Opinion
Criminal No. 04-223 (JRT/RLE).
December 15, 2004
Tracy T. Braun, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, MN, for plaintiff.
Richard H. Kyle, Jr., KYLE LAW OFFICE, Minneapolis, MN, for defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Defendant Gary A. Polar ("defendant") is charged with one count of possession with intent to distribute in excess of fifty (50) grams of cocaine base ("crack") in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The government also alleges forfeiture, pursuant to 21 U.S.C. §§ 853(a)(1), (a)(2), and (p). Defendant moved to suppress evidence. Following a hearing, United States Magistrate Judge Raymond L. Erickson recommended denial of defendant's motion. Currently before the Court are defendant's objections to the Magistrate Judge's report and recommendation dated August 17, 2004. The Court has conducted a de novo review of the defendant's objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2), and for the reasons set forth below, overrules the defendant's objections and adopts the report and recommendation of the Magistrate Judge.
BACKGROUND
In February 2004, the Red Lake Nation issued an order for the removal of Marcel Rainey ("Rainey"), the defendant's nephew, from the Red Lake Reservation. Between February and April 2, 2004, the Red Lake Police Department received multiple reports that Rainey was present on Tribal lands at the residence of Fawnda Parkhurst ("Parkhurst"). Rainey and Parkhurst have a child together and formerly lived together. Officers also acquired information that Rainey had often been seen with his uncle, the defendant, and had been staying at the defendant's residence.
On April 2, 2004, Pat Graves ("Graves") notified police officers that Rainey was at Parkhurst's residence. Graves is a Conservation Officer and has a daughter who was residing at the Parkhurst home at that time. On that day, police officer Cloud ("Cloud") identified a green Jeep Grand Cherokee at the Parkhurst residence, which the defendant owned and was known to drive. Cloud observed the Jeep pull out of the driveway and saw that people, other than the driver, were in the vehicle. Graves informed police that Rainey was possibly among the passengers in the Jeep, and officers, including Officer Clifford Martell ("Martell") and Officer Johnson ("Johnson"), began searching the area for the vehicle.
The record does not indicate the first name of Officer Cloud.
The record does not indicate the first name of Officer Johnson.
When the Jeep drove past the officers, Johnson executed a stop of the vehicle, and Martell pulled behind Johnson's squad car. The officers initially could not determine the number or identity of the occupants in the vehicle because the windows of the Jeep were tinted. As Johnson approached the vehicle, he detected a strong odor of marijuana emanating from the Jeep. Johnson spoke to the driver, obtained his identification, and checked the vehicle registration. Johnson determined that the defendant, the driver of the Jeep, had a revoked license. Rainey was not a passenger in the vehicle.
When Johnson returned to the vehicle he again detected a strong marijuana odor. Johnson directed the defendant to exit the Jeep and walk to the rear of the vehicle. Johnson asked the defendant if there were any weapons or narcotics in the Jeep and requested the defendant's consent to search the vehicle. The defendant refused. The officers arrested the defendant for driving with a revoked license and placed him in Johnson's vehicle. At that time, the other Jeep passengers were still in the vehicle. Cheyenne Drouillard ("Drouillard") occupied the front passenger seat, while two minors sat in the rear passenger seat.
The officers also removed Drouillard from the vehicle. While doing so, the officers observed the remnants of a marijuana cigarette on the floorboard near Drouillard's left foot. At the officers' request, Drouillard emptied her pockets, revealing over $2,000 in cash. Drouillard told the officers that she received the money from her father's settlement. One of the minor passengers stated, however, that the defendant had given Drouillard the money. Drouillard later confirmed that information. The officers arrested the defendant and Drouillard and released the minors to their families.
The traffic stop occurred late in the afternoon near a popular gathering place with a high level of traffic. As the passengers' families began arriving, a group of individuals became disruptive. Concerned with their safety, the officers called a tow truck to remove the Jeep to the Red Lake Police Department. The truck could not tow the vehicle because it was an all-wheel drive vehicle. Instead, officers, including Captain Alexander Dow ("Dow"), drove it to the nearby Red Lake Police Department (which is six to seven miles away).
