Opinion
No. 8:99CR226
January 2000.
REPORT AND RECOMMENDATION
This matter is before the court on the following motions:
David Jon Bauer's (Bauer) motion to suppress statements and evidence (Filing No. 24); and.
Anthony W. Klco's (Klco) motion to suppress evidence (Filing No. 26).
BAUER'S MOTION TO SUPPRESS (Filing No. 24)
Bauer argues the statements made by Bauer were involuntary and subsequent to Bauer's invocation of his Miranda right to request an attorney be present. See Filing No. 24. Bauer argues the search of his person and vehicle led to the illegal seizure of items subsequent to an improper stop. See Filing No. 24. Bauer is charged in a two count indictment with conspiracy to distribute and possession with the intent to distribute methamphetamine in violation of 21 U.S.C. § 846 and forfeiture under 21 U.S.C. § 853. See Filing No. 1.
On November 23, 1999, the court held an evidentiary hearing on Bauer's motion. City of Fremont police officers Jesse J. Hilger (Hilger) and Eric D. Nordby (Nordby) testified at the hearing. The court received no documents into evidence. On December 10, 1999, a transcript (TR36.) of the hearing was filed (Filing No. 36), and there was no post-hearing briefing.
Findings of Fact
Officer Hilger has been a police officer for the City of Fremont for two years (TR36 5-6). Officer Hilger has been a police officer for four years and estimates he has made over 200 DUI arrests with approximately half of those arrests being for a controlled substance (TR36. 28). Officer Hilger has received special training in the detection of driving under the influence and controlled substance cases (TR36. 6). On May 16, 1999, at approximately 2:44 a.m., Officer Hilger was working in uniform and in a marked patrol car (TR36. 7). Officer Hilger was turning from westbound 10th Street onto southbound Bell when he observed a vehicle turning from southbound Bell onto eastbound Military about two blocks away (TR36. 7). Officer Hilger observed the vehicle fail to signal to make the left-hand turn (TR36. 8). Officer Hilger approached and observed the vehicle turn right onto Grant Street without signaling (TR36. 8). Officer Hilger activated the overhead lights and stopped the vehicle (TR36. 8).
Officer Hilger approached the driver, Bauer, who was the only occupant of the vehicle (TR36. 9). Officer Hilger observed Bauer acting "very nervous" and sweating (TR36. 9). Officer Hilger detected the odor of marijuana (TR36. 9). Officer Hilger observed Bauer acting very agitated and upset, and Bauer demanded to know the reason for the stop (TR36. 9). Officer Hilger detected signs of impairment including facial twitching, rapid hand movements and rapid speech (TR36. 9-10). Officer Hilger called for a second police unit to assist him in conducting a field sobriety test (TR36. 10). Approximately two minutes later, Sergeant Hansen arrived on the scene. Officer Hilger asked Bauer to step away from the vehicle to begin the field sobriety test (TR36. 11). Officer Hilger testified Bauer seemed upset and very nervous (TR36. 11). Officer Hilger noted Bauer kept attempting to put his hands in his pockets and was having body and facial tremors (TR36. 11). Although Officer Hilger did not smell alcohol, Bauer was exhibiting signs of impairment, and Officer Hilger suspected Bauer to be under the influence of a controlled substance (TR36. 12). Bauer refused to do the first field sobriety maneuver, but performed the Romberg balance maneuver (TR36. 12). Officer Hilger testified Bauer followed directions, but swayed throughout the test (TR36. 13). Officer Hilger asked Bauer to perform a one-leg balancing test (TR36. 14). Officer Hilger observed Bauer getting jittery, belligerent and showing signs of impairment (TR36. 14). Officer Hilger asked Bauer to perform a walk and turn maneuver, which Bauer had extreme difficulty doing (TR36. 15-16). Based on Officer Hilger's training, experience and observations of Bauer, Officer Hilger placed Bauer under arrest for driving under the influence of a controlled substance (TR36. 17).
