Opinion
No. 8:01CR168
November 19, 2001
REPORT AND RECOMMENDATION
This matter is before the court on defendant's MOTION TO SUPPRESS EVIDENCE AND STATEMENTS (#10). An evidentiary hearing was held on October 3, 2001. The hearing transcript (#17) was filed October 12, 2001. The final post-hearing brief was received on October 23, 2001, at which time the motion was deemed submitted.
For the reasons explained below, I shall recommend that the motion be denied.
I. FACTUAL BACKGROUND
On Saturday, May 5, 2001, at approximately 3:24 p.m., Kearney Police Officer Derek Luke was dispatched to a house located at 2806 Avenue N, Kearney, Nebraska to investigate a report of stolen property. Officer Luke arrived at the residence between 3:30 and 3:40 p.m. and met with the complainant, Ann Gintzler, outside the front of the house. The front door of the house was open. Four or five other individuals were present, some inside the house and some outside the house.
The signature on Exhibit 1 suggests that the proper spelling of the name is "Gintzler" rather than "Gensler," the spelling used in the hearing transcript.
Ann Gintzler and her former husband, Mike Gintzler, manage and/or own rental properties, including the residence in question. Upon his arrival, Ann Gintzler gave Officer Luke a copy of the lease (Ex. 1) signed on April 27, 2001 by Mike Gintzler as landlord, and Jamie Tuggle and Bessie Timmerman as tenants. Ms. Gintzler told Officer Luke the tenants had paid a damage deposit and were allowed to move in on May 1, but had not paid the rent. Gintzlers decided shortly thereafter to "kick them out" of the rental house. Ann Gintzler told Officer Luke that both she and Mike Gintzler had talked to Timmerman on the phone and told Timmerman to be out of the house by either May 3 or May 4.
The lease (Ex. 1) provides that rent is payable in advance on the first day of each month, and "[p]ayment of rent MUST be made no later than the 5th of each month. Rent shall be picked up by the LANDLORD in person or his representative." Late payments or partial payments "will be considered TENANT'S notice to vacate the premises within 3 days." The lease did not permit the damage deposit to be applied to or converted to a monthly rent payment.
Ann Gintzler reported that she went to the house on May 5 to show the house to prospective buyers. When they arrived, however, Gintzler discovered that the locks had been changed, in violation of the lease agreement. Gintzler told Officer Luke she had a friend remove some pieces of trim and enter the house by force.
Once inside the house, Ann Gintzler saw items of property that belonged to her. According to Gintzler, these items had been stored in a locked six-car garage unit located behind the house, and the garage had not been rented with the house. Ms. Gintzler wanted to show Officer Luke the items that were stolen. Prior to Luke's arrival, Gintzler had gone through the house and put many of the items in boxes.
Officer Luke followed Ann Gintzler from the porch area through the front door. Gintzler had stacked some of the items in the living room, just inside the front door. Other items were stacked by the back door. See Ex. 2-4. Gintzler told Luke she found the items of stolen property throughout the entire house. She did not say where she found each item, or whether the items were in closets, bags, or other places.
Officer Luke testified that, in general, the residence did not look like anybody had lived there; it looked like there was property just left in the house, including an overstuffed chair, a small television, a small stereo system, a bookshelf, a bed, and a couple of bikes. There was no living type equipment, dishes, kitchen utensils, bathroom equipment or clothing.
According to Officer Luke, Ann Gintzler was very upset about the theft. She also demanded that he do something about the tenants changing the locks on the house and that the police remove all the tenants' personal property from the house. Luke explained to her that the removal of the tenants' personal property was a civil matter, and not a matter for the police. He intended to report that the other items had been stolen and that Gintzler recovered them, and told Gintzler she could do as she wished with that property.
Ann Gintzler, dissatisfied with this response, then told Luke there were drugs and drug paraphernalia and pipes all throughout the house. She seemed to be offended by the presence of drug paraphernalia in the house, did not want to touch it, and wanted the police to remove those items immediately. Officer Luke testified that he could see items of drug paraphernalia in plain sight as he stood in the house and could identify these items without making a close inspection. Gintzler reiterated that she wanted "all the drug stuff and all the left-behind property" out of the house so she could show the house to the new buyers, who were present in the main living room area.
