Opinion
Criminal Action No. 98-700.
April 5, 2000.
Donna Krappa, Assistant, U.S. Attorney, ROBERT J. CLEARY, UNITED STATES ATTORNEY, Newark, N.J., Attorneys for Plaintiff.
Stacy A. Biancamano, Esq., Assistant Federal Public Defender, Newark, N.J., Attorneys for Defendant, Shawn Johnson.
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on defendant Shawn Johnson's motion to suppress. This Court heard oral argument on October 13 and 14, 1999. For the reasons set forth below, defendant Shawn Johnson's motion to suppress is GRANTED.
BACKGROUND
Defendant, Shawn Johnson ("Johnson"), is charged with possession with intent to distribute approximately 121.1 grams of "crack cocaine" in violation of 21 U.S.C. § 841(a)(1). Johnson's arrest arises out of a warrantless search of an automobile in which he was a passenger. The facts surrounding the case, as set forth in Sergeant Timothy Kaighn's police report and testimony, are as follows.At approximately 11:00 AM on August 28, 1998, Sergeant Timothy Kaighn ("Sergeant Kaighn") of the Gloucester Township Police Department observed a white, four-door Chevrolet parked in the parking lot of a Howard Johnson's motel on Black Horse Pike in Gloucester Township. At the time, the police were investigating several bank robberies that occurred in the area. Sergeant Kaighn, believing that the occupants in the vehicle resembled the suspected bank thieves, followed the vehicle out of the parking lot and onto the Black Horse Pike. In his police report, Sergeant Kaighn indicated that he observed the vehicle (traveling northbound) improperly cross the center, double-yellow dividing line on the highway. Sergeant Kaighn also noted that the driver of the vehicle activated the right-turn signal, but failed to turn, and instead continued to travel straight. After "running the tags" through the dispatcher, Sergeant Kaighn discovered that the vehicle's registration and ownership were not on file. Sergeant Kaighn then activated his overhead warning light and stopped the vehicle.
Although it is proper procedure for police officers to memorialize all important details of an incident in a written police report, Sergeant Kaighn failed to include in his report the he first observed the vehicle in the hotel parking lot. See Kaighn Transcript (" Kaighn Tr .") at p. 48:15-17.
The automobile was driven by Iyona M. Woods ("Woods"). Upon Sergeant Kaighn's request for the usual driver documentation, Woods informed Sergeant Kaighn that she did not have any identification, that the vehicle was not registered, and that her driver's license was suspended. Johnson, sitting in the passenger seat, also stated that he did not have any identification.
Sergeant Kaighn then asked Woods to exit the vehicle and conducted a protective pat-down search of Woods. Woods complied with the officer's request to sit in his police cruiser while he interviewed her. At that time, Police Officer Ronald Middleton ("Officer Middleton"), also of the Gloucester Township Police Department, arrived at the scene and Sergeant Kaighn requested that Johnson sit in Officer Middleton's patrol vehicle while he conducted a search of the automobile for proof of ownership. Upon returning to Woods' vehicle, Sergeant Kaighn entered through the passenger-side door, opened the glove compartment and found what appeared to be Woods' New Jersey suspension notice. The officer then noticed a partially opened black backpack on the floor near the front passenger seat. The backpack was right next to the passenger seat, where the passenger's legs and knees would rest. Sergeant Kaighn asserts that through the opening in the backpack he observed in "plain view" a white plastic bag. This plastic bag, he alleges, contained a light-colored, solid object. It is also asserted that the bag held several small, dark-colored bags with a light-colored substance, and that the bags were "taut" against the contents so that the contents were visible. Sergeant Kaighn, believing the dark objects to be contraband, opened the bag and found a large quantity of small plastic black bags containing a chunky substance, which he believed was narcotics.
Upon confiscating the backpack, Sergeant Kaighn approached Johnson in Officer Middleton's patrol vehicle and asked Johnson who owned the backpack. Johnson replied that he owned the backpack. After receiving Miranda warnings, Johnson was arrested and charged with the unlawful possession of a controlled substance and unlawful possession of a controlled substance with the intent to distribute.
Woods was later charged with conspiracy to distribute a controlled substance and possession of a controlled substance.
