Opinion
Civil Action No. SA-04-CR-0459-XR.
January 25, 2005
ORDER
On this day, the Court considered Defendant's Motion to Suppress (docket no. 17). Defendant argues that Alamo Heights Police Lieutenant Paul Battaglia searched the vehicle Defendant was driving in violation of his Fourth Amendment rights. He seeks to suppress the quantity of cocaine found in the dashboard of the vehicle, as well as all items found in a search of his girlfriend's apartment. Because there was probable cause for Lt. Battaglia to search the automobile and Defendant has not shown an expectation of privacy in the apartment, the Motion to Suppress is DENIED.
FINDINGS OF FACT
1. On or about July 23, 2004, Lt. Battaglia was contacted by an informant with information as to drug trafficking involving certain persons. The informant was referred to Lt. Battaglia by another police officer.
2. Lt. Battaglia and the informant met in person and the informant gave information as to at least five separate individuals, including Defendant. The informant gave descriptive information to Lt. Battaglia as to the individuals and their activities. Lt. Battaglia took the informant to the locations mentioned by the informant and had the informant confirm his information.
3. The informant told Lt. Battaglia that Defendant was a convicted felon who had been to prison for possession of cocaine and that Defendant would typically purchase up to 18 ounces of powder cocaine at a time and convert it to crack cocaine at his girlfriend's house. The informant also told Lt. Battaglia that Defendant was staying with his girlfriend, Norma Jean Buckley, at 3719 Charles Conrad, Apartment A, Kirby, Texas, and that Defendant would leave the apartment in the morning to sell crack cocaine in a maroon Oldsmobile Cutlass with a quantity of crack cocaine concealed in a natural void behind the center of the dashboard.
4. On or about July 23, 2004, Lt. Battaglia investigated Defendant's prior criminal history and determined that Defendant had two prior felony convictions, including carrying a firearm on a licensed premises and possession of a controlled substance, penalty group one. Lt Battaglia also determined that Defendant had pending arrest warrants for traffic violations in the San Antonio Municipal Court.
5. On or about July 31, 2004, the informant again contacted Lt. Battaglia and told Lt. Battaglia that Defendant had obtained a substantial quantity of powder cocaine and was in the process of converting the powder cocaine to crack cocaine.
6. On or about August 2, 2004, Lt. Battaglia met with the informant and showed the informant photographs of Defendant and Norma Jean Buckley. The informant confirmed the information he had given to Lt. Battaglia on or about July 31, 2004 and confirmed that the individuals in the photographs were the individuals with regard to the information he had given.
7. On or about the morning of August 3, 2004, Lt. Battaglia and other members of the Regional Narcotics Task Force San Antonio began surveillance of 3719 Charles Conrad, Apartment A, the apartment of Norma Jean Buckley.
8. Shortly after 10:00 a.m., Lt. Battaglia observed Defendant and Norma Jean Buckley exit the apartment, enter the maroon Oldsmobile Cutlass identified by the informant, and drive away from the apartment.
9. Lt. Battaglia called for an interdiction unit to stop the maroon Oldsmobile Cutlass and to put Defendant under arrest for the traffic warrants. The interdiction unit, Investigator Rutledge, stopped the car and found that Defendant was driving the car. Investigator Rutledge inquired of Defendant as to the traffic warrants and then placed Defendant under arrest.
10. After Defendant was placed under arrest, Lt. Battaglia asked Norma Jean Buckley, who was sitting in the passenger seat, to exit the vehicle and provide identification information.
11. When both Defendant and Norma Jean Buckley had exited the vehicle, Investigator Rutledge placed a narcotics-detecting canine into the car. The results of the dog were inconclusive.
Lt. Battaglia testified that the canine gave a "quasi-alert" in the interior of the car.
12. After exiting the dog from the car, Lt. Battaglia observed what he thought to be marijuana debris on the passenger seat and on the floor. Lt. Battaglia then entered the car and initially observed that the car did not contain a radio, that there was a hole in the dashboard where a radio would have been located, and that an interior trim piece for the dashboard, which would encompass the two center air conditioning vents, was located near the back window, despite the fact that an identical trim piece was located in the dashboard.
