Case No. A05-009 CR (RRB).
April 21, 2005
INITIAL REPORT AND RECOMMENDATION RE: MOTIONS TO DISMISS INDICTMENT AND SUPPRESS EVIDENCE (Docket Nos. 18 and 20)
Defendant, Donald Monzulla, has filed two motions: the first is a motion to dismiss the indictment due to destruction of alleged evidence, and the second is a motion to suppress evidence and statements resulting from the warrantless search of his vehicle. In support of his motions, Defendant claims that the indictment should be dismissed because the government purposefully destroyed a contact tape made of his encounter with Alaska State Trooper Jake Covey on October 16, 2004, as well as all radio dispatch tapes. He argues that the government's destruction of these tapes limits Defendant's ability to cross-examine Trooper Covey. Id. Additionally, Defendant claims that Probation Officer Bacon had no basis for directing Trooper Covey to engage in a warrantless search of Defendant's vehicle because Trooper Covey did not have reasonable suspicion of criminal activity. Finally, Defendant contends that he was subject to a custodial interrogation "without the benefit of a valid Miranda advisement or a knowing and intelligent waiver" of his rights.
In its response to the motion to dismiss the indictment at Docket No. 26, the government concedes that the tapes were destroyed but argues that it acted in good faith and in accord with its normal practice of recycling and recording over the tapes. In its response to the motion to suppress, the government argues that the defendant was not subject to a custodial interrogation because he was not in custody when questioned. The government further contends that the search of Defendant's van was not a Fourth Amendment violation because the search was pursuant to a search condition of Defendant's probation.
This Court, having reviewed the foregoing, now submits its Report and Recommendation.
On October 16, 2004, Alaska State Trooper Jake Covey received a dispatch call at about 8 p.m. to Mile 234 to 235 of the Parks Highway for a "welfare check type of call." Tr. at 4, 5. Trooper Covey reached Mile 234 of the Parks Highway fifteen to twenty minutes later. Id. at 5. When he arrived on scene, he observed a "van and a pull-out, with a red Jerry jug sitting outside on the ground." Id. Trooper Covey testified that he initially had no intent to arrest anybody. Id. at 6. Trooper Covey exited his vehicle and observed the defendant get out of the vehicle with his son. Id. Defendant told Trooper Covey that he was out of gas. Id. at 7.
Trooper Covey offered to give Defendant a ride to Healy. Tr. at 7. Defendant said he was "originally going to spend the night there and try to get some gas in the morning." Tr. at 7. Defendant told Trooper Covey he was originally coming from Kenai and going to his residence in North Pole before his vehicle ran out of gas. Tr. at 7, 8.
Defendant accepted Trooper Covey's offer of a ride to Healy. Tr. at 8. Previously the trooper had called his dispatch and learned that Defendant was on probation. Id. Trooper Covey also learned from talking to his dispatch that Defendant was a "red-flag assault," and that based on his conditions of probation, Defendant was not allowed to possess any alcohol, drugs, or weapons. Id. Trooper Covey learned this information prior to driving Defendant to Healy. Tr. at 8, 9. Trooper Covey conceded on cross examination that he recognized Defendant's name when he examined Defendant's driver's license. Tr. at 27. When asked whether he knew Defendant's history, Trooper Covey stated that he knows of "one case that a lot of troopers in — [his] area would know about." Id. Due to his knowledge of that unspecified incident, he was "maybe using a little bit extra caution." Tr. at 27-28. Defendant has had a "violent contact with a trooper in the past." Tr. at 28.
Trooper Covey engaged in "casual conversation" with Defendant. Tr. at 9. Trooper Covey then asked Defendant, "Is there anything in the vehicle I should know about?" Id. The trooper testified that he asked the question for "office safety reasons." Id. Defendant stated that he had a "loaded rifle in the vehicle."Id. During the hearing, Trooper Covey was asked the following question:
Q: What did this mean to you?
A: Based on his conditions — that he was violating his conditions, or his probation, by — by possessing that rifle.
Tr. at 9.
Probation Officer Bacon testified that Defendant's probation conditions included a condition that Defendant not "consume or possess alcohol or illegal drugs," and that Defendant's probation terms included a "search condition that allowed a warrantless non-consensual search at the direction of a PO, for alcohol, drugs and firearms." Tr. at 55.
