Opinion
IP 93-150-CR
February 8, 1994
Entry Regarding Defendant's Motion to Suppress
The Defendant was stopped by an Indianapolis State Police Officer on October 26, 1993 at about 11:00 a.m. Approximately 370 pounds of marijuana were found in the truck. The Defendant has asked the court to suppress the marijuana as the product of an illegal search. The answer is No.
During the hearing and argument on the motion to suppress, Defendant challenged only whether valid consent to search the portion of the truck containing the marijuana was given. However, in a post-hearing brief, the Defendant also appears to challenge the validity of the initial stop of the rental truck.
After hearing the evidence (including a review of evidence presented on November 1, 1993 before Magistrate Judge Foster at a probable cause and detention hearing) and considering the arguments, the court denies the motion to suppress. This ruling is based on the following findings of fact; The legal discussion which follows indicates the reasons for the ruling.
I. Factual Background
Indiana State Trooper Dean Wildauer received a telephone call from his brother Craig (an Indianapolis Police Department officer who works part-time at a Holiday Inn motel near twenty-first and Shadeland Avenue on the northeast side of Indianapolis) at about one in the morning on October 26, 1993; Craig reported there was some suspicious activity afoot at the motel. Dean travelled there and learned that three individuals had been stopped in a blue 1984 Ford. These three, having just left the hotel after receiving a visit from a fourth individual, indicated they had just flown in from Texas and at least one of them spoke principally in Spanish. The vehicle they were driving had a false registration and eventually was towed. These individuals gave conflicting stories about what they were doing in the Indianapolis area. Several officers then on the scene visited the motel room of two of the three individuals then under suspicion. During the course of that visit, the officers conducted a consensual search of the motel room, which turned-up a handwritten note of a telephone number of another motel located on the south side of Indianapolis and a room number (room 125). This note was suspicious because the individuals had indicated they knew no one in the Indianapolis area nor did they have friends or acquaintances staying at other Indianapolis area motels. The curiosity of the police grew, so they travelled to the south side motel and learned that the Defendant, Robert L. Butkiewicz, was registered in room 125. Wildauer and others began surveilling the Defendant's room. Later that morning, the Defendant walked out of his room and entered a large Ryder rental truck; a number of officers began to "tail" the Defendant when he left the motel parking lot. The Defendant undertook a rather circuitous route, at times causing the police following him to think that they had been spotted and that he was trying to lose them. They later learned that the Defendant was merely lost and not sure about how to get where he was going. Wherever his destination was, he never got there (or at least he hasn't yet) because of what happened at approximately 10:55 a.m. The Defendant was travelling south east on I-74 in Shelby county when another Indiana State Trooper, Terry Della Rosa, who was part of the surveillance team and driving a marked Indiana State Police vehicle, began following the Defendant's truck. After about a mile, Della Rosa observed Defendant weaving within his lane of traffic, and on several occasion, the Defendant's vehicle went onto the berm of the road briefly. Della Rosa turned on his warning lights and signalled for the Defendant to pull over. The Defendant promptly complied.
Wildauer was behind Della Rosa in another marked State Police vehicle. Della Rosa approached the truck from the passenger side, as is his habit, for safety reasons (so passing traffic doesn't hit him), and knocked on the passenger side window. The Defendant opened the door of the cab, at which time Della Rosa advised Defendant he was being stopped because the truck had been weaving. Della Rosa, Wildauer and the Defendant were then at the site of the stopped truck. During the course of the stop, the Defendant told the troopers that he was transporting some furniture from Texas and passing through town on way to his destination. Della Rosa wrote out a warning ticket for the weaving in traffic, gave the ticket, as well as Defendant's drivers license, to the Defendant, and started to return to his own car in preparation to leave the scene. Defendant was told he was free to leave. As the Defendant was walking back to the cab of the truck, Della Rosa asked him if he would mind talking to them, to which the Defendant responded that he did not. Della Rosa asked a brief series of questions about the Defendant's travel plans. He also asked the Defendant whether he was hauling drugs or large sums of currency, which the Defendant denied. According to Wildauer, the Defendant then volunteered that the trooper could check if they wanted. When asked about drugs, the officers observed Defendant becoming visibly nervous, his hands shaking, eyes darting, and some perspiration. One of the officers asked if the Defendant would mind if they search the truck for drugs, guns or other contraband, advising Defendant that he did not have to give his consent. The Defendant consented and even opened the back of the truck for the officers.