13. Upon further examination of the car, Lt. Battaglia found a small fine bladed screwdriver in the driver's side of the center console. Lt. Battaglia then examined the dashboard trim piece. Lt. Battaglia found that the dashboard trim piece was loose and observed that the lower left-hand corner contained a "nick," which Lt. Battaglia indicated in his experience evidenced signs of tampering. Lt. Battaglia then placed the screwdriver he had found in the center console into the lower left-hand corner of the dashboard trim piece and observed that the screwdriver fit into the "nick." Using the screwdriver, Lt. Battaglia dislodged the dashboard trim piece and found an approximately two-by-six inch "void" which contained a quantity of crack cocaine.
14. Lt. Battaglia advised Defendant of his constitutional rights and then informed Defendant that he was conducting a narcotics investigation. Defendant agreed to waive his rights and agreed to talk with Lt. Battaglia. Defendant denied staying at Norma Jean Buckley's apartment and stated that an unknown individual other than himself had had recent access to both the maroon Oldsmobile Cutlass and the apartment.
15. After placing Defendant under arrest and discovering the crack cocaine in the car, Lt. Battaglia then went to a magistrate and requested a search warrant for 3719 Charles Conrad, Apartment A, Kirby, Texas. In the affidavit accompanying the search warrant, Lt. Battaglia affirmed, "The informant stated that [Defendant] typically purchased up to eighteen ounces of cocaine and converted it to crack cocaine a few ounces at a time. He used his girlfriend's residence at 3719 Charles Conrad to cook and store his cocaine and crack cocaine. [Defendant] would then travel to the eastside of San Antonio and conduct transactions out of his car." Lt. Battaglia, by oversight according to his testimony, did not make any mention of the informant telling him that Defendant hid crack cocaine in the dashboard of the maroon Oldsmobile Cutlass.
16. After obtaining the search warrant, Lt. Battaglia executed the search warrant at 3719 Charles Conrad, Apartment A, Kirby, Texas. During execution of the search warrant, the police found an electronic scale, a bowl crusted with an off white substance later tested positive for cocaine, a large box of baking soda, and a microwave oven crusted on the interior with cocaine. In addition, a drivers' license belonging to Defendant and an American Dog Breeders application form containing Defendant's name was also found in the apartment.
17. Lt. Battaglia testified that the items found at 3719 Charles Conrad, Apartment A were items typically used in the manufacture of crack cocaine.
CONCLUSIONS OF LAW
1. Any finding of fact herein above which also constitutes a conclusion of law is adopted as a conclusion of law. Any conclusion of law herein made which also constitutes a finding of fact is hereby adopted as a finding of fact.
Search of the Automobile
2. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const., Amend. IV. "There is no question but that the stopping of a vehicle and the detention of its occupants is a 'seizure' within the meaning of the Fourth Amendment." U.S. v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993).
3. The government attempts to support the search of the maroon Oldsmobile Cutlass ("the automobile") in two ways. First, the government seeks to support the search of the automobile as a search incident to arrest. Second, the government also seeks to support the search of the automobile as based upon probable cause.
Search Incident to Arrest
4. The Court finds that the search of the "void" behind the dashboard trim piece, as described by Lt. Battaglia, was not a valid search incident to arrest. An officer making a lawful custodial arrest may search the person in custody and the "area within his immediate control" into which he might reach in order to obtain a weapon or to destroy evidence. Chimel v. California, 395 U.S. 752, 763 (1969) (quotation omitted). When the arrestee is an occupant of an automobile at the time of the arrest, the arresting officer may make a search of the passenger compartment of the automobile, including any containers therein. New York v. Belton, 453 U.S. 454, 460 n. 4 (1981).
5. The "passenger compartment" has been interpreted to mean those areas reachable without exiting the vehicle and without dismantling door panels or other parts of the car. 2 WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING, CRIMINAL PROCEDURE § 3.7(a) at 203 (2d ed. 1999); U.S. v. Barnes, 374 F.3d 601, 604 (8th Cir. 2004); U.S. v. Infante-Ruiz, 13 F.3d 498, 502 n. 1 (1st Cir. 1994).