Ann Gintzler gave Officer Luke a box in which to place items of drug paraphernalia and told him she could take care of the rest herself. Luke called his supervisor, Corporal Shanafer, who arrived shortly after Luke's call. Before Corporal Shanafer arrived, Officer Luke collected a couple of pipes and some other items and put them in the box. These items, shown in Exhibits 5-7, were visible as soon as one walked into the main door of the house. For example, a bedroom was located directly inside and to the left of the front door. Through the open bedroom door, Luke could see a shelf holding a water bong and glass pipes on the bed as soon as he entered the house. (16:23-17:21).
After Corporal Shanafer arrived, Officer Luke explained the situation and Shanafer suggested getting a search warrant for the house. For that reason, Officer Luke put the items of drug paraphernalia back exactly where he found them. After talking to the County Attorney, however, Corporal Shanafer told Luke to go ahead and collect the paraphernalia items without a warrant. Officers Jeff Dowling and Jay Young arrived shortly after Corporal Shanafer in response to Luke's call for extra manpower. Luke explained that it was a big house, and he didn't know how much drug equipment they would find.
Corporal Shanafer also contacted Officer Greg Urbanek, a shift supervisor, to provide assistance for Officer Luke. Urbanek first spoke with Corporal Shanafer at the police station about the details of the situation and arrived at the house around 5:30 p.m.
At the house, Officer Urbanek first spoke with Ann Gintzler. Urbanek knew that Ann Gintzler was a property owner because he had done work involving other property owned by Gintzlers. Anthony Cooper, Gintzlers' handyman, was also at the house. Ann Gintzler was upset and told Urbanek she wanted anything involving defendant Tuggle removed from the property because Tuggle had stolen from her and because Tuggle had drug paraphernalia at the residence.
Given this information, Officer Urbanek spoke again with Corporal Shanafer and Officer Luke at the residence about getting a search warrant. Since none of the items in question had been field tested, and everything they had at that point involved only misdemeanors or infractions, Urbanek opined that the officers should just collect the drug paraphernalia items and remove them from the residence as Ms. Gintzler requested.
In this regard, Officer Urbanek testified that Anthony Cooper specifically told him to "make sure you get all of the stuff out that's upstairs and to check the closets upstairs." Cooper said "there were going to be items up there that they wanted removed from the residence." (52:17-21). Based on his conversations with Cooper and Gintzler, Urbanek assumed that Cooper had been in the residence. Neither Cooper nor Gintzler told Urbanek exactly what they did when they went through the residence, but they told him to be sure to check the closets.
Officer Luke testified that he remained in the living room and another officer guarded the front door. The rest of the officers collected any drug-related items they could see "just laying around" so they could remove them for Gintzler. Luke first took a bong off the living room bookshelves. He then went into the bedroom and collected a couple glass pipes that were on the bed. He took some items from the bedroom floor and the glass water bongs that were on the shelves. See Ex. 5-6.
Officers Luke and Urbanek then went upstairs and joined other officers in the attic to collect any drug-related items that were in plain view.See Ex. 9. Officers Luke and Urbanek described the attic as a large finished room with doors to access the overhangs on both sides. The doors were closed. Upon entering the attic room, Luke saw a corner table containing a scale, a lamp, a container shaped like a white skull, a glass dish, an aluminum container, and a lock box or safe. Luke could see that the glass dish, the skull, and the scale contained white powder residue. A three-foot-tall water bong and a few other drug paraphernalia items were located to the west of the table. See Ex. 8-11.
Urbanek told Luke to collect the items on the south half of the room; Urbanek would collect the items on the north half. Urbanek testified that these items were mostly smoking devices.
Urbanek opened the closet door "that Mr. Cooper had told me to make sure to get the stuff out of there," where he found a blue duffle bag. Urbanek testified that the bag "didn't feel right" when he picked it up. It was dark in the attic and they had not found the main light switch. Using a flashlight, Officer Urbanek could see that the bag was open a little bit. Through the approximately two-inch opening, he could see some plastic tubing and noticed there was glassware in the bag. On cross-examination, Urbanek testified that he estimated the bag contained 10 feet of tubing, based on the number of loops he observed. He also saw there were items wrapped individually in paper. He believed those items were glassware because he had observed glassware and tubing elsewhere in the residence.