Officer Hilger conducted a search of Bauer and the vehicle. Officer Hilger found a baggie with a white substance and a large quantity of money (TR36. 19). Officer Hilger believed the white substance to be cocaine or methamphetamine and the money to be in excess of $1,000, although Officer Hilger did not count the money at the scene (TR36. 19-20). Officer Hilger transported Bauer to the Fremont Police Department to undergo a urine analysis (TR36. 20). Deputy Shane Wimer and Officer Nordby from the III Corps Drug Task Force met Officer Hilger at the police department (TR36. 21). Officer Nordby advised Bauer of his Miranda rights and began questioning Bauer until Bauer stated he thought he needed an attorney (TR36. 22-23, 60-61). Officer Nordby testified Bauer appeared to understand his rights (TR36. 60) Officer Hilger transported Bauer to Dodge County Judicial Center where to two waited in the lobby (TR36. 23). After Officer Hilger counted the money, which totaled $4,211, he called Sergeant Hansen to inquire whether the money should be confiscated (TR36. 23-24). Bauer was seated approximately ten feet from Officer Hilger (TR36. 30). After the phone call, Bauer told Officer Hilger the money was not Bauer's. Bauer said the money was from a trust fund, then the money was from an accident settlement (TR36. 26). Officer Hilger testified he did not ask Bauer where the money came from and Officer Hilger was seated at a desk doing paperwork (TR36. 26).
Legal Analysis Search Incident to Arrest
A[A] police officer who personally observes a traffic violation has probable cause to stop the vehicle." United States v. $404,905.00 in U.S. Currency , 182 F.3d 643, 646 (8th Cir. 1999) citing Pennsylvania v. Mimms , 434 U.S. 106, 109 (1977). Additionally, probable cause exists when the totality of circumstances demonstrates that a prudent person would believe that an individual has committed or was committing a crime. Kuehl v. Burris , 173 F.3d 646, 650 (8th Cir. 1999). The courts must give law enforcement officers "substantial latitude in interpreting and drawing inferences from factual circumstances." United States v. Washington , 109 F.3d 459, 465 (8th Cir. 1997). Whether a traffic stop is pretextual is measured against a standard of "objective reasonableness." United States v. Cummins , 920 F.2d 498, 501 (8th Cir. 1990), cert. denied, 502 U.S. 962 (1991) (quoting Scott v. United States , 436 U.S. 128, 138 (1978)). "Even assuming [the police officer] was looking for [the defendant], it would be "objectively reasonable" to pull over a vehicle which was" engaging in a traffic offense. United States v. Miller , 20 F.3d 926, 929 (8th Cir. 1994).
Police officers may make a valid investigatory stop of a vehicle based on reasonable suspicion that the occupants of the vehicle are engaged in criminal activity. See Terry v. Ohio , 392 U.S. 1, 25-31 (1968); United States v. Sharpe , 470 U.S. 675, 682 (1985); United States v. Navarrete-Barron , 192 F.3d 786, 790 (8th Cir. 1999). The reasonable suspicion necessary to justify an investigatory stop must include "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry , 392 U.S. at 21; see Navarrete-Barron , 192 F.3d at 790. Furthermore, "[a]fter making a valid Terry stop, police officers must diligently work to confirm or dispel their suspicions in a short period of time." United States v. Bell , 183 F.3d 746, 749 (8th Cir. 1999). Contemporaneous with a valid traffic stop, a police officer may detain the motorist while completing a number of routine tasks such as computerized checks of the vehicle registration, driver's license and criminal history, and issuing a citation. $404,905.00 , 182 F.3d at 647; see also United States v. Sokolow , 490 U.S. 1, 7 (1989). Additionally, the police officer may inquire about the motorist's destination, purpose of the trip and whether the police officer may search the vehicle. $404,905.00 , 182 F.3d at 647; U.S. v. Allegree , 175 F.3d 648, 650 (8th Cir. 1999). The police officer may take further action as necessitated by the information volunteered by the motorist, observations of the contents of the vehicle, perceptions made the police officer regarding illegal drug use, and divergent information from the passengers. $404,905.00 , 182 F.3d at 647; Allegree , 175 F.3d at 650-51.
