Opinion
Case No. 1:03-CR-128 DB
May 18, 2004
REPORT RECOMMENDATION
Defendant filed a Motion to Suppress Evidence (Dkt. # 13) seeking suppression of all evidence obtained pursuant to the stop and search of Defendant's vehicle on May 1, 2003. The case was referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B). On April 5, 2004, the Magistrate Judge heard oral argument on the motion with Vanessa M. Ramos appearing for Defendant, and Colleen K. Coebergh appearing for the Government. Following the hearing, the parties submitted additional briefing which was complete on April 21, 2004.
I. FACTS
Three officers, Todd Hardman, a detective with the South Ogden Police Department; Juston Dickson, a patrol officer with the Ogden City Police Department; and Kevin Shawn Grogan, an agent with the Weber/Morgan Narcotics Strike Force, testified concerning the events leading up to the search at issue. (See Tr. 5, 21, 38.) According to the officers' testimony, Agent Johnson, who did not testify at the hearing, had received information from an informant that James Spell was cooking methamphetamine at his residence. (Tr. 6-7, 15, 22-24, 39-40.) According to Officer Dickson, Agent Johnson had received an anonymous tip about two months before the search. (Tr. 23-24.) It was unclear from the testimony whether Agent Johnson had received any more recent information or whether there was more than one informant. In this regard, Officer Dickson testified about what Agent Johnson had told him:
[H]e told me he had actually got an anonymous tip a couple months ago for the same house and he didn't remember that until he saw the house. He said he went there. He talked to a guy named Jim Spell, and Jim had told him that he wasn't cooking meth, but he wouldn't let him in to check or anything.
(Tr. 23.)
On May 1, 2003, the officers set up surveillance of the residence. (Tr. 6-7, 22.) Officer Dickson, the first officer to respond, got to the residence around noon. (Tr. 30-31.) From his vantage point, he could see the driveway of the residence and the front yard, but he could not see any of the doors or windows. (Tr. 24-25.) After awhile, he saw a truck drive up to the residence. He immediately informed Agents Johnson and Grogan, who apparently were nearby, of the truck's arrival. When the truck left, Agent Johnson stopped it for failing to signal. (Tr. 23, 31-32.) Officers Dickson and Grogan went to the location where Agent Johnson had stopped the truck, so no officers were watching the residence during the stop of truck. (Tr. 32.) The officers talked to the driver, Gerald Tipa, who told them that the people inside the house were manufacturing meth in the basement right at that time. (Tr. 23, 32, 42.) Agent Grogan testified that Mr. Tipa said that he was not allowed to go into the basement, but he had seen Mason jars being brought upstairs. (Tr. 42.) The officers searched Mr. Tipa's truck and found an empty bottle of ephedrine, which is used in the manufacture of methamphetamine. (Tr. 23, 32, 36, 42.)
After the stop of Mr. Tipa, Agent Grogan left to obtain a search warrant for the house. (Tr. 24, 42.) About 1:30 in the afternoon, Agent Grogan pulled the case file and learned the name of an informant, Lori Archuleta. Agent Grogan then called Ms. Archuleta. who told him that James Spell had been cooking methamphetamine in the basement of his home. Agent Grogan asked her if she believed that was still occurring, and she said that it was. (Tr. 40-41, 46-47.) Agent Grogan asked her how she had gained this information, and she told him that she was a friend of Gretchen Spell, Jim Spell's ex-wife, and she received the information through Ms. Spell. (Tr. 41.) Agent Grogan testified that the search warrant for the house was signed at 2:30 p.m. and was executed at 5:30 p.m. (Tr. 45.)
It is interesting to note that Agent Grogan's affidavit in support of the search warrant for the house contains more detailed and stronger information allegedly obtained from confidential informants than the testimony presented at the hearing. (See Pl.'s Ex. 1, attached to Minute Entry, Dkt. no. 29.)