Urbanek set the duffle bag down after Officer Luke asked him what to do with a torch kit and some propane canisters he found. Knowing that Luke had already discovered some white powder, Urbanek yelled to another officer to get a test kit up to the attic and test the powder.
Officer Luke conducted the field test around 6:20 p.m. The residue in the glass dish tested positive for methamphetamine. Meanwhile, Officer Urbanek opened the blue duffle bag about four more inches, see Ex. 12, and saw some discolored tubing. Urbanek, who had become concerned about safety issues after the discovery of the propane canisters, did not know if there were chemicals in the bag, and decided to evacuate the building. At this point, Officer Luke went back downstairs and ushered Ann Gintzler and the prospective buyers from the house.
Officer Luke and Investigator Cordova then returned to the police station to draft an affidavit and application for a search warrant. See Ex. 13. Officer Urbanek remained downstairs at the residence.
A search warrant was issued. Officer Luke and Investigator Cordova returned to the residence to help execute the search warrant. Luke testified that they worked in two-man teams. Luke helped searched the southeast corner of the house, see Ex. 9, where they found more drug paraphernalia and some mushrooms in the bedroom. They also found surveillance equipment, including a camera and television set up to monitor the front door, and a camera that apparently was going to be used to monitor the back door. They found a skull-shaped box containing a dish of some white powdery substance and a pebble-size rock of a white substance.
Although Officer Luke did not know who actually resided at 2806 Avenue N, Investigator Cordova found mail in the residence bearing defendant Tuggle's name. See Ex. 15-19. These items, however, were sent to Tuggle at other addresses.
The property seized pursuant to the warrant was taken back to the Kearney Police Department and logged into evidence. The officers found more than 20 items of chemistry glassware in the blue duffle bag. All suspected methamphetamine was sent to the Nebraska State Patrol lab.
Officer Urbanek testified that Anthony Cooper was present when they finished executing the search warrant, some time after 10 p.m. Ann Gintzler reportedly told Cooper that she wanted the locks changed back and the house secured, so the police turned the house over to Mr. Cooper, who either changed the locks or used a padlock and hasp to secure the residence. Defendant Tuggle did not appear at the residence at any time during the search.
Urbanek was subsequently told by Investigator Cordova that Tuggle had been arrested in Utah and was being extradited to the Buffalo County Detention Center in Kearney. Urbanek testified that Tuggle was extradited on an arrest warrant obtained based on evidence found during execution of the search warrant. Defendant Tuggle arrived in Kearney during the second week of June and was interviewed by Investigator Cordova on June 18, 2001 at the Buffalo County Detention Center after requesting to speak to Investigator Cordova.
During the October 3, 2001 hearing, defendant Tuggle was advised of, and waived, his fifth amendment rights. He informed the court that he had discussed those issues with his attorney. Defendant agreed that he was freely and voluntarily testifying, knowing he had an absolute right not to do so, that the government could cross-examine him, and that his testimony could be used as evidence against him at trial or during sentencing. (94:2-95:14).
Defendant Tuggle testified that he did indeed reside at 2806 Avenue N on May 5, 2001. He and the other tenants moved in on May 1 and had not moved out as of May 5, 2001. On cross-examination, Tuggle testified that they had paid the deposit, but had not paid rent yet. He, Timmerman, and Clint Hoffstedder were to move in on May 1 and pay $950 per month rent. Tuggle admitted that he did change the locks when he first moved in. He testified that he has never spoken with Ann Gintzler. Although Bessie Timmerman spoke with Ann Gintzler, Gintzler did not indicate they would be evicted. Instead, Gintzler said she would be in town that weekend to talk to them and did not ever tell them they had to move out or that they were being evicted.
Defendant Tuggle also disagreed that the refrigerator was empty. He testified that there were a few kitchen utensils, some cups, but no dishes. There was no couch. He did not remember if there was any toilet paper and thought there were towels in the bathroom.