Inside the truck the officers first noted it was nearly full of new furniture loaded in a haphazard fashion so that the furniture was being scratched and jostled about. Wildauer recalled training that he had received in drug investigations which indicated that such loads are sometimes used as a decoy for concealing the true purpose of a trip — the hauling of illegal drugs. Wildauer climbed onto the furniture and went all the way to the front of truck. The Defendant remained outside the back of the truck talking with Della Rosa about general matters (such as the weather, jobs and other innocuous subjects). The Defendant could, and did, observe Wildauer's movements, on several occasions during the search. At no time did the Defendant protest about where Wildauer was going during the search nor ask the search to be stopped, suspended or limited. While both officers wore civilian clothes, they had plainly identified themselves as police officers; at no time during their encounter with the Defendant did the officers have to show or use any force. After about five minutes, Wildauer located a rather sizable stash of marijuana.
II. Discussion
Defendant offers a number of arguments challenging the search at various points of incipiency, beginning with the propriety of the stop of his vehicle and continuing to various aspects questioning the consensual nature of the search itself.
A. Legality of Initial Stop
In deciding these questions, of first importance is the notion that "the Fourth Amendment is no bar to the police `stopping and questioning motorists when they witness or suspect a violation of traffic laws, even if the offense is a minor one,'" United States v. Tipton, 3 F.3d 1119, 1122 (7th Cir. 1993) (quoting United States v. Mitchell, 951 F.2d 1291, 1295 (D.C. Cir. 1991), cert. denied, 112 S.Ct. 1976 (1992)), so long as the officer has reasonable cause to believe the law has been violated. United States v. Powell, 929 F.2d 1190, 1194 (7th Cir.), cert. denied, 112 S.Ct. 584 (1991); United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989). Such a stop is reasonable, due to the minimal intrusion into the privacy of the stopped driver, and avoids the Fourth Amendments proscription of unreasonable searches and seizures. See, e.g., United States v. Lewis, 910 F.2d 1367, 1370 (7th Cir. 1990). The police officer testified that after following the Defendant for approximately one mile, he observed Defendant's vehicle swerving back and forth in its lane as well as driving onto the berm of the road. Only upon noticing this conduct did the officer stop the Defendant, because, as the Government now asserts, the Defendant's acts were contrary to Indiana motor vehicle law:
A person may not . . . change from one (1) traffic lane to another . . . unless the movement can be made with reasonable safety. Before making a movement described in this section a person shall . . . give an appropriate stop or turn signal in the manner provided . . . if any other vehicle may be affected by the movement.
Ind. Code § 9-21-8-24 (Burns 1991). According to the Government, Defendant's conduct immediately preceding the stop constituted a violation of this statute because the movement from the lane into the berm could not be made with reasonable safety and Defendant failed to give the appropriate turn signal when another vehicle could be affected by the movement — that is the officer's vehicle which was following closely behind the Defendant. Fortunately this court need not delve deeply into the niceties of the Indiana motor vehicle code to decide simply whether the officer had reasonable suspicion to stop Defendant's vehicle; for "a traffic detention will certainly be justified if probable cause for the seizure does in fact exist, whether or not a traffic court does or would find the person guilty of the alleged infraction." Lewis, 910 F.2d at 1370 (quoting United States v. Neu, 879 F.2d 805, 808 (10th Cir. 1989)). For the purposes of this suppression motion, it is sufficient to conclude that the police officer was "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant," Terry v. Ohio, 392 U.S. 1, 21 (1968), stopping Defendant's vehicle for a violation of the motor vehicle laws. See, e.g., Tipton, 3 F.3d at 1122 (observing absence of license plates on auto justified police stop); cf. Powell, 929 F.2d at 1194 (invalidating search following stop when auto driver's conduct not violation of motor vehicle code).