After the stop and search of Mr. Tipa, Officer Dickson returned to his prior position where he could view the driveway and yard. In addition, the officers radioed Detective Hardman to assist in the surveillance of the residence. (Tr. 32-33.) Detective Hardman arrived at the surveillance at approximately 2:30 in the afternoon, and obtained a vantage point where he could see the entire driveway and the rear and south sides of the house. When he arrived, there were already two vehicles in the driveway of the house, the drivers of which were later identified as Gretchen Spell and Douglas Hurst. (Tr. 8, 16.)
About 3:30 p.m., a red Buick, driven by Defendant, pulled up in the driveway. Defendant went over to the house and knocked on the basement window. The window slid open, and Defendant entered the residence through the window. (Tr. 8-9.)
Later in the afternoon, after Defendant had left the house, Detective Hardman observed several other people come and go from the house. Like Defendant, they would knock on the basement window, and enter and leave through the window. Detective Hardman later learned that there were wooden stairs inside the basement going up to the window. (Tr. 9-10, 16-18.)
Detective Hardman testified that about fifteen minutes after Defendant entered the residence,
a second male individual, that was Douglas Hurst, exited the basement through the same window, walked around the driveway, looking around more-more so than just a simple walk around the yard. I mean, he was clearly looking to see if anybody was watching the home, and walked over into-to the garbage, which was in the front of the residence, and put an empty bottle of HEET gas additive into the garbage.
(Tr. 12.) Detective Hardman stated that HEET is a common precursor in the manufacture of methamphetamine. (Tr. 12.)
After Mr. Hurst went back into the residence, Defendant came out of the basement carrying large black or brown garbage bags which he put into his vehicle. (Tr. 12-13.) Defendant then went back to the window where he was handed a cardboard box. Defendant put the box into his vehicle, and drove away. (Tr. 13.) Defendant Hardman testified that he could not tell what was in the bags or the box. (Tr. 13.)
After Defendant left the residence, Detective Hardman relayed this information to Officers Grogan and Dickson so that Defendant's vehicle could be stopped. (Tr. 13.) Officer Dickson followed Defendant in an unmarked car, and radioed for an officer in a marked car to stop him. (Tr. 26.) After the stop was made, Officer Dickson approached the vehicle and asked for Defendant's driver's license and vehicle information. (Tr. 27-28.) Defendant handed Officer Dickson a driver's license, but told him that he did not have proof of insurance. When Officer Dickson ran a records check, he found that the license was not valid, and there was an outstanding warrant for Defendant's arrest on a DUI charge. (Tr. 28.) Inside Defendant's car, Officer Dickson could see "a whole bunch of garbage bags and there was a box taped up." (Tr. 28.) Officer Dickson already knew from radio contact with Detective Hardman that the garbage bags and box had been taken from the residence. (Tr. 28.) He testified that he "believed that it was garbage from a meth lab." (Tr. 28.)
After discovering that there was an outstanding warrant for Defendant's arrest, Officer Dickson read Defendant his Miranda rights and took him into custody. (Tr. 28-29.) In a search incident to the arrest, Officer Dickson found a "little teeny baggy" that later field-tested positive for methamphetamine. (Tr. 29.)
All three officers testified that they did not have any information about Defendant or his vehicle before he was stopped. (Tr. 15, 16, 33-34, 45-46, 47.)
II. DISCUSSION
A. Reasonable Suspicion
Defendant argues that the officers did not have reasonable suspicion to stop his vehicle, and therefore, the evidence obtained as a result should be suppressed. "[S]topping an automobile and detaining its occupants constitute a `seizure' within the meaning of [the Fourth Amendment], even though the purpose of the stop is limited and the resulting detention is quite brief." Delaware v. Prouse, 440 U.S. 648, 653 (1979); Berkemer v. McCarty, 468 U.S. 420, 436-47 (1984); United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995): United States v. Eylicio-Montoya, 18 F.3d 845, 848 (10th Cir. 1994). Because such a stop is more akin to an investigative detention than a custodial arrest, it should be analyzed under the principles set forth in Terry v. Ohio, 392 U.S. 1 (1968).United States v. Leos-Quijada, 107 F.3d 786, 792 (10th Cir. 1997);Botero-Ospina, 71 F.3d at 786.