II. ISSUES PRESENTED
Defendant argues that he had a privacy interest in the residence, notwithstanding Ann Gintzler's purported notice to quit, because he actually resided in the house and had not been evicted from the premises. He initially proceeded on the theory that Ann Gintzler could not lawfully give consent for the police officers to enter the residence. During the October 3 hearing, however, defendant clarified that he was proceeding on the theory that Ann Gintzler and others conducted a private search of the residence; however, the warrantless search conducted by the Kearney police officers exceeded the scope of the private search, requiring the suppression of physical evidence and statements. See #17, 83:8-12. Defendant's subsequent statements should be suppressed as "fruit of the poisonous tree" under Wong Sun v. United States, 371 U.S. 471, 486 (1963).
The government argues in its post-hearing brief that the officers' search of the house at the request of the owner/landlord was permissible; Ann Gintzler had the apparent authority to consent to the officers' entry and search of the house; the search conducted by law enforcement did not exceed the scope of the search already conducted by private parties; and Tuggle had no reasonable expectation of privacy in the house because he had not paid his rent, was otherwise in violation of the lease agreement, and had been told by Gintzler to vacate the premises. The government also argues that Tuggle abandoned the blue duffle bag after being ordered to remove his property from the house and, in the alternative, that the contents of the blue bag would have inevitably been discovered as part of the search for stolen property. Tuggle's June 18, 2001 statement should not be suppressed because the statement was given approximately 45 days after the search occurred and Tuggle himself asked to speak to Investigator Cordova.
In its post-hearing brief, the government informs the court that Tuggle gave a Mirandized statement. The court can find no evidence, however, that Tuggle was given his Miranda rights in conjunction with the June 18, 2001 interview. See #17, 60:5-61:7.
III. LEGAL ANALYSIS A. Standing
As a threshold matter, defendant Tuggle must demonstrate that he has standing to challenge the search of the house.
Fourth Amendment rights are personal and cannot be asserted vicariously. See United States v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994). A defendant who "fails to prove a sufficiently close connection to the relevant places or objects searched . . . has no standing to claim that they were searched or seized illegally." Id. A defendant moving to suppress evidence has the burden of showing a legitimate expectation of privacy in the area searched. See Id. "Factors relevant to the determination of standing include: ownership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the totality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case." Id.United States v. Pierson, 219 F.3d 803, 806 (8th Cir. 2000); see also United States v. McCaster, 193 F.3d 930, 933 (8th Cir. 1999). "Legal ownership of a house . . . is not necessary to have a legitimate expectation of privacy in it; present dominion or control is sufficient." United States v. Watson, 950 F.2d 505, 507 (8th Cir. 1991).
The search in this case occurred on May 5, 2001, only eight days after defendant signed the lease agreement. Crediting Ann Gintzler's statement to Officer Luke that both she and Mike Gintzler had talked to co-tenant Timmerman on the phone and told Timmerman to be out of the house by either May 3 or May 4, the search occurred only one day after that time expired. Defendant had not been formally evicted from the premises. Meanwhile, defendant retained control over access to the rental house by changing the locks. Defendant's personal property was left inside the house, and there is no evidence that defendant had actually moved out of the house by May 5, 2001, even though he may have been told to do so. Compare United States v. Donnes, 947 F.2d 1430, 1434 n. 4 (10th Cir. 1991) ("Given that the defendant lived in the house continuously for several months until a few weeks before the day of the search, he had taken steps to secure the house by placing a padlock on the door, had personal belongings in the house, and had a key to the front door, the district court's finding [that defendant had standing to contest the search] is amply supported."), with United States v. Hoey, 983 F.2d 890, 892 (8th Cir. 1993) (defendant found to have abandoned apartment and had no reasonable expectation of privacy where rent was over six weeks past due and there was evidence that the defendant had actually left the apartment).
Defendant's nonpayment of rent over a five-day period, together with his absence from the residence on the day of the search, without more, do not support a finding of abandonment. While changing the locks on the house may have constituted a violation of the lease agreement, that action suggests that defendant actually intended to retain and restrict control over access to the premises. I find that the defendant did not abandon the residence at 2806 Avenue N or the property left therein, and defendant has standing to challenge the search of the residence.
