Opinion
No. CR 05-109-MO.
October 12, 2005
OPINION AND ORDER ON DEFENDANT MALDONADO-TOSCANO'S MOTION TO SUPPRESS
Jose Maldonado Toscano moves to suppress a package of methamphetamine seized from him following a car stop, and his related statements. He contends the stop of the car and the subsequent searches of himself, the passenger, and the car either lacked probable cause or were otherwise unconstitutional. In particular, he contends there was no probable cause to arrest his passenger for having a pipe with methamphetamine residue hidden in his pocket; there was no probable cause to arrest defendant for, among other charges, false information and driving uninsured; and the subsequent inventory search of the car prior to towing was a pretext. For the reasons given below, his motion is denied.
FACTS
On January 13, 2005, Officer Mark DeLong of the Portland Police Bureau was parked near an intersection in southeast Portland, where the posted speed limit changed from 40 to 35 mph. He saw defendant drive by with a male passenger who was looking down. At the hearing, Delong testified his attention was somehow drawn to this seemingly innocuous fact. He pulled out from where he was parked and "paced" the vehicle in order to determine its speed. By this time, one car was in between DeLong and the 1990 Chrysler driven by defendant. He followed the car for about six blocks, and determined that defendant (and presumably the car in between them) was going 40 mph in a 35 mph zone. Based solely on this speeding violation, DeLong pulled defendant over.
When DeLong approached the car he saw the passenger move something from the center console area to his side of the car. DeLong then asked defendant for his driver's license, registration and proof of insurance. Defendant handed him a number of documents, but DeLong's attention was diverted to the passenger. The passenger was, in the officer's opinion, acting like someone who was high on methamphetamine. He kept touching the side pocket area of his pants where DeLong had seen him shove something. DeLong testified that out of concern for his safety, he had the passenger step out of the car.
DeLong patted down the passenger for weapons, and felt something in his pocket. DeLong testified that he knew when he felt it that it was a methamphetamine glass pipe, with the jagged edges typical of a pipe that has been heated with methamphetamine and cracked. He removed it from the passenger's pocket and identified methamphetamine residue around the edges. DeLong then arrested the passenger for possession of a controlled substance (PCS II), and called for backup.
After another officer arrived, DeLong turned his attention back to defendant and his documents. Defendant had given DeLong (1) a document that later was verified to be a valid Mexican driver's license in defendant's name (DeLong said he did not know at the time what it was); (2) passenger registration for the 1990 Chrysler in the name of Dunstano Vazquez Aburto with a Verna Street address in Woodburn; (3) car title transfer for the 1990 Chrysler with the same name and address as the registration; and (4) proof of insurance for a 1997 Ford Aerostar in the name of Maclovia Sanchez, with the same address as the registration.
DeLong arrested defendant for failure to carry a driver's license, false information, and PCS II (for joint possession of the methamphetamine pipe). He also cited him for speeding and driving uninsured. The driving uninsured statute for which DeLong chose to cite defendant, ORS 806.010, requires a mandatory tow and inventory, per Portland Police policy. A related statute (ORS 806.012 failure to carry proof of insurance) does not require a tow, but allows for one in the officer's discretion.
Prior to the tow, and pursuant to policy, DeLong conducted an inventory of the car. He saw a coat on top of a pile of clothes in the rear seat. When he lifted the coat, a large package fell out, wrapped in black plastic. He testified that he felt it, smelled it, and concluded it was methamphetamine. DeLong then opened it; later testing confirmed it to be methamphetamine.
Defendant was taken to the station and interviewed in Spanish by an FBI agent and a task force officer. He was given his Miranda warnings, and made certain incriminating statements.
ANALYSIS
I. The Car Stop
Defendant contends the car stop is invalid because it was a pretext stop to look for drugs, and because there is insufficient evidence he was truly speeding. He also makes passing reference to the possibility the stop violated equal protection.