Once back at the Police Department, the officers searched the vehicle based on the events that had transpired. Martell and another officer discovered some unidentified pills and rolling papers in the front armrest of the vehicle. Dow searched the rear seat of the Jeep and located a gray sweatshirt on top of some other clothing. When he lifted the sweatshirt, a medical vial containing three rocks of crack cocaine and a .25 caliber pistol fell out of it. The officers did not search the back cargo area of the Jeep. Martell testified that the officers searched the vehicle for five to fifteen minutes. Another eyewitness testified that the search may have continued for half an hour. Once Dow discovered the weapon, the officers stopped the search to obtain a search warrant for the rest of the vehicle. A Tribal Judge signed the search warrant on April 3, 2004.
Pursuant to the search warrant, the officers resumed their search of the Jeep on April 4, 2004. In a shoebox in the rear of the vehicle, they located a large baggie of a white substance that field-tested positive for cocaine base, and a green leafy substance. In total, the officers discovered a half-pound of marijuana in the Jeep — some of which they found in the sweatshirt, and some of which was in the cargo area.
On April 28, 2004, the Red Lake Police Department arrested and detained the defendant at the Red Lake Tribal Jail. Timothy Ball ("Ball"), a Special Agent with the Federal Bureau of Investigation, and Johnson transported the defendant to the Beltrami County Jail. Ball and Johnson engaged in some small talk during the transport and at the jail, but neither officer had a discussion, either in or outside of the defendant's presence, regarding the case, the search and seizure, or any evidence. As the officers fingerprinted and booked the defendant at the jail, they asked him whether he would like to answer any questions. The defendant responded that he wanted to wait for an attorney. The officers did not ask him any further questions.
While the defendant was sitting in the booking area in the presence of the officers, he stated that he wanted to quit selling drugs because he had a baby on the way. Ball did not respond, but wrote down the defendant's comments. The defendant did not make any further statements.
Defendant moved to suppress evidence obtained as a result of the search and seizure and to suppress his statement. A hearing on the motions was conducted on June 28, 2004. On August 17, 2004, the Magistrate Judge issued a report and recommendation, recommending denial of defendant's motions. Defendant objects to the recommendation. For the following reasons, the Court adopts the report and recommendation and denies defendant's motions.
ANALYSIS
I. MOTION TO SUPPRESS EVIDENCEThe Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. United States v. Roby, 122 F.3d 1120, 1123 (8th Cir. 1997). Evidence obtained from an unreasonable search or seizure is inadmissible. Id.; see also Weeks v. United States, 255 U.S. 313, 315 (1921). The defendant argues that this Court should suppress the evidence obtained from the vehicle stop and subsequent searches because (1) the traffic stop was not justified at its inception; (2) the law enforcement officers' subsequent actions, including the vehicle detention and search, were not reasonably related to the circumstances that gave rise to the stop; (3) the initial search was conducted without a warrant; and (4) the search warrant authorizing the second search lacked probable cause. The Court addresses each argument in turn.
A. Initial Vehicle Stop
The Fourth Amendment permits law enforcement officers to conduct an investigative stop of a motor vehicle where the officers have a reasonable suspicion that "criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30 (1968); see also United States v. Ortiz-Monroy, 332 F.3d 525 (8th Cir. 2003). A stop may be justified even where no traffic violation has occurred. United States v. Mora-Higuera, 269 F.3d 905, 909 (8th Cir. 2001); see also Alabama v. White, 496 U.S. 325 (1990). The reviewing court must look at the totality of the circumstances to determine whether the officers had "a `particularized and objective basis' for suspecting legal wrongdoing." Ortiz-Monroy, 332 F.3d at 528-29 (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002)). Officers may "draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person.'" Id. at 529 (quoting Arvizu, 534 U.S. at 273). Additionally, to provide justification for a Terry stop, an officer may rely on "all the information known to a team of officers involved in the investigation." Id. Although an officer may not rely solely on a hunch to justify a stop, "the likelihood of criminal activity need not rise to the level required for probable cause." United States v. Ameling, 328 F.3d 443, 447 (8th Cir. 2003) (quoting Arvizu, 534 U.S. at 273).