B. Private Searches 1
As explained in his post-hearing brief, defendant is proceeding on the theory that law enforcement violated his constitutional rights by exceeding the scope of the private search already conducted by Ann Gintzler and others. As the court explained in United States v. Miller, 152 F.3d 813 (8th Cir. 1998),
The Constitution does not apply to searches, reasonable or otherwise, by private individuals, so long as the private party is "'not acting as an agent of the Government or with the participation or knowledge of any governmental official.'" United States v. Jacobsen, 466 U.S. 109, 113 (1984) (quoting Walter v. United States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)). Further, to be a Fourth Amendment search, a governmental intrusion must infringe on a legitimate expectation of privacy. See id. Because a private search frustrates such an expectation, see id. at 117-18, an ensuing police intrusion that stays within the limits of the private search is not a search for Fourth Amendment purposes, see id. at 120. Thus, in a private search case, the legality of later governmental intrusions "must be tested by the degree to which they exceeded the scope of the private search." Id. at 115.
(Parallel citations omitted).
In this case, there is no question that Ann Gintzler and her companions intended to act in a wholly private capacity when they broke into the rental house, and the police neither knew about nor acquiesced in their entry.
2
The Miller decision also suggests that the court should consider whether Gintzler's intrusion was reasonably foreseeable by defendant Tuggle:
[W]e take note of a recent opinion issued by the Fifth Circuit, United States v. Paige, 136 F.3d 1012 (5th Cir. 1998). Like our case, which involves the search of an apartment, Paige concerns a police intrusion into residential property — specifically, a detached garage — in the wake of a private search. Jacobsen, by contrast, dealt with the search of a package, and "it was virtually certain that [the package] contained nothing but contraband." Jacobsen, 466 U.S. at 120 n. 17. Emphasizing this point, and observing that "people's homes contain countless personal, noncontraband possessions," the Fifth Circuit declined "to extend Jacobsen's holding 'to cases involving private searches of residences.'" Paige, 136 F.3d at 1020 n. 11 (quoting United States v. Allen, 106 F.3d 695, 699 (6th Cir.) (deciding search issue on grounds unrelated to Jacobsen's private search rule), cert. denied, 520 U.S. 1281 (1997)). The Fifth Circuit did not reject Jacobsen, however. Drawing on pre-Jacobsen circuit precedent, United States v. Bomengo, 580 F.2d 173, 175-76 (5th Cir. 1978) (involving private search of apartment), cert. denied, 439 U.S. 1117 (1979), the Fifth Circuit tailored the Jacobsen rule to accommodate the court's concerns when a police search follows a private party search of a home. In this situation, the Fifth Circuit held, a police search within the scope of an earlier private search is lawful only when "the private party's intrusion was reasonably foreseeable." Paige, 136 F.3d at 1020. We neither adopt nor reject the Fifth Circuit's rule because the police search in this case would pass muster under both Jacobsen and Paige. It was reasonably foreseeable that the on-duty supervisor of Miller's treatment facility might forget Miller was out of town, open his door when he did not respond to his morning medication call, step inside his apartment to investigate when she detected a violation of house rules, and see the drug-related items left in open sight.United States v. Miller, 152 F.3d at 816 (emphasis added, parallel citations omitted).
In this case, defendant Tuggle admits he and his co-tenants had not paid their $950 rent, knew that one of the co-tenants had talked to Gintzler about this problem, and testified that Ann Gintzler said she would be in town that weekend to talk to them. The lease signed by Tuggle (Ex.1) provides that rent must be paid by the fifth of each month and would be picked up by the landlord in person, or by the landlord's representative. Under the lease, the landlord reserved the right to enter the premises at reasonable times to assure that the provisions of the lease were being complied with. Finally, the lease provided, "KEYS: Any locks added or installed on leased premises must first have the approval of the LANDLORD, and an additional key must be made for the LANDLORD as soon as reasonable."
Under the circumstances, it should have been reasonably foreseeable to Tuggle, who was in fact expecting a visit from Ann Gintzler that weekend, that Gintzler might enter the premises after she discovered he had changed the locks in violation of his lease agreement.
The court does not find that Gintzler's forcible entry into the house was necessarily legal or otherwise appropriate; the court only finds that her actions were foreseeable.
