Opinion
Case No. 99-CR-75 W.
March 30, 2000
REPORT AND RECOMMENDATION
Defendant, Jeffrey F. Porter, was indicted for possession of an unregistered sawed off shotgun (Count I) ( 26 U.S.C. § 5861(d)) and being a previously convicted felon in possession of a firearm (Count II) ( 18 U.S.C. § 922(g)(1)).
A defendant made a motion to suppress physical evidence seized from defendant during a warrantless search of the vehicle and statements made by defendant to law enforcement officers (File Entry #17). On August 4, 1999 the motion was withdrawn (File Entry #22). Thereafter, the motion was reinstated and a hearing held on the motion (File Entry #30). Additional briefing was ordered. Memoranda from the defendant and United States were submitted (File Entry #37).
The matter of statements of defendant has not been pursued.
EVIDENCE
At the suppression hearing, South Salt Lake City Police Officer Scott Daniels testified he was a narcotics officer with that department. On August 21, 1998 he was involved in an investigation of the defendant. On August 21, 1998, Daniels was on patrol in South Salt Lake City (TR. p. 8). He observed a car parked on the east side of a 7-11 at 2700 South and Adams Street. Although there were four parking stalls in front of the store, the vehicle was on the east side where the officer had had prior experience with drug transactions taking place (TR. p. 9). The automobile was a hatchback and it had an expired registration sticker. The vehicle pulled out of the parking lot going east down on 2700 South, the officer stopped the vehicle. The driver was defendant Jeff Porter (TR. p. 9). The officer asked for a driver's license and Porter said it had expired. Porter said the vehicle had been purchased from First Class Autos by a person who couldn't make the payments and defendant was taking over the payments on the car (TR. p. 10). He provided no documents to show a right to have the vehicle. Dispatch reported defendant's license had been suspended for drugs. No registration was provided (TR. p. 10). While defendant was sitting in the car, the officer asked if there were any drugs in the car. Defendant was in the front seat, looked away and said no. Backup assistance was requested. Officer Daniels asked for permission to search the car and defendant gave permission. Backup Officer Snyder was present at that time (TR. p. 11). There was a female and another fellow in the defendant's vehicle (Id.). There's no evidence they had a connection to the vehicle.
The officer proceeded to search the vehicle. He found a plastic bag with a white crystal substance in it (TR. p. 12). The officer believe the substance was methamphetamine. A box of 20 gauge shotgun shells was found in the center console. A rifle or shotgun was detected under a blanket. The officer intended to arrest defendant but he "bolted" and "took off running" (Id.). He was pursued but he got away. A K-9 unit was called and defendant was later found in a house in a basement under some clothes (TR. p. 13).
The officer did not handcuff defendant, display a weapon or use abusive or obscene language, no threats were ever made (Id.). This occurred at about 12:30 a.m. (TR. p. 18). Lights illuminated the area (TR. pp. 18-19). When the officer approached the vehicle he again observed the expired sticker. The defendant's vehicle was stopped by the lights on the officer's vehicle (TR. pp. 20-22). There were no outstanding warrants for defendant (TR. p. 26). The defendant is a large person and the officer observed that fact (TR. p. 28). The officer asked for permission to search defendant's vehicle after receiving information his license had been suspended for drugs (TR. p. 28). The defendant gave verbal consent to the search of the vehicle (TR. p. 30). He was not handcuffed or physically restrained at the time (Id.). No weapon was drawn. The officer did not know if the person defendant referred to as the person defendant had received a car from was the registered owner (TR. pp. 31-32). While the search of the vehicle was conducted, the defendant was outside the vehicle about eight feet away on the driver's side. The vehicle was eventually impounded and an inventory impound search conducted (TR. p. 34). Drugs found during the search of the vehicle were field tested and tested positive for methamphetamine (TR. p. 34).
