Opinion
CR22-0166-JCC
06-28-2023
UNITED STATES OF AMERICA, Plaintiff, v. MATTHEW R. SCHLEY, Defendant.
ORDER
JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE
This matter comes before the Court on Defendant's motion to suppress (Dkt. No. 36).Having thoroughly considered the parties' briefing and the relevant record, the Court DENIES the motion for the reasons explained herein.
Defendant so moved through Court-appointed counsel. (Dkt. No. 36 at 12.) Before the original noting date, though, and at Defendant's request, the Court discharged counsel and provided Defendant with replacement counsel. (See Dkt. Nos. 58 at 1, 59 at 1.) Then, to allow new counsel time to weigh in, the Court renoted the motion. (See Dkt. No. 59.) That counsel prepared Defendant's final brief in support of the motion. (See Dkt. No. 60 (reply brief).) In the meantime, Defendant wrote to the Court, asking to withdraw the motion to give new counsel the opportunity to separately move. (See generally Dkt. No. 61.) As Defendant was represented at the time, the Court declined the request. See CrR 1(a) (adopting LCR 83.2(b)(5)). Regardless, the Court will consider the entirety of the final brief, see infra note 5. So, effectively, Defendant is getting what he asked for.
I. BACKGROUND
Defendant is charged with Possession of a Controlled Substance with Intent to Distribute. (Dkt. No. 17.) He was arrested for this crime in April 2022. (Dkt. No. 36-1 at 2.) At the time, Defendant was on supervised release in another matter. See U.S. v. Schley, Case No. CR19-0247-JCC, Dkt. No. 79 (W.D. Wash. 2019). The April 2022 arrest followed a Terry stop where the police officer, upon identifying Defendant, learned that Defendant had a felony federal warrant in the case referenced above. (Dkt. No. 62 at 3.)Then, during the resulting search, the officer discovered blue pills, a white crystal substance, and other items. (See Dkt. No. 46 (bodycam recording at 1:21:00-1:36:20).) According to the Government, those substances contained fentanyl and methamphetamine. (Dkt. No. 48 at 3.)
Terry v. Ohio, 392 U.S. 1 (1968).
The Government inadvertently failed to include the declaration and some of the exhibits referenced in and supporting its response brief. Once the Court contacted the Government regarding the oversight, the Government quickly filed the declaration and remaining exhibits. Defendant was notified of this oversight and did not object to the late filing.
In opposition to Defendant's motion, the Government provided the Court with a recording of bodycam footage of the incident, as recorded by Algona Police Officer Hector Aponte. This footage is referenced throughout this order, with a timestamp for hours, minutes, and seconds. The entire video is just over two hours long.
Defendant moves to suppress this evidence, which the Government may offer in this matter. (See generally Dkt. No. 36.) Defendant argues that the Terry stop was unlawful, as was the officer's later search. (See generally Dkt. Nos. 36, 60.) Defendant seeks exclusion of the evidence or, at a minimum, a hearingto resolve contested facts regarding both issues. (Dkt. No. 60 at 6.)
Because the hearing request came from newly appointed counsel, see supra note 1, the Court will consider it, even though it first came on reply. (See Dkt. No. 60 at 6.)
II. DISCUSSION
The Fourth Amendment protects persons against unreasonable searches and seizures. U.S. CONST. amend. IV. In general, evidence from an unlawful warrantless search cannot be presented at trial. U.S. v. Richardson, 821 Fed.Appx. 750, 752 (9th Cir. 2020) (citing Murray v. U.S., 487 U.S. 533, 536-37 (1988)). This includes evidence representing the fruits of an unlawful seizure, such as an unlawful Terry stop. U.S. v. Rodriguez, 471 F.Supp.3d 1049, 1061 (D. Idaho 2020).
Defendant asserts that the officer here unlawfully extended the duration of what was otherwise a lawful Terry stop to demand his identification, resulting in the discovery of the warrant. (Dkt. Nos. 36 at 5-7, 60 at 1-6.) He further argues that the discovery of illicit substances in the resulting search must be suppressed because it represents the fruits of a poisoned tree. (Id.) Alternatively, he argues that, because the officer first removed the fanny pack containing the evidence from Defendant, and secured it away, before searching it, the search is not exempt from the warrant requirements. (Dkt. Nos. 36 at 7-9, 60 at 1-6.)
