Opinion
4:03cr3100.
July 30, 2004
MEMORANDUM AND ORDER ON THE DEFENDANT'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The defendant, Timothy S. DeGarmo, has moved to suppress evidence that was obtained by a law enforcement officer during a search conducted on June 13, 2003. (See Mot. to Suppress, filing 48.) A hearing on this motion was held before United States Magistrate Judge David L. Piester on June 10, 2004, (see filings 54-55, 58), and, pursuant to 28 U.S.C. § 636(b)(1)(B)-(C), the magistrate judge has recommended that I deny the defendant's motion to suppress, (see filing 57). Now before me is the defendant's objection to the magistrate judge's report and recommendation, filing 59. In the course of my de novo review of those portions of the magistrate judge's report that the defendant challenges, see United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003); 28 U.S.C. § 636(b)(1)(C); NELR 72.4, I have studied the magistrate judge's entire report and recommendation, (see filing 57); the transcript of the hearing before the magistrate judge, (see filing 58); the briefs submitted by the defendant in support of his motion to suppress, (see filing 49), and his objection to the report and recommendation, (see filing 59); and the briefs submitted by the government, (see filings 51, 62). I conclude that the defendant's objection must be sustained, and his motion to suppress will be granted.
No exhibits were offered or received at the hearing before the magistrate judge.
I. BACKGROUND
The only witness who testified at the hearing of June 10, 2004, was Officer Jeffrey J. Hahne of the Lincoln Police Department (LPD). Officer Hahne has been employed by the LPD since September 1991. For the first eight years of his tenure, he was assigned to a patrol cruiser. Then, for three and one-half years, Officer Hahne served as an investigator with the Lincoln-Lancaster County Narcotics Task Force. In January 2003, Officer Hahne's Task Force rotation ended and he was assigned back to the street patrol.
On Friday, June 6, 2003, Officer Hahne became involved in an investigation of the theft of a woman's purse. (See Tr., filing 58, at 7:21-23.) He learned that within two hours of the theft, credit cards taken from the purse were used to purchase several $25 gift cards at two Advanced Auto Parts store locations and one Shopko store location in Lincoln. Officer Hahne also obtained a description of the man who made these purchases.
On or about June 9, 2003, Officer Hahne was informed that a man appeared at an Advanced Auto Parts store and used gift cards that had been purchased with one of the stolen credit cards. Although the individual in question left the store before Officer Hahne arrived, the officer obtained a description of the man, his vehicle, and his vehicle's license plate. Officer Hahne later learned that the vehicle was owned by the defendant.
Officer Hahne testified initially that this incident occurred on "Tuesday, June 6th." (See Tr., filing 58, at 9:13.) However, he testified later that the correct date was "Tuesday the 9th." (See id. at 29:7-9.) I take judicial notice of the fact that June 9, 2003, was a Monday. It is therefore unclear whether Hahne learned that the gift cards were used by the defendant on June 9 or 10. I note too that the magistrate judge's finding that the gift cards were used by the defendant at Advance Auto Parts on June 6 is not supported by the record, though his error is understandable in light of Officer Hahne's confused testimony. (See filing 57 at 1-2.)
Officer Hahne had contacts with the defendant prior to June 2003. Specifically, Officer Hahne testified, "when I was in the narcotics unit, I know that Mr. [DeGarmo's] name had come up in some ongoing narcotics investigations." (Tr., filing 58, at 10:16-18.) Officer Hahne also testified that he contacted the defendant in connection with those narcotics investigations and visited with the defendant in his apartment on more than one occasion. (See id. at 10:19-11:4.) There is no evidence concerning the nature of the defendant's connection with these prior investigations or the subject matter of his interviews with Officer Hahne. That is, I do not know whether Officer Hahne believed that the defendant was a dealer or user of controlled substances, or whether he merely believed that the defendant had knowledge relevant to narcotics investigations. There is also no evidence concerning the source of information that led Officer Hahne to harbor any such beliefs.
