Opinion
No. 04 Cr. 649 (RPP).
December 7, 2004
OPINION ORDER
On August 23, 2004, Lance Edgar Owen, one of the two defendants in this action, moved to suppress evidence obtained as a result of a traffic stop by federal law enforcement officials on June 8, 2004. On November 15, 2004, the Court held an evidentiary hearing to determine whether there were facts sufficient to suppress evidence stemming from the traffic stop. At the conclusion of the hearing, the Court reserved decision and the parties thereafter submitted post-hearing papers. For the following reasons, the Defendant's motion is denied.
I. BACKGROUND
On June 8, 2004, the Defendant was arrested and subsequently charged with conspiring to violate the narcotics laws of the United States and possessing, with intent to distribute, a controlled substance in violation of 21 U.S.C. § 841(b)(1)(B). The facts stated below were developed at the November 15, 2004 hearing.
Beginning in April 2004, a confidential informant ("CI") advised Drug Enforcement Administration Special Agent Daniel Parsons about suspicious activity at a warehouse located at 2235 Light Street in the Bronx, New York. (Tr. at 9, 30-31.) Parsons's partner, Special Agent Eric Baldus, testified at the hearing that the CI contacted Parsons regarding the warehouse approximately fifty times between April 2004 and June 7, 2004. (Id. at 12.) According to Baldus, the CI provided Parsons with detailed descriptions of the warehouse and an individual whom the CI observed at the warehouse on a number of occasions removing "fifty-pound marijuana boxes" and loading them into vehicles. (Id. at 9.) Based on the CI's reports, Parsons and Baldus visited the warehouse to conduct surveillance two or three times during May 2004; they observed no activity on any of those occasions. (Id. at 12, 39.)
References to "Tr." are to the pages of the transcript of the suppression hearing held on November 15, 2004.
Baldus testified that the CI contacted Parsons on June 7, 2004 to report that a large truck was unloading wooden crates at the warehouse. (Id. at 12.) Baldus, along with Special Agents Jeff Stratton and Ken Wasley, established surveillance at the warehouse at approximately 11:00 a.m. the following day, June 8. (Id. at 15.) From his position across from the warehouse entrance, Baldus videotaped a white box truck back up to one of the warehouse doors. (Id. at 16.) Baldus testified that after he saw the Defendant emerge from the driver's side of the truck and enter the warehouse, the truck began shaking back and forth as if objects were being loaded or unloaded. (Id. at 17-18.) This movement continued for about an hour, at which point the Defendant briefly emerged from the warehouse to retrieve a notebook from the truck's cab. (Id. at 18.) Shortly thereafter, the Defendant exited the warehouse, climbed into the driver's seat of the truck, and drove away. (Id. at 21.) Baldus asked Stratton and Wasley to follow the truck while he put away the surveillance equipment. (Id.)
After the truck drove away from the warehouse, DEA Special Agents Joseph Doherty and Christopher Oskala began following it after receiving information that it may be transporting narcotics. (Id. at 77, 97-98.) Doherty testified that during the course of the surveillance, he observed that the truck's rear brake light was not functioning properly. (Id. at 78.) Baldus testified that Doherty announced his observation, but he could not recall whether he did so over the radio or the cell phone. (Id. at 60-61.) Although Oksala testified that he did not notice the brake light malfunction, he stated that Doherty announced the defective brake light over the radio. (Id. at 99). Doherty activated his car's lights and siren and pulled over the Defendant's truck as it neared an entrance ramp for Interstate 95. (Id. at 78, 99.) Doherty approached the driver's seat while Oksala positioned himself at the passenger side of the truck. After requesting the Defendant's license and registration and informing the Defendant about the defective brake light, Doherty asked the Defendant to walk to the back of the truck and look at the brake light. (Id. at 79-80, 87.) According to Doherty, the Defendant responded, "Sure." (Id. at 80.)
Because the witnesses at the hearing used the terms "brake light" and "tail light" interchangeably, both terms are used here.