"An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417 (1981);See Brown v. Texas, 443 U.S. 47, 51 (1979); Prouse, 440 U.S. at 661; United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975). The Supreme Court has noted that although courts have attempted to define the elusive concept of what cause is sufficient to authorize police to stop a person, the terms used fall short of providing clear guidance for all possible factual situations. Cortez, 449 U.S. at 417. However, the essence of what has been written is that based on "the totality of the circumstances-the whole picture, . . . the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." Cortez, 449 U.S. at 417-18: accord Leos-Quijada, 107 F.3d at 788-94: see also United States v. Lambert, 46 F.3d 1064, 1069 (10th Cir. 1995) (in conducting an investigative detention, police must have an "articulable suspicion" that the person is engaged in criminal activity). "This threshold is lower than that required for a more intrusive detention, and need not rise to the level of probable cause for an arrest; only reasonable suspicion is necessary."Evlicio-Montoya, 18 F.3d at 848: see United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975); Terry v. Ohio, 392 U.S. 1 (1968). However, reasonable suspicion must be based on more than an officer's "inchoate and unparticularized suspicion or `hunch.'" Terry, 392 U.S. at 27; accord Illinois v. Wardlow, 528 U.S. 119, 123-24 (2000). "[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21.
In the instant case, the officers had received information that there was a methamphetamine laboratory at the residence of Jim Spell. They set up surveillance of the residence, and subsequently observed Mr. Tipa's vehicle leave the residence. They stopped Mr. Tipa who told them he thought there was a cook going on at that time. However, he told the officers that he was not permitted to go into the basement. Thus, he did not actually see the laboratory. A search of Mr. Tipa's vehicle produced an empty bottle of ephedrine, an ingredient commonly used in the manufacture of methamphetamine.
Later on, Detective Hardman observed Defendant arrive at the house and enter through the basement window. While Defendant was inside, Mr. Hurst exited the residence through the basement window, looked around in a manner that Detective Hardman described as an attempt at counter-surveillance, and threw an empty bottle of HEET into the garbage. Defendant then came out of the residence with garbage bags and a box, put them in his vehicle, and drove away.
The Government emphasizes the fact that people were seen coming and going through the basement window. Although this behavior is unusual, there was no testimony that it is indicative of the presence of drug activity.
Prior to the time Defendant arrived at the residence, the officers had no information concerning him or his vehicle. Thus, the only facts supporting reasonable suspicion to stop Defendant are that he arrived at a residence where police suspected there might be a meth lab, and departed a short time later with garbage bags and box. No evidence was presented at the hearing as to what the bags and boxes actually contained although they apparently contained parts of a meth lab. Likewise, no evidence was presented as to what the officers believed might be contained in the bags and box except for Officer Dickson's statement that he believed "it was garbage from a meth lab." (Tr. 28.) There was no evidence presented that the officers had information that the meth lab was being moved or broken down. On the contrary, the evidence presented at the hearing was that the officers believed the lab was up and running based on the statement from Mr. Tipa. A reasonable officer would not have believed that the bags and boxes contained methamphetamine since that is not the way that methamphetamine generally would be transported. Thus, even if the officers believed that there was a meth lab in the house, and that meth users might be present, it requires a leap in logic to arrive at the conclusion that the contents of the items Defendant took from the house were somehow meth-related. Accordingly, the court concludes that the information possessed by the officers at the time of the stop did not provide "a particularized and objective basis" for stopping Defendant's vehicle. Cortez, 449 U.S. at 417-18. At most, the facts might give rise to an "inchoate and unparticularized suspicion or `hunch.'" Terry, 392 U.S. at 27.