After learning that the defendant was the individual who used the gift cards at Advanced Auto Parts on or about June 9, Officer Hahne made "several" unsuccessful attempts to contact the defendant at his residence to discuss the matter. (See Tr., filing 58, at 10:6-10.) Then, on Friday, June 13, 2003, Officer Hahne received word that the defendant had appeared at an Advanced Auto Parts store and was attempting to use a gift card that had been purchased with the stolen credit card. When Officer Hahne arrived at the store, he found that an Investigator Milisits, who was in plain clothes, (see id. at 26:8-19), and an Officer Sabata, who was in uniform, (see id.), were standing with the defendant. Officer Hahne explained to the defendant that the gift cards he was using had been purchased with a stolen credit card. It should be noted that the defendant did not match the description of the man who used the stolen credit cards to purchase the gift cards, and Officer Hahne did not believe that the defendant was the man who purchased the gift cards. (See id. at 28:13-19.) The defendant stated that he had performed mechanical work on some vehicles for someone and that he received the gift cards in exchange for the work. Officer Hahne sought to determine whether the defendant was carrying any additional gift cards, and he asked the defendant if he would be willing to empty his front pockets. The defendant complied, producing some cash, some nine-millimeter cartridges, and another item, possibly a knife. (See id. at 14:21-22; 23:17-20.) Officer Hahne then asked if he could pat down the defendant's rear pants pockets. The defendant agreed, and Officer Hahne found nothing in the pockets. (See id. at 14:24-15:5; 39:25-40:8.) Next, Officer Hahne asked the defendant if he would be willing to run his fingers through the coin pocket on his right front pants pocket. (See id. at 15:7:9.) The officer testified that he made this request "[b]ecause through my experience up in narcotics . . . people keep controlled substances in that coin pocket. So I always have people — or ask people to check that pocket." (Id. at 15:11-14.) However, he added that he was still looking for gift cards, stating that a gift card, though rigid like a typical credit card, could fit into the coin pocket if it were folded up. (See id. at 15:15-17; 37:2-23.) The defendant lifted up his shirt, which was untucked, and exposed his coin pocket to Officer Hahne's view. The officer then observed a bulge in the coin pocket that appeared to be smaller than a marble. (See id. at 15:21-23; 38:15-17.) Upon seeing the bulge, Officer Hahne did not suspect that the defendant had a gift card in his coin pocket. (See id. at 38:3-9.) He also did not suspect that the bulge was a weapon. (See id. at 39:3-10.) The defendant proceeded to insert a finger into the coin pocket, as requested, and to move it around. As the defendant moved his finger, Officer Hahne heard a "rustling sound" that he believed was made by plastic. (See id. at 16:4-6.) When the sound occurred, the defendant "immediately withdrew his hand from his coin pocket." (See id. at 16:6-8.) Officer Hahne asked the defendant to show him whatever was in the coin pocket, but the defendant refused. (See id. at 43:1-9.) The officer also asked the defendant what the item in the coin pocket was, and the defendant responded, "it's personal." (See id. at 43:10-12.) Officer Hahne then asked whether there were controlled substances in the coin pocket, and the defendant responded, "no." (See id. at 43:17-22.) After withdrawing his finger from the coin pocket, the defendant appeared to be very nervous and began to sweat. (See id. at 19:1-3; 44:17-23.)
Officer Hahne was in uniform when he arrived at the store. (See Tr., filing 58, at 27:24-25.)
Officer Hahne did not see the coin pocket before the defendant lifted his shirt. Indeed, the officer was not certain that the defendant's jeans were equipped with a coin pocket when he asked the defendant to run his fingers through it. (See Tr., filing 58, at 56:1-15.)
According to Officer Hahne, the defendant's phone rang sometime during their encounter. The officer observed that the defendant's hand was shaking noticeably as he held the phone. (See Tr., filing 58, at 19:10-14.)
Next, Officer Hahne asked the defendant if he would lift his pants legs. The officer testified that he made this request "[b]ecause I've arrested people in the past who carry contraband in their socks." (Tr., filing 58, at 16.) The defendant complied, and Officer Hahne observed "a smooth object that conformed to [the defendant's] leg." (Id. at 16:21-22.) Officer Hahne asked about the object, and the defendant replied that it was money. According to Officer Hahne, the defendant added that he carries large bills in his sock because he "either doesn't trust banks" or "doesn't have a bank account." (See id. at 17:8-11.)
