Opinion
Criminal Action No: SA-03-CR-0391-XR
February 4, 2004
ORDER
On this day, the Court considered Wheeler's Motions to Suppress (docket no. 20). An evidentiary hearing was held on January 23, 2004. Wheeler argues that after his arrest based on outstanding traffic warrants, he should have been transferred to a jail facility. Rather than being transported to a jail facility, Wheeler argues that law enforcement officers coerced his girlfriend to consent to a search of her home, where firearms and illegal drugs were found. Wheeler argues that these actions by law enforcement personnel were designed to circumvent the necessity for a search warrant. IT IS HEREBY ORDERED that the Motion to Suppress is DENIED.
FINDINGS OF FACT
1. Several weeks prior to August 6, 2003, a confidential informant relayed that Wheeler was selling drugs from a home located on Irwin Street. The informant also stated that a safe containing drugs could be found in the home. Before any search warrant was obtained for a search of the Irwin Street property Wheeler vacated the property.
2. On August 6, 2003, San Antonio Police Officer Nick Stromboe received information from a confidential informant that Wheeler was now residing at a home located on Feather Nest Street, San Antonio, Texas. The exact address was not relayed, but the informant gave Officer Stromboe a description of Wheeler's vehicle. Officer Stromboe forwarded this information to a DEA Agent and a Narcotics Task Force Officer. Officer Stromboe also determined that Wheeler had outstanding warrants. Officer Stromboe and Wheeler have had past "contacts" and can recognize each other.
3. Later that afternoon, an Alamo Narcotics Task Force peace officer located Wheeler's vehicle parked at 6114 Feather Nest. On August 7, 2003, surveillance began at 6114 Feather Nest beginning at approximately 11:00 a.m.
4. Shortly after surveillance began, Wheeler left the Feather Nest home and began traveling in a rental car a few blocks onto Judson Road. Officer Stromboe recognized Wheeler and activated his lights. At approximately 11:45 a.m., Wheeler turned into the parking lot of the Sam's Warehouse located on Judson Road. Despite the patrol car's lights, Wheeler slowly traveled the length of the parking lot. Officer Stromboe observed Wheeler making a cellular phone call. When Wheeler's carmade a stop, Officer Stromboe approached the car and observed Wheeler chewing and saw marijuana residue on Wheeler's shirt. Officer Stromboe informed Wheeler he was under arrest for outstanding warrants. Officer Stromboe also observed a bottle containing a dark, purple syrup. Officer Stromboe asked Wheeler whether the bottle contained "lean" syrup — a codeine based product. Wheeler stated yes.
5. On August 7, 2003, Ms. Shawn Gaston received a phone call from Defendant Wheeler stating that he was "being pulled over by a police officer" at the parking lot of the Sam's Warehouse located on Judson Road, San Antonio, Texas. She left her home located at 6114 Feather Nest and traveled approximately three blocks to the Sam's Warehouse. Surveillance officers followed Gaston, and as she entered the parking lot, she was pulled over by a San Antonio police officer for avoiding a traffic control device. She immediately informed the police officer that she had outstanding warrants and an expired license. After a few moments, she was informed she was under arrest for outstanding traffic tickets.
6. At the time of the above incident, Ms. Gaston was approximately 28 years old, a high school graduate, a graduate of a Fire Fighter Academy and Emergency Medical Technician school (EMT), and a college student. A police officer sought consent from Ms. Gaston to search the home at 6114 Feather Nest. Prior to signing the consent form, she requested to speak to Wheeler, and did speak with Wheeler. Law enforcement officers informed Gaston that "they were not interested in her," "that it was about her boyfriend Wheeler," and "that he was a substantial drug dealer and that he was using her house for that purpose." A police officer informed Gaston that Wheeler was denying living or staying at the residence, and Wheeler denied knowing anything about what was in the house. The Narcotics Task Force officer told Gaston that drug dealers often use their girlfriends as "pawns." Thereafter, Ms. Gaston told the police there were firearms and a safe in the Feather Nest home.