It is now well settled that an officer's subjective intent in making a stop does not control whether the stop is constitutional. Whren v. United States, 517 U.S. 806, 813 (1996). If there is an objectively reasonable basis for the stop, it is permitted under the Fourth Amendment. United States v. Wallace, 213 F.3d 1216, 1219 (9th Cir. 2000). Put simply, if defendant was speeding, the stop was constitutional.
The testimony that defendant was speeding is largely uncontradicted. Defendant suggests there was not enough time for DeLong to go from a standing start to get behind the car long enough to be accurate about its speed. He further suggests that with a car in between and no evidence DeLong's speedometer had been checked, combined with the very minor violation (40 in a 35 mph zone), there is reason to doubt the violation.
I find there was enough time for DeLong to pace defendant's car. DeLong's own report, consistent with his testimony at the hearing, is that he went from being parked at 136th to getting behind defendant's car at 132nd, and then paced defendant's car from 132nd to 126th. This is sufficient time to pace the car accurately. The presence of a car in between, or the lack of evidence that DeLong's speedometer had been calibrated, is insufficient to find the government has failed to meet its burden of showing defendant was speeding.
Nor is there any actual evidence sufficient to find a violation of the equal protection clause. No evidence was presented on this issue. As defendant candidly acknowledges, it is "difficult to judge what part [defendant's ethnicity] may have played in Officer DeLong's decision to stop the vehicle." Defendant's First Post-Hearing Brief at 10. We don't know the ethnicity, for example, of the driver of the car in between. Without more, I do not find any equal protection violation.
II. The Pat Down of the Passenger
Other than challenging the underlying traffic stop, defendant does not directly challenge the initiation of the pat down of the passenger. Rather, he argues that because the pat down was founded in a traffic stop, it was limited to whatever was necessary to insure officer safety, and no more. Because Officer DeLong testified that he recognized the item as a meth pipe, not a weapon, defendant contends he was not entitled to do anything more, such as seize the pipe. See, e.g., United States v. Miles, 247 F.3d 1009, 1014 (9th Cir. 2001) (officer overstepped his authority under Terry when he continued to investigate what suspect had in his pocket after he determined it was not a weapon). But as the court in Miles made clear, if an officer engaged in a Terry pat down for weapons "feels an item that he recognizes as contraband or evidence, that `touch' may provide probable cause for the arrest of the person and the seizure of the evidence." Id. at 1013. The Supreme Court provided further clarification in Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993):
If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.
Here, Officer DeLong testified that he immediately recognized what he felt in the passenger's pocket as a meth pipe. I find that testimony credible. He was authorized under Terry to feel the outside of the passenger's pocket. When he felt a meth pipe, he was then authorized to seize it. The distinction between this case and Miles is that in Miles the officer did not immediately recognize what was in the suspect's pocket as contraband. Only after further investigation was he able to do so. Under a "plain feel" analogy to plain view, it is the immediacy of the recognition that matters. See, e.g., United States v. Mattarolo, 209 F3d. 1153, 1158 (9th Cir. 2000) (officer during weapons pat down immediately recognizes drugs inside a plastic bag).
For the above reasons, I find the pat down search of the passenger, and the subsequent seizure of the meth pipe from his pocket constitutionally authorized. It follows that when the officer saw a substance like methamphetamine around the pipe, he had probable cause to arrest the passenger for PCS II.
The government argues defendant has no standing to contest the pat down, search, and arrest of the passenger, citing, for example, United States v. Kuespert, 773 F.2d 1066, 1067-68 (9th Cir. 1985). This is true as far as it goes. It changes, however, if the government relies on the arrest of the passenger to search the cab of defendant's car, including the coat and contraband linked to defendant.
III. Maldonado's Arrest
DeLong arrested defendant on three grounds: possession of a controlled substance, failure to present a driver's license, and furnishing false information.