Phillip White, Violent Crimes Coordinator for the Bureau of Alcohol, Tobacco and Firearms (ATF), a criminal investigator, said he was called by Officer Daniels who advised that during the search in this case, a short shotgun and shells were found in the vehicle (TR. p. 38). He went to First Class Autos and was advised the vehicle had been purchased by Lynn Rogers on June 29, 1998 (TR. p. 38). Officer White contacted Mr. Rogers who said he went to visit a friend in West Valley City and defendant Jeffrey Porter met him at the apartment of a mutual acquaintance. Porter told Rogers he was a collector for a person he said was Mr. Z (TR. p. 40). This was said to be a person named Torenzo or Lorenzo and Porter was to collect a drug debt. Porter told Rogers he couldn't leave until he came up with the money, $250.00. Porter asked to see a key chain with a knife on it which Rogers had. Rogers gave it to Porter and he would not give the keys back which were to the vehicle (TR. p. 41). Rogers left and his mother picked him up and he left. Before he left he took personal belongings out of the car (TR. p. 41). This occurred in August 1998. Rogers did not go to the apartment in West Valley to see Porter. Rogers was invited there by a young lady by the name of Jennifer Jones (TR. pp. 43-44). When Rogers got to the apartment, defendant Porter was present (TR. p. 44).
Rogers did not report the vehicle as stolen but called First Class Autos and said he was not in possession of the vehicle and that another person had taken his keys. He had asked if the company had another set of keys but was told they did not (TR. p. 46). The vehicle was a Volkswagen Scirocco, a two door hatchback (TR. p. 47). When the vehicle was impounded no one came to pick it up. First Class Autos was contacted. The registered owner in August 1998 was a Shawn Howell, who apparently owned the vehicle before Rogers. The vehicle was repossessed from Howell. When Rogers purchased the vehicle he never registered it (TR. p. 48). However, First Class Autos said they had registered the vehicle in Rogers' name. However, the registration was actually still in Howell's name (TR. pp. 48-49).
Lynn Rogers testified that he purchased the 89' Scirocco hatchback car in June 1998. He paid $4,000 for it and paid $500 down (Tr. p. 50). On August 16, 1998, defendant took the vehicle from him in collection of the debt Rogers owed someone else. Porter had obtained keys from Rogers and wouldn't give them back. The debt was for a motorcycle Rogers had purchased for $200. Rogers left and called his mother to get a ride home. He said he knew he wouldn't be getting the car back (TR. pp. 51-52). Rogers did not register the vehicle, but had paperwork from First Class Autos stating that the vehicle had been registered to him (Tr. p. 52).
Rogers went to Jennifer Jones' apartment then because he was invited there by her (TR. p. 54). Porter was not there when Rogers arrived a time later. Rogers expected to use drugs while there (TR. pp. 55-57), but he didn't use any drugs (Id.). Rogers had not met defendant Porter before (TR. p. 58).
The motorcycle was purchased by Rogers from Lorenzo Terzo (TR. p. 58) for $500. Rogers gave Terzo $300 and still owed $200. Porter would not let Rogers contact Terzo and Porter threatened Rogers to pay the debt (TR. pp. 59-60). Porter, a big man, stood before Rogers with no shirt and was flexing his muscles (TR. p. 60). Porter took the vehicle from Rogers against his will.
Rogers reported the loss of a vehicle to First Class Autos and tried to get another set of keys. The plates on the vehicle had expired (TR. p. 65). There was only an expired temporary permit on the vehicle. It expired July 17, 1998. Rogers never gave permission to Porter to drive the vehicle (TR. pp. 66-67).
Based on the above evidence the court enters the following:
FINDINGS OF FACT
1. On August 21, 1998, Officer Scott Daniels of the South Salt Lake City Police Department was patrolling at 2700 South and Adams Street where a 7-11 store is located. He had knowledge of prior drug activity at that location. A vehicle was parked on the side of the store even though the parking area in front of the store was clear. This was at about 12:30 a.m. The officer noted that the vehicle's license or temporary permit had expired and it was therefore not properly registered. The vehicle was a Volkswagen Scirocco.
2. The vehicle then pulled out of the 7-11 into the highway. The officer then turned on his overhead lights to stop the vehicle, it had an expired registration. Defendant Jeffrey F. Porter was the driver. There were also two younger passengers in the vehicle. Porter is a large man. The officer asked Porter for a driver's license and registration. Porter told the officer that Porter's license had expired. The officer ran a records check through the dispatcher and was advised that Porter's license had been suspended for drug activity. The defendant did not have a vehicle registration and told the officer that the defendant had obtained the vehicle from First Class Autos from a person who could not make the payments and defendant was taking over the payments. There were no outstanding warrants for defendant, however the officer asked for backup. Porter could not drive the vehicle. The officer did not know whether the person Porter referred to was the registered owner. The officer did not draw his firearm or threaten defendant.