7. During the hearing, Gaston claimed that she asked to speak to an attorney prior to signing the consent form. Two law enforcement officers denied hearing Ms. Gaston making such a request, and one officer stated that if Gaston had made such a request, no consent form would have been obtained and that all proceedings would have stopped. Gaston read the consent form, and knowingly and voluntarily signed the consent to search the Feather Nest home.
8. Wheeler "occasionally" stayed at the 6114 Feather Nest home. He had some unspecified amount of clothes at the home. The telephone at the residence was in Wheeler's name. Gaston had been living at the Feather Nest address for approximately 45 days before August 7, 2003. Prior to that time, she lived at 2803 Irwin Street. Wheeler occasionally stayed at the Irwin residence, and also kept "some clothes" at that residence. Gaston stated Wheeler did not "live" with her at either the Irwin Street or Feather Nest residences. Wheeler testified that on August 7, 2003, he "lived" at 4830 Swan Lane. If Wheeler wanted access to the Feather Nest property, it was necessary for Ms. Gaston to leave a key for him to enter.
9. After Ms. Gaston signed the consent form, she was taken to the Feather Nest home where she opened the home with her house key and allowed the police officers to enter.
10. Police officers found a loaded Ruger .45 pistol under a couch, a safe in the pantry, and a loaded AK 47 with a drum magazine in the pantry leaning against the safe. Wheeler denied owning the safe, but provided a key to open the safe. The safe contained approximately 430 grams of cocaine, a pound of marijuana and some currency.
CONCLUSIONS OF LAW
1. Any finding of fact herein above which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopted as a finding of fact.
The Initial Stop of Wheeler's Vehicle
2. Police officers had probable cause to stop Wheeler's vehicle based on the outstanding traffic warrants. A valid traffic-violation arrest is not rendered invalid by the fact that it was "a mere pretext for a narcotics search." Whren v. U.S., 517 U.S. 806 (1996) (citing U.S. v. Robinson, 414 U.S. 218 (1973).
The Transport of Wheeler from the Sam's Warehouse Parking Lot to Feather Nest
3. Defendant relies upon James v. State of Louisiana, 382 U.S. 36 (1965) and other related cases to argue that his Fourth Amendment rights were violated. Defendant's argument is misplaced. In James, the Supreme Court of Louisiana found that law enforcement officers had probable cause to arrest the petitioner at the time they apprehended him, and the validity of his arrest was not an issue at the United States Supreme Court. After James's arrest, a warrantless search of his home located more than two blocks from where he was arrested was conducted. The United States Supreme Court concluded that "a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest." Id. at 37. Accordingly, the Court held that it was constitutional error to admit the fruits of this illegal search into evidence at James's trial. Id. In this case, the Government does not argue that the search of Feather Nest was incident to arrest. Nor does the Government argue that the search of the Feather Nest residence was conducted pursuant to the exigent circumstances exception.
4. Defendant's complaint that he was immediately transported to the Feather Nest property rather than to a jail facility fails to establish any Fourth Amendment violation. In essence, Defendant complains that he was not taken to jail quickly enough. However, the delay of a few hours from the time of arrest until he was taken before a United States Magistrate Judge for an initial appearance on August 7, 2003, fails to implicate any due process violations.
Wheeler Cannot Contest the Search of Gaston's house
5. To challenge the warrantless search of a home, Wheeler has the burden of demonstrating (1) an actual, subjective expectation of privacy with respect to the place searched or things seized, and (2) that the expectation is such that society would recognize it as reasonable. U.S. v. Thomas, 120 F.3d 564, 571 (5th Cir. 1997), cert. denied, 522 U.S. 1061 (1998). Here, Wheeler and Gaston denied that Wheeler lived at the Feather Nest home. Wheeler told police officers at the Sam's Warehouse parking lot that any property they might find at the Feather Nest home did not belong to him. Wheeler did not present any evidence that he was a signatory to any lease or deed. Wheeler denied having any key to the property. If he wanted access to the property, Gaston was required to leave a key for his use. No evidence was presented by Wheeler that he was free to enter and exit the property at his discretion. Wheeler provided no evidence as to how many nights he stayed at the Feather Nest home. Wheeler provided no evidence regarding whether he was an overnight guest the night prior to the August 7, 2003 search. Wheeler has failed to establish that he had an actual, subjective expectation of privacy in the Feather Nest house.