In view of the "totality of the circumstances," Officer Hahne believed that the defendant's coin pocket contained some type of controlled substance. (See Tr., filing 58, at 18:8-23.) He instructed the other officers to stay with the defendant, (see id. at 27:11-13; 49:21-50:9), left the store, and called a Sergeant Peterson, the supervisor of the Narcotics Task Force, to "get his opinion" as to whether there was probable cause to search the defendant. (See id. at 18:4-10.) After speaking with Sergeant Peterson, Officer Hahne returned to the defendant and asked him again if he would consent to a search. The defendant refused, and over the defendant's objection, Officer Hahne searched the coin pocket and recovered three plastic baggies containing one prescription pill and a substance that was determined later to be methamphetamine. Officer Hahne also searched the defendant's sock and confiscated the money he found there. Officer Hahne told the defendant that the substance would be tested and, if the test were positive, the matter would be referred to the County Attorney's Office. The defendant was not arrested. However, at no time prior to the seizure of the money and the baggies did Officer Hahne tell the defendant that he was free to leave. (See id. at 45:15-46:1.)
Officer Hahne testified that during the course of his career he has arrested "over a hundred" people who had "baggies [containing controlled substances, I presume] . . . in their possession," and ten or fifteen of these people kept money in one of their socks. (See Tr., filing 58, at 22:23-23:12.)
One additional matter relating to the circumstances of the search remains to be addressed. At the hearing before the magistrate judge, Officer Hahne was asked the following question and gave the following response:
Q. Okay. Now, subsequent to this matter on the 13th, had you looked up any kind of records with regard to Mr. [DeGarmo] since you hadn't been in the — drug investigation?
A. Yes. As part of my follow-up investigation, I thought I'd look up his intelligence contacts. . . .
(Tr., filing 58, at 13:14-19 (emphasis added).) Officer Hahne stated, "The [LPD] computer system had intelligence information indicating Mr. [DeGarmo] was still involved in the use and sale of methamphetamine." (Id. at 14:1-4.) He later added,
Well, what we have in our computer system is intelligence information. You fill out an intelligence card, and it can be on anything, whether narcotics, gun related. It's not — it's not exclusively to narcotics. It's just suspicious parties, dangerous people. People fill out this intelligence report and then it gets entered into the computer.
(Tr., filing 58, at 30:12-19.) In this case, Officer Hahne learned from the computer that the defendant's "name appeared in relationship to either ongoing or past narcotics investigations" involving methamphetamine. (See id. at 32:14-23.) There is no evidence regarding the source of this "intelligence," nor is there any specific information about the defendant's alleged connection with methamphetamine.
Furthermore, although Officer Hahne initially testified that he obtained this "intelligence information" after searching the defendant, (see Tr., filing 58, at 13:14-19), he suggested later that he was aware of this "intelligence" at the time of the search, (see id. at 18:23-25), and ultimately testified that he checked the police department records for intelligence about the defendant sometime between June 9 and the search on June 13, (see id. at 29:13-21). No explanation for Officer Hahne's contradictory testimony has been provided.
The magistrate judge concluded that the initial stop of the defendant was proper. (See filing 57 at 5.) He then determined that the search of the coin pocket was not a protective search for weapons that might have been justified under Terry v. Ohio, 392 U.S. 1 (1968), and its progeny. (See id.) No objection to these determinations has been made, and I find that they should be adopted. The magistrate judge also concluded that the defendant voluntarily consented to Officer Hahne's requests (with the exception of the search of the coin pocket) and that the search of the coin pocket was supported by probable cause. (See id. at 5-6.) The defendant objects to these findings, arguing that his prolonged detention by the officers was improper and that the search of the coin pocket was not supported by probable cause. My analysis of the defendant's objections follows.
I note, however, that the government did not argue that the search was justified as a protective search for weapons, and therefore it is likely that this issue need not have been addressed. See United States v. Marshall, 986 F.2d 1171, 1173 (8th Cir. 1993) ("When the government seeks to introduce evidence that was seized during a warrantless search, it bears the burden of showing the need for an exemption from the warrant requirement and that its conduct fell within the bounds of the exception.").
