Opinion
No. 1:04-cr-100.
September 9, 2004
MEMORANDUM AND ORDER
Defendant Thomas Guinn Cheney ("Cheney") moves to suppress evidence seized as a result of the search of two storage units, one of which also served as his home, on April 25, 2004. [Court File No. 14]. The Court held an evidentiary hearing on September 2, 2004. After hearing the proof and oral argument from the parties, the Court concludes that the motion to suppress will be DENIED. I. Facts
At approximately 10:30 P.M. on the evening of April 25, 2004, Officer Christopher McDonald ("McDonald") of the East Ridge, Tennessee, police department drove along Ringgold Road on his way to work. As he passed a series of shops at 5721 Ringgold Road, he saw an automobile pull out from behind the shops. None of the shops was open for business at that time of night. Officer McDonald had recent information from an informant, whom he considered reliable, that in some storage buildings located behind the shops, three individuals were engaging in criminal activity. Specifically, McDonald had been told by the informant that two individuals, Ed Hall and Chuck Smith, were making methamphetamine there, and that defendant, Cheney, was selling methamphetamine and crack cocaine from these storage buildings. In addition, the same day, another person who owned a business across the street, had advised McDonald that there was a lot of traffic in and out of these storage buildings. Finally, McDonald was aware that another East Ridge officer had learned from the Hamilton County, Tennessee, Sheriff's Department that undercover officers from that agency had made undercover drug buys at this same location.
The driver of the vehicle leaving the scene was Robert Bailey ("Bailey"), the owner of the shops and the storage buildings. Officer McDonald stopped Bailey's vehicle about three blocks away and questioned Bailey about his buildings. Bailey advised that, despite his disapproval, some people lived in one of the storage buildings and that he suspected these people had stolen firearms from him. Specifically, Bailey said that defendant Cheney was currently on the property as well as Charles Gann ("Gann"), who was supposed to be a security guard.
Accompanied by Bailey and another police officer, Officer Creel, McDonald went to the storage buildings, where they encountered Gann. Gann provided a slightly different story from that of Bailey. Gann told the officers that he was the only person on the property and no one else was present. Gann also claimed to not know Cheney, Hall, or Smith.
As McDonald and Officer Creel proceeded to the last storage building they found defendant Cheney standing in an open doorway. This doorway was an open "barn door." An automobile in the process of being repaired was parked in the doorway. At this point Gann approached from the rear and shouted to the defendant something to the effect of "Hey Ricky (it might have been George) they are looking for someone named Cheney." At this point Cheney, either wanting to be truthful, or not picking up on Gann's clue, replied that he was Thomas Cheney.
Through the open door McDonald observed that a light was on in one of two rooms adjacent to the central storage area. While McDonald was looking around the premises outside the storage unit with his flashlight, he heard Officer Creel give orders to defendant Cheney. McDonald then heard what sounded like a pistol hit the ground. When McDonald shined his light in Cheney's direction he observed that the defendant had deposited a .38 revolver on the gravel near his (Cheney's) feet.
At this point, Gann was running toward the officers. The officers ordered him to the ground and handcuffed both he and Cheney. McDonald, being concerned for the officers' safety, then conducted a brief protective sweep through the storage area and the two adjacent rooms. McDonald found a loaded shotgun in the lighted room and a .22 caliber rifle. He did not find any other individuals. Satisfied that no other people with firearms were in the area, the officers advised Cheney of his Miranda rights and asked him if he would consent to a search of the storage area. Previously, the officers learned that Cheney leased this storage unit from Bailey. McDonald advised Cheney that he did not have to consent; that in fact he had a constitutional right not to consent; and that if he did not consent, no search would be conducted. Nonetheless, Cheney consented to the search. The officers, by this time joined by another officer, searched the storage area and found crack cocaine, cocaine hydrochloride, and other contraband items. Cheney also told the officers, upon questioning, that he had a prior felony conviction.
Miranda v. Arizona, 384 U.S. 436 (1966).