6. The government points to U.S. v. Willis, 37 F.3d 313 (7th Cir. 1994), U.S. v. Veras, 51 F.3d 1365 (7th Cir. 1995), and Barnes as supporting Lt. Battaglia's search incident to arrest. In Willis, the Court upheld a search of a removable stereo casing. There, the officer found the radio was readily removable from the dashboard and had a removable cover. The officer did not need to use any tools to remove the radio or cover. Importantly, the Court focused solely on whether the search was contemporaneous with the arrest and whether the defendant was an occupant of the car, and not on whether the search of the radio encompassed a search of the passenger compartment or of a container. Willis, 37 F.3d at 317-18.
7. In Veras, the police discovered a covered, "secret" compartment built into the dash between the back seat and the rear window. The Court found that this compartment was part of the passenger compartment, based in part on the fact that one of the arrestees was found in the back seat and also on the fact that the police observed something being placed into the back seat. Veras, 51 F.3d at 1368, 1372. There was no indication that there was any need for the police to use any tools to open the secret compartment.
8. In Barnes, the Court upheld the search of a window well after the arresting officer felt a heavy door and shined a pen light down the window well. After examining case law, the Court noted that the "organizing principle" is that "the areas reachable by an occupant without exiting the automobile may be searched incident to arrest, but an area that is outside any occupant's reach or that could be reached only through an elaborate dismantling of the vehicle may not be searched." Barnes, 374 F.3d at 604. The Court noted that small items such as knives, syringes, razors, and small packages of drugs could be secreted in the window well and would be easily accessible to the driver. Id.
9. Willis, Veras, and Barnes are distinguishable from the instant case as the evidence found in each of those cases was readily available with little effort from the arrestee. Importantly, in each case, the police were able to open the compartment without the use of any tools. In the instant case, Lt. Battaglia testified that he used a screwdriver he found in the car to pry open the dashboard trim piece. While Lt. Battaglia testified that the dashboard trim piece was "loose," there was no indication that it could have been accessed without the use of the screwdriver.
In Barnes, the Court noted that the police officers pried the plastic and vinyl away from the interior frame of the door to gain access to the drugs, but that the record did not reflect whether any special tools were used for this. The Court hinted that use of tools to "elaborately dismantle" the door, rather than use of the officers' hands to peel away the plastic and vinyl, may have resulted in a different result. U.S. v. Barnes, 374 F.3d at 605 n. 2.
10. The Court finds that, because dismantling of a piece of the car was necessary to access the "void" behind the dashboard trim piece, the void was not a part of the passenger compartment of the automobile. Accordingly, the Court finds that the search of the void behind the dashboard trim piece was not a proper search incident to arrest. Probable Cause
As the void has been determined to not be a part of the passenger compartment, the Court rejects any argument that the void could be considered a "container" located within the passenger compartment within the meaning of Belton. New York v. Belton, 453 U.S. 454, 460 n. 4 (1981).
11. The government also asserts that, independent of the search incident to arrest argument, probable cause existed to search the dashboard for drugs, including behind the dashboard trim piece.
12. A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional. U.S. v. Roch, 5 F.3d 894, 897 (5th Cir. 1993). However, where the officer acted without a warrant, the government bears the ultimate burden of proving that the officer had probable cause. Id. "Probable cause is determined by an objective test; it cannot be established simply by showing that the police subjectively believed that probable cause existed. . . ." U.S. v. Cooper, 949 F.2d 737, 744 (5th Cir. 1991).