II. ANALYSIS A.
The defendant argues first that the Fourth Amendment was violated because Officer Hahne did not have a sufficient basis for detaining the defendant after the officer completed his investigation concerning the gift cards. Specifically, the defendant submits that there was no justification for searching or detaining him after he provided Officer Hahne with a coherent and reasonable explanation for his possession and use of the gift cards. (See filing 59 at 5.)
Preliminarily, I note that it is unclear whether the defendant's encounter with the police began with a "seizure" within the meaning of the Fourth Amendment. While "[n]ot all personal encounters between law enforcement officials and citizens fall within the ambit of the Fourth Amendment," United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001) (citingTerry v. Ohio, 392 U.S. 1, 19 n. 16 (1968)), there is no evidence that the defendant consented to wait in the custody of Investigator Milisits and Officer Sabata until Officer Hahne arrived to question him, or that the defendant remained "free to disregard the questions and walk away," United States v. Mendenhall, 446 U.S. 544, 554 (1980). In any event, the parties do not dispute that the initial stop of the defendant was lawful. I shall therefore assume that there was an initial "seizure" within the meaning of the Fourth Amendment, but that this seizure is properly characterized as an investigative detention governed by the principles set forth in Terry v. Ohio, 392 U.S. 1 (1968), as opposed to a full arrest supported by probable cause. I note too that the parties agree that this is the proper starting point for the analysis of this motion to suppress. (See filing 49 at 1-6; filing 51 at 3.)
Having determined that the analysis begins with the premise that the officers were justified in detaining the defendant to inquire about the gift cards, I return to the defendant's argument that this justification evaporated relatively early in the encounter. The defendant's argument assumes that the gift card investigation terminated (or, more precisely, that any justification for the detention associated with the gift card investigation terminated) when the defendant told Officer Hahne how he came to possess the gift cards. It is true that when the defendant offered his explanation, Officer Hahne did not believe that the defendant was the individual who stole the woman's purse or used the stolen credit cards to purchase gift cards. Also, it appears that the defendant's explanation was reasonable, and Officer Hahne did not question it. For example, Officer Hahne did not ask the defendant for a description of the person who allegedly gave him the cards. Instead, the officer proceeded to ask the defendant if he would agree to empty his front pockets.
Nevertheless, these facts to not require a finding that the gift card investigation was concluded before Officer Hahne asked to view the contents of the defendant's pockets. It is well-established that when an initial stop is justified, a law enforcement officer is permitted to ask any question reasonably related to the stop. See, e.g., United States v. Cummins, 920 F.2d 498, 502 (8th Cir. 1990). In Cummins, an officer stopped a vehicle after observing a traffic violation and asked the driver why he failed to use his turn signal. See id. The court found that this question was reasonably related to the purpose of the stop. See id. Similarly, when Officer Hahne stopped the defendant to question him about his use of gift cards that had been purchased with stolen credit cards — a stop that was admittedly reasonable — it was reasonable to detain the defendant to ask him if he had additional cards in his possession. I find too that it was reasonable for Officer Hahne to ask the defendant whether he would be willing to empty his front pockets and whether he would allow Officer Hahne to pat down his rear pockets. These requests were "reasonably related in scope to the circumstances that justified the interference in the first place." United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (quoting Cummins, 920 F.2d at 502). In other words, up to this point in the chronology of Officer Hahne's actions, the scope of the stop was not expanded.