Oksala also testified that he observed the truck make a right turn from Grace Avenue to Bussing Avenue without signaling. (Tr. at 99.)
Once Doherty, Oksala, and the Defendant were at the back of the truck, Doherty testified that he asked the Defendant whether the truck contained "any bombs, drugs, or guns," to which the Defendant answered, "No." (Id. at 80-81.) According to Doherty, he next asked, "Would you mind if I look?" and the Defendant responded, "No, not at all. Go ahead." (Id. at 81, 90.) Oksala's testimony corroborated these statements. (Id. at 101-02, 114.) Conversely, in the Defendant's affirmation, he states, "The officers never asked for my consent to search the truck. I simply complied with their orders." (Owen Affirmation dated Aug. 23, 2004 ("Owen Aff."), attached as Ex. A to Defendant's Motion and Memorandum in Support Thereof to Suppress Evidence Based Upon an Illegal Search and Seizure, ¶ 5.)
Although both Doherty and Oksala testified that they had been previously trained to use the DEA's standard "consent to search" form, the agents stated that they did not ask the Defendant to provide written consent for the search. (Tr. at 89-90, 114-15.)
Doherty next testified that the Defendant unlocked the padlock securing the truck's back door and, with Doherty's assistance, opened the door. (Tr. at 81, 91.) Based on his prior experience as a DEA special agent and a police officer in New York City, Doherty identified the odor emanating from the back of the truck as marijuana. (Id. at 81, 93.) Doherty climbed into the truck and, after inspecting its contents for approximately five or ten minutes, identified bundles of marijuana in one of the boxes. (Id. at 81, 94.) Upon making this discovery, Doherty exited the truck and arrested the Defendant. (Id. at 82, 94.)
II. ANALYSIS
A. The Stop
The Defendant claims that the DEA special agents violated his Fourth Amendment rights when they stopped his truck. The Defendant makes two arguments in support of this conclusion: (1) that he did not commit a traffic violation while the DEA special agents were following him; and (2) that even if he did commit a traffic violation, New York law does not authorize DEA special agents to make warrantless arrests for traffic violations.
At the suppression hearing, Doherty testified that he saw the rear tail light on the Defendant's truck malfunction after he and Oksala began their surveillance. (Tr. at 78.) Specifically, Doherty stated that the truck's tail light was "flickering" on and off during the surveillance. (Id.) Although Doherty did not recall announcing the defective tail light over the radio (id. at 85), both Baldus and Oksala testified that Doherty in fact did inform them of the tail light malfunction prior to stopping the Defendant's truck. (Id. at 61, 99.) The Court finds that Doherty, Baldus, and Oksala were all credible witnesses at the evidentiary hearing and, therefore, Doherty's observation that the Defendant's truck had a defective tail light provided reasonable grounds to believe that a traffic violation occurred.
The Court also heard testimony from Wayne Tulloch, a maintenance manager for Budget Truck Rental. On direct examination, Tulloch testified that the truck's maintenance records indicate that it underwent preventative maintenance — which includes inspection of its lighting system — both before and after the Defendant was stopped on June 8, 2004. (Tr. at 125.) However, on cross examination Tulloch acknowledged that he did not perform any of the repairs or inspections himself and he conceded that a bad bulb or loose or defective wiring could possibly result in a tail light that sometimes worked properly and sometimes did not. (Id. at 130, 133.) Accordingly, Tulloch's testimony is not sufficient to overcome the DEA special agents' testimony.
The Defendant next argues that Doherty and Oksala were not authorized under New York law to stop the truck. A vehicle stop, "even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning of [the Fourth Amendment]." Whren v. United States, 517 U.S. 806, 809-10 (1996). However, law enforcement officials may stop a vehicle when they have a "reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citation omitted). In United States v. Scopo, the Second Circuit held that "where the arresting officer had probable cause to believe that a traffic violation occurred or was occurring in the officer's presence, and was authorized by state or municipal law to effect a custodial arrest for the particular offense, the resulting arrest will not violate the Fourth Amendment." 19 F.3d 777, 784 (2d Cir. 1994) (emphasis added). Whether law enforcement officials rely on a traffic violation as a pretext to stop a vehicle "in order to obtain evidence for some more serious crime is of no constitutional significance." United States v. Dhinsa, 171 F.3d 721, 724-25 (2d Cir. 1998).