In his memorandum, Defendant describes the evidence to be suppressed as "garbage bags containing various items alleged to be part of a methamphetamine lab." (Def s Supplemental Statement Regarding Mot. Suppress Evid., at 2, Dkt. no. 26.) Similarly, in its memorandum, the Government states that the totality of the circumstances suggests that there was a meth lab in the residence and that "persons were trying to dismantle, discard, or carry it away." (Government's Statement of Facts and Grounds Justifying Admission of Evidence, at 5, Dkt. no. 28).
The Government argues that "[h]aving seen Defendant go into the basement, and take out a large amount of stuff after another man had thrown away a likely lab component, officers were justified in believing there was lab equipment in the containers Defendant took to his car." (Pl.'s Brief Resp. Mot. Suppress (hereinafter "Pl.'s Brief."), at 15, Dkt. no. 31.) First, it should be noted that the officers did not see anyone throw away a "lab component." Rather, they saw Hurst dispose of an empty HEET bottle, supposedly a precursor in the manufacture of methamphetamine. Similarly, the ephedrine bottle seized from Mr. Tipa was a precursor, not a part of a meth lab. The more logical inference to be drawn from Hurst's throwing away the bottle was that manufacture was ongoing, not that the lab was being broken down.
The Government also asserts that all indications were that the occupants of the house were aware of police surveillance, so "it was a reasonable conclusion there may be some attempt underway to break down and dispose of the lab." (Id.) The Government further states that "Defendant's carrying out of two large garbage bags and a box fit in with that reasonable assumption." (Id.)
The court rejects the argument that the evidence supports an assumption that the occupants of the house were aware of the surveillance by police. First, the fact that Hurst might have looked around when he threw a bottle in the garbage does not translate to an awareness of police surveillance. If anything, assuming he was actually looking for surveillance, it seems more likely that he assured himself that there was no surveillance before throwing a potentially incriminating item in the garbage. Further, other facts suggest that the occupants of the house were unaware and unconcerned about police presence. Agent Johnson had gone to the house approximately two months earlier and spoken with Jim Spell about the alleged information he had received from an anonymous tip concerning the manufacture of methamphetamine. Mr. Spell told him that he was not manufacturing methamphetamine at his residence. The evidence suggests that Mr. Spell must have felt confident that was the end of the matter, since he apparently continued to "cook" methamphetamine at his residence. After Mr. Spell had been put on notice that police knew of his methamphetamine operation, one might expect that at the very least, he would change the location of the lab. The fact that he continued to manufacture methamphetamine at his residence after the visit from Agent Johnson is evidence that he did not expect the police to pursue the matter, and certainly that the occupants of the house did not know that they were under surveillance on the day in question.
Further, even assuming that the occupants of the house were aware of the police surveillance, it does no follow that they would attempt to remove the lab components in full view of the police. It seems more likely that they would try to destroy the evidence while inside the house.
The Government also asserts that since Defendant entered the basement, he must have seen the methamphetamine lab. Under this assumption, the government contends that the officers had reasonable suspicion to stop Defendant. However, the evidence must be viewed in light of the information the officers had at the time of the stop. The officers might have suspected that the lab was in the basement. However, Mr. Tipa told them only that he was not allowed in the basement. There was no evidence presented as to whether there was more than one room in the basement; certainly there was no evidence presented that the window used for ingress and egress led directly into the lab. In reaching the conclusion that the facts of this case do not support reasonable suspicion for stopping Defendant, the court recognizes that the officers were suspicious and that they had a "hunch" that Defendant was involved in illegal activity. However, the officers were not justified in stopping Defendant on these facts.
The Government also asserts that it "speaks volumes" to the issue of reasonable suspicion that a state court judge found that there was probable cause to issue the search warrant for the house. However, even assuming that probable cause existed for a warrant to search the house, the facts supporting the probable cause for that search had no relation whatsoever to Defendant or his vehicle. In fact, Officer Grogan had begun the process to obtain the warrant before Defendant ever arrived at the house.