3. The officer asked defendant Porter if there were drugs in the vehicle. The defendant said no and the officer asked if he could search the vehicle and the defendant gave his permission for the search. Defendant was then outside the vehicle and about eight feet from it. The defendant was not handcuffed or restrained. The officer proceeded with the search of the vehicle. A plastic bag with a white crystal substance in it, believed to be methamphetamine, was found. A box of 20 gauge shotgun shells were found in the console. A shotgun was found under a blanket in the seat area. The officer intended to arrest defendant but he "bolted" and ran. He got away, a K-9 unit was called, and later defendant was found in a house in a basement, hiding under some clothes.
4. The vehicle was impounded and an inventory of the vehicle conducted.
5. No evidence was presented on this motion of any statements made by defendant. Defendant did not present evidence of any interrogation of the defendant.
6. The vehicle defendant was driving was not his vehicle and he had no ownership or possessory interest in it. The vehicle was purchased by Lynn Rogers from First Class Autos. The car was registered in the name of Shawn Howell, a prior owner. Rogers had not changed the registration. The vehicle was obtained from Lynn Rogers by defendant on August 16, 1998. Rogers had gone to a friend's house for a visit and defendant came by. He claimed Rogers owed $200 to Lorenzo Terzo for a motorcycle Rogers had purchased. Defendant took the hatchback vehicle keys from Rogers and would not give them back. Defendant displayed a potential use of force in letting Rogers know he wasn't going to get the vehicle back. Rogers left the house without his vehicle and defendant converted it to his own use. The vehicle was a stolen vehicle at the time defendant was stopped.
DISCUSSION
Standing
The United States contends that defendant does not have standing to contest the search of the Volkswagen Scirocco that he was driving. The burden of proof is on the defendant to establish standing, Rakas v. Illinois, 439 U.S. 128 (1978); United States v. Dewitt, 946 F.2d 1497 (10th Cir. 1991). The defendant concedes he has no standing to contest the search of the vehicle, it was a stolen vehicle and he had no lawful ownership or possessory interest in the vehicle. Rakas, supra. Defendant had no expectation of privacy in the vehicle. Id. A person can have no expectation of privacy in a stolen vehicle. United States v. Miller, 84 F.3d 1244,1249 (10th Cir. 1996) (stolen vehicle, no registration); United States v. Betancur, 24 F.3d 73, 76-77 (10th Cir. 1994); United States v. Tropiano, 50 F.3d 157,161 (2nd Cir. 1995) (cases cited).
§§ 76-6-403, 404, 405.5 Utah Code Ann.
However, the defendant asserts he has to "challenge a constitutionally improper traffic stop, detention, or arrest." United States v. Eylicio-Montoya, 70 F.3d 1158,1162 (10th Cir. 1995); United States v. Erwin, 875 F.2d 268, 271 (10th Cir. 1989). This is based on a theory of fruits of an illegal stop. Id.; United States v. Shareef, 100 F.3d 1491,1500 (10th Cir. 1996); Miller, supra, 84 F.3d at 1250. This requires a two part inquiry: first, whether the defendant was unlawfully detained, and second, whether the discovered evidence was the fruit of the unlawful detention, Shareef, supra at 1500.
The Stop
The defendant contends there was neither probable cause or reasonable suspicion to stop the vehicle defendant drove from the 7-11 parking area. There is no question the vehicle registration had expired and the vehicle only had a temporary registration indicating its expiration date. The court has found that prior to the vehicle being driven onto the public roadway by defendant, the officer observed the expired registration. On this point the officer was positive (TR. pp. 61, 68).
An officer may stop a vehicle when there is either probable cause to believe a traffic or other offense has been committed by an occupant, Whren v. United States, 517 U.S. 810 (1996), or when there is reasonable suspicion of a traffic or equipment violation. United States v. Botero-Ospina, 71 F.3d 783,787 (10th Cir. 1995) (en banc). This standard is an objective one and the officer's motivation is irrelevant. Id.; United States v. Hunnicutt, 135 F.3d 1345,1348 (10th Cir. 1998); United States v. Jackson, 176 F.3d 490, 1999 WL 228411 (10th Cir. 1999) (Table, unpublished) p. 2.