Trooper Covey's intent at that time was "still to transport him in to Healy to get gas." Id. Trooper Covey had his dispatch contact the on-call parole officer due to the apparent probation violation. Id. Trooper Covey testified that he did not intend to arrest Defendant at that time. Id.
Trooper Covey transported Defendant and Defendant's son in the trooper's vehicle to Healy, where the defendant filled his Jerry jug up with gas. Tr. at 11. While they were en route to Healy, Trooper Covey received authorization from the probation officer to search Defendant's vehicle. Tr. at 14, 56. As Trooper Covey testified:
Q: What was your intent at that point?
A: I told Mr. Monzulla when he got back in the vehicle, I said, `Your PO authorized me to search your vehicle. I have no intention of arresting you off the weapons alone.'
Tr. at 14.
Trooper Covey later testified that he told Defendant, "I'm going to confiscate your weapons and send you on your way unless I hear otherwise from the probation officer." Tr. at 14. Defendant was described as "cooperative" and he told the trooper where the weapons were in his vehicle. Id.
Trooper Covey then asked, "Hey, when's the last time you smoked dope?" Tr. at 15. Defendant replied by stating he had smoked marijuana earlier in the day before leaving Kenai. Id. Defendant also admitted to drinking "some alcohol" though Trooper Covey did not smell alcohol on him. Id. Defendant then told the trooper that there was some marijuana in a cookie tin inside his van. Id. Though Defendant was "very cooperative," Trooper Covey requested backup once he knew he was going to be searching the vehicle due to Defendant's "history of having problems with troopers." Tr. at 16.
When they arrived back at Defendant's vehicle, Trooper Hall was waiting there as a backup unit. Tr. at 16, 20. While Defendant and his son stood with Trooper Hall, Trooper Covey searched Defendant's vehicle. Tr. at 17. Trooper Covey found two loaded rifles, 15 rounds of rifle ammunition, a cookie tin containing marijuana, and a "half consumed" jug of Bacardi rum in Defendant's vehicle. Tr. at 17-18, 38.
Trooper Covey relayed what he had found to the probation officer via the dispatch, and the probation officer gave him authorization to arrest Defendant on a probation violation. Tr. at 18, 19. Trooper Covey then arrested Defendant without incident. Tr. at 19.
Trooper Covey made a contact tape of the encounter with Defendant. Tr. at 21. Regarding the contact tape, Trooper Covey testified that he "either lost it, or most likely, [he] taped over it." Id. He stated that he is not required to make a contact tape. Tr. at 21, 46. Trooper Covey testified that he makes contact tapes of "things that are a little out of the ordinary or things that, you know, basically I want recorded."Id. He testified that when he thinks there is no evidentiary value for a contact tape, he will "just tape-record over it." Tr. at 22. When asked a second time if that is what he thought occurred in the instant case, he replied, "Most likely, yes." Id.
Trooper Covey testified that every call that he makes to the dispatch is recorded. Tr. at 24. The recorded calls are kept for a period of "somewhere between 30 and 60 days" before being recorded over. Id. In this case, the dispatch tapes were not saved. Id.
DISCUSSIONMotion to Dismiss the Indictment
The defendant argues that Trooper Covey had an obligation underUnited States v. Barton, 995 F.2d 931, 934 (9th Cir. 1993), to preserve evidence which had the potential at a suppression hearing to impeach allegations made in an affidavit for a search warrant, and that Trooper Covey's destruction of the contact tapes violates Defendant's right to due process. Docket No. 18 at 3, 4. Trooper Covey was aware that charges were pending against Defendant at the time he destroyed the tapes, Defendant argues, and Trooper Covey's destruction of the tapes puts Defendant at a disadvantage because he is unable to examine the exact time of events that led up to the search of his camper and his ultimate arrest. Id. at 4.
The due process principles set forth in Brady v. Maryland and its progeny must be applied to a suppression hearing involving a challenge to the truthfulness of allegations in an affidavit for a search warrant. Barton, 995 F.2d at 935. However, "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law."
The Barton court noted that a police department's compliance with "departmental procedure" should be regarded as an indication that the disposal of evidence was not performed in "bad faith."Barton, 995 F.2d at 935, quoting United States v. Heffington., 952 F.2d 275, 281 (9th Cir. 1991).