In support of its argument that reasonable suspicion existed to stop Defendant's vehicle, the Government cites the case of United States v. Eylicio-Montoya, 18 F.3d 845 (10th Cir. 1994), in which the Tenth Circuit held that "based on the totality of the circumstances known by the Customs agents at the time of the stop, there was a reasonable suspicion of wrongdoing sufficient to warrant an investigative stop" of the automobile in which the defendant was riding. Id. at 849. The Tenth Circuit summarized the pertinent facts of the case as follows:
[T]he uncontradicted testimony at the suppression hearing was that Agent Vogrinec had received a total of three telephone calls from a confidential informant that he believed reliable; that the informant stated that he or she had direct knowledge of the plan to transport marijuana; that agents began surveillance of the defendant, with whom they were familiar as someone who had previously been convicted of drug trafficking offenses; that they observed the defendant place a license plate upon a vehicle in her driveway, which license plate was registered to a different vehicle owned by someone else; that the agents also observed a truck that had recently crossed the border from Mexico in defendant's driveway; that the agents observed the defendant and a man driving that truck travel to Grants on the day specified by the informant and check into a hotel; that they observed two other vehicles arrive at the hotel during the night; that they observed the defendant meeting with a group of individuals not previously seen with the defendant; and they then observed the defendant leave the hotel in a different car from that in which she had arrived, followed by the male driving the pickup truck that had crossed the border from Mexico.Id.
The Government asserts that comparing the facts of this case with those of Eylicio-Montoya, "it is clear that the officers in this case had personally observed much more evidence which more clearly suggested criminal activity." (Pl.'s Brief at 8.) The Government notes that in this case there were at least two "tipsters," Tipa and Archuleta, who reported the lab. Further, the Government argues that the discovery of an ephedrine bottle in Tipa's truck after he left the residence, and the fact that it was empty, corroborated that a "cook" was underway. (Id.) In addition, the observation of "persons coming and going from a window would have the effect of raising suspicions in the minds of trained and experienced law enforcement officers." (Id. at 9.) The Government further states that Hurst's attempt at counter-surveillance prior to his throwing away the HEET bottle suggests lab activity, as does the presence of HEET itself. Again, the fact that the bottle was empty would also lead trained and experienced officers to believe that a "cook" was underway. Finally, the Government asserts that Defendant's entry into the house through the window, removal of two bags and a box, and then leaving the area, combined with all the other facts, served to supply the officers with "some objective manifestation" that he was engaged in criminal activity. (Id.)
The court disagrees with the Government's assessment that there is more evidence in this case to support a reasonable suspicion of illegal activity than in Eylicio-Montoya As the Government asserts, a confidential tip may justify an investigatory stop if under the totality of the circumstances, it has sufficient indicia of reliability and contains sufficient information to provide reasonable suspicion of criminal conduct on the part of the person to be stopped. See Alabama v. White, 496 U.S. 325 (1990); cf. Florida v. J.L., 529 U.S. 266, 271 (2000) (holding investigatory stop invalid where anonymous tip "provided no predictive information and therefore left the police without means to test the informant's knowledge and credibility."). In this regard, the agent in Eylicio-Montoya testified that the confidential informant had provided reliable information to him in the past. Eylicio-Montoya, 18 F.3d at 846. In contrast, the testimony in this case concerning the alleged confidential informant or informants was extremely vague, consisting of statements by other officers that Agent Johnson had told them that he had received information about a meth lab at the residence. There was no testimony from the officers concerning the reliability of any informant. In fact, with the exception of Lori Archuleta, no informant was identified, and there was no information as to how the informant or informants knew about the lab. Although Agent Grogan called Ms. Archuleta prior to attempting to obtain a search warrant to ascertain whether she believed the lab activity was ongoing, there was no showing that Ms. Archuleta had any first-hand knowledge about the lab, or that she had any way of knowing whether it was still active. She stated the source of her knowledge was Gretchen Spell, Jim Spell's ex-wife, whose vehicle apparently arrived at the residence on the afternoon of the search. (Tr. 8, 33.) However, Detective Hardman testified that Ms. Spell did not live at the residence. (Tr. 15.) Even more important than the lack of substantiation of reliability of the informant, is the fact that the alleged tips about a meth lab had nothing to do with Defendant. SeeUnited States v. Thomas, 211 F.3d 1186 (9th Cir. 2000) (holding that there was no reasonable suspicion for the investigative stop of a vehicle based upon an unsubstantiated, conclusory tip from FBI agents that there might be narcotics at a certain house, police observation of people coming and going from the house, and sounds coming from the garage that police described as something being loaded into the vehicle or something being done to the vehicle).
