Opinion
IP03-0121-CR-01-H/F
December 19, 2003
ENTRY ON DEFENDANT'S MOTION TO SUPPRESS
A federal grand jury indicted defendant Willie L. Lindsey, Jr. under 18 U.S.C. § 922(g)(1) for unlawful possession of two firearms as a person with a prior felony conviction. Lindsey has moved to suppress the evidence against him, arguing that the evidence was the product of an unlawful search and arrest. The court heard evidence on October 20, 2003, and the parties filed post-hearing briefs. Pursuant to Rule 12(d) of the Federal Rules of Criminal Procedure, the court now states its findings of fact and conclusions of law. As explained below, the court grants the motion to suppress because the evidence in question was obtained by violations of Lindsey's Fourth Amendment rights.
I. Findings of Fact
This felon-in-possession case sterns from a drug investigation of Lindsey. On June 25, 2003, drug enforcement task force officers had Lindsey under surveillance. Two sources had told the officers that Lindsey would be delivering a large amount of cocaine to a residence at 3631 Harvest Street in Indianapolis and would pick up a large amount of currency. The officers saw Lindsey go to the residence and then drive away in a red late-model pickup truck. The drug enforcement officers alerted Indianapolis Police Officer Keith Hartman, who was working in coordination with them. He was parked nearby in a police car without police markings or a light bar on top of the roof, but with emergency lights that could be used to conduct a traffic stop.
A. The Traffic Stop
Shortly after 4:00 p.m., Officer Hartman followed Lindsey for about eight blocks. He determined that Lindsey was driving 45 miles per hour in a 40 mile per hour zone. Officer Hartman and the drug enforcement officers hoped to take full advantage of the Supreme Court's decision in Whren v. United States, 517 U.S. 806 (1996), which allows pretextual traffic stops as long as the officer actually observes a traffic violation, however minor. Officer Hartman activated the emergency lights and Lindsey pulled over to the side of the street.
Officer Hartman noticed that the truck had a temporary license plate. He approached the driver. While standing beside the driver's door, he asked Lindsey for his license and the bill of sale and related paperwork for the truck. Officer Hartman testified that Lindsey did not make eye contact with him as he retrieved the paperwork, though Officer Hartman also did not ask Lindsey to look at him. He also noticed that Lindsey was sweating on his forehead.
Officer Hartman then returned to his car and checked the records on Lindsey and the truck. He learned (if he did not already know) that Lindsey had prior "narcotics convictions," though he did not recall whether they were felonies. He also learned that Lindsey had a valid driver's license and that the addresses for Lindsey's license and the truck bill of sale did not match.
Officer Hartman then returned to the truck, stood beside the driver's door, and asked about the address discrepancy. Officer Hartman testified that Lindsey still did not make eye contact, had "a good amount of sweat beaded up on his forehead," and was "real hesitant in his answers." Tr. 10. Officer Hartman also observed for the first time something about the size of an orange bulging just below the waistband of Lindsey's pants. Officer Hartman believed it was "most likely contraband." Id.
According to Officer Hartman, at this point the combination of a lack of eye contact, hesitant answers, apparent nervousness (as evidenced by the sweaty brow), and the bulge below Lindsey's waistband made Officer Hartman "a little concerned for my safety," so he ordered Lindsey to get out of the truck.
As the two stood behind Lindsey's truck, Officer Hartman asked if he was the same Lindsey with a prior conviction for cocaine possession. Lindsey said yes. Officer Hartman then asked if he had any weapons or contraband on him. According to Officer Hartman, Lindsey became more nervous, raised the pitch of his voice, and said "I don't have any cocaine. You can search my truck." Tr. 12. Officer Hartman thanked him for his cooperation and told Lindsey he would pat him down for weapons before searching the truck. There is no evidence that Lindsey affirmatively consented to the patdown.
B. The Patdown
Officer Hartman than began to pat down Lindsey's outer clothing with open hands, supposedly to check for weapons. According to Officer Hartman, he put his open hand on the orange-sized bulge below the waistband. He described this contact as "very brief and said he did not manipulate the bulge. When he touched it, he said, "it kind of crunched, chunky crunch. Without a doubt I knew it was either methamphetamine or cocaine." Tr. 14. Lindsey was turning away from him at that moment, and Officer Hartman then decided to put handcuffs on Lindsey.
Lindsey put his left hand behind his back and Officer Hartman applied a handcuff. He asked Lindsey to bring his other hand behind his back. At that point, Lindsey became enraged and tried to spin to his right and pull away. Officer Hartman thought that Lindsey was trying to attack him. He stepped away from Lindsey, drew his firearm, aimed, and ordered Lindsey to the ground. Lindsey complied and other officers arrived to complete the cuffing. At that point, Lindsey "kind of gave up." Tr. 16.