In this case, Officer Hilger personally observed Bauer committing the same traffic violations twice — failing to use turn signals (TR36. 8). The court finds Officer Hilger had probable cause to make the initial traffic stop of Bauer's vehicle. Shortly after the initial stop, Officer Hilger observed Bauer engaging in suspicious behavior. Officer Hilger testified he detected the odor of marijuana (TR36. 9-10). The court finds Officer Hilger's perceptions related to the demeanor of Bauer justified the further detention of Bauer. Officer Hilger diligently worked to dispel or confirm his suspicious of illegal drug use by performing a series of field sobriety tests (TR36. 11-14). Officer Hilger placed Bauer under arrest after determining Bauer was under the influence of a controlled substance.
Officer Hilger conducted a search of Bauer shortly after arrest (TR36. 19). Such searches incident to arrest are per se reasonable. Chimel v. California , 395 U.S. 752 (1969); United States v. Robinson , 414 U.S. 218 (1973). "The arrest itself justified the search of [the defendant's] person . . . and of the passenger compartment of his automobile." United States v. Dawdy , 46 F.3d 1427, 1430 (8th Cir.), cert. denied, 516 U.S. 872 (1995) (citations omitted). The court finds the search of Bauer was incident to arrest after a valid traffic stop and reasonable detention. The evidence found on Bauer is admissible in the trial of this matter and Bauer's motion to suppress should be denied.
Statements
Bauer argues the statements he made to Officer Hilger after his request for an attorney present should be suppressed as a violation of his rights. It is unquestioned that after approximately fifteen minutes into the interview of Bauer by Officer Nordby, Bauer invoked his right to have an attorney present during questioning. Once a defendant expresses his desire to have counsel present, he is not subject to further interrogation by law enforcement until counsel has been made available to him unless the defendant himself initiates further communication, exchanges, or conversation with the law enforcement officers. Edwards v. Arizona , 451 U.S. 477, 484-85 (1981). The burden remains upon the prosecution to demonstrate a waiver of an accused's right to have counsel present after an initial invocation of counsel. Oregon v. Bradshaw , 462 U.S. 1039, 1044 (1983). The court finds questioning ceased after such invocation of Bauer's right to counsel.
However, Officer Hilger made statements to a third party about the status of the money found on Bauer within hearing range of Bauer (TR36. 23-24, 30). Bauer subsequently made statements to Officer Hilger about the origin of the money (TR36. 26). As stated by the Eighth Circuit: " Miranda does not protect an accused from a spontaneous admission made under circumstances not induced by the investigating officers or during a conversation not initiated by the officers." United States v. Hawkins , 102 F.3d 973, 975 (8th Cir. 1996), cert. denied, 117 S.Ct. 1456 (1997). In Rhode Island v. Innis , 446 U.S. 291 (1980), the Supreme Court stated:
[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter part of the definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. . . . A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.Id . at 300-02.
The issue is whether or not Officer Hilger's remarks to a third person regarding the status of the money was the functional equivalent of interrogation. Focusing on the perception of Bauer at the time of Officer Hilger's statement, the court finds the remark was not the functional equivalent of interrogation. Nor was Officer Hilger's remark intended to compel a response from Bauer. It was not such a statement or question that had compelling influences. Officer Hilger was merely seeking information from a third person on the phone, several feet from Bauer.
The court further finds Bauer's statement was voluntarily given. Whether a person's statements and actions are voluntary or not depends on the totality of the circumstances. Stansbury v. California , 511 U.S. 318, 114 S.Ct. 1526 (1994); Colorado v. Connelly , supra; Schneckloth v. Bustamonte , supra; United States v. Knight , 58 F.3d 393, 397 (8th Cir. 1995), cert denied, 116 S.Ct. 827 (1996); United States v. Severe , 29 F.3d 444, 446 (8th Cir. 1994), cert denied, 513 U.S. 1096 (1995). Based on the foregoing description of the interview, Bauer's demeanor, and given the totality of the circumstances, Bauer's statement after being informed of the charges on which he was being booked can only be described as voluntarily given. The statement should be admissible against Bauer in any trial of this matter.