13. Probable cause means "a fair probability that contraband or evidence of a crime will be found." U.S. v. Sokolow, 490 U.S. 1, 7 (1989). Probable cause exists when the officer knows facts and circumstances which would be sufficient to cause an officer of reasonable caution to believe that the person about to be arrested has committed, is committing, or is about to commit a crime. U.S. v. Carrillo-Morales, 27 F.3d 1054 (5th Cir. 1994). Probable cause is measured based upon the totality of the circumstances, including the credibility of an informant's information and any corroborating information. Illinois v. Gates, 462 U.S. 213, 230-31 (1983) (discussing "reasonable suspicion"); U.S. v. Buchanan, 70 F.3d 818, 826 (5th Cir. 1996) (holding that the totality of the circumstances test applies to both reasonable suspicion analysis and probable cause analysis).
14. The government argues that Lt. Battaglia had probable cause to search the automobile, and specifically behind the dashboard trim piece. The government relies on (1) the informant's information stating that Defendant would place drugs in a natural void behind the dashboard of a maroon Oldsmobile Cutlass; (2) the informant's confirmatory identification of the automobile as the maroon Oldsmobile Cutlass in his statement; (3) Lt. Battaglia's observation of "marijuana debris" in the automobile; (4) Lt. Battaglia's observation of an identical trim piece as that located in the dashboard sitting near the back window; and (5) Lt. Battaglia's observation of the "nick" in the lower left corner of the dashboard trim piece.
15. The totality of the circumstances supports the finding that Lt. Battaglia had probable cause to search the dashboard of the automobile. Lt. Battaglia was given information by a first-time informant, much of which had been corroborated. This corroborated information included the name of Defendant, that Defendant had previously been convicted of certain crimes, and that Defendant would leave Norma Jean Buckley's apartment in the morning and drive away in a maroon Oldsmobile Cutlass. Lt. Battaglia also observed what he felt to be suspicious circumstances with regard to the dashboard trim piece, including an identical trim piece placed near the rear window and a "nick" in the lower left corner that approximately fit a screwdriver found in the center console. In addition, Lt. Battaglia also observed what he suspected to be marijuana debris in the passenger compartment. In sum, the totality of the information known and observed by Lt. Battaglia at the time he pried open the dashboard trim piece established probable cause to support his search. See U.S. v. Holloway, 962 F.2d 451, 459-60 (5th Cir. 1992) (examining totality of information available to officers, including reliability of informant, specificity of informant's information, and confirmation by officers' observations).
16. "If supported by probable cause, every part of a vehicle which may conceal the object of the search may be searched." U.S. v. Zucco, 71 F.3d 188, 191-92 (5th Cir. 1995). Here, Lt. Battaglia had probable cause to search the dashboard of the automobile. "If officers have probable cause to believe that contraband is in only one part of the car, then they are limited to that area [in their search]." U.S. v. Seals, 987 F.2d 1102, 1107 n. 8 (5th Cir. 1993) Accordingly, Lt. Battaglia was permitted to search behind the dashboard where it was suspected that drugs were located. Zucco, 71 F.3d at 190, 192 (upholding the dismantling of a wall panel after probable cause was obtained to search that area of a recreational vehicle).
Defendant makes some complaint of the use of the drug-sniffing canine inside the car prior to Lt. Battaglia's search of the passenger compartment and the dashboard. The Court has some concern over this action. A canine "sniff" of the exterior of a car does not constitute a search within the Fourth Amendment. See U.S. v. Place, 462 U.S. 696, 706-07 (1983); U.S. v. Hernandez, 976 F.2d 929, 930 (5th Cir. 1992). However, the Court has found no cases holding a canine sniff of the interior of the car, without other probable cause, would not constitute a search. In fact, the Tenth Circuit has held that a dog sniff of the inside of an automobile prior to probable cause being established, where the police left the door open and the dog jumped inside after being led near the door, constituted an unconstitutional search. U.S. v. Winningham, 140 F.3d 1328, 1331 (10th Cir. 1998). In this case, nothing was discovered through the canine sniff of the interior of the car. However, had the drugs in this case actually been discovered solely on the basis of the canine sniff, absent any other probable cause, it may be that the Court's decision would be different with regard to suppression. Similarly, had the canine alerted to an area of the interior of the car other than the dashboard, the Court's decision might be different. The prudent officer would most likely refrain from placing a drug-sniffing canine inside a car absent some other probable cause for a search, a warrant, or consent.