DISCUSSION
In moving to suppress, Johnson argues that the contraband is the fruit of an illegal, warrantless search of the vehicle. Johnson also contends that the drugs could not be seen in plain view and that his Miranda rights were violated. The United States counters that the search was proper and that the evidence was seized in plain view. The government additionally asserts that Johnson was properly Mirandized.Typically, the proponent of a motion to suppress bears the burden of establishing that his Fourth Amendment rights were violated. See United States v. Acosta, 965 F.2d 1248, 1257 n. 9 (3d Cir. 1992) (citing Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1979)). However, once the defendant has established that the search or seizure was conducted without a warrant, "the burden shifts to the government to show that the search or seizure was reasonable." United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995), cert. denied, 518 U.S. 1007 (1996). The standard of proof in this regard is a preponderance of evidence. See United States v. Matlock, 415 U.S. 164, 178 n. 14 (1974) ("[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence."); United States v. Morales, 861 F.2d 396, 399 (3d Cir. 1988) (holding that, on motion to suppress, the government bears the burden of proving by a preponderance of the evidence that driver's consent to search vehicle is valid).
It is settled that at a hearing on a motion to suppress, "the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge." See United States v. McKneely, 6 F.3d 1447, 1452-53 (10th Cir. 1993). See also United States v. Matthews, 32 F.3d 294, 298 (7th Cir. 1994); United States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir. 1990); Government of the Virgin Islands v. Gereau, 502 F.2d 914, 921 (3d Cir. 1974), cert.denied, 420 U.S. 909 (1975).
I. Lawfulness of the Initial Automobile Stop
At the outset, it must first be determined whether the initial stop of the vehicle complied with constitutional strictures. The stopping of a car and detaining of its occupants is a seizure under the Fourth Amendment. See United States v. Hensley, 469 U.S. 221, 226 (1985);Johnson, 63 F.3d at 245. As such, the Fourth Amendment requires the police to obtain a warrant to effectuate such a seizure, unless a previously recognized exception applies.
Under Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court crafted a narrow exception to the general warrant requirement of the Fourth Amendment. See 392 U.S. at 20-21. Terry permits an investigative stop of an automobile where a police officer possesses a "reasonable suspicion" of criminal activity. See 392 U.S. at 20-21; United States v. Kithcart, 134 F.3d 529, 532 (3d Cir. 1998); Johnson, 63 F.3d at 245; United States v. Rickus, 737 F.2d 360, 365 (3d Cir. 1984). Reasonable suspicion must be based on an "articulable and reasonable suspicion that . . . either the vehicle or an occupant" has violated the law. Johnson, 63 F.3d at 245;see also United States v. Harple, 1999 WL 1332335, *3 (3d Cir. Sept. 10, 1999).
It is settled that "a traffic stop is lawful under the Fourth Amendment where a police officer observes a violation of the state traffic regulations." United States v. Moorefield, 111 F.3d 10, 12 (3d Cir. 1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)). Where an officer stops a vehicle to check a driver's license and registration, the constitutional requirements are satisfied if the stop "is based on an `articulable and reasonable suspicion that . . . either the vehicle or an occupant' has violated the law." Johnson, 63 F.3d at 245 (quotingDelaware v. Prouse, 440 U.S. 648, 663 (1979)).
In Johnson , for example, a Pennsylvania State Trooper stopped a vehicle because he observed oversized air fresheners hanging from the vehicle's rearview mirror, apparently in violation of Pennsylvania's traffic code.
In this case, Sergeant Kaighn testified at the hearing and indicated in his police report that he stopped the automobile because he believed the driver violated a traffic law by crossing the center, double-yellow lines and failing to make a turn after the driver activated the turn signal. New Jersey's motor vehicle "No Passing" law provides that "the driver of a vehicle shall not cross an appropriately marked `No Passing' line in a `No Passing' zone. . . ." N.J.S.A. 39:4-86. The statute also states that:
The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking and passing another vehicle proceeding in the same direction unless the left side is clearly visible and free of oncoming traffic for a sufficient distance ahead to permit the overtaking and passing to be made in safety.N.J.S.A. 39:4-86.
This Court finds that Sergeant Kaighn possessed an articulable and reasonable suspicion that Woods violated the "No Passing" motor vehicle law. Based upon his observation that the vehicle crossed the double-yellow "no passing" lines, Sergeant Kaighn reasonably believed the defendant was committing a traffic offense under New Jersey law and that the law authorized a stop for such an offense. Therefore, inasmuch as Sergeant Kaighn was justified in stopping the vehicle, the initial stop of the vehicle conformed to the requirements of the Fourth Amendment.
It should be noted that the activation of a turn signal coupled with the failure to actually make the turn does not, by itself, constitute a violation of New Jersey's traffic laws and would not, alone, justify the automobile stop. In his testimony, Sergeant Kaighn conceded as much, stating that the failure to turn after activating a turn signal "itself it is not a specific violation." See Kaighn Tr . at p. 19:10.
