Opinion
No. CR00-4002-DEO.
March 21, 2000.
REPORT AND RECOMMENDATION ON MOTION TO SUPPRESS
I. INTRODUCTION
On January 20, 2000, the Honorable Donald E. O'Brien assigned all motions to suppress in this case to the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B), for the filing of a report and recommended disposition. (Doc. No. 8) On February 11, 2000, the defendant Randy Lowell Hurd ("Hurd") filed a Motion to Suppress. (Doc. No. 10) The plaintiff ("Government") resisted the motion on March 3, 2000. (Doc. No. 18)
A hearing was held on March 13, 2000. Assistant United States Attorney Kevin Fletcher appeared on behalf of the Government. Hurd appeared in person and with his attorney, Federal Public Defender Jeff Neary. Spirit Lake Police Officer Scott Colt, Arnold's Park Police Officer Scott Peterson, and Okoboji Police Officer Jeremy Kleve testified on behalf of the Government. Hurd submitted five deposition exhibits as evidence. After the hearing, the Court permitted the parties to submit case authority on the issue of search incident to a lawful arrest. ( See Doc. No. 23) On March 20, 2000, Hurd and the Government each submitted supplemental case authority.
The Court has heard the evidence submitted by the parties, considered the arguments of counsel, and deems the motion fully submitted.
II. FACTUAL BACKGROUND
On November 25, 1999, at approximately 10:30 p.m., Okoboji Police Officer Jeremy Kleve ("Officer Kleve") received a dispatch call concerning a person allegedly taking lumber from a construction site in the Charlstrom Beach area of Lake Okoboji. Arnold's Park Police Officer Scott Peterson ("Officer Peterson") and Spirit Lake Police Officer Scott Colt ("Officer Colt") also heard the dispatch call and proceeded to the construction site.
Officers Peterson and Colt arrived at the construction site first, and Officer Kleve arrived a short time later. Using flashlights, the officers observed Randy Hurd ("Hurd") standing in a construction site dumpster throwing scraps of wood and other construction materials on the ground. Hurd's 1997 Dodge Ram pickup was parked next to the dumpster, with Melissa Ahrenstorff ("Ahrenstorff"), Hurd's girlfriend, seated in the front passenger seat. In the back of the truck were pieces of plywood and other building materials.
Officer Peterson asked for and received identification from Hurd and Ahrenstorff, and Officer Kleve used his radio to check for outstanding warrants. He was advised that there was an outstanding arrest warrant for Ahrenstorff on a charge of fourth degree theft. Officer Kleve then approached Hurd's truck, told Ahrenstorff to get out of the vehicle, and placed her under arrest. He handcuffed her and took her to his patrol car.
While Officer Kleve was transferring Ahrenstorff to his patrol car, Officer Peterson began searching the passenger compartment of the pickup truck. He found Ahrenstorff's purse in the middle of the front seat, and in the purse he found a rock-like substance that appeared to be methamphetamine. He also found a bag containing a green plant material that appeared to be marijuana and tinfoil containing several plastic baggies.
Hurd was then placed under arrest for possession of a controlled substance. In a search incident to the arrest, the officers found $2,985.00 on his person. In inventorying Ahrenstorff's purse, the officers determined that it contained approximately twenty-one packages containing a white powder residue, rocks believed to be methamphetamine, and two baggies containing a green leafy substance believed to be marijuana.
A search warrant was then obtained for Hurd's father's residence, Hurd's residence, outbuildings on the premises, an automobile registered to Amanda or Shirley Arnedon, and Ahrenstorff's trailer. During these searches, officers found methamphetamine, marijuana, precursors for methamphetamine, and drug paraphernalia including scales, spoons, baggies, and pipes. They also found a sawed-off double-barreled shotgun and the parts from the sawed-off barrel.
Prior to the stop, Officer Colt knew that Ahrenstorff and Hurd were dating and living together in a trailer at the residence of Hurd's father.
III. LEGAL ANALYSIS
In his Motion to Suppress, Hurd requests that any evidence found in his truck, in Ahrenstorff's purse, and on his person be suppressed. In addition, Hurd argues the search warrants for the buildings and vehicles at the Hurd property were based on the evidence illegally seized from the truck and the purse, and any and all evidence found pursuant to the search warrants should be suppressed.
A. Evidence Found During Initial Search 1. Evidence found in truck and purse
Hurd argues the search of his truck and Ahrenstorff's purse was illegal because the officers were not given permission to search the truck and purse, and there was no probable cause to believe there was any contraband or illegal substances in the truck or purse. Hurd seeks to have any evidence found in the truck or purse suppressed.
a. Legitimate expectation of privacy
The Government argues Hurd does not have a legitimate expectation of privacy as to Ahrenstorff's purse, so he cannot challenge a search of the purse. "A defendant moving to suppress evidence on the basis of an unlawful search bears the burden of proving that he had a legitimate expectation of privacy that was violated by the challenged search." United States v. Gwinn, 191 F.3d 874, 878 (8th Cir. 1999) (citing United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995)).