After Officer Hahne patted down the defendant's rear pockets, he began to shift the focus of his investigation from gift cards to controlled substances. However, this subjective shift in focus is not relevant if the circumstances, viewed objectively, justified the officer's actions. See Ohio v. Robinette, 519 U.S. 33, 38-39 (1996) (quoting Whren v. United States, 517 U.S. 806, 813 (1996)); see also United States v. Cummins, 920 F.2d 498, 501-02 (8th Cir. 1990). Here, when Officer Hahne asked the defendant to run his finger through his coin pocket — not knowing whether there was, in fact, a coin pocket on the defendant's jeans — the officer was obviously looking for an indication that the defendant was carrying controlled substances. The relevant question, however, is whether the circumstances, viewed objectively, would have justified an inquiry concerning the defendant's coin pocket. Based on the evidence adduced at the hearing, it appears that a gift card could have fit into the defendant's coin pocket only if it were folded, and the gift cards in question were made of plastic. Thus, it seems doubtful that a rigid plastic gift card would have been concealed in a coin pocket. Nevertheless, the evidence indicates that a card could have been made to fit in the pocket, and the officer had no way of determining whether a card might have been folded into the pocket until the pocket came into his view. I also note that initially the officer did not ask the defendant to display the contents of the coin pocket, but rather asked the defendant if he would run his fingers through the pocket. Although the officer's request — viewed subjectively — appears to have been aimed at detecting the rustling sound made by small plastic bags, it seems objectively reasonable that the officer also would have been able to detect the presence of a folded gift card in the coin pocket when the defendant ran his fingers through it. The question is close; yet I conclude that it would have been reasonable for the officer to ask the defendant to run his fingers through the coin pocket during the gift card investigation. See Robinette, 519 U.S. at 38-39; United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (quoting Cummins, 920 F.2d at 502). It is true that once the Officer observed the shape of the bulge in the coin pocket, any suspicion that the pocket contained a gift card was dispelled. At that point it would not have been objectively reasonable to inquire about the coin pocket within the context of the gift card investigation. However, the coin pocket was not visible when Officer Hahne made his request, and I conclude that the request was objectively reasonable at the time it was made.
If questions that are reasonably related to a stop raise an officer's suspicions, the officer may expand the scope of the stop and ask more intrusive questions. As I noted above, inUnited States v. Cummins, 920 F.2d 498, 502 (8th Cir. 1990), the officer first asked questions that were reasonably related in scope to the circumstances that justified the stop. After the officer received inconsistent answers, and in view of the fact that he observed other examples of evasive and nervous behavior prior to and during the questioning, he was entitled to detain the suspects until he had satisfied his suspicions. See id. Cf. United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994) (holding that the circumstances were insufficient to raise the officer's suspicions). Here, when the defendant inserted his finger into his coin pocket, the sound of rustling plastic was heard and the defendant withdrew his finger from the pocket "immediately." The defendant then became very nervous, and he began shaking and sweating. See United States v. Jones, 269 F.3d 919, 928-29 (8th Cir. 2001) (noting that nervousness, in combination with other factors, can generate a reasonable suspicion). In addition, I note that Officer Hahne had a non-specific suspicion — based on past contacts or possibly on LPD intelligence files — that the defendant was somehow connected with narcotics. Under the circumstances, I find that it was reasonable for the officer to ask the defendant what the object in the coin pocket was, whether the object was a controlled substance, and whether the defendant would agree to empty the pocket. See, e.g., Cummins, 920 F.2d at 502.
The officer did not testify that any of the defendant's answers to these questions generated further suspicion, although it is true that the defendant did not specifically identify the object or agree to display the contents of the pocket. The officer then asked the defendant if he would raise his pants legs. This request too was reasonable in view of the officer's suspicions, and I note parenthetically that it might have been objectively reasonable to make such a request in the context of the gift card investigation. The defendant agreed to this request, and the shape of the smooth object conforming to the defendant's leg was revealed through one of the defendant's socks. For the same reason that it was reasonable for the officer to ask what the item in the coin pocket was, it was reasonable for him to ask the defendant to identify the object in the sock.
This case is not analogous to one in which, during an initial stop concerning a traffic violation, the officer asked — without having observed anything to arouse his suspicions — for permission to search for controlled substances. See, e.g., United States v. Ramos, 42 F.3d 1160, 1161-64 (8th Cir. 1994);United States v. Jones, 269 F.3d 919 (8th Cir. 2001). Here, the officer's initial questions were relevant to the purpose of the valid stop. Once his suspicions were raised, the officer was entitled to ask additional questions in an attempt to satisfy his suspicion. I therefore reject the defendant's argument that his detention became unlawful after he gave Officer Hahne a reasonable explanation for his possession of the gift cards.
B.