KLCO'S MOTION TO SUPPRESS (Filing No. 26)
Klco seeks to suppress all evidence and any statements made during the search of his person and the basement of 1235 Bell Street. See Klco Brief, p. 1. Klco argues officers conducted the search without a valid search or arrest warrant. See Filing No. 26. Klco argues he was unlawfully arrested and unlawfully searched. See Filing No. 26. Klco is charged in a two-count indictment with conspiracy to distribute and possession with the intent to distribute methamphetamine in violation of 21 U.S.C. § 846 and forfeiture under 21 U.S.C. § 853. See Filing No. 1.
On November 30, 1999, the court held an evidentiary hearing on Klco's motion. City of Fremont police officers Nordby, Todd M. Donnelly (Donnelly) and Dodge County deputy sheriff Shane G. Wimer (Wimer) testified at the hearing. The court received into evidence a search warrant (Exhibit 1) and an affidavit and complaint for search warrant (Exhibit 2). On December 15, 1999, a transcript (TR37.) of the hearing was filed (Filing No. 37), and there was no post-hearing briefing.
Findings of Fact
Officer Nordby has been an police officer for the City of Fremont approximately seven years and part of the III Corps Drug Task Force for two years (TR37. 5-6). Officer Nordby has undergone special training and education in the identification of controlled substances (TR37. 6). On May 16, 1999, at approximately 5:00 a.m., Officer Nordby assisted in an investigation of Bauer (TR37. 7). Officer Nordby and Deputy Wimer went to Bauer's residence at 1235 Bell Street in Fremont (TR37.7). Officer Nordby spoke with Klco who answered the door (TR37. 8). Klco stated he did not live at the residence (TR37. 8). Officer Nordby observed Klco was wearing a hunting-type knife on his belt (TR37. 11). Officer Nordby advised Bauer's wife, Tami Bauer, of Bauer's arrest and sought consent to search the premises (TR37. 7-9). Tami Bauer declined to consent to search (TR37. 9). Officer Nordby and Deputy Wimer obtained a search warrant and returned to the residence at approximately 7:30 a.m. (TR37. 9-10).
Officers Nordby, Donnelly, Hilger, Deputy Wimer and other officers executed the search warrant (TR37. 10-11). Officer Nordby advised the other officers that Klco had a knife on his belt and, based on Officer Nordby's prior experience, Klco could be aggressive and a flight risk(TR37. 12). After entering the residence Officer Donnelly secured Klco with handcuffs, took possession of the knife, and conducted a pat-down search of Klco (TR37. 49). Officer Donnelly testified Klco was handcuffed for officer safety (TR37. 66). Officers Donnelly and Nordby retrieved a baggie of white powder, two pocket-type knives and a small tin container containing a small amount of marijuana and a rock of methamphetamine (TR37. 49-51). Officer Donnelly was in the act of attempting to remove a pocket knife from Klco's pants pocket when the baggie of white powder was exposed (TR37. 53-54, 59, 64). Officer Donnelly testified he continued the pat-down search of Klco after Klco had been handcuffed because Klco had indicated he possessed two other knives (TR37. 60-61). Officer Donnelly testified he did not question Klco other than to ask if Klco possessed weapons (TR37. 60).
Deputy Wimer was the inventory officer during the execution of the search warrant (TR37. 69). Deputy Wimer testified he did not speak to Klco who was handcuffed and sitting on the couch, but Klco asked to speak to the person in charge to show that person something (TR37. 70). Deputy Wimer testified he told Officer Nordby of Klco's request (TR37. 70).
Officer Nordby asked Klco to follow him to the basement where Officer Nordby read Klco his Miranda rights prior to Klco pointing out evidence or making statements to Officer Nordby (TR37. 36). Officer Nordby testified Klco appeared to be under the influence of a controlled substance (TR37. 38). Officer Nordby testified Klco showed no indication that he did not understand his Miranda rights (TR37. 44). Officer Nordby told Klco that Klco was not under arrest at that time (TR37. 38). Officer Nordby testified Klco made statements about his drug use and identified the location of evidence in the basement (TR37. 40-41).