Notwithstanding the validity of the stop, Defendant seemingly attempts to frame the officer's purported basis for stopping his vehicle as a mere pretext for their general desire to search the truck; from Defendant's view, the real event which incited the officer to stop his vehicle was Defendant's possible connection with the individuals arrested earlier that morning at another hotel. Assuming, for the moment, that Defendant's belief is true it is of no consequence because "so long as the police are doing no more than they are legally permitted and objectively authorized to do, an arrest [or stop] is constitutional." United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989). Trigg specifically rejected an evaluation of the subjective motive a police officer may have in stopping a vehicle. Instead, the appropriated inquiry is two-fold: (1) did the officer have reasonable suspicion to make the stop, and (2) was the officer authorized under state law to effect the stop or arrest in question. Id. at 1041; United States v. Fiala, 929 F.2d 285, 287 (7th Cir. 1991). Having already decided that the officers had reasonable suspicion to stop Defendant's vehicle, and recognizing an Indiana State Police Officer's duty and authority to enforce "the laws of Indiana for the regulation and use of vehicles," Ind. Code. 10-1-1-10 (Burns 1992), no great leap is necessary to conclude that any pretextual argument Defendant may offer fails in light of the Trigg test. Defendant was thus lawfully stopped in the first instance, and all that remains is to evaluate the story from that point forward.
B. Legality of Search
Well recognized is the notion that the Fourth Amendment guarantees everyone certain protection from unwarranted government intrusion into individual privacy. Equally well recognized is the ability each of us have to capitulate that protection, authorizing the state to enter the otherwise protected sphere of individual autonomy, upon knowing and voluntary acquiescence to the intrusion. These ideas are the cornerstone of an often-raised exception to the warrant requirement of the Fourth Amendment. Presumptively, under that amendment, all searches of a person without a search warrant are unreasonable, and therefore unconstitutional. Katz v. United States, 389 U.S. 347, 357 (1967). Certain exceptions have been carved from this rather absolute-sounding rule, the existence of which allows the government to search a person or seize his things without a search warrant in certain well-defined and circumscribed instances. One such exception, alluded to above, is when one consents to the search; this is the Government's justification for searching the Defendant's vehicle in this case without a search warrant. See Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). By choosing this argument to justify the search of Defendant's vehicle, the Government shoulders the burden of proving consent was "freely and voluntarily given." Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1972) (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). At the suppression hearing the Government presented persuasive and credible evidence indicating the police officer's request, in non-threatening terms after informing Defendant he was free to leave, that the Defendant allow both of them to search his truck and the Defendant's assent to this request. In fact, the evidence indicates Defendant offered, in the first instance, to allow the officers to search his vehicle even before being asked. But the officers did ask for permission to search the vehicle, and even went so far as to explain to Defendant they were looking for drugs, guns or other contraband; more importantly, they volunteered to Defendant that he did not have to consent to their search. And, nothing suggests that Defendant is anything but a twenty-four year old man of average intelligence, not easily susceptible to being overborne by the police. Defendant opened the door of his truck for the officers. Based on the "totality of all the circumstances" as shown by this evidence, and as an initial matter, Defendant's consent appears quite voluntary. See id. at 227 (noting that whether consent is freely given is a question of fact which depends on totality of all the circumstances).