A. Terry Stop
The arresting officer first encountered Defendant trespassing on private property-a greenbelt behind some homes. (Dkt. No. 62 at 2.) The parties agree that this was a valid basis for the officer's initial contact with Defendant, i.e., the initial Terry stop. (See generally Dkt. Nos. 36, 48, 60.) But Defendant argues that, once the officer assisted Defendant in repairing his bike, and told him to exit the area, the opportunity for further inquiry ended. (Dkt. Nos. 36 at 4-6, 60 at 2-3.) Accordingly, the officer's later questioning and, most importantly, his request for Defendant's identification, was an unlawful seizure. The Court disagrees.
First, the Court does not find that a seizure of Defendant, i.e., a Terry stop, even occurred before the officer asked Defendant to accompany him to his patrol vehicle. (See Dkt. No. 46 (bodycam recording at 0:05:05).) Prior to this, the officer simply assisted Defendant in fixing his bicycle, chatted a bit and, once Defendant got the bike rolling, told him to exit the property. (Id. (bodycam recording at 0:00:00-0:05:05).) This lasted no more than a few minutes. The officer then requested identification from Defendant and called it in. (Id. (bodycam recording at 0:04:30).) When the officer could not understand all that was said, he asked Defendant to accompany him to his patrol vehicle. (Id. (bodycam recording at 0:05:05).) At a minimum, though, the officer understood the dispatcher to say that Defendant had some sort of a federal warrant and was a risk to the officer's safety. (Dkt. No. 62 at 3.) This is, undoubtedly, reasonable articulable suspicion supporting a Terry stop. And this is roughly when the stop began.
Second, even if the Terry stop began prior to that time, the officer had reasonable articulable suspicion of a possible crime, given Defendant's location. In making this assessment, the Court looks to the totality of the circumstances. U.S. v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2013). And it views facts from the officer's perspective. Id. According to the officer, he first encountered Defendant in a greenbelt bordering homes which had recently been burgled. (Dkt. No. 62 at 2.) It was also near known drug houses and an area subject to squatters. (Id.) Perhaps not surprisingly, the officer asked Defendant for his identification, and, after Defendant informed the officer that he was recently released from prison, the officer asked Defendant what he did for work and where he was staying. (Id.; see also Dkt. No. 46 (bodycam recording at 0:01:30-0:04:40).) These are valid questions, given the circumstances, as was the officer's request for identification. See U.S. v. Arvizu, 534 U.S. 266, 273 (2002) (a court must allow the officer to draw on their own experience and training to make permissible inferences).
Accordingly, the Court FINDS the Terry stop here, regardless of when it began or ended, was lawful.
B. Subsequent Searches
After the officer confirmed Defendant's warrant status, which took some time due to communication issues, the officer placed Defendant under arrest. (See Dkt. No. 46 (bodycam recording at 1:22:00-1:23:30).) He handcuffed Defendant, searched his person, and removed a fanny pack from Defendant's waist. (See id. (bodycam recording at 1:23:00-1:35:00).) The officer searched it shortly thereafter. (See id. (bodycam recording at 1:28:00-1:35:00).)Defendant claims this was unlawful. (Dkt. Nos. 36 at 7-11, 60 at 4-6.) He argues that the warrantless search exception for a search incident to arrest and/or an inventory search does not apply because (a) Defendant was no longer physically attached or proximate to the fanny pack and (b) its contents were secured with padlocks. (Dkt. No. 36 at 7-11, 60 at 4-6.) Again, the Court disagrees.
Defendant had frequent unsupervised control of the item prior to this point. (See Dkt. No. 46 (bodycam recording at 0:05:05-1:35:00).)
Defendant was also carrying a backpack. (Dkt. No. 62 at 4.) While the officer later searched this item as well, Defendant has not put the propriety of that search at issue. (See generally Dkt. Nos. 36, 60.)