The vehicle in this case had to have a current registration to be driven on a highway in Utah. § 41-1a-201, Utah Code Ann. A temporary permit may be issued but it is subject to rules regarding registration § 41-1a-211, Utah Code Ann. See also § 41-3-302, Utah Code Ann. The operation without proper registration is a Class C misdemeanor § 41-1a-1303, Utah Code Ann. The stop of defendant's vehicle was lawful based on probable cause he had committed a Class C misdemeanor by operating a vehicle with an expired registration.
Detention
Defendant contends he was unlawfully detained and therefore evidence uncovered as a result of the detention cannot be used. As previously concluded, the stop of the vehicle defendant was driving was lawful. After a vehicle has been lawfully stopped, the officer could make reasonable inquiry.
In United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir. 1994), the court observed:
An officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning.
See also United States v. Walker, 941 F.2d 1086 (10th Cir. 1991). An officer may, in the course of running a computer check, obtain a Triple I criminal history on the driver. United States v. Woods, 106 F.3d 942 (10th Cir. 1997); United States v. McRae, 81 F.3d 1528, 1535, n. 6 (10th Cir. 1996); United States v. Recalde, 761 F.2d 1448, 1455 (10th Cir. 1985) (NCIC check concurrently with traffic stop is proper). Thus, both an National Crime Information Center (NCIC) check and Triple I computer check are proper. Id. Routine questions about travel plans may be asked without exceeding the scope of a traffic stop. United States v. Hernandez, 93 F.3d 1493, 1499 (10th Cir. 1996); United States v. Gonzalez-Lerma, supra, p. 1484; United States v. Turner, 928 F.2d 956, 958-59 (10th Cir. 1991).
In this case the officer, on stopping the vehicle, asked for a driver's license and the registration. The defendant could not produce a registration showing he had authority to use the vehicle, the temporary license permit had expired, and defendant said his license had expired. The officer made a computer check which disclosed the license had been suspended for a drug violation. Section 41-6-44.5 Utah Code Ann. The vehicle could not be driven on the highways in Utah. Section 41-1a-201. The defendant could not lawfully operate the vehicle § 41-12a-603 and his operation of the vehicle without a license was an additional Class C misdemeanor, Id.; 53-3-202,204, 219 (XIII), Utah Code Ann. The vehicle was subject to impound § 41-1a-1101(f) Utah Code Ann. See United States v. Rios, 88 F.3d 867 (10th Cir. 1996) (recognizing a vehicle without proper registration may be impounded under Utah law). In United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994) it was said ". . . defendant's lack of a valid registration, license, bill of sale, or some other indicia of proof to lawfully operate and possess the vehicle in question [gives] rise to objectively reasonable suspicion the vehicle may be stolen"; see also Miller, supra, 84 F.3d at p. 1251.
Therefore, the detention of defendant and the vehicle was reasonable throughout the encounter with Officer Daniels. United States v. Sharpe, 470 U.S. 675 (1985). In United States v. Galindo-Gonzales, 142 F.3d 1217, 1223 (10th Cir. 1998) the court held that detention was justified when the vehicle driver was unable to produce proper documentation showing a right to operate the vehicle. Since there was objective evidence, Whren, supra, the vehicle could not be operated by defendant and may be stolen and subject to impound and that defendant had committed two misdemeanors for which he could be arrested, defendant's detention was proper and reasonable within the Fourth Amendment. See United States v. Ochoa-Zaragoza, ___ F.3d ___, 2000 WL 192842 (10th Cir. 2000) (unpublished) p. 3. Therefore, no evidence was obtained from any illegal detention. Shareef, supra.
CONSENT
The defendant attempts to raise an issue of consent to search and to challenge the scope of the search. However, the defendant has no standing to challenge the search of the vehicle. Infra p. 8. Consequently, his challenge to the vehicle search based on a lack of consent is precluded by defendant's lack of standing. Rakas, supra; Rawlings v. Kentucky, 448 U.S. 98 (1980). The search of the vehicle violated no interest about which defendant has a right to complain. United States v. Blaze, 143 F.3d 585,591 (10th Cir. 1998) (defendant lacked standing to contest search of vehicle).
CONCLUSION
The defendant Jeffrey Porter's motion to suppress should be Denied.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file any objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.