When Cheney was taken to the police station and his possessions were inventoried, officers found a receipt for the rental of another storage area. When questioned about this second storage unit, Cheney denied ownership and refused to consent to a search of it. The officers obtained a search warrant and searched the other facility, finding numerous firearms. II. Analysis
Defendant argues that the evidence seized in this case should be suppressed for four reasons: (1) Officer McDonald did not have reasonable suspicion to perform a Terry stop of Bailey's vehicle; (2) Officer McDonald performed an unconstitutional protective sweep; (3) the defendant's consent to the search of his storage unit was not valid; and (4) the search of the defendant's second storage unit was unconstitutional under the fruits of the poisonous tree doctrine.
Terry v. Ohio, 392 U.S. 1 (1968).
A. Terry Stop of Bailey
Defendant argues that the evidence should be suppressed because the search of his first storage unit was the product of the illegal seizure of Bailey. Defendant contends that Officer McDonald did not have reasonable suspicion to perform a Terry stop on Bailey's vehicle. Defendant's argument fails for two reasons: the defendant lacks standing to contest the Terry stop of Bailey's vehicle; even if the defendant has standing, Officer McDonald had reasonable suspicion to stop Bailey's vehicle.
Defendant lacks standing to contest the constitutionality of the Terry stop of Bailey's vehicle. Fourth Amendment rights are personal rights that cannot be vicariously asserted on behalf of third parties. Jones v. United States, 362 U.S. 257, 261-62 (1960); United States v. Hopper, No. 01-5811, 2003 WL 152316, at *4 (6th Cir. Jan. 21, 2003). "[S]uppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself." United States v. Padilla, 508 U.S. 77, 81 (1993) (citations omitted); Hopper, 2003 WL 152316, at *4. Defendant Cheney attempts to assert Bailey's Fourth Amendment rights in questioning the validity of the Terry stop. Because Cheney's individual rights were not violated by the Terry stop of Bailey, Cheney lacks standing to contest its constitutionality.
Assuming that Cheney has standing, his argument fails because Officer McDonald had reasonable suspicion for the Terry stop. It is well established that the level of suspicion required to justify a Terry stop is "reasonable suspicion." See United States v. Heath, 259 F.3d 522, 528 (6th Cir. 2001). "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 (1981).
Officer McDonald possessed the requisite reasonable suspicion to justify a Terry stop of Bailey's vehicle. McDonald recently learned from a confidential informant he deemed reliable that three individuals were engaging in criminal drug activity in the storage units behind a row of shops at 5721 Ringgold Road. McDonald also knew that the Hamilton County, Tennessee, Sheriff's Department had made undercover drug buys at this same location. McDonald witnessed an automobile pull out from behind the shops onto Ringgold Road at 10:30 P.M., long after the shops had closed. This information was sufficient for McDonald to form a reasonable suspicion that Bailey's automobile was involved in criminal activity. Consequently, the Terry stop of Bailey's vehicle did not violate the Fourth Amendment.
B. Protective Sweep
Defendant argues that the evidence should be suppressed because Officer McDonald performed an illegal protective sweep. To ensure their safety during an arrest, police officers may conduct a protective sweep to search for other persons who could launch an attack. Maryland v. Buie, 494 U.S. 325, 327 (1990); United States v. Biggs, 70 F.3d 913, 915 (6th Cir. 1995). The Fourth Amendment permits officers to briefly inspect the premises if they have articulable facts that "would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 334; Biggs, 70 F.3d at 915. "[T]he sweep must be limited to a cursory search of the premises for the purpose of finding persons hidden there who would threaten the officer's safety." United States v. Taylor, 248 F.3d 506, 513-14 (6th Cir. 2001).
Officer McDonald acted properly in conducting the protective sweep of Cheney's storage unit. The officer articulated facts warranting a belief that another person could be inside the storage unit who could pose a danger to the officers. Charles Gann, the supposed security guard, lied to the officers upon their arrival, claiming that he (Gann) was the only person on the property and that he did not know Cheney. Moments later the officers saw Cheney standing in the doorway of the storage unit. Subsequently, Cheney dropped a loaded .38 revolver to his feet. Officer McDonald observed that a light was on in one of two interior rooms in the storage unit. Officer McDonald also had recent information, from his confidential informant, that three individuals, Ed Hall, Chuck Smith, and Cheney were engaging in criminal drug activity in the storage units. Gann's lie about being alone, the loaded .38 revolver, the lighted interior room of the storage unit, and the officer's reasonable belief that two other individuals, Hall and Smith, may be present, warranted the protective sweep.