Assuming Arguendo that Wheeler had an Expectation of Privacy in the Feather Nest Home, Gaston gave Voluntary Consent to a Search of the Premises
6. The voluntariness of an individual's consent to search is a question of fact that is determined by examining the totality of the circumstances. U.S. v. Gonzales, 842 F.2d 748, 754 (5th Cir. 1988), overruled on other grounds, 905 F.2d 74 (5th Cir. 1990). A warrantless search is valid if the government can prove by a preponderance of evidence that the consent given was authorized and voluntary. See U.S. v. Jaras, 86 F.3d 383, 389 (5th Cir. 1996). The Fifth Circuit has established the following factors to aid in determining whether voluntary consent was given: (1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the officers; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. U.S. v. Payne, 82 Fed. Appx. 342 (5th Cir. 2003). Gaston is not a defendant in this case, but rather a third party. In any event, given Gaston's age and educational background, the ability given to her to speak with Wheeler, the explanation given to her that she had a constitutional right not to have a search made and that she could merely wait for a warrant to be obtained from a Magistrate Judge, her reading and signing of a consent form that stated she was giving permission voluntarily and without threats or promises, and her opening of the Feather Nest home and explaining its layout, the Court concludes that Gaston's consent to search the Feather Nest property was given voluntarily.
Search of the Safe
7. Defendant argues that even if Gaston consented to a search of the home, she had no right or authority to consent to a search of a safe found in the kitchen pantry. U.S. v. Pressler, 610 F.2d 1206, 1213 (4th Cir. 1979)(" There can be little question of the validity of a consent to search by one who has "common authority over, general access to, or mutual use of the place or object sought to be inspected," but it is equally well settled that third person consent, no matter how voluntarily and unambiguously given, cannot validate a warrantless search when the circumstances provide no basis for a reasonable belief that shared or exclusive authority to permit inspection exists in the third person from any source; nor even more certainly, when the circumstances manifest to the contrary that the absent target of the search retains an expectation of privacy in the place or object notwithstanding some appearance or claim of authority by the third person; nor, still more certainly, when the retained expectation of privacy is manifest in the circumstances and the third person actually disclaims any right of access.").
8. Implicit in Pressler and the other cases relied upon by Defendant is the premise that the Defendant claimed ownership of the safe. Initially, Wheeler denied any knowledge of a safe in the home. It must, however, be acknowledged by the Government that at some point during the search the safe was found and Wheeler was questioned. Wheeler acknowledged that the key to the safe could be found on the automobile key chain. Accordingly, at that point Wheeler did acknowledge ownership of the safe. The question then arises, did Wheeler consent to a search of the safe? When the safe was found, Wheeler was asked whether narcotics would be found in the safe. He replied yes. When the automobile key chain was obtained, Wheeler was asked which key on the key chain would open the safe. He identified the correct key to the safe. At no time did Wheeler object to the safe being opened by law enforcement personnel. Given the totality of the circumstances, the Court concludes that Wheeler gave verbal consent to the safe being opened.
9. In the alternative, if Wheeler did not give verbal consent to the safe being opened, the Court concludes that had the safe not been opened, it would have been confiscated and inventoried along with the other firearms and drug-related items found in the home, and law enforcement personnel at that time could have obtained a search warrant to open the safe. Accordingly, the "inevitable discovery" exception is applicable. U.S. v. Seals, 987 F.2d 1102 (5th Cir.), cert. denied, 510 U.S. 853 (1993).