3
The substantive issue presented is whether the search conducted by law enforcement prior to obtaining the search warrant exceeded the scope of the private search performed before Officer Luke's arrival.The record shows that Ann Gintzler and others had already searched the entire house for stolen property by the time Officer Luke arrived. She collected various items, stacked the items by the front and back doors, and told Officer Luke that she found the items "throughout the entire house." (#17, 36:2). Gintzler's search seems to have been fairly thorough, since she also informed Officer Luke that there were "drugs and drug paraphernalia and pipes all throughout the house." (#17, 14:2-3). Later, Ann Gintzler and Anthony Cooper both instructed Officer Urbanek to make sure to check the closets upstairs. Urbanek testified that he was specifically told by Cooper to "make sure you get all of the stuff out that's upstairs and to check the closets upstairs." Cooper also told Urbanek, "there were going to be items up there that they wanted removed from the residence." (#17, 52:17-21; 53:10-11). The testimony of Officers Luke and Urbanek on these points is credible and uncontroverted. Based on the instructions given to the officers by Ann Gintzler and Anthony Cooper, I find that Gintzler and/or Cooper had already opened the closet in the attic, and the police officers did not exceed the scope of the private search by opening the closet door.
The blue duffle bag was in plain sight in the attic closet. Through a two-inch opening, Officer Urbanek could see that the bag contained plastic tubing and items he thought were glassware. At this point, Urbanek became aware the Officer Luke had found a torch kit and propane canisters. For safety reasons, Urbanek opened the blue duffle bag about four more inches, at which time he saw some discolored tubing. The decision to apply for a search warrant was made after Urbanek found the blue bag. The blue bag was not completely opened, and the contents were not removed, until after the warrant was issued.
The Tenth Circuit considered a similar situation in United States v. Donnes, 947 F.2d 1430 (10th Cir. 1991). In Donnes, police officers obtained a search warrant for a house rented by the defendant's girlfriend and recently occupied by the defendant. The landlord attempted to assist the officers in gaining entry, but the landlord's key would not open the door. The officers used a bolt cutter to obtain entry and seized contraband weapons. The landlord put a new padlock on the door. Five days later, the defendant returned to the house and used force to gain entry. A neighbor called the police after seeing the defendant and two others forcing their way into the house. Defendant was taken to the police station to verify information that his girlfriend gave him permission to be in the house. He was subsequently arrested for burglary.
Meanwhile, the landlord and a friend, Bertrand, went to the house. After defendant was taken to the police station, the landlord approached a police officer who remained at the house and expressed concern about some of his belongings in the house. The landlord wanted to check to see if anything was missing. The officer entered the house without a warrant, "ostensibly to further investigate the suspected burglary, look for other suspects, and retrieve the search warrant that had been left in the house five days earlier." 947 F.2d at 1433. Bertrand followed the officer into the house and noticed a glove lying on the floor. The glove was "bulging way out," so Bertrand picked it up, looked inside, and found a syringe. Bertrand gave the glove to the officer. Id. at 1434.
Suspecting that the syringe was narcotics paraphernalia, the officer removed the syringe from the glove and discovered a camera lens case, which was also inside the glove. The officer opened the camera lens case and discovered small packages subsequently determined to hold methamphetamine. Id.
The issue presented in Donnes was whether the police officer exceeded the scope of the private search conducted by Bertrand. The defendant successfully argued that by opening the camera lens case found inside the glove, the officer conducted an additional warrantless search, separate and distinct from the plain view search of the glove. Id. at 1434.