II. Search of the Vehicle
Next, the Court turns to the search of Woods' vehicle. In order to challenge the warrantless search of a vehicle on Fourth Amendment grounds, one must have a legitimate expectation of privacy in the premises or property searched. See United States v. Salvucci, 448 U.S. 83, 91-92 (1980); Illinois v. Rakas, 439 U.S. 128, 140-50 (1978). This is so because Fourth Amendment rights are personal and cannot be vicariously asserted. See Rakas, 439 U.S. at 133-34; Government of the Virgin Islands v. Williams, 739 F.2d 936, 938 (3d Cir. 1984). Thus, where a person is subjected to an illegal search upon the premises or property of a third party, that person's Fourth Amendment rights have not been violated. See Williams, 739 F.2d at 938.
Under this rationale, the Rakas Court held that passengers in an automobile who did not assert a property or possessory interest in the vehicle did not have a reasonable expectation of privacy where the vehicle is in control of a third party. See Rakas, 439 U.S. at 148. Therefore, the passengers could not challenge a warrantless search of the vehicle. See id. ; see also Williams, 739 F.2d at 938-39. Likewise, in this case Johnson, a mere passenger, has not asserted a property or possessory interest in Woods' vehicle. Therefore, Johnson has no legitimate expectation of privacy in Woods' vehicle, and he cannot challenge the legality of the warrantless search of the vehicle.
III. Search of the Backpack Under the Plain View Doctrine
Although Johnson does not have a reasonable expectation of privacy in the vehicle, Johnson has asserted that he is the owner of the backpack that Sergeant Kaighn seized. As such, Johnson does possess a reasonable expectation of privacy in his backpack and therefore can challenge the search and seizure of the backpack. See New Jersey v. T.L.O., 469 U.S. 325, 337-38 (1985); United States v. Ross, 456 U.S. 798, 822-23 (1982).
As the Court in Ross so eloquently articulated:
For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case.456 U.S. at 822.
The government contends that Sergeant Kaighn observed contraband in Johnson's backpack in plain view while searching Woods' automobile for ownership documents. Johnson, of course, asserts that the nefarious contents found in the backpack were not visible in plain view. Once again, because there was no search warrant the United States bears the burden of proving that the search and seizure was reasonable. See Johnson, 63 F.3d at 245.
A. The Plain View Doctrine
Under the plain view doctrine, "[i]t is well established that under certain circumstances the police may seize evidence in plain view without a warrant." Horton v. California, 496 U.S. 128, 134 (1990). Assuming the police are lawfully on the premises, when an article is found in plain view there is no "search" and thus no invasion of privacy. See id. at 133-34. Rather, evidence in plain view implicates concerns regarding warrantless seizures, and the seizing of contraband found in plain view is merely an extension of the initial lawful search. See id. at 134, 135-36; Texas v. Brown, 460 U.S. 730, 738-39 (1983).
Horton sets forth three requirements for valid seizures of evidence in plain view. See United States v. Menon, 24 F.3d 550, 559 (3d Cir. 1994). First, it is essential that the initial intrusion which brings the police within view of an incriminating object does not violate the Fourth Amendment. See Horton, 496 U.S. at 135. Therefore, prior to the viewing of an article in plain sight, the police must either have obtained a warrant or fall under one of the exceptions to the warrant requirement.See id.
The second requirement is that the police must have had a "lawful right of access to the object itself." Id. at 137. In this case, the government has satisfied the first two requisites. Regardless of whether Sergeant Kaighn conducted an unlawful search of the vehicle, Johnson cannot challenge the propriety of that search. As explained above, Johnson had no legitimate expectation of privacy in the vehicle. Thus, Sergeant Kaighn was lawfully located in vehicle and had a lawful right of access to the object.
Third, the incriminating character of the object must be "immediately apparent" at the moment preceding the seizure. See Horton, 496 U.S. at 136-37; Menon, 24 F.3d at 559; United States v. Benish, 5 F.3d 20, 25 (3d Cir. 1993). The police need not know for certain that an object is contraband, but, rather, need only probable cause to associate the property with criminal activity. See Horton, 496 U.S. at 142; Arizona v. Hicks, 480 U.S. 321, 326-27 (1987); Brown, 460 U.S. at 741-42 (quotingPayton v. New York, 445 U.S. 573, 587 (1980)); United States v. Frank, 864 F.2d 992, 1005 (3d Cir. 1988), cert. denied, 490 U.S. 1095 (1989).
