evidence is not impacted.
As the court reads the collective knowledge doctrine cases, however, there must be some communication from an officer or law enforcement agency possessing information sufficient to justify the challenged action to the officer who took that action (arrest, search or questioning) or some direction by the officer or agency possessing the information to take the challenged action. See, e.g., United States v. Swift, 220 F.3d 502, 508 (7th Cir. 2000) ("when a superior officer, in communication with an inferior officer, orders that officer to make an arrest, it is proper to consider the superior's knowledge in determining the overall reasonableness of the police conduct as it relates to probable cause."), cert. denied, 531 U.S. 1169 (2001); Tangwell v. Stuckey, 135 F.3d 510, 517 (7th Cir. 1998) ("[T]he police who actually make the arrest need not personally know all the facts that constitute probable cause if they reasonably are acting at the direction of another officer or police agency."); United States v. Edwards, 885 F.2d 377, 382 (7th Cir. 1989) ("A supervising officer's knowledge about a defendant cannot be relied upon to provide probable cause for his arrest where there is no evidence that such knowledge was communicated to the agents on the scene who actually made or ordered the defendant's arrest[.]") (citation omitted).
In this case, there is no evidence that Detective Johnson's knowledge of Mr. Ames' dangerousness was communicated to Officer Daugherty before he questioned Mr. Ames. When questioned about what Detective Johnson told him upon his arrival, Officer Daugherty testified only that he was advised of the Defendant's name and that he was an unlicensed driver who had operated a vehicle in the detectives' presence. Also, there is no evidence that Detective Johnson requested or directed Officer Daugherty to question Mr. Ames about a weapon. The court believes that Detective Johnson's mere presence at the time Officer Daugherty put the questions to the Defendant is an insufficient basis upon which to justify Daugherty's questioning under the collective knowledge doctrine. Therefore, the court finds that the evidence does not support imputation of Detective Johnson's knowledge of Mr. Ames' dangerousness to Officer Daugherty. As a result, Detective Johnson's knowledge that the Defendant carried a weapon and threatened law enforcement cannot justify Officer Daugherty's questioning of Mr. Ames about a weapon under the public safety exception.
The government cites several cases as authority for the admission of Mr. Ames' statements to Officer Daugherty under the public safety exception, but all of them are inapposite. In United States v. Kelly, 991 F.2d 1308, 1313 (7th Cir. 1993), the officer questioned the defendant about a gun only after the defendant had produced ammunition. In United States v. Simpson, 974 F.2d 845, 846-47 (7th Cir. 1992), the officer who questioned the defendant was in the defendant's apartment on a domestic disturbance call involving a gun, the officer had been told that the defendant had left earlier carrying the gun, and when the defendant arrived he did not have the gun. In Edwards, 885 F.2d at 380, the officer who questioned the defendant whether he had a weapon suspected that he was just involved in a drug deal, and drug dealers are known to carry weapons. And, finally, in United States v. Ganter, 436 F.2d 364, 369 (7th Cir. 1970), the officers who asked the defendant about the location of a gun knew that he had taken the gun from a law enforcement officer a short while before. Here, the government has not proven that any ammunition was observed on Mr. Ames' person or in the Bronco before the questioning by Officer Daugherty, that at the time of the questioning Daugherty knew Mr. Ames to be a drug dealer, or that the officer had any other reason to believe that he carried or had a weapon.
The court finds from the evidence that Mr. Ames was not advised of and did not waive his Miranda rights before Officer Daugherty questioned him about a weapon. The government's argument that Mr. Ames' responses to Officer Daugherty's questions are admissible under Quarles' public safety exception is unavailing. Consequently, the court finds that the Defendant's statements in response to Officer Daugherty's questions whether there was a weapon and where it was must be suppressed because these statements were obtained in violation of Miranda.
Mr. Ames also challenges the admissibility of his statements in response to the question from Officer Halter about the ownership of the handgun and his statements made during the interview at the jail. This challenge, however, is based on the faulty premise that his arrest was illegal; it was not.
The government maintains that these subsequent statements should not be suppressed because they were voluntary and made after Mr. Ames was advised of his Miranda rights. The Supreme Court has rejected application of the "fruit of the poisonous tree" doctrine based on a noncoercive Miranda violation. Oregon v. Elstad, 470 U.S. 298, 308-09 (1985). And, moreover, the Defendant has made no showing that his subsequent statements to Officer Halter or to Detectives Johnson and Winkler were a product of the first questioning by Officer Daugherty. Mr. Ames has not argued that any of his statements to the officers were involuntary. In addition, he has not argued that his statements to Officer Halter, Detective Johnson and Detective Winkler were made without a knowing, intelligent and voluntary waiver of his Miranda rights. Therefore, the court finds that the Defendant's statement to Officer Halter about his ownership of the handgun and his statements to Detectives Johnson and Winkler about possessing the Bronco, handgun and controlled substances need not be suppressed and are admissible at trial.
Had he made these arguments, he would not prevail. The government bears the burden of proving that the statements of a person in custody were made following a knowing and voluntary waiver of Miranda rights. See United States v. Jackson, 300 F.3d 740, 748 (7th Cir. 2002). Whether a person in custody knowingly and voluntarily waives his Miranda rights depends upon the totality of the circumstances. See id. An express waiver is not required. See United States v. Mills, 122 F.3d 346, 351 (7th Cir. 1996). Waiver "may be inferred from the defendant's understanding of his rights coupled with a course of conduct reflecting his desire to give up his right to remain silent and have the counsel of an attorney." Jackson, 300 F.3d at 748 (quotation omitted). Courts generally consider factors such as the "defendant's background and conduct, the duration and conditions of detention, the mental and physical condition of the defendant, the attitude of the police, and whether the police utilized psychological or physical coercion." Id. (citation omitted).
Mr. Ames has not disputed and the evidence supports a finding that he was advised of his Miranda rights before Officer Halter questioned him about ownership of the weapon and again was advised of his Miranda rights before he was questioned about the weapon and ammunition during the interview at the jail. After Officer Halter read the Defendant his Miranda rights, the officer asked him if he would be willing to answer any questions, and he said yes. And, after the Defendant was read his Miranda rights at the jail, he was asked whether he understood his rights, and he answered, "Yep." The court finds from the evidence that the Defendant knowingly, intelligently and voluntarily waived his Miranda rights before making statements about the weapon and ammunition to Officer Halter, Detective Johnson and Detective Winkler. The Defendant does not contend otherwise. Mr. Ames was twenty-seven years old at the time and had previous arrests and convictions. Though he was in custody in handcuffs and in a patrol car at the time of the questioning by Officer Halter and in custody at the jail when interviewed by the detectives, he had been in custody for only a short period of time. Also, there is no indication in the record, and Mr. Ames has not argued, that any coercion was used to get him to answer the questions. As well, nothing in the evidence suggests, and the Defendant has not argued, that he suffered from any mental or physical condition that prevented him from understanding his rights and making a knowing, intelligent and voluntary waiver of those rights. His answering the questions asked in the absence of coercion also implies the voluntariness of his statements.
Counsel for the government, however, indicated at the suppression hearing that she has no intention of introducing the controlled substances at trial.
III. Conclusion
For the foregoing reasons, the Defendant's motion to suppress is GRANTED as to the Defendant's statements to Officer Daugherty that there was a weapon and it was located in the console area or under the seat, but DENIED in all other respects.
ALL OF WHICH IS ORDERED this 27th day of January 2003.