Based on the present facts, the Red Lake law enforcement officers had a "particularized and objective basis" for stopping defendant's Jeep on April 2, 2004. The officers had an outstanding order for Rainey's removal from the Red Lake Reservation, which directed the officers to arrest him and take him into custody if they found him on Tribal lands. The Red Lake police had received information that Rainey was seen "at or near" the Parkhurst residence on recent prior occasions. Additionally, the police considered Rainey's relationship with his uncle, that they were often seen together, that they had information that Rainey was at the Parkhurst residence on April 2, 2004, and that several passengers occupied the Jeep as it left the house. The officers stopped the Jeep based on the reasonable suspicion that Rainey was a passenger in that vehicle. While each piece of information alone may not be sufficient to form a reasonable suspicion that Rainey was in the Jeep, considered together, Officers Johnson and Martell had sufficient basis to stop the vehicle on April 2, 2004. The stop, therefore, was proper and is not a basis for excluding the evidence seized.
B. Subsequent Detention
The defendant further urges that the Court suppress the evidence because the defendant's detention after the stop was illegal. Once an officer lawfully stops a vehicle, that officer is "entitled to conduct an investigation `reasonably related in scope to the circumstances which justified the interference in the first place.'" Ortiz-Monroy, 332 F.3d at 529 (quoting United States v. Cummins, 920 F.2d 498, 502 (8th Cir. 1990)); see also United States v. Jones, 269 F.3d 919, 924 (8th Cir. 2001). The Fourth Amendment investigation "`must be temporary and last no longer than is necessary to effectuate the purpose of the stop' and [the] officer should employ the least intrusive means available to dispel the officer's suspicion in a timely fashion." Jones, 269 F.3d at 924 (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). If an officer's suspicions are further aroused in the course of a lawful investigative search, "the officer may expand the scope of the inquiry and detain the occupants of the automobile for further investigation." United States v. Poulack, 236 F.3d 932, 936 (8th Cir. 2001). The reviewing court must then look at the "totality of the circumstances, in light of the officer's experience" to determine whether the officer had reasonable suspicion to expand the scope of the stop. Id. (quoting United States v. Carrate, 122 F.3d 666, 668 (8th Cir. 1997)).
As stated above, the officers lawfully stopped the vehicle because they had a reasonable suspicion that Rainey was in the Jeep. The officers were then entitled to investigate to the extent necessary to determine whether Rainey was, in fact, in the vehicle. Because the Jeep had tinted windows, the officers could not initially identify the occupants, requiring the officers to approach the vehicle. As Johnson walked toward the vehicle he smelled marijuana, arousing Johnson's suspicions of additional illegal activity and authorizing him to expand the scope of his inquiry. The officer obtained the defendant's identification and determined that the defendant had a revoked license. As Johnson approached the vehicle for the second time, he again noticed a marijuana order. The Eighth Circuit has repeatedly held that the smell of marijuana permits law enforcement officers to expand the scope of their original investigation. See, e.g., United States v. Clayborn, 339 F.3d 700, 702 (8th Cir. 2003) (holding that the officer had probable cause to search entire vehicle after he detected marijuana odor, arrested the driver, and impounded the vehicle); United States v. McCoy, 200 F.3d 582, 584 (8th Cir. 2000) (holding that the officer was authorized to conduct a full search of vehicle after he noticed a marijuana odor and a strong smell of air freshener); United States v. Peltier, 217 F.3d 608, 610 (8th Cir. 2000) (holding that the marijuana smell authorized a vehicle search); United States v. Neumann, 183 F.3d 753, 756 (8th Cir. 1999) (holding that the officer's detection of a burnt marijuana odor while searching for an open container gave the officer probable cause to search the entire vehicle for drugs). Based on a totality of the circumstances, the officers had reasonable suspicion to expand the scope of their investigation beyond looking for Rainey, to investigate possible narcotics violations, and to detain the passengers while doing so.