The defendant also argues that he was not free to leave during the officer's investigation, (see filing 59 at 7), and that he did not consent to the officer's requests to view the contents of his front pockets, to pat down the rear pockets, to run fingers through the coin pocket, and to lift his pants legs. (See filing 59 at 8.) As to the former argument, I have already concluded that, although the defendant was "seized" within the meaning of the Fourth Amendment, the detention was reasonably based on suspicions that the defendant might be possessed of gift cards or, as the investigation progressed, controlled substances. The latter argument remains to be analyzed.
It is certainly true that the defendant did not consent to a search of his coin pocket. However, the undisputed evidence adduced at the hearing shows that the defendant consented to requests to empty his front pockets, to allow the officer to pat down his rear pockets, to run his finger through his coin pocket, and to lift his pants legs to display his socks. I have considered whether the defendant's consent to these requests was given voluntarily, and I conclude that it was.
In determining whether a defendant's consent was voluntary, courts consider "the characteristics of the person giving consent" and "the encounter from which the consent arose." "Relevant characteristics of the consenting party include age, intelligence and education; chemical intoxication (if any); whether the individual was informed of the right to withhold consent; and whether the suspect generally understood the rights enjoyed by those under criminal investigation." We do not apply these factors rigidly, but instead employ a totality of circumstances approach. Finally, if law enforcement officers reasonably believed that the defendant consented voluntarily, then the search is lawful under the Fourth Amendment.United States v. Contreras, 372 F.3d 974, 977 (8th Cir. 2004) (citations omitted). "To assess the environment surrounding the consent, we consider the length of time that the suspect was detained and questioned; whether the police intimidated the suspect; whether the suspect relied upon promises or misrepresentations made by the police; whether the suspect was in custody when the consent was given; whether the encounter occurred in a public or secluded place; and whether or not the suspect objected to the search." United States v. Sanchez, 156 F.3d 875, 878 (8th Cir. 1998) (citation omitted). Although there is no evidence that the defendant was informed of his right to withhold consent to the officer's requests, the fact that he invoked this right in connection with his coin pocket indicates that he understood this right and felt free to invoke it. In addition, there is no evidence that the defendant was limited by his age, intelligence, or education, or that he was intoxicated. In considering the environment at the time of the defendant's consent, I note that there is no evidence concerning the length of the encounter. However, there is also no evidence that the officers intimidated the defendant, (see Tr., filing 58, at 50:16-51:14), or made promises or misrepresentations to the him. The encounter occurred in a public place, and although I agree that the encounter occurred during an investigative detention, the detention was valid and did not appear to be threatening in tone. Under the circumstances, I find that Officer Hahne would have believed reasonably that the defendant's consent to the particular requests identified above was voluntary, and I reject the defendant's argument that he did not consent voluntarily to any of the requests.
C.
I have concluded that the facts known to Officer Hahne — specifically, the bulge in the coin pocket; the rustling sound of plastic in the coin pocket; the defendant's nervous demeanor; the bulge under the defendant's sock; and the officer's own knowledge and experience, which included knowledge that less than 10-15% of persons he arrested with controlled substances also carried money in their socks and knowledge that the defendant had a vague association with methamphetamine — provided a reasonable basis for suspecting that the defendant might be carrying a controlled substance. Officer Hahne was therefore justified in asking additional questions to attempt to satisfy his suspicions. See, e.g., United States v. Jones, 269 F.3d 919, 926-27 (8th Cir. 2001). Nevertheless, the defendant argues that these facts "do not add up to more than a suspicion," (see filing 59 at 9), and that Officer Hahne was not justified in searching the defendant's coin pocket and sock. I agree.
In this case the search proceeded over the defendant's objection and in the absence of a warrant. "[T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure." Terry v. Ohio, 392 U.S. 1, 20 (1968). "The `cardinal principle' in Fourth Amendment search and seizure jurisprudence is that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.'" United States v. Marshall, 986 F.2d 1171, 1173 (8th Cir. 1993) (quoting Mincey v. Arizona, 437 U.S. 385, 390 (1978)). "When the government seeks to introduce evidence that was seized during a warrantless search, it bears the burden of showing the need for an exemption from the warrant requirement and that its conduct fell within the bounds of the exception." Id. (citing Mincey, 437 U.S. at 391). In this case, the government argued that the warrantless search was justified under the "plain view doctrine." (See filing 51 at 5.)