A. Possession of a Controlled Substance: The government contends that probable cause for PCS is supported by the fact that defendant was driving the car that had a meth pipe in it; he was speeding; the pipe had been in the center console area before the stop; the passenger had recently used methamphetamine; and the passenger concealed the pipe. Defendant argues that it is not knowledge of the presence of the drugs that matters, or even proximity and access, but the right to exercise dominion and control. See, United States v. Behanna, 814 F.2d 1318, 1320 (9th Cir. 1987).
This is certainly a thin case for probable cause. But the law does not require the same kind of proof for probable cause as it does at trial. Unfortunately, the cases on which defendant principally relies are about proving possession beyond a reasonable doubt. See, e.g., Behanna, supra. That, of course, is a very different question. After finding a passenger who apparently had just used methamphetamine, and a meth pipe in his pocket that had been in the center console area, with methamphetamine on the pipe, DeLong was entitled to do more than simply arrest the last person who touched the pipe. The confusing set of documents, while not directly probative of PCS, adds to the quantum of evidence that defendant had engaged in criminal conduct. On these facts, I find Officer DeLong had probable cause to arrest defendant for PCS II. B. Failure to Present a Driver's License: Defendant contends there was much about the admittedly valid Mexican driver's license that should have tipped off an experienced patrol officer as to what it was. He notes some rather obvious cognates and other information that gave it the appearance of a license. Ultimately, it would be impractical to require an officer to glean such information from a foreign driver's license. Some officers may be able to do it in some cases — for example, an officer who knows a little Spanish looking at a Mexican license — but as a general rule it is fraught with problems. More fundamentally, the burden is not on the foreign driver to somehow show his license is valid. Instead, the burden is on the officer issuing a ticket for failure to present a license to point to something more than the fact the license is in a foreign language and cannot readily be verified on his computer. Here, the officer basically relies on his inability to verify the license as the reason for the charge. To be sure, he received other documents that may have been relevant to other charges, but I do not find those documents, on these facts, to be sufficient to meet the burden of probable cause as to the license. In essence, Officer DeLong arrested defendant on this charge because he had a Mexican driver's license that he could not read or verify. This was insufficient.
C. False Information: Probable cause is often a matter of degree. Here, DeLong was presented with documents in three different names linked to two different cars. He also had just discovered drugs and a recent user. Something less than that, such as a driver with his own license but with other documents (registration, title, insurance) in someone else's name, lends itself readily to the entirely innocent situation of a person driving someone else's car. But when drug use, no insurance and a third name are thrown into the mix, the officer had probable cause to believe that defendant furnished him with false information.
IV. The Search of the Car
As an initial matter, Officer DeLong was authorized to search the passenger compartment of the car, and any containers found therein, incident to the arrests of defendant and the passenger. New York v. Belton, 453 U.S. 454, 460-61 (1981); see also, United States v. Olguin-Rivera, 168 F.3d 1203, 1206 (9th Cir. 1999). The scope of a search under Belton would justify, in this case, the search of the package containing methamphetamine.
The government further argues the search is justified as an inventory search. Defendant contends the inventory search was a pretext; that from the beginning of the encounter, DeLong just wanted to search this car for drugs, and the inventory gave him an excuse to do so. Defendant relies on cases establishing that the motivation of the officer can be relevant to determining the validity of any search not founded on probable cause. See, e.g., United States v. Cervantes, 219 F.3d 882, 889-90 (9th Cir. 2000).
At first blush, it does appear clear that DeLong was just waiting for an excuse to stop a car. The problem for defendant is that it is not at all clear that DeLong was just waiting for an excuse to search defendant's car. As defendant acknowledges, by all appearances DeLong had set up a speed trap by parking precisely where the speed limit changes. While it may be highly annoying for anyone to be stopped for going 5 mph over the speed limit, right where the limit changes, this does not, without more, set up a pretext stop for purposes of searching for drugs.