Probable cause is a flexible and common-sense standard. See Brown, 460 U.S. at 742. A finding of probable cause requires that the facts of the situation "warrant a man of reasonable caution in the belief" that an object is contraband. Id. (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). Probable cause exists when a reasonable police officer has cause to believe, under the totality of the circumstances, that there is a fair probability that contraband or evidence of a crime will be found in the place to be searched. See Alabama v. White, 496 U.S. 325, 330 (1990); Illinois v. Gates, 462 U.S. 213, 238 (1983). The evidence must be viewed from the perspective of "those versed in the field of law enforcement." Id. (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)).
In this case, the crux of the problem is whether Sergeant Kaighn observed the contraband in plain view and whether, upon viewing the contents of the partially opened backpack, he possessed probable cause to believe the bag contained contraband.
B. Application of the Plain View Doctrine
As articulated above, a court must take into consideration the experience of the police officer who effectuated the search. Here, Sergeant Kaighn testified that he had been involved in approximately 150 drug-related arrests and, as a result, had become familiar with the way narcotics are packaged. See Kaighn Tr. at p. 5:23; 6:21-25; 7:1-7.
Sergeant Kaighn then testified that as he was conducting an inspection of the passenger-side area for ownership documents, he came across a black backpack lying on the floor of the passenger's side. See id. at p. 25:23-25. According to Sergeant Kaighn, the backpack was partially open, measuring approximately three and a half inches at the widest point of the opening. See id. at p. 27:23; 28:4. The length of the partial opening was eight and a half inches. See id. at p. 28:8. Sergeant Kaighn testified that when he observed the contents, he "immediately believed it to be contraband." See id. at p. 28:16-17. Sergeant Kaighn described what he saw as follows:
What I saw was it was a translucent white-tissue color bag. Appeared to be material which was over an object light in color. Rectangular size. Between the object and this bag were a series of what appeared to be contraband, dark-color bags with white chunky substances, if you will.See id. at p. 26:12-16.
Sergeant Kaighn then "went into the bag and opened up the white bag to observe the objects without any blockages. . . ." See id. at p. 28:23-24. Inside the outer plastic bag were approximately fifty-three "blackish-colored Zip Lock-type plastic bags containing a white rocky substance, chunky substance." See id. at p. 28:25; 29:1; 36:9-11.
Based on the totality of the circumstances, and a close scrutiny of Sergeant Kaighn's testimony, this Court is not satisfied that Sergeant Kaighn possessed probable cause to believe the bags within the backpack contained contraband. The government has failed to meet its burden of proving by a preponderance of the evidence that probable cause existed to believe the backpack contained contraband.
First, unlike the typical plain view case, the contraband in this case was not conveniently sitting on the car seat or floor in full view. Instead, the contents were located in a backpack that was only partially open. In fact, Sergeant Kaighn's testimony regarding the location of the plastic bag in relation to the backpack is inconsistent. After first testifying that the plastic bag was on top of the backpack, Sergeant Kaighn then testified that the plastic bag was inside the backpack. The difference between the two is significant.
Indeed, Johnson contends that the backpack was actually fully closed, and that Sergeant Kaighn unzipped the backpack to look inside. One wonders why a person carrying illegal contraband in a backpack would, upon being stopped by police, leave the backpack open.
Sergeant Kaighn first testified that the white, plastic bag was "right on top of the backpack. . . ." See Kaighn Tr . at p. 26:11. He then testified that, upon viewing the backpack, he "immediately went into the bag [i.e., the backpack] and opened up the white bag. . . ." See id . at p. 28:23 (emphasis added). Later, Sergeant Kaighn responded to the following query:
Q: At this point, you indicate, you observed what is readily apparent to you to be contraband in the three-inch opening of this backpack, is that correct?A: Approximately four inches.
See Kaighn Tr . at p. 58:13-16 (emphasis added).
In addition, the officer then discussed at length the size of the opening of the backpack. See id. at p. 27:22-23; 28:9-10. It would seem that if the contraband was lying on top of the backpack in plain view, there would be no need to discuss the size of the opening of the backpack. Based upon this conflict in the testimony, the Court finds that the outer plastic bag was contained inside the backpack. Because it was not completely open to full view, the contents of the backpack were, necessarily, at least partially obscured by the outer parts of the backpack. This would make it more difficult for Sergeant Kaighn to observe the plastic bag and ascertain its nefarious nature.