C. The Interrogation and Later Search of the House
Detective Mike Howell of the drug task force arrived on the scene as Lindsey was being arrested. He and other officers did not take Lindsey to police headquarters. Instead, they took him to a nearby motel for questioning. They gave Lindsey his Miranda warnings. He agreed to talk with the officers. The officers planned to go back to Lindsey's house to search for more cocaine and evidence of cocaine trafficking. Under questioning, Lindsey told the officers that there was no other cocaine or other drugs at his house, but that there were two guns there. Tr. 35. Lindsey also signed a written consent to search form for his house at 3631 Harvest Street. He signed the form approximately an hour after arriving at the motel. Lindsey accompanied the officers to his house. The officers searched and found the two firearms that are the subject of the indictment in this case. Lindsey also gave written consent to a search of a second home, which was also searched, though there is no indication of what was found.
There is no evidence of threats, promises, mistreatment, or coercion of Lindsey while he was being questioned by the police officers at the motel. Detective Howell described Lindsey's demeanor as "calm, relaxed, somewhat evasive." Tr. 37.
II. Discussion
The issue here is whether to suppress as evidence the guns seized in the search of Lindsey's home and any statements he made to the police in their custodial interrogation of him. Lindsey contends that Officer Hartman did not have sufficient grounds for patting him down for weapons or for arresting him after feeling the bulge under his waistband. He also contends that any statements he made to the police and his consent to the search of his home were fruits of that poisonous tree, the unlawful search and arrest.
A. The Patdown and Arrest
The starting point for this court's analysis is the Supreme Court's articulation of a reasonable suspicion requirement to effectuate a stop. Terry v. Ohio, 392 U.S. 1 (1968). Terry directs trial courts to consider the reasonableness "of the particular governmental invasion of a citizen's personal security" within a contextually complete framework. Id. at 19. Reasonableness is best described as a balance between public interest and an individual's right to be free from "arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).
Officer Hartman had a sufficient legal basis to stop Lindsey's truck for speeding, even though he had no interest in enforcing the speed limit against Lindsey. See Whren v. United States, 517 U.S. at 811-12 (allowing pretextual traffic stops where officer has observed a traffic violation). Officer Hartman also had the authority to require that Lindsey step out of the truck for safety purposes. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (characterizing officer's order to get out of car as minimal intrusion).
To justify the patdown, Terry dictates an objective standard that "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." 392 U.S. at 27; see also United States v. Rivers, 121 F.3d 1043, 1045 (7th Cir. 1997). In other words, "the facts available to the officer at the moment of the seizure or the search" must "warrant a man of reasonable caution in the belief that the action taken was appropriate." Terry, 392 U.S. at 21-22. As the Seventh Circuit has noted, to prove the validity of a patdown, an officer must "point to specific and articulable facts indicating that the individual may be armed and present a risk of harm to the officer or to others." United States v. Brown, 188 F.3d 860, 864 (7th Cir. 1999).
Officer Hartman did not have reasonable grounds for subjecting Lindsey to a patdown. The government argues that the patdown was for officer safety, and that Officer Hartman had reasonable grounds for concern because Lindsey was acting nervous and because of the orange-shaped bulge in his pants. He also knew that Lindsey had a prior drug conviction and was the target of a drug investigation.
However, even Officer Hartman himself downplayed the safety concerns, saying "I was a little concerned for my safety" based on Lindsey's nervousness. Tr. 11 (emphasis added, but consistent with witness demeanor). In response to a leading question, he testified that he thought the bulge in Lindsey's pants "could possibly have been a weapon." Id. That testimony was not credible. The evidence shows that Officer Hartman always thought that bulge was contraband, probably drugs, and that he wanted to search Lindsey for it to assist the task force drug investigation. Although a genuine and objectively reasonable concern for officer safety can support a patdown search, that is not what happened here.
The testimony about Lindsey being unusually nervous also is not credible. Much of that testimony was based on Lindsey's sweating. Asked about the weather, Officer Hartman called June 25th "a typical spring, summer type day." When asked whether it was "fairly warm," he said it "wasn't cold." Tr. 22. National Weather Service Records show the high temperature in Indianapolis that day was 88 degrees Fahrenheit. See National Weather Service Forecast Office web site, athttp://www.crh.noaa.gov/ind/junf603.txt. (last visited December 18, 2003). The stop took place a little after 4:00 p.m., when the temperature would have been close to that high. Anyone in Lindsey's position was likely to be sweating, and sweating more as time passed during the traffic stop. Also, Officer Hartman testified that even since he has become a police officer, he still gets nervous when pulled over by another officer. Tr. 21.