But Defendant does not agree that he voluntarily consented to the search for a number of reasons. First, he argues the officers had placed him "in custody" when they asked for his consent — a circumstance which he argues vitiates the voluntary nature of the consent. Unfortunately this argument lacks a factual or legal basis, for even assuming that being in custody (or rather "seized") by law enforcement officers affects the voluntariness of consent, the evidence does not support the conclusion that a seizure occurred during Defendant's encounter with the officers. A person is "seized" for purposes of the Fourth Amendment "only if, in view of all the circumstances surrounding the incident, a reasonable person would believed he was not free to leave." United States v. Withers, 972 F.2d 837, 841 (7th Cir. 1992) (quoting United States v. Teslim, 869 F.2d 316, 321 (7th Cir. 1989)). If a reasonable person in the Defendant's circumstances would have felt free to disregard the police and go about his business, the encounter is consensual and no seizure occurred. United States v. Adebayo, 985 F.2d 1333, 1338 (7th Cir.), cert. denied, 113 S.Ct. 2947 (1993). Here, upon giving Defendant his warning ticket for a traffic violation, the officer informed Defendant he was free to leave and, indeed, the officer himself headed back to his own car. Part way there the officer turned to ask Defendant if he would mind answering a few questions, proceeded to ask the questions, and ultimately asked permission to search Defendant's vehicle. Under these circumstances the court must conclude any reasonable person would have felt free to leave; the officer had in fact told Defendant he could leave, and only then asked him, not ordered him, to answer some questions. Concluding Defendant was not seized for Fourth Amendment purposes concludes also Defendant was not in custody, causing his argument that being in custody vitiated the voluntariness of his consent to evaporate quite quickly.
Moreover, this determination likewise disposes of Defendant's contention regarding the lack of advice of his rights ("Miranda" warnings) or notice that he could refuse to consent to the search of his vehicle having any effect on the voluntary nature of his consent. Advice of rights, referred to as "Miranda" warnings in honor of the seminal case in that area, is only required before custodial interrogation.
Miranda v. Arizona, 384 U.S. 436, 444 (1966). Not being in custody, nor being interrogated, Defendant need not be apprised of any such rights. Id.; see also United States v. Hocking, 860 F.2d 769 (7th Cir. 1988 (questioning defendant while not in custody did not require Miranda warnings to validate confession); United States v. De Robertis, 771 F.2d 1015 (7th Cir. 1985) (questioning not amounting to "interrogation" did not require Miranda warnings to validate confession). Additionally, in asking consent to search you or your possessions, the police have no obligation to inform you of your right to refuse to acquiesce to their request. Schneckloth, 412 U.S. at 218 ("[I]t would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning.").
But, here the officers did volunteer this bit of information to Defendant; and their testimony to this fact is quite credible. Thus, these additional arguments hold no water.
Lastly, Defendant, backpeddling slightly, argues that even if he initially consented to the search, his was a limited consent which the officers exceeded in conducting the search. "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of `objective' reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect." Florida v. Jimeno, 111 S.Ct. 1801, 1803-4. In other words, what was the "expressed object" of the search? Id. at 1804. The officers explained they desired to search Defendants "truck" for guns, drugs and other contraband. So, not only was Defendant apprised of the goal of the search — location of contraband — but was clearly told of the object of the search — the truck.
Defendant's attempt now to qualify his earlier express consent as having not been intended to include the entire cargo compartment of the vehicle is unavailing; Defendant went so far as to open the door to the cargo compartment, allowing the officers to enter the vehicle. Moreover, Defendant observed, on several momentary occasions, the officer crawling to the back of the vehicle but yet did not protest the officer had gone to far. By consenting to the search of his "vehicle," little objective quibbling can be made over the intended, and understood, scope of the search. The officers did not exceed the objective limits of Defendant's consent.
III. Conclusion
Defendant was legitimately and constitutionally stopped for apparently violating a motor vehicle law while operating his truck. And, Defendant knew exactly what he was doing when he consented to the search of his vehicle. Probably hoping to assuage the officer's interest in his cargo by seemingly having nothing to hide, Defendant authorized the search of his vehicle well aware of the consequences of his actions. For the reasons stated, Defendant's Motion to Suppress is hereby DENIED.
ALL OF WHICH IS ORDERED this 8th day of February 1994.