The most significant difference between the instant case andEylicio-Montoya is the focus of the investigation. In Eylicio-Montoya the information from the confidential informant and the surveillance by police officers focused on the defendant. In fact, the confidential informant had received the information about the transport of marijuana directly from the defendant herself. Id. The police then set up surveillance in which they observed a car that had been described by the informant arrive at the defendant's residence. Id. The officers also observed the defendant engage in suspicious activities, such as putting a license plate on a car, even though the license plate was registered to a different car. Id. at 846-47. Further, the defendant was known to the officers as previously having been arrested at least twice, and convicted at least once for transporting marijuana. Id. at 846. On the day that the confidential informant stated that the trip would begin, they observed a truck with Mexican license plates parked at her house. Id. A license check revealed that the truck had recently crossed the border from Mexico on the date specified by the confidential informant. Id. Thus, the police were able to substantiate the tips of the confidential informant before the stop.
In the instant case, none of the information known to the officers pertained to Defendant. On the contrary, the entire investigation, including information from the confidential informant, centered on the house and its occupant, Jim Spell. Each of the officers testified at the suppression hearing that they had no prior information about Defendant or Defendant's vehicle. Thus, the only information they had to support the stop of Defendant's vehicle was that he took garbage bags and a box with unknown contents from a house where the police suspected there was a meth lab, left through a window, and drove away. The court finds that the entry and exit through the basement window, while unusual, does not give rise to a reasonable suspicion of drug activity. In fact, one would suppose that individuals engaged in such activity would not do something that would so obviously attract attention.
The stop of Mr. Tipa likewise did not provide evidence linking Defendant to the drug lab. Moreover, Mr. Tipa did not actually see the lab, but only saw Mason jars. Although it might be common to use Mason jars in the manufacture of methamphetamine, there was no testimony as to the significance of the Mason jars, and they obviously have many other uses. Similarly, the fact of the empty HEET and ephedrine bottles might provide some support for a suspicion of wrongdoing against Tipa, Hurst, and others inside the residence, but it had no tie-in with Defendant.
The Government also cites two other cases in support of its argument that the evidence should not be suppressed. Both cases are unpublished opinions, and therefore, have no precedential value. See 10th Cir.R. 36.3. In the first case, Gutierrez v. United States, No. 92-4044, 1992 WL 401588 (10th Cir. Dec. 22, 1992), the Tenth Circuit summarized the facts that supported reasonable suspicion as follows:
It should be noted that the Government failed to attach copies of the unpublished opinions to its memorandum as required by local rules, DUCrimR 47-1 and DUCivR 7-2.
1) [T]hirteen years specific training and experience of the officer, observing 2) an out-of-state car, 3) that was coming and going from a high crime area notorious for both drug deals and prostitution, 4) with different and varying numbers of occupants, 5) during the wee morning hours, 6) where an unsolved robbery had occurred the previous week; and 7) the car was parked on the street in this area at around 6:00 a.m., and then 8) pulled away at the moment the police cruiser came into view, while 9) failing to signal; and 10) all of the rational inferences from these facts.Gutierrez, 1992 WL 401588, at *3 (footnotes omitted).