In defense of his motion to suppress, the defendant argues that the present case is analogous to United States v. Barlow, 308 F.3d 895 (8th Cir. 2002), and United States v. McSwain, 29 F.3d 558 (10th Cir. 1994). In both cases, the officers had the opportunity to dispel their original suspicions before detaining the vehicles and discovering incriminating evidence. See Barlow, 308 F.3d at 898; McSwain, 29 F.3d at 561. In Barlow, the officer stopped a vehicle to investigate whether the owner of the vehicle, the subject of an outstanding warrant, was present in the vehicle. Barlow, 308 F.3d at 898. The defendant in that case argued that the officer knew that the owner was a white male, and therefore, should have terminated the stop upon observing that the driver was a white female and its passengers were black males. Id. The Eighth Circuit remanded the case to the district court to determine whether the officer knew the gender and race of the vehicle's owner, suggesting that the officer should not have detained the passengers once he discovered that the owner was not present. Id. In McSwain, the officer stopped the car to investigate whether the registration sticker was still valid, and then asked the driver for identification. McSwain, 29 F.3d at 560. The Tenth Circuit held that the officer unlawfully detained the vehicle because he determined that the sticker had not expired before he spoke to the driver. Id. at 561.
Contrary to the defendant's insistence, the present case is not analogous to either Barlow or McSwain. In both Barlow and McSwain, the officers had the opportunity to dispel their initial suspicions before speaking with the driver, rendering the continued detentions illegal. Barlow, 308 F.3d at 897; McSwain, 29 F.3d at 560. In the present case, Officer Johnson detected the marijuana odor before he could ascertain whether Rainey was present in the vehicle, permitting him to expand the scope of the initial investigation.
The defendant further argues that the court should distinguish this case from the marijuana odor cases involving traffic violation stops. If a distinction does exist between traffic violation stops and other investigative stops, that distinction quickly dissolved once the officer smelled marijuana as he approached the vehicle. Once the officer detected the odor, the officer was no longer confined to investigating Rainey's presence in the Jeep. See United States v. Gomez Serena, 368 F.3d 1037, 1041 (8th Cir. 2004) ("An investigative stop can grow out of a traffic stop so long as the officer has reasonable suspicion of criminal activity to expand his investigation, even if his suspicions were unrelated to the traffic offense that served as the basis of the stop."). Based on the totality of the circumstances, the officers legally detained the defendant and his vehicle.
C. Warrantless Search of Jeep
The defendant further contends that the officers did not have reasonable grounds to conduct a warrantless search of the Jeep at the Red Lake Police Department. Under the automobile exception, law enforcement officials may search an automobile without a warrant if they have probable cause. United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000); see also Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). Probable cause "exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in a particular place." Ameling, 328 F.3d at 448 (quoting Fladten, 230 F.3d at 1085). The Eighth Circuit recognizes that the odor of marijuana is highly probative in establishing probable cause for a search. See United States v. Gerard, 362 F.3d 484, 489 (8th Cir. 2004) (noting that the Supreme Court recognizes marijuana odor as highly determinative and that several circuits recognize that the odor, alone, is sufficient to support probable cause).
In this case, the officers not only detected a strong marijuana smell, but also discovered remnants of marijuana cigarette in plain view on the passenger-side floorboard and a large quantity of money on one of the passengers. Based on the totality of the circumstances in the present case, the officers had probable cause to search the vehicle. See Clayborn, 339 F.3d at 702 (holding that the officer had probable cause to search entire vehicle after he detected marijuana odor, arrested the driver, and impounded the vehicle); McCoy, 200 F.3d at 584 (holding that the officer was authorized to conduct a full search of vehicle after he noticed a marijuana odor and a strong smell of air freshener).
The Court also notes that officers may conduct a lawful warrantless search of a vehicle as incident to the defendant's lawful custodial arrest. A search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. United States v. Lewis, 183 F.3d 791, 794 (8th Cir. 1999). "[A] lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area." United States v. Belton, 453 U.S. 454, 457 (1981). Officers must limit the scope of the search to objects within the arrestee's area of "immediate control" and the search must be "contemporaneous" with the arrest. Curd v. City Court of Judsonia, 141 F.3d 839, 842 (8th Cir. 1998).