Because driving a vehicle with a defective tail light is an offense that may give rise to a warrantless arrest, the issue here is whether New York law authorized Doherty and Oksala, as DEA special agents, to effect a warrantless arrest. Section 2.15 of the New York Criminal Procedure Law states that "Drug Enforcement Administration special agents" shall have the powers set forth in Section 2.20(a) — which grants peace officers the "power to make warrantless arrests pursuant to section 140.25" — "with the exception of the powers provided by . . . [Section 140.25(3)(b)]." N.Y. Crim. Proc. Law § 2.15(5). Thus, when read together, Sections 2.15(5) and 2.20(a) expressly grant DEA special agents the authority to make warrantless arrests pursuant to Section 140.25(3)(a), which states the following:
3. A peace officer, whether or not he is acting pursuant to his special duties, may arrest a person for an offense committed or believed by him to have been committed within the geographical area of such peace officer's employment, as follows:
(a) He may arrest such person for any offense when such person has in fact committed such offense in his presence;
Under New York law, driving a truck with a defective tail light is a traffic infraction, see N.Y. Veh Traf. Law § 375.40(b), and a traffic infraction is an "offense" that may give rise to a warrantless arrest pursuant to N.Y. Crim. Proc. Law § 140, see N.Y. Veh. Traf. Law § 155. See also Scopo, 19 F.3d at 785 ("Under New York State law, it is clear that a traffic offense can be a basis for an arrest.") (citations omitted).
Those sections also expressly authorize DEA special agents to make warrantless arrests pursuant to Section 140.25(1)(a), which deals with the powers of a peace officer acting "pursuant to his special duties." The Defendant argues that Doherty and Oksala were not acting pursuant to their special duties as DEA special agents when they stopped his truck and the Government does not contend otherwise. Accordingly, the analysis here focuses on Section 140.25(3)(a), which applies whether or not the peace officer is acting pursuant to his special duties.
N.Y. Crim. Proc. Law § 140.25(3)(a).
The Defendant contends that, because New York law does not designate a "geographical area of employment" for DEA special agents, to permit them to make warrantless arrests pursuant to New York Criminal Procedure Law Section 140.25(3)(a) would "defeat the intent of the statute to specifically define where specialized officers may make warrantless searches under New York law." (Def.'s Supp. Mem. at 7.) This argument is not persuasive. Section 140.25 makes no mention of federal agents at all, nor does it state that a peace officer's "geographical area of employment" must be defined by state law. Thus, under the Defendant's reasoning federal agents would be unable to make any warrantless arrests unless they act "pursuant to [their] specialized duties." Such a conclusion would render nugatory the language of Sections 2.15 and 2.20, which expressly grants twenty-two types of federal law enforcement officials — including DEA special agents — the power to make warrantless arrests "whether or not [they are] acting pursuant to [their] specialized duties" under Section 140.25(3)(a). Thus, where, as here, a DEA special agent assigned to conduct surveillance in the Bronx (Tr. at 77) observes a traffic infraction, the agent is permitted to make a warrantless arrest pursuant to Section 140.25(3)(a) of the New York Criminal Procedure Law. For this reason, Doherty had the authority to stop the Defendant's truck after observing the malfunctioning tail light and the stop did not violate the Defendant's Fourth Amendment rights.
Rather, Section 140.25(5) only limits the "geographical area of employment" of peace officers employed by agencies of a county, city, town, or village, and peace officers employed by private organizations. N.Y. Crim. Proc. Law § 140.25(5).