Search of the Apartment
17. Defendant also challenges the search of 3719 Charles Conrad, Apartment A ("the apartment"). The initial question is whether Defendant may properly challenge the search of the apartment and claim the protection of the Fourth Amendment. Defendant disputes any ownership or permanent residence at the apartment. At the suppression hearing, Defendant's counsel made a point to emphasize that none of Defendant's personal effects were found at the apartment. Defendant argues that he was, at most, an overnight guest at the apartment.
18. A defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable. Minnesota v. Carter, 525 U.S. 83, 88 (1998). The United States Supreme Court has held that overnight guests generally have a reasonable expectation of privacy in their host's home. Minnesota v. Olson, 495 U.S. 91, 96 (1990). The United States Court of Appeals for the Fifth Circuit has also held that "an expectation of privacy in the home of another" will be protected "when it is based on a visit which represents 'a longstanding social custom that serves functions recognized as valuable by society.'" U.S. v. Vega, 221 F.3d 789, 798 (5th Cir. 2000) (quoting Olson, 495 U.S. at 98). Thus, "an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not." Carter, 525 U.S. at 90.
19. In order to establish a reasonable expectation of privacy in a third-party's home in order to challenge a search, an individual must demonstrate that he is a guest on the premises for a personal occasion, rather than for strictly a commercial purpose. Carter, 525 U.S. at 90. For example, use of an apartment strictly for drug trafficking is commercial use and does not give rise to a privacy interest. Id. Use of an apartment for the purposes of staying the night is personal and does give rise to a privacy interest. Id.
20. The government has not challenged Defendant's purported status as an overnight guest. However, Defendant has offered only evidence that he did not reside at the apartment, and has failed to offer any evidence that he was an overnight guest such that he had a privacy interest. Olson, 495 U.S. at 98. Defendant points only to the information provided by the informant that Defendant was staying with Norma Jean Buckley at the apartment, the fact that Defendant was seen leaving the apartment around 10:00 in the morning on August 3, 2004, and that Defendant's driver's license and other identifying papers were found at the apartment.
21. The Court finds that Defendant has not met his requirement to establish a reasonable expectation of privacy in his apartment. Specifically, Defendant has not shown he was an overnight guest of Norma Jean Buckley in the apartment. Therefore, the Court finds that Defendant may not claim the protection of the Fourth Amendment to challenge the search of the apartment.
Norma Jean Buckley was never offered for testimony at the suppression hearing, despite the fact that the Court made clear of its concerns as to Defendant's ability to raise the issue of the search of the apartment.
Even assuming Defendant had established he was an overnight guest at the apartment, the Court would deny suppression as the search was pursuant to a search warrant properly supported by probable cause.
Conclusion
The Fourth Amendment's core function is to safeguard the privacy and security of individuals from intrusive and arbitrary invasions by governmental officials. U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975). The Fourth Amendment extends to protect the innocent and the guilty alike. The government has the burden to prove that a warrantless search was incident to arrest or supported by probable cause. In this instance, the government has failed to show that the search of the dashboard trim piece of the automobile was incident to the arrest of Defendant. However, the government has shown that the totality of circumstances known to and observed by Lt. Battaglia, including information given him by a first-time informant that Defendant would conceal cocaine behind the dashboard of the automobile, corroboration of certain other information given by the informant, observation by Lt. Battaglia of suspected marijuana debris in the passenger compartment, and observation by Lt. Battaglia of possible tampering with the dashboard trim piece, provided probable cause supporting the search of the dashboard of the automobile. While a warrant issued prior to the search or the arrest would have alleviated any concerns in this case, the Court finds that Lt. Battaglia's search was supported by probable cause and that the drugs found in the automobile may properly be used against Defendant. The Court also finds that Defendant has not met his requirement to show an expectation of privacy in the apartment and cannot claim the protection of the Fourth Amendment as to the search of the apartment.Alternatively, the Court finds that the search of the apartment was made pursuant to a warrant properly supported by probable cause. Accordingly, Defendant's motion to suppress is DENIED (docket no. 17).