Further, the contents of the bags were far from a "foregone conclusion," as the government would suggest. See Government's Conclusions of Law at ¶ 20. Sergeant Kaighn's description of the plastic bags belies his own testimony that he could discern the criminal nature of the contents. Sergeant Kaighn describes the outer plastic bag as "white-colored," yet he states that it was "translucent." Sergeant Kaighn never testified that the bag was clear. If a plastic bag is white, it is difficult to comprehend how it can be completely translucent at the same time.
More important, however, is that Sergeant Kaighn testified that the plastic bags within the outer, white plastic bag were "blackish-colored."See Kaighn Tr. at p. 28:25. He then testified that he could see a white, chunky substance inside these dark-colored bags. See id. at p. 26:12-16. The package was rectangular in size. See id. This Court is perplexed how Sergeant Kaighn could have observed a white substance through black, opaque bags. The government essentially asks this Court to believe that Sergeant Kaighn possesses x-ray vision and can see through two partially obscured, opaque bags, and then quickly ascertain that the contents are contraband. Such an explanation defies common sense.
In fact, Sergeant Kaighn himself admitted that there were "blockages" that impeded his view into the plastic bags, testifying that he opened the plastic bags to "observe the objects without any blockages. . . ."See id. at p. 28:24. Hence, even Sergeant Kaighn concedes that he opened the plastic bags to look at their contents because he could not see through the bags in the first instance.
Lastly, prior to the observance of the backpack, Sergeant Kaighn was not alerted to any purported drug activity in the area in which the stop was effectuated. Additionally, there is no evidence that the area was known as a particularly high drug-trafficking area. Although Sergeant Kaighn may have initially suspected Woods and Johnson could have been involved in the recent bank robberies, they were not under suspicion of drug-related offenses. Woods was detained only for a routine traffic infraction. Therefore, at the time of the stop, Sergeant Kaighn possessed no reason to suspect that Woods or Johnson were involved in any drug-related offenses. This point is relevant because there exists no other evidence which would lead Sergeant Kaighn to suspect that the bags contained contraband.
To be sure, there is language in the Supreme Court's Brown decision which suggests that it is immaterial whether a container holding contraband is opaque or not, as long as the criminal nature of the evidence can be inferred by the container's appearance. Specifically, the Court stated that it was "all but irrelevant" that a police officer could not see through an opaque balloon to view drugs contained within the balloon. See Brown, 460 U.S. at 743. In Brown, an officer conducting an automobile stop observed a green, opaque party balloon in the driver's hand. When the driver opened the glove compartment, the officer noticed that it contained several small plastic vials, quantities of loose, white powder, and an open bag of party balloons. The Court, noting that balloons like the one the defendant possessed were frequently used to carry narcotics, opined that "the distinctive character of the balloon itself spoke volumes as to its contents — particularly to the trained eye of the officer." Id.
The facts surrounding Brown are different than the facts in this case. First, a plastic, "Zip-loc" bag is not so distinctive as to "speak volumes" about its contents. Further, in Brown there existed additional evidence in the glove compartment indicating that the defendant possessed illegal narcotics, which served to confirm the officer's earlier suspicion upon viewing the balloon. Thus, when taken as a whole, the observation of the balloon, coupled with the viewing of loose, white powder and several small plastic vials in the defendant's glove compartment, provided the officer with probable cause to believe the balloon contained contraband. As the Supreme Court stated, the officer's observation of the contents in the glove compartment "revealed further suggestions that [the defendant] was engaged in activities that might involve possession of illicit substances." Brown, 460 U.S. at 743.
While this Court does not suggest that additional, confirmatory evidence is required when police assert that contraband is found in plain view, the Court does take into consideration such evidence, or lack thereof, when viewing the totality of the circumstances. In this case, there was no other evidence within Sergeant Kaighn's knowledge which indicated that Woods or Johnson possessed drugs, or which would confirm any suspicions Sergeant Kaighn held regarding the contents of the black backpack.
Based on the record in this case, the Court finds that the government failed to prove by a preponderance of the evidence that probable cause existed to believe that the contents of the backpack were nefarious. Although it is unfortunate that an apparently guilty party might be set free, "there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all." Hicks, 480 U.S. at 329 (Scalia, J.). The contraband found in Johnson's backpack must be suppressed.
In light of the Court's holding, the Miranda issue is moot and need not be addressed.
CONCLUSION
Based on the foregoing, defendant Shawn Johnson's motion to suppress is GRANTED.An appropriate Order accompanies this Letter Opinion.