B. The Search
The Defendant next claims that he did not give his consent to search the back of his truck; rather, the Defendant states that he was ordered to open the truck. A warrantless search and seizure does not violate the Fourth Amendment if "the authorities have obtained the voluntary consent of a person authorized to grant such consent." United States v. Elliott, 50 F.3d 180, 185 (2d Cir. 1995); see also Florida v. Jimeno, 500 U.S. 248, 251 (1991) (explaining that it is "reasonable for the police to conduct a search once they have been permitted to do so") (citation omitted). A person's consent is voluntary when it is "a product of that individual's free and unconstrained choice, rather than a mere acquiescence in a show of authority." United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995) (citations and quotation marks omitted). In determining whether consent was voluntary, courts must consider the totality of the circumstances, including the characteristics of the defendant, the behavior of the officer, and the conditions surrounding the request for consent. See Green v. Scully, 850 F.2d 894, 901-02 (2d. Cir. 1998) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).
Here, a dispute exists as to whether the Defendant in fact gave Doherty consent to search the back of the truck. In an affirmation dated August 23, 2004, the Defendant states that after he pulled the truck over and exited its driver's seat:
[T]he officers ordered me to give them the key to the back of the truck. In response to their order, I gave them the key. These officers then opened the locked back door of the truck and proceeded to search the back of the truck. (Owen Aff. ¶ 4.) The Defendant further states: "I never gave consent to the officers to search the truck. The officers never asked for my consent to search the truck. I simply complied with their orders." (Id. ¶ 5.) To the contrary, Doherty testified at the suppression hearing, under oath and subject to cross examination, that he asked for and received the Defendant's consent to search the back of the truck. (Tr. at 81.) Specifically, Doherty stated that he first asked the Defendant whether there were "any bombs, drugs, or guns" in the back of the truck. (Id. at 80-81.) After the Defendant said that there were none, Doherty testified that he then asked, "Would you mind if I look?" and the Defendant responded, "No, not at all." (Id. at 81, 90.) Doherty testified that after the Defendant used his key to unlock the padlock on the back door of the truck he and the Defendant opened the door together. (Id. at 81, 91.)
Based on Special Agent Baldus's testimony about what he observed at the warehouse prior to the traffic stop and the extent to which his surveillance corroborated the information provided by the CI about suspicious activity at the warehouse, it was reasonable for Doherty to request the Defendant's consent to search the back of the truck. See Illinois v. Andreas, 463 U.S. 765, 771 n. 5 (1983) ("Where law enforcement authorities are cooperating in an investigation, . . . the knowledge of one is presumed shared by all.") (citation omitted).
The Court finds Doherty's testimony to be credible. Doherty's statements were corroborated at the hearing by the testimony of his partner that day, Special Agent Oksala. Oksala's account of the conversation between Doherty and the Defendant is consistent with Doherty's testimony in all material details. Although he was unable to recall Doherty's exact words, Oksala testified that Doherty asked the Defendant whether there was anything illegal inside the back of the truck; the Defendant replied that there was not. (Tr. at 101.) Oksala then testified that after Doherty asked if he could look in the back of the truck the Defendant said that he could. (Id. at 102.) Oksala also testified that the Defendant assisted Doherty with opening the truck's back door. (Id.) Based on Doherty's and Oksala's testimony, this Court accepts the Government's version of the facts and concludes that the Defendant consented to Doherty's search of the truck.
Although the Defendant makes no claim to the contrary, an analysis of the totality of the circumstances makes clear that a reasonable law enforcement officer would think that the Defendant's consent was voluntary. In addition to verbally consenting to the search, Doherty testified that the Defendant helped him open the back of the truck. (Tr. at 81, 90.) Doherty also testified that none of the DEA special agents at the traffic stop drew their weapons during the stop. (Id. at 79.) Furthermore, the stop occurred on a public street in Bronx during the daytime. See United States v. Moreno, 897 F.2d 26, 33 (2d Cir. 1990) (considering fact that consent occurred in public place when determining whether consent was voluntary). Thus, there is no evidence that the Defendant was merely acquiescing in a show of authority, and there is no indication that he was coerced, either expressly or implicitly, by the DEA special agents.
III. CONCLUSION
For the foregoing reasons, the Defendant's motion to suppress is denied.
IT IS SO ORDERED.