Under the plain view doctrine, a police officer's warrantless seizure does not violate the Fourth Amendment if the officer's conduct satisfies three criteria. First, the officer must not violate the Fourth Amendment in arriving at the vantage point from which he plainly views the evidence. Second, the object's incriminating nature must be immediately apparent to the officer. Third, the officer must have a legal right of access to the object.United States v. Beatty, 170 F.3d 811, 814 (8th Cir. 1999) (citing United States v. Hatten, 68 F.3d 257, 260 (8th Cir. 1995)) (citations omitted).
The plain view doctrine is inapplicable here because the substance in the defendant's coin pocket was not in "plain view." With respect to the first element of the doctrine, I agree with the government that Officer Hahne did not violate the Fourth Amendment in arriving at the vantage point from which he plainly viewed the small bulge in the defendant's coin pocket. However, there is no indication that the officer could plainly see that the item bulging in the coin pocket was a controlled substance. Viewing this bulge is not the equivalent of a plain viewing of the evidence. Relatedly, with respect to the second element, it is clear that the incriminating nature of the object in the coin pocket was not immediately apparent when the bulge came into view or when the rustling of the plastic was heard. Finally, with respect to the final element, there is no indication that Officer Hahne had a legal right of access to the coin pocket. In sum, I must conclude that the government has not demonstrated that the search fell within the bounds of the plain view exception to the warrant requirement.
The government argues only that upon seeing the bulge, Officer Hahne's past experience led him to "believe the bulge in DeGarmo's pocket was a controlled substance." (Filing 51 at 5.)
The government has not argued that any other exception to the warrant requirement is applicable, nor has it asserted that exigent or exceptional circumstances justify the creation of a new exception to the warrant requirement. See Mincey v. Arizona, 437 U.S. 385, 390-91 (1978). I do not believe it is the proper role of the court to survey Fourth Amendment jurisprudence and determine, sua sponte, that the search of the defendant was justified on some alternate ground that the government has not advanced. As the Supreme Court has stated, "We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative." McDonald v. United States, 335 U.S. 451, 456 (1948). In my view, the analysis of the defendant's motion to suppress concludes here, and it is clear that the defendant's motion to suppress must be granted. See Wong Sun v. United States, 371 U.S. 471, 484 (1963) ("In order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person, this Court held nearly half a century ago that evidence seized during an unlawful search could not constitute proof against the victim of the search." (Citations omitted)).
At the hearing before the magistrate judge, the government argued that the warrantless search was justified by the officer's "reasonable and articulable suspicion" that criminal activity was afoot. (See Tr., filing 58, at 58:24-59:3; 60:8-14.) While I agree that the facts and circumstances articulated by Officer Hahne did provide him with a reasonable suspicion that justified the continued detention of the defendant, (see supra Part II.A), his suspicions did not justify the warrantless search in this case. It merits mention that the existence of probable cause does not automatically establish exigent circumstances that might justify a warrantless search. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) ("[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed. . . .").
I note in passing that the magistrate judge concluded that the search of the defendant's pocket was permissible because it was supported by probable cause. (See filing 57 at 6-7.) However, no authority is provided for the proposition that the probable cause determination may be made by a law enforcement officer, as opposed to a neutral judicial decision-maker, when no valid exigencies that would warrant circumvention of the warrant requirement have been advanced by the government. In addition, even if it were appropriate in this case to yield responsibility for the probable cause determination to the officer, it seems to me that the "facts supporting probable cause" cited by the magistrate judge, (id.), were afforded too much weight.
"Probable cause sufficient for a warrantless search exists `where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.'" United States v. Twiss, 127 F.3d 771, 773 (8th Cir. 1997) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). However, the Eighth Circuit has maintained that "where the search is based upon a police officer acting without benefit of a warrant and therefore without a magistrate's determination of probable cause, the evidence must be of a more `persuasive character.'" United States v. Turk, 429 F.2d 1327, 1330 (8th Cir. 1970) (citations omitted). This is so, in part, because "[a]n arrest without a warrant [bypasses] the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search too likely to be subtly influenced by the familiar shortcomings of hindsight judgment." Id. (quotingBeck v. Ohio, 379 U.S. 89, 96 (1964)). With the foregoing in mind, I have considered the facts identified by the magistrate judge and have made the following observations.