Under the government's theory here, any person with a criminal record would, as a practical matter, be subject to a patdown search in any traffic stop. The patdown was not constitutional in this case. It was conducted based on pretext rather than objective and genuine concerns about officer safety. That is not a permissible basis for a patdown under Terry.
Even if the patdown had been constitutional, the seizure of the package in Lindsey's pants was not. If, during a valid patdown in search of weapons under the officer safety theory, Officer Hartman had felt what he had probable cause to believe was contraband, he would then have had the authority to seize the contraband and to arrest Lindsey. Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993) (probable cause required); accord, Rivers, 121 F.3d at 1046.
The government relies on this so-called "plain feel" corollary to the "plain view" doctrine under the Fourth Amendment. The requirements for "plain feel" are parallel to those for "plain view": (1) the officer must lawfully be in the position from which he touched the object; (2) the incriminating character of the object must be "immediately apparent" to the frisking officer when touched; and (3) the officer must have a lawful right of access to the object. Dickerson, 508 U.S. at 375. Once these requirements are met, the officer may then seize the non-threatening contraband in an otherwise lawful patdown. Dickerson, 508 U.S. at 373; Rivers, 121 F.3d at 1046.
The "immediately apparent" prong was not met in this case. Although Officer Hartman did not engage in the prolonged manipulation of the object, such as rendered the search unconstitutional in Dickerson, his claim that he immediately recognized by feel that the substance was either cocaine or methamphetamine is not credible. Again, Officer Hartman was hoping to find cocaine to help the drug task force in its investigation, but the "very brief feel, Tr. at 13, that indicated only a "chunky crunch" was not enough to establish probable cause for an immediate arrest and handcuffing, without further investigation. That the object was shaped like an orange and crunched would not make the incriminating character of the object immediately apparent to an officer. See Dickerson, 508 U.S. at 379 (affirming suppression of cocaine because identity as contraband was not immediately apparent, without further manipulation); see also United States v. Gibson, 19 F.3d 1449, 1451 (D.C. Cir. 1994) (hard, flat object did not reveal incriminating character such to justify further search); United States v. Ponce, 8 F.3d 989, 999 (5th Cir. 1993) (incriminating character of paper-wrapped heroin found in defendant's watch pocket not immediately apparent where officer testified object felt like a "little bump" and felt "squishy;" court did not credit officer's speculation that "little bump" was weapon).
Here, the evidence shows that Officer Hartman (1) was working for the drug enforcement officers on a tip from two informants that Lindsey would be dealing in a large quantity of drugs and money; (2) conducted a pretextual traffic stop (lawful though it may have been) to gather evidence for the drug enforcement officers who had been surveilling Lindsey; (3) noticed a bulge in Lindsey's pants shaped like an orange, perhaps just the evidence that he sought; (4) then claimed to fear for his safety in order to conduct a pretextual patdown; (5) conducted a "very brief" patdown where he claims he immediately concluded that the orange-shaped "crunchy" sounding object was crack or methamphetamine. This evidence leads to the conclusion that the patdown was pretextual. See United States v. Miles, 247 F.3d 1009, 1014 (9th Cir. 2001) (holding officer exceeded scope of Terry by manipulating an object in defendant's pocket on pretext that he was looking for a weapon when "it was clear that the object was a small box and could not possibly be a weapon").
In sum, the patdown, the seizure of the suspected drugs, and the arrest of Lindsey violated his rights under the Fourth Amendment to the United States Constitution.
B. The Consent to the Search
The government contends that even if Lindsey's constitutional rights were violated by the patdown and arrest, the firearms found later at his house should not be suppressed. The government contends that the constitutional violations were purged when Lindsey voluntarily consented to the search of his house.
When determining the voluntariness of the consent given, the court must also consider the illegality of any police action that preceded that consent. See Florida v. Royer, 460 U.S. 491, 503, 508 (1983) (defendant was unlawfully seized such that "any consensual aspects of the encounter had evaporated" and consent was tainted by illegality of the detention); Brown v. Illinois, 422 U.S. 590, 599 (1975); United States v. Jerez, 108 F.3d 684, 695 (7th Cir. 1997).