In United States v. Jacobsen, 466 U.S. 109 (1984), the Supreme Court recognized a standard for evaluating the actions of law enforcement officials when presented with evidence uncovered during a private search. The Court stated that "[t]he additional invasions of [defendant's] privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search." Id. at 115. The district court found that Bertrand gave the glove and its contents to the officer immediately after seeing the syringe inside the glove. Bertrand did not himself open the camera lens case which was also inside the glove. This fact distinguishes the present case from United States v. Walsh, 791 F.2d 811 (10th Cir. 1986), on which the district court relied. In Walsh, we held that a law enforcement official did not need a warrant to view items inside a suitcase, notably suppressors (silencers) lacking serial numbers, after airline employees had already opened the suitcase and examined the suppressors. Id. at 813-14. Here, by contrast, Bertrand never opened the camera lens case or viewed its contents prior to turning it over to the officer. This is not the case in which the conduct of the law enforcement official enabled him "to learn nothing that had not previously been learned during the private search." Jacobsen, 466 U.S. at 120 (footnote omitted). The officer's warrantless search of the camera lens case exceeded the scope of the private search.United States v. Donnes, at 1434-35 (parallel citations omitted). Noting the Supreme Court's recognition that containers are subject to protection under the fourth amendment, id. at 1435, the Court of Appeals concluded that the defendant had manifested a reasonable expectation of privacy in the contents of the camera lens case. Id. at 1436. Under the circumstances, the officer's opening and inspecting the contents of the camera lens case constituted a separate search unsupported by a warrant. Id. at 1436-37. Since no well-recognized exception (including the "plain view container exception") to the warrant requirement applied, the court found that the evidence discovered inside the lens case must be suppressed:
In short, we believe that the current state of the fourth amendment as it applies to containers, outside of the context of an automobile search, is that "[l]aw enforcement officers should not be permitted . . . to conduct warrantless searches of containers that, though unrevealing in appearance, are discovered under circumstances supporting a strong showing of probable cause." [ United States v. Miller, 769 F.2d 554, 560 (9th Cir. 1985)]. While we recognize that the Supreme Court has recently narrowed the fourth amendment protection afforded to containers, see [ Calfornia v. Acevedo, 500 U.S. 565 (1991)], it expressly limited its holding to searches pursuant to the automobile exception. Given that the container in the present case was found inside a house in which the district court determined that the defendant had a reasonable expectation of privacy, Acevedo is not controlling. Further, in light of the lack of authority for the government's position, we decline to expand the plain view container exception to the facts of this case.
At the point when the officer observed the syringe inside the glove, he arguably had grounds to seize the glove and its contents. However, by removing the lens case from the glove, and then opening the lens case, the officer exceeded the scope of the private search. The officer should have obtained a warrant, issued by a neutral and detached magistrate, prior to opening the lens case. The evidence discovered inside the camera lens case must be suppressed.United States v. Donnes, 947 F.2d at 1439.
In the present case, the blue duffle bag was partially open when it was found by Officer Urbanek at the same time and in the same room where Officer Luke found white powder, a torch kit and propane canisters. In this context, Officer Urbanek acted reasonably in opening the bag four more inches to investigate the possibility that the bag contained dangerous chemicals. See, e.g., United States v. Scroger, 98 F.3d 1256, 1259 (10th Cir.), cert. denied, 520 U.S. 1149 (1997) (warrantless entry into home was justified by exigent circumstances when defendant answered the door "holding a hot plate, which is commonly used to manufacture methamphetamine," defendant's fingertips were stained rust-colored, and there was a strong odor of methamphetamine production coming from the residence and from the defendant.). Urbanek was in fact concerned enough about the presence of dangerous chemicals to evacuate the building.
Unlike the officers in United States v. Donnes, the police officers in this case did obtain a search warrant before completely opening the blue duffle bag and exposing its contents. I find that (1) the inspection of the attic closet did not exceed the scope of the private search, (2) the blue duffle bag was in plain sight in the attic closet, (3) exigent circumstances justified Officer Urbanek's opening the bag an additional four inches, and (4) the contents of the blue bag were seized pursuant to a valid search warrant. It follows that defendant's arrest and subsequent statement to Investigator Cordova need not be suppressed as "fruit of the poisonous tree."
IV. RECOMMENDATION
For these reasons,
IT IS RECOMMENDED that defendant's MOTION TO SUPPRESS EVIDENCE AND STATEMENTS (# 10) be denied.
Pursuant to NELR 72.4, any objection to this recommendation may be made by filing a "Statement of Objection to Magistrate Judge's Recommendation" within 10 days after being served with a copy of the recommendation. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis of the objection. The objecting party shall submit to the district judge at the time of filing the objection a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection. The failure to object to a finding of fact in a magistrate judge's recommendation in a dispositive matter may be construed as a waiver of that party's right to appeal the order of the district judge adopting the recommendation as to the finding of fact.