Among the facts cited by the magistrate judge in support of his finding that Officer Hahne's search was supported by probable cause is the "non-specific intelligence" in the LPD computer records indicating that the defendant is or was "involved with" methamphetamine. (Filing 57 at 7.) Initially, I note that it is unclear, at best, whether Officer Hahne knew of this intelligence before he searched the defendant. (See supra Part I.) That aside, it must be borne in mind that "where information on which the police base the warrantless arrest is not obtained by direct observation, probable cause must be established by (1) proof of the reliability of the informant and (2) the underlying circumstances as to how the informant came by his knowledge."United States v. Turk, 429 F.2d 1327, 1330 (8th Cir. 1970). Here, this foundation has not been laid. Neither the source of the LPD's information nor the underlying circumstances as to how the source came by his knowledge are known. I note too that even the information derived from Officer Hahne's own prior interactions with the defendant is not supported by an adequate foundation. Although there is evidence that Officer Hahne questioned the defendant in connection with narcotics investigations in the past, the nature of the defendant's connection with these investigations is unknown and the circumstances and information that caused Officer Hahne to contact the defendant have not been disclosed. Therefore, the "intelligence" concerning the defendant's alleged connection with methamphetamine contributes little to the probable cause analysis.
Officer Hahne observed that 1) there was a small bulge in the defendant's coin pocket; 2) the pocket emitted a plastic rustling sound; 3) the defendant became nervous, sweating and shaking after placing his finger in the coin pocket and immediately withdrawing it; and 4) there was a bulge in the defendant's sock, which the defendant suggested was a collection of large bills concealed there due to either his distrust of banks or lack of a bank account. These observations were coupled with the officer's experience, which led him to conclude that 1) the sound emitted from the coin pocket could have been a plastic baggie; 2) drug offenders "sometimes" carry drugs in plastic baggies; 3) drug offenders "sometimes" carry drugs in the coin pockets of their jeans; 4) a relatively low percentage of persons arrested with controlled substances carried money in their socks. As I have stated above, it seems to me that when the officer's knowledge and experience — including whatever information the "intelligence" might have contributed — are applied to the objective facts, the totality of the circumstances did provide a particularized and objective basis for suspecting criminal activity. Nervousness, in particular, can generate a reasonable suspicion that criminal activity is afoot in circumstances such as those presented here. Cf. United States v. Jones, 269 F.3d 919, 928-29 (8th Cir. 2001) (discussing nervousness). However, in my view more was necessary before a "man of reasonable prudence" would be warranted "in the belief that contraband or evidence of a crime will be found." United States v. Twiss, 127 F.3d 771, 773 (8th Cir. 1997) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)). Certainly, there are many innocuous items that would have formed a bulge in the defendant's coin pocket similar to that observed by Officer Hahne. Any of those objects could have been wrapped in or accompanied by plastic, such that the pocket would have emitted the rustling sound heard by the officer. No information is given concerning the likelihood that plastic in a coin pocket will be accompanied by a controlled substance or that a person who carries large bills around his ankle will also be carrying a controlled substance. The defendant's responses to the defendant's questions were neither contradictory nor suspicious. Finally, although the defendant's nervousness was sudden, severe, and associated with the coin pocket such that the officer's suspicions were aroused reasonably, it is axiomatic that more than a reasonable suspicion is required to establish probable cause to search. It is my view that the totality of the circumstances was not sufficient to establish probable cause to believe that controlled substances would be found in the defendant's coin pocket.
The evidence provided by the officer concerns the converse of the relevant inquiry. Knowledge that approximately 10-15% of persons arrested carrying drugs also have money concealed in a sock does not provide any insight into the likelihood that a person with money in his sock is also carrying drugs.
IT IS ORDERED that:
1. The defendant's objection to the magistrate judge's report and recommendation, filing 59, is sustained; and
2. The defendant's motion to suppress, filing 48, is granted.