The issue is whether the evidence in question was obtained by exploiting the original constitutional violations or was obtained instead "by means sufficiently distinguishable to be purged of the primary taint." United States v. Valencia, 913 F.2d 378, 382 (7th Cir. 1990), quoting Segura v. United States, 468 U.S. 796, 804 (1984), and Wong Sun v. United States, 371 U.S. 471, 488 (1963); see generally United States v. Robeles-Ortega, 348 F.3d 679, 681 (7th Cir. 2003). The relevant factors include (1) the temporal proximity of the illegal search or seizure and the consent, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422 U.S. at 603-04; Robeles-Ortega, 348 F.3d at 681. The burden is on the government to prove that the connection between the unlawful search and arrest and the subsequent statements or consents to search has been broken. See Kaupp v. Texas, 538 U.S. 626, -, 123 S.Ct. 1843, 1847 (2003); Brown v. Illinois, 422 U.S. at 604.
Temporal proximity weighs in favor of Lindsey in this case. The questioning in the motel room began promptly after his arrest, and he gave the disputed consent to search within an hour to an hour and a half of his unconstitutional arrest. Tr. 34, 37. See Taylor v. Alabama, 457 U.S. 687, 691 (1982 (six hour delay in custody weighed in favor of suppression of evidence); Brown v. Illinois, 422 U.S. at 604 (two hour delay weighed in favor of suppression of evidence).
There were no intervening circumstances, such as a release from custody, an appearance before a judge, or discussions with lawyers, that would serve to attenuate the connection here. See, e.g., Wong Sun, 371 U.S. at 491 (holding connection between unlawful arrest and subsequent voluntary statement was so attenuated "as to dissipate the taint" when defendant was released from custody on his own recognizance after lawful arraignment, and returned voluntarily several days later to make the statement); United States v. Patino, 862 F.2d 128, 133 (7th Cir. 1988) (taint of unlawful invasion of apartment was purged when six days passed between illegal police conduct and confession, and defendant was free long enough to contact counsel if she desired).
A person's consent to search when he is not in custody can be an intervening circumstance. E.g., United States v. Liss, 103 F.3d 617, 621-22 (7th Cir. 1997) (distinguishing custodial and non-custodial consent). Liss left intact that line between custodial and non-custodial interrogation, as Judge Ripple pointed out in his concurring opinion: "The majority, therefore, does no violence to the strong body of case law that has held, typically after applying Brown [v. Illinois], that the voluntary consents at issue were tainted by illegal seizures, stops, detentions or arrests." Id. at 622 n. 3 (collecting cases). But in Lindsey's case we have a custodial interrogation that led to the consent. During the post-arrest questioning, Lindsey was still in custody in the motel, and the police officers were still exploiting the unlawful search and arrest.
The third factor in the attenuation analysis is "the purpose and flagrancy of the official misconduct." The misconduct in this case was not as egregious as the sudden armed invasion of a private home in Robeles-Ortega, but it was still substantial. Officer Hartman was entitled to carry out a pretextual traffic stop, but if he was going to do so in order to carry out a search of Lindsey, he needed to abide strictly by the Constitution. Instead, he stretched too far in his attempt to exploit both Terry and the "plain feel" doctrine to carry out a search of a suspect who had been driving 45 in a 40 mile per hour zone. Then the arresting officers took Lindsey not to a police station but to a motel room for interrogation, which led to a search of his home. The court assumes the officers were trying to stay just inside the constitutional boundaries, but they were certainly trying to go as far as they thought they could. With the non-credible claim of concern about officer safety to justify the patdown and the invocation of the "plain feel" doctrine, they went too far.
The government relies on Valencia, where the Seventh Circuit affirmed a district court's factual finding that the government had met its burden of proof in showing that an unlawful detention did not taint a suspect's consent to a search. The court relied on the short detention, the absence of physical threats, the suspect's calm demeanor, and the fact that the suspect was given Miranda warnings and was told he did not have to consent to the search. 913 F.2d at 381. The Seventh Circuit's affirmance of that finding does not show, however, that such circumstances will always purge the taint of an unlawful search and arrest that lead to a consent to a further search. Also, in Brown v. Illinois, the Supreme Court explicitly rejected the suggestion that Miranda warnings by themselves are sufficient to purge a taint. 422 U.S. at 603-04. In this case, the government's evidence did not prove that the unlawful patdown and arrest of Lindsey did not affect his decision to give consent to search his home or statements he made during the custodial interrogation.
Conclusion
For the foregoing reasons, defendant Lindsey's motion to suppress is hereby granted. The evidence obtained as a result of the violations of his constitutional rights, including the two firearms and any statements Lindsey made during the custodial interrogation on June 25, 2003, are hereby suppressed as evidence.
So ordered.