The whole point of analyzing pretext in the context of inventory or emergency searches is to determine whether the search is primarily being conducted for the ostensible reason, or whether it is instead "a ruse for general rummaging in order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1, 4 (1990). Here, there are several important intervening factors between the allegedly pretextual stop and the inventory search. Not the least of these is defendant's driving uninsured. Once that citation had issued, DeLong was obligated by police bureau policy to tow and inventory the car. I find that these intervening events render any link between the officer's motivation for the stop and the inventory search too tenuous to support suppression.
Defendant suggests that since DeLong could have chosen to cite for a different offense not requiring mandatory towing, the court should view his choice of ORS 806.010 as part of the pretext. Defendant does not, however, provide any basis for challenging the validity of the citation under ORS 806.010.
An officer may often be faced with the choice of more than one ticket to write for the same facts. If each choice is valid under the facts, then his discretion to choose one citation over another is not the sort of discretion the Supreme Court was concerned about in Florida v. Wells, supra. In that case, the Court reasoned that unbridled discretion as to the scope of an inventory search could invalidate such searches. Id. at 4-5. It is certainly the case that unbridled discretion as to when to initiate an inventory could also invalidate an inventory search. But nothing like that is present here. Officer DeLong had two choices: a statute that mandated a tow and search, and one that gave him discretion whether to order a tow or not. Both choices had as their predicate a prior valid citation involving insurance. This is not the sort of unbridled discretion that would invalidate the inventory.
Defendant correctly argues that even under an inventory search, DeLong was not authorized by police policy to open or search closed containers like that containing the methamphetamine. He further argues that there can be no "plain feel" or "plain smell" exception here, because the package emitted no odor, and the feel of the substance is consistent with many innocent products. He presented expert testimony from Michael Howard that while methamphetamine production may have had a distinctive smell years ago, current methods do not produce any odor beyond the "chemical" smell associated with certain common solvents. This testimony was unrebutted. Mr. Howard further stated that when he opened the sealed evidence package containing the seized methamphetamine quite some time after the night of the arrest, he could not smell anything beyond a faint solvent smell when he put his face almost in the bag. Howard did note that any such smell may have been stronger closer in time to its seizure (depending on its packaging) and that his own ability to notice such smells may have been somewhat dulled by frequent exposure.
DeLong testified that he could smell something he associated with methamphetamine on the night he first held the package. He also testified to his experience with methamphetamine, almost exclusively with much smaller packages. The FBI agent who was present with Mr. Howard testified that he noticed the smell from the package when Mr. Howard conducted his examination.
In light of Mr. Howard's testimony that a faint chemical smell was present even much later when he opened the package, I credit the testimony of Officer DeLong that on the night in question, he could smell something about the package.
Defendant further contends that there can be no distinctive feel to methamphetamine. He points to DeLong's testimony that methamphetamine can feel like anything from cornmeal to shards of glass, and that his own experience was generally with quantities of an ounce or less.
The smell and feel of the package, however, have to be taken in context. DeLong had just seized a methamphetamine pipe with traces of methamphetamine on it, and arrested a man he believed had just recently used it. In that light, the solvent smell, while consistent with many household products, at least added to the quantum of evidence DeLong had in his mind. The feel of the package, while also consistent with many everyday products, also contributed to this quantum, as did the fact that this was a package wrapped in black plastic with nothing to identify it as a common household product. On similar facts, the Ninth Circuit has allowed seizure of drugs based on a plain feel exception to the warrant requirement. Mattarolo, 209 F.3d at 1158. For these reasons, I find the seizure of the package was authorized despite the limits on inventory searches of closed containers under Portland Police Bureau policy.
V. Defendant's Statements
Defendant's sole argument for the suppression of incriminating statements is that they are the fruit of an unconstitutional stop, arrest, and search. I have held otherwise, and therefore deny his motion to suppress statements.
CONCLUSION
For the reasons given above, defendant's motion to suppress evidence and statements is DENIED.
IT IS SO ORDERED.