The defendant further argues that the officers unlawfully searched the vehicle without a warrant after moving the Jeep to the police department. If, however, the police have probable cause to conduct a warrantless search of the vehicle at the time of the stop, the officers may tow the vehicle to a police station and search it at a reasonable later time. See United States v. Johns, 469 U.S. 478, 484 (1985) (upholding warrantless search of packages that occurred three days after the officers transported the trucks to the Drug Enforcement Administration headquarters); United States v. Chaidez, 906 F.2d 377, 379 (8th Cir. 1990) (holding that the warrantless vehicle search was permissible even though it occurred after the officers removed the defendant from the scene and towed the car to the police garage).
The scene of the stop became unstable as individuals began crowding the officers and the vehicle. Concerned with their safety, the officers transported the vehicle to the police station and, as in Chaidez, 906 F.2d at 379, immediately searched the automobile. The officers' actions did not exceed the limits of the Fourth Amendment. See United States v. Rodriguez, 367 F.3d 1019, 1027 (8th Cir. 2004) ("[A] search pursuant to the automobile exception to the Fourth Amendment may take place at a separate place and time."); Chaidez, 906 F.2d at 379.
D. Search Warrant
Finally, the defendant further argues that the search warrant lacked probable cause, and therefore, this Court should suppress any evidence obtained pursuant to the second search. Probable cause supports a warrant if, based on the totality of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in the place to be searched." United States v. Hernandez Leon, 379 F.3d 1024, 1027 (8th Cir. 2004) (quoting United States v. Mahler, 141 F.3d 811, 813 (8th Cir. 1998)).
As discussed above, the officers had probable cause to search the vehicle based on the marijuana odor, the cigarette, and the large quantity of money. The evidence indicated a fair probability that the officers would find evidence of narcotics in the vehicle. Based on the totality of the circumstances, the officers had probable cause to support the search warrant.
II. MOTION TO SUPPRESS STATEMENT
The defendant also asks the Court to suppress his statement to Officers Ball and Johnson, arguing that the officers failed to read him his Miranda rights before subjecting him to custodial interrogation. The government concedes that the defendant was in custody at the time of his statement and that the officers did not read the defendant his Miranda rights.
A voluntary statement that is not in response to interrogation "is admissible with or without the giving of Miranda warnings." United States v. Hatten, 68 F.3d 257, 262 (8th Cir. 1995) (quoting Rhode Island v. Innis, 446 U.S. 291, 299 (1980)); see also United States v. Cunningham, 133 F.3d 1070, 1074 (8th Cir. 1998) (noting that the Fourth Amendment does not prohibit the use of a suspect's statement where the officers merely responded to something the suspect said); United States v. Hayes, 120 F.3d 739, 744 (8th Cir. 1997) (finding that the officer did not interrogate the defendant by merely explaining that he wanted to ask her some questions). For example, in United States v. Hunt, 372 F.3d 1010, 1012-13 (8th Cir. 2004), the Court of Appeals for the Eighth Circuit refused to suppress the defendant's statements where, in response to the question of whether he would be willing to cooperate with law enforcement, the defendant asked the officer an incriminating question. The court determined that the statements were voluntary and not in response to interrogation. Id.
Similarly, in the present case, the defendant volunteered an incriminating statement that was not in response to interrogation or the equivalent. While transporting the defendant to the jail, the officers engaged in small talk unrelated to the case. Once they began booking the defendant they asked him whether he would like to answer any questions. The officers did not ask the defendant about any specifics of the case, which might have elicited an incriminating response. Instead, similar to the situation in Hunt, the officer's question demanded either a "yes" or "no" response, neither of which would have been incriminating. When the defendant responded that he wanted to wait for an attorney, the officers did not ask him further questions. A few minutes later the defendant volunteered that he wanted to quit selling drugs because he had a baby on the way. Officer Ball did not respond, but merely transcribed the defendant's comments. Because the defendant's statement was voluntary rather than in response to interrogation, the officers did not violate the defendant's Fifth Amendment rights. See Hatten, 68 F.3d at 262 (holding that voluntary statements are admissible even where officer does not read the defendant his Miranda rights).
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES the defendant's objections [Docket No. 43] and ADOPTS the Magistrate Judge's report and recommendation [Docket No. 41]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant's motion to suppress search and seizure evidence [Docket No. 24] is DENIED.
2. Defendant's motion to suppress statements [Docket No. 23] is DENIED.