Legal Analysis Search of Klco
Klco argues the search of his person was illegally seized without probable cause and without a prior lawful arrest. See Filing No. 26. Klco does not dispute the validity of the search warrant for the premises. "[A] warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Michigan v. Summers , 452 U.S. 692, 705 (1981). Further, "[a] police officer who has legitimate contact with another person, and who has reason to believe that person may be armed and dangerous, may conduct a pat-down search to protect officer safety, regardless of whether there is also probable cause to arrest." United States v. Menard , 95 F.3d 9, 10-11 (8th Cir. 1996) citing Terry v. Ohio, 392 U.S. 1, 27, 32-33 (1968).
In this case, the officers involved observed Klco with a knife on his belt (TR37. 12). After removing the knife, Officer Donnelly asked Klco if Klco had any other weapons to which Klco answered in the affirmative. Klco indicated he had two knives in his front pants pocket (TR37. 60-61). During the removal of the other two knives, Officer Nordby uncovered a baggie containing a white powder substance (TR37. 49-51). The court finds the search of Klco's person was in conjunction with executing the search warrant and the officers had reason to believe Klco had dangerous weapons on his person. Therefore, the evidence should be admissible against Klco in any trial of this matter.
Klco's Statements
Klco argues the statements he made to officers were made prior to Klco being advised of his Miranda rights and should be suppressed with regard to pointing out evidence in the basement of the residence.
The touchstone for the admissibility of a defendant's statements is voluntariness. Brown v. Mississippi , 297 U.S. 278, 279 (1936). The court must look to the totality of circumstances in determining whether or not the statements were voluntary. Mincey v. Arizona , 437 U.S. 385, 401 (1978); Colorado v. Connelly , 479 U.S. 157 (1986); Schneckloth v. Bustamonte , 412 U.S. 218 (1973). One of the principal factors is whether or not the defendant was in custody at t he time of the statements. "Custody occurs either upon formal arrest or under any other circumstances where the suspect is deprived of his freedom in any significant way." United States v. Griffin , 922 F.2d 1343, 1347 (8th Cir. 1990). Custodial interrogation requires the police to advise the person in custody of his constitutional rights in accordance with Miranda v. Arizona , 384 U.S. 436 (1966). See also Griffin, 922 F.2d at 1347. Failure to so advise an in-custodial defendant of such rights will render statements inadmissible made by such a defendant as a result of police interrogation.
The officers executing the search warrant testified they did not interrogate Klco prior to Officer Nordby reading him Miranda rights (TR37. 40-41, 60, 69-70). The court credits the officers' testimony and finds Klco voluntarily requested to speak to the officer in charge without prompting by the officers. Klco provided statements to Officer Nordby subsequent to the Miranda warning (TR37. 40-41). Klco then voluntarily disclosed where evidence may be found in the basement and made statements regarding his drug use (TR37. 40-41). Based upon the totality of the circumstances, the court finds Klco's statements were voluntarily given.
The court Finds Klco was not illegally questioned, therefore evidence moved to be suppressed as the fruit of an illegal questioning should not be suppressed pursuant to Wong Sun v. United States , 371 U.S. 471 (1963). Accordingly, Klco's motion to suppress his statements and evidence should be denied.
RECOMMENDATION
IT IS RECOMMENDED TO JUDGE WILLIAM G. CAMBRIDGE:
1. Bauer's motion to suppress (Filing No. 24) should be denied.
2. Klco's motion to suppress (Filing No. 26) should be denied.
ADMONITION
Pursuant to NELR 72.4 any objection to this Report and Recommendation shall be filed with the Clerk of the Court within ten (10) days after being served with a copy of this Report and Recommendation. Failure to timely object may constitute a waiver of any such objection. The brief in support of any objection shall be delivered to Judge William G. Cambridge at the time of filing such objection. Failure to submit a brief in support of any objection may be deemed an abandonment of the objection.