An officer may conduct a warrantless search of a person incident to their arrest. Arizona v. Gant, 556 U.S. 332, 339 (2009). This includes the area proximate to the person, if within their control, although that search must be limited in scope to weapons and/or evidence of the alleged crime for which the individual is subject to arrest. Id. Defendant posits that, since the officer removed the fanny pack from Defendant's waist and then secured him before searching it, a search warrant is required. (Dkt. No. 36 at 7-9.) Meaning, the search no longer qualifies as a search incident to arrest. (Id.) Further, because Defendant was arrested based on an arrest warrant-not probable cause of committing a contemporaneous crime-the officer could only search it for weapons. (Id.) Defendant presents an overly narrow view of the caselaw. If a warrantless search incident to arrest of a wallet or cigarette package is lawful, see U.S. v. Passaro, 624 F.2d 938, 944 (9th Cir. 1980), so too is a fanny pack. Regardless, it was reasonable for the officer to search the fanny pack for weapons. See Chimel v. California, 395 U.S. 752, 763 (1969) (allowing a search of the area within an arrestee's control for weapons), given the multiple knives and zapper or taser the officer previously recovered from Defendant. (See id. (bodycam recording at 0:05:05-1:35:00).)
As to the fact that the fanny pack and its contents were locked-this is only an issue if the Government need rely on the inventory exception for warrantless searches. And here, the search was also lawful under the inventory search exception. Generally, an inventory search must follow a policy or practice to avoid “general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). Here, it appears that the purpose of the search of the fanny pack, at least in part, was to safeguard Defendant's property. See U.S. v. Johnson, 889 F.3d 1120, 1126 (9th Cir. 2018). It followed the officer's inventory of Defendant's cash from his person and his wallet. (See Dkt. No. 46 (bodycam recording at 1:28:00-1:33:00).) The search was done in accordance with policy “or established routine.” Wells, 495 U.S. at 4. The Algona Police Department requires that a “custody search” of an individual's “property” be performed “immediately after his/her arrest” and that care be taken “in handling the property . . . to avoid discrepancies or losses.” (Dkt. No. 36-5 at 2-3.) The officer indicated to Defendant, when Defendant told the officer that he did not consent to the officer's search of his fanny pack, that the officer did not “need permission anymore . . . you are in custody . . . I have to check it out.” (See Dkt. No. 46 (bodycam recording at 1:26:00-1:26:20).)
The officer used what appears to be a pair of pliers to break the locks. (See Dkt. No. 46 (bodycam recording at 1:31:00-1:33:00).)
Notably, Defendant does not challenge the propriety of the search of his wallet, even though the circumstances between the wallet and fanny pack are nearly identical. (See generally Dkt. Nos. 36, 60.)
Accordingly, the Court FINDS that under either the search incident to arrest or the inventory search exception, the search at issue was lawful.
The Court further notes that, even if the search were not lawful, the exclusionary rule would not apply here. Based on the Court's review of the bodycam video, it can find no “deliberate, reckless, or grossly negligent” misconduct. Herring v. U.S., 555 U.S. 135, 144 (2009). Quite the opposite, in fact. The officer appeared non-combative, respectful, diligent, and thorough. (See Dkt. No. 46 (bodycam recording at 0:00:00-1:45:00).) Moreover, Defendant was on federal supervision at the time for a prior crime, Schley, CR19-0247-JCC, Dkt. No. 79. His privacy interests were, therefore, significantly reduced. See Davis v. U.S., 564 U.S. 229, 239 (2011) (discussing the competing interests of the exclusionary rule).
C. Evidentiary Hearing
Defendant asks for an evidentiary hearing “to make a proper record,” arguing there are a “number of contested factual matters.” (Dkt. No. 60 at 6.) But this is not enough. Defendant's request must be supported by contested facts. U.S. v. Howell, 231 F.3d 615, 620 (9th Cir. 2000). Defendant provides the Court unsupported assertions regarding the officer's credibility. (See Dkt. No. 60 at 1-4.) However, “[a]n evidentiary hearing . . . need be held only when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist.” Howell, 231 F.3d at 620. Based on the bodycam video available to the Court, which documents the entire encounter, including the Terry stop, the arrest, and the searches, (see Dkt. No. 46 (bodycam recording at 0:05:05-1:45:00)), the Court cannot conceive of what facts Defendant could possibly contest.
III. CONCLUSION
For the foregoing reasons, Defendant's motion to suppress (Dkt. No. 36) is DENIED.