Here Trooper Covey complied with "departmental procedure" in the sense that his departmental regulations do not require him to make a contact tape of every encounter. See Tr. at 21, 46. Trooper Covey testified:
[i]t's a tool that the department gives us to use, but I have yet to see one rule that says we have to make contact tapes every time we contact somebody. It's just a tool that they provide for us.
Tr. at 46.
Additionally, the dispatch calls are recorded and kept for a period of "somewhere between 30 and 60 days" before being routinely recorded over. Tr. at 24.
Defendant has not made any showing that Trooper Covey acted in bad faith when he either recorded over the tape recording of his encounter with Defendant or misplaced it. Nor has Defendant established that dispatch was required to preserve the tape recording. Trooper Covey and dispatch have complied with their respective "departmental procedures." The defendant has failed to establish that either Trooper Covey or dispatch acted in bad faith when they failed to preserved the tapes. Defendant's right to due process under Brady v. Maryland and United States v. Barton was not violated. See Youngblood, 488 U.S. at 58, 109 S.Ct. at 337. Motion to Suppress Evidence
Defendant argues that all evidence resulting from his October 16, 2004 encounter with Trooper Covey must be suppressed because the trooper performed a warrantless search of Defendant's camper in violation of Defendant's Fourth Amendment rights. Docket No. 20 at 1. Defendant contends that Probation Officer Bacon lacked reasonable suspicion which would authorize a probation search.Id. Second, Defendant contends that he was subject to a custodial interrogation "without the benefit of a valid Miranda advisement or a knowing and intelligent waiver" of his rights.Id. at 6.
Probationers, while possessing "significantly diminished" privacy interests, still retain some expectation of privacy.United States v. Knights, 534 U.S. 112, 119-120, 122 S.Ct. 587, 592 (2001). Warrantless probation searches which are authorized by a search condition are valid when the probation officer has reasonable suspicion of criminal activity. Id. at 122.
Defendant was on probation. Tr. at 8. As part of his probation, Defendant was subject to probation conditions, including a search condition that allowed a warrantless non-consensual search at the direction of a probation officer for alcohol, drugs, and firearms. Tr. at 55.
When Trooper Covey arrived on scene, he examined Defendant's driver's license and recognized his name. Tr. at 27. In addition, he recalled that Defendant had a "violent contact with a trooper in the past." Tr. at 28. He asked Defendant, "Is there anything in the vehicle I should know about?" Tr. at 9. Trooper Covey's question was a generalized inquiry, rather than being based on a specific hunch. He asked the question for understandable "officer safety reasons.".
Defendant admitted that he had a "loaded rifle in the vehicle."Id. By possessing the rifle, Defendant was in violation of his probation conditions. Tr. at 9. After Trooper Covey relayed this information via the dispatch to Probation Officer Bacon, Probation Officer Bacon authorized a probation search of Defendant's vehicle. Tr. at 14, 56. Probation Officer Bacon had ample suspicion of criminal activity in this case based on the defendant's admission to possessing a rifle. Indeed, he likely had probable cause to believe that criminal activity had occurred. Therefore Defendant's Fourth Amendment rights were not violated when Trooper Covey performed a warrantless search of Defendant's vehicle.
Defendant's argument that his Miranda rights were violated is similarly unfounded. Defendant admitted to possessing a rifle prior to any custodial interrogation. He volunteered this information before he could be deemed to be "in custody."
In-custody determinations must be "based on the totality of the circumstances and are reviewed according to whether `a reasonable person in such circumstances would conclude after brief questioning [that] he or she would not be free to leave' (citations and internal quotation marks omitted). Factors relevant to whether an accused is "in custody" include the following: (1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual.United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001).
Here a reasonable person in Defendant's situation would feel free to leave. Trooper Covey testified repeatedly that he did not have any intent to arrest Defendant prior to conducting his search of Defendant's vehicle. Tr. at 6, 14. He did not apply a great deal of pressure upon Defendant, nor did he detain Defendant for a significant period of time. Rather, he gave Defendant a ride to a gas station. Because Defendant was not subjected to a custodial interrogation, Miranda does not apply in the instant case. See Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 713 (1977).
Based upon the foregoing, IT IS HEREBY RECOMMENDED that Defendant's Motion to Dismiss Indictment Due to Destruction of Evidence at Docket No. 18 and Defendant's Motion to Suppress Evidence at Docket No. 20 should be DENIED.