C. Cheney's Consent to Search the Storage Unit
Defendant contends that his consent to the search of his storage unit was invalid. A warrantless search is valid if it is conducted by the police pursuant to the person's voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Van Shutters, 163 F.3d 331, 335 (6th Cir. 1998), cert. denied, 119 S. Ct. 1480 (1999). In Schneckloth, the Court held that "whether a consent to search was in fact `voluntary' or was the product of duress or coercion, express or implied is a question of fact to be determined from the totality of the circumstances." Id. at 227; accord United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (citing Schneckloth). To be voluntary, the consent must be "`unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion.'" United States v. Ivy, 165 F.3d 397, 402 (6th Cir. 1998) (quoting United States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977)).
Where, as in the instant case, the defendant is in custody at the time consent is given, the voluntariness test is whether the defendant's will was "`overborne and his capacity for selfdetermination critically impaired.'" United States v. Watson, 423 U.S. 411, 424 (1976) (quoting Schneckloth, 412 U.S. at 218). The Court examines the totality of the circumstances and carefully consider all relevant facts. See Ivy, 165 F.3d at 402 (citing Schneckloth, 412 U.S. at 227; McCaleb, 552 F.2d at 720). In Ivy the Sixth Circuit identified a number of factors the district court should examine in making this determination:
First, a court should examine the characteristics of the accused, including the age, intelligence, and education of the individual; whether the individual understands the right to refuse consent; and whether the individual understands his or her constitutional rights. . . . Second, a court should consider the details of the detention, including the length and nature of detention; the use of coercive or punishing conduct by the police . . . and indications of more subtle forms of coercion that might flaw an individual's judgment.Id. (citations and quotations omitted).
After reviewing the facts and circumstances in the present case, the Court finds that Cheney knowingly, voluntarily consented to the search of his storage unit. At approximately sixtyone years of age, Cheney cannot be said to be unusually vulnerable to coercion due to youth or old age. There was no indication that Cheney was under the influence of alcohol or drugs nor did Cheney indicate that he failed to understand what the officer was asking. Before consenting to the search, Cheney was properly Mirandized by the officers. The officers advised Cheney that he had a constitutional right to refuse consent and, that if he did not consent, no search would be conducted. This exchange occurred in an open, public area, in front of the storage unit, and the officers did not use coercive or punishing conduct in the process. Moreover, the fact that Cheney later refused to consent to the search of his second storage unit indicates that he knew and understood his right to refuse consent to this search. Based on these facts, the Court finds that Cheney's consent was voluntary and knowing.
D. Search of Second Storage Unit
Finally, the defendant argues that the search of his second storage unit was unconstitutional under the fruits of the poisonous tree doctrine. Although the defendant has not contested the validity of the search warrant, the Court finds the search warrant to be valid. Officer McDonald's affidavit was sufficient to show probable cause and result in the issuance of a warrant to search Cheney's second storage unit. In his affidavit McDonald recounted the numerous items of contraband recovered during the consensual search of Cheney's first storage unit. These items included a loaded revolver, a loaded shotgun, an unloaded rifle, a stolen air compressor, approximately 368 grams of marijuana, approximately 22.5 grams of crack cocaine, approximately 5.2 grams of powder cocaine and approximately 0.8 grams of methamphetamine. Officer McDonald's affidavit also indicated seizure of a receipt for a second storage unit found during an inventory of Cheney's possessions. These facts created probable cause for the issuance of a valid warrant to search the second storage unit.
To the extent Defendant Cheney argues that this search was unconstitutional as the fruits of the poisonous tree, he is incorrect. There was no poisonous tree. The officers conducted a valid protective sweep, properly Mirandized Cheney, executed a valid search of the first storage unit pursuant to Cheney's voluntary and knowing consent, and arrested Cheney. The seizure of the receipt for the second storage unit was constitutional because it was found during the inventory search of Cheney's possessions incident to his arrest. See United States v. McCory, 102 F.3d 239, 240-41 (6th Cir. 1996) (holding a warrantless inventory search of the possessions of an arrested or detained person held in custody is an "entirely reasonable administrative procedure"). Since the search of the second storage unit was conducted pursuant to a valid search warrant and not the fruits of the poisonous tree, there was no constitutional violation.
Accordingly, Cheney's motion to suppress [Court File No. 14] is DENIED.
SO ORDERED.