Contrary to the Government's argument, the facts in Gutierrez provided a stronger basis for reasonable suspicion than the facts of this case. First, the officer had observed the car in question coming and going in a high crime area several times throughout the night. This is in contrast to the instant case where the officers were not familiar with Defendant's vehicle and had not observed any suspicious behavior by Defendant prior to the stop. Just before the stop in Gutierrez which occurred about 6:00 in the morning, the officer observed the car with four occupants parked on a side street at the entrance to an alley. Id., at * 1. It is particularly significant that when the officer approached the parked vehicle in his marked police car, "the driver immediately turned on his lights, pulled away from the curb, and made a right-hand turn without a signal." Id. The driver's attempt to flee when he noticed the officer raises a reasonable suspicion of criminal activity. SeeIllinois v. Wardlow, 528 U.S. 119 (2000) (upholding Terry stop in high crime area where the defendant fled upon seeing police); Brignoni-Ponce, 422 U.S. at 885 (stating "obvious attempts to evade officers can support reasonable suspicion."). The officer testified that he did not stop the vehicle because of the failure to signal. Gutierrez, 1992 WL 401588, at **1, 2. However, as the Tenth Circuit observed, the failure to signal was relevant to the objective evaluation of the totality of the circumstances since "the commission of a minor traffic offense could support an inference that other criminal conduct may be present when viewed in the light of other relevant factors." Id., at **3, 4 n. 5. There was no evidence presented in the instant case that Defendant attempted to flee or committed any traffic violation.
In the second case relied on by the Government, United States v. Landsaw, No. 03-3168, 2004 WL 693202 (10th Cir. Apr. 2, 2004), the Government sent a confidential informant (CI) to the defendant's house as part of a methamphetamine investigation. The CI previously had made arrangements to deliver pseudoephedrine pills to the defendant and took the pills with him when he went to the residence. The CI was wired, so that the officers could monitor his conversation. While he was inside, the officers overheard the defendant discussing "breaking down" the pills and telling the CI that he would use the pills to make methamphetamine. The CI delivered the pseudoephedrine, as planned, and left the residence. Shortly thereafter, the defendant drove away in his car. The officers stopped the defendant's car and informed him that they were obtaining a search warrant for his vehicle and house as part of a narcotics investigation. The defendant then consented to a search of his vehicle where the officers found the pseudoephedrine. Id. at * 1.
On appeal, the defendant argued that the stop was illegal because the officers did not have reasonable suspicion to stop his vehicle. The Tenth Circuit rejected this argument, holding that the totality of the circumstances supported a finding of reasonable suspicion that the defendant was engaged in criminal activity. The court noted that the officers knew that the defendant had purchased pseudoephedrine shortly before he left in his car. They also had heard him say that he intended to use the pills to manufacture methamphetamine. The Tenth Circuit concluded that the officers "had a particularized and objective basis for suspecting that [the defendant] was in possession of pseudoephedrine pills with intent to manufacture methamphetamine." Id. at *2.
The evidence supporting reasonable suspicion in the Landsaw case is much greater than in the instant case. In Landsaw, the officers knew specific facts directly implicating the defendant in criminal activity. In this case, the officers had no specific information about Defendant. The extent of their knowledge at the time of the stop was that Defendant had arrived at a suspected drug house, and left ten or fifteen minutes later with some garbage bags and a box. Based on the above discussion, the court concludes that on these facts, the stop of Defendant's vehicle was not based upon a reasonable suspicion.