"To establish a legitimate expectation of privacy, the defendant must demonstrate (1) a subjective expectation of privacy; and (2) that the subjective expectation is one that society is prepared to recognize as objectively reasonable." United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995) (citing United States v. Stallings, 28 F.3d 58, 60 (8th Cir. 1994)). Factors relevant to the determination of standing include 1) ownership; 2) possession and/or control of the area searched or item seized; 3) historical use of the property or item; 4) ability to regulate access; 5) totality of the circumstances surrounding the search; 6) the existence or nonexistence of a subjective anticipation of privacy; and 7) objective reasonableness of the expectation of privacy considering the specific facts of the case. United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994) (citing United States v. Sanchez, 943 F.2d 110, 113 (1st Cir. 1991)); United States v. McKibben, 928 F. Supp. 1479, 1484 (D.S.D. 1996).
Hurd had ownership, possession, control, historical use, ability to regulate access, and a subjective and objective expectation of privacy in his truck. Therefore, as the owner of the truck, Hurd has a reasonable expectation of privacy in it, and can legitimately challenge a search of it and the articles found within it. See U.S. CONST. amend. VI.; McKibben, 928 F. Supp. at 1484; but s ee Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (defendant claiming ownership of drugs found in purse of a female acquaintance did not give the defendant standing to object to the search of her purse and subsequent seizure of the drugs).
b. Search of the purse
The Government argues the passenger compartment of the truck and Ahrenstorff's purse were both searched lawfully, incident to Ahrenstorff's arrest. The case of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), is directly on point. In Belton, the Supreme Court held:
[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. [citations omitted] Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.Belton, 453 U.S. at 460, 101 S.Ct. at 2864; see also, United States v. Searcy, 181 F.3d 975, 979 (8th Cir. 1999); United States v. Williams, 165 F.3d 1193, 1195 (8th Cir. 1999); United States v. Snook, 88 F.3d 605, 608 (8th Cir. 1996).
The Eighth Circuit Court of Appeals has held further that a contemporaneous search incident to a lawful arrest does not have to occur immediately after the arrest. See Curd v. City of Judsonia, Ark., 141 F.3d 839 (8th Cir. 1998) (search of arrestee's purse fifteen minutes after arrest was considered valid as incident to the arrest); see also, United States v. Herring, 35 F. Supp. 1253, 1256 (D.Or. 1999) (search occurring within three to five minutes of arrest was valid, even when arrestee was handcuffed and removed from vehicle at time of search); United States v. McCrady, 774 F.2d 868, 871-872 (8th Cir. 1985) (warrantless search of passenger compartment of vehicle occurring after car owner was arrested and placed in police car was valid as incident to arrest).
In the present case, as Ahrenstorff was being transferred to a patrol car immediately after her arrest, or possibly immediately after she was placed in the patrol car, Officer Peterson searched the passenger compartment of the truck and Ahrenstorff's purse. That search was sufficiently contemporaneous with Ahrenstorff's arrest to be considered a search incident to the arrest. Therefore, any evidence found during the search of Ahrenstorff's purse and the passenger compartment of Hurd's vehicle should not be suppressed.
There is conflicting testimony on this question, but the conflict is irrelevant to the present analysis.
2. Evidence found on Hurd
The Government argues there was probable cause to arrest Hurd because drugs were found during the lawful search of Ahrenstorff's purse, the purse was found in Hurd's truck, Hurd and Ahrenstorff were both with the truck when the drugs were found, and the officers knew Hurd and Ahrenstorff lived together. The Government argues these facts established probable cause to arrest Hurd for "constructive possession" of the methamphetamine found in Ahrenstorff's purse. Therefore, according to the Government, Hurd was searched lawfully, incident to a lawful arrest, and any evidence found on him should not be suppressed. See United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Lewis, 183 F.3d 791, 794 (8th Cir. 1999); United States v. Oakley, 153 F.3d 696, 698 (8th Cir. 1998); United States v. Morales, 923 F.2d 621, 626 (8th Cir. 1991).
In response to this argument, Hurd argues the evidence found in Ahrenstorff's purse and the passenger compartment of Hurd's vehicle was obtained unlawfully, and this evidence was tainted and should not have been used by the police as probable cause to arrest Hurd. Based upon the analysis in Section A(1)(b) above, the seizure of evidence seized from the truck and the purse was lawful, and therefore was used properly as part of the probable cause to arrest Hurd. Therefore, the search of Hurd pursuant to his lawful arrest also was lawful, and evidence resulting from that search should not be suppressed.
At the suppression hearing, Hurd specifically disclaimed any argument that the police lacked probable cause to arrest him. Hurd stated the sole basis for the challenge to his arrest was that it was tainted by the evidence unlawfully seized from the purse, and without the evidence seized from the purse, there was no probable cause to arrest Hurd.
B. Evidence Found Pursuant to Search Warrant
Hurd asserts the evidence found pursuant to the search warrant also should be suppressed. Again, Hurd's sole basis for this argument is that the evidence found in Ahrenstorff's purse and the passenger compartment of Hurd's truck was obtained unlawfully and should not have been used to support a search warrant. Because the evidence taken from the truck and the purse were seized lawfully, this argument also has no merit. The evidence found pursuant to the search warrant should not be suppressed.
IV. CONCLUSION
Based upon the foregoing analysis, IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this report and recommendation, that the defendants' motion to suppress evidence be denied, in accordance with the Court's recommendations set forth above.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).