B. Inevitable Discovery
The Government relies on the doctrine of inevitable discovery to argue that even if a Fourth Amendment violation occurred, the evidence should not be suppressed. Under the inevitable discovery doctrine, even if the initial stop of Defendant was unlawful, "the exclusionary rule is inapplicable if the evidence inevitably would have been discovered by lawful means." United States v. Souza, 223 F.3d 1197, 1202 (10th Cir. 2000); accord United States v. White, 326 F.3d 1135, 1138 (10th Cir. 2003); United States v. Tueller, 349 F.3d 1239, 1243 (10th Cir. 2003);see Nix v. Williams, 467 U.S. 431, 444 (1984). The government has the burden to prove by a preponderance of the evidence that the evidence in question would have been discovered absent the Fourth Amendment violation. Souza, 223 F.3d at 1203; White, 326 F.3d at 1138. In evaluating whether the Government has met its burden of proof, the court considers only "`demonstrated historical facts,' not `speculative elements.'" White, 326 F.3d at 1138 (quoting Nix, 467 U.S. at 445 n. 5). Factors to be considered are (1) the extent to which the process of obtaining a warrant had been completed at the time of the illegal search; (2) the strength of probable cause for the warrant at the time of the search; (3) whether a warrant ultimately was issued; and (4) evidence that officers "jumped the gun" because they lacked confidence in their showing of probable cause.Souza, 223 F.3d at 1204.
In support of its inevitable discovery argument, the Government asserts that prior to the stop of Defendant, the officers had already taken steps to obtain a warrant for the house which they did in fact obtain. The Government states that under established case law, a warrant for a search of a house also authorizes the search of the curtilage including vehicles that are on the property. The Government asserts that if Defendant had not left the residence; or if, for example, his vehicle would not start, the officers would have lawfully discovered the evidence in his car pursuant to the search warrant.
The court concludes that the doctrine of inevitable discovery does not apply to this situation. "The key issue in [inevitable discovery] cases, one of probability, is how likely it is that a warrant would have been issued and that the evidence would have been found pursuant to the warrant." Souza, 223 F.3d at 1204. In discussing factors to be considered in determining whether to apply the inevitable discovery rule, the Tenth Circuit stated that if the process of obtaining a warrant has barely begun at the time of the illegal search, "the inevitability of discovery is lessened by the probability, under all the circumstances of the case, that the evidence in question would no longer have been at the location of the illegal search when the warrant actually issued." Id. Thus, an important factor that courts must consider is the degree of probability that the evidence in question would still have been at the residence. For example, the Second Circuit refused to apply the inevitable discovery doctrine in the unlawful search of an apartment where probable cause for the warrant was questionable, and it was uncertain whether the evidence would still have been in the apartment if the police had waited for the search warrantUnited States v. Cabassa, 62 F.3d 470, 473-74 (2d Cir. 1995) (cited with approval by Souza, 223 F.3d at 1204). In contrast, the Tenth Circuit applied the inevitable discovery doctrine in a case where (1) steps had been taken to obtain a warrant; (2) there was an extremely strong showing of probable cause; (3) a warrant was ultimately obtained; and (4) there was no question concerning the inevitability of discovery of the evidence because there was "no chance" that the evidence would not still have been there when the warrant actually was issued. Souza, 223 F.3d at 1205-06.
In the instant case, even though the officers eventually obtained a warrant for the house, the vehicle was no longer at the residence when it was executed. Thus, assuming, without deciding, that the warrant would have authorized the search of Defendant's vehicle, the officers would not have discovered the evidence at issue, because it simply would not have been at the residence. Accordingly, the inevitable discovery doctrine does not apply to this case.
III. RECOMMENDATION
For the foregoing reasons, Defendant's Motion to Suppress Evidence (Dkt. no. 13) should be granted. The evidence to be suppressed is all evidence obtained as a result of the illegal stop including all evidence seized from Defendant's vehicle, the baggy containing methamphetamine, and the statements made after the stop.
Copies of the foregoing Report and Recommendation are being mailed to the parties, who are hereby notified that they have the right to object to the Report and Recommendation. The parties are further notified that they must file any objections to the Report and Recommendation with the clerk of the district court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.