Opinion
Case No. 2:04-CR-256-TC.
August 25, 2004
ORDER
Defendant Ivan Calderon has been indicted on a charge of possession with intent to distribute 500 grams or more of methamphetamine. Mr. Calderon filed a motion to suppress evidence obtained during a March 2, 2004 search of an employee locker at the Krispy Kreme donut store in Orem, Utah, by a Krispy Kreme manager in the presence of a law enforcement officer. He contends that the search was conducted without a warrant in violation of his Fourth Amendment right to be free from unreasonable searches. For the reasons set forth below, Mr. Calderon's Motion to Suppress is DENIED.
In the same motion, Mr. Calderon also moved to suppress all statements and derivative evidence resulting from a December 20, 2003 interrogation in the Utah County jail that he asserts was conducted in violation of his Miranda rights. At the July 16, 2004 evidentiary hearing on Mr. Calderon's Motion to Suppress, the United States represented that it did not have any present intention of introducing any of the allegedly incriminating statements at trial. (See Transcript of July 16, 2004 Evidentiary Hearing at 4-6.) Accordingly, that issue raised in Mr. Calderon's Motion to Suppress is moot and will not be addressed by the court.
FINDINGS OF FACT
In the summer of 2003, Special Agent Kent Kleinschmidt of the Drug Enforcement Administration began investigating allegations of methamphetamine distribution by the defendant, Ivan Calderon. (July 16, 2004 Evidentiary Hearing Transcript (hereinafter "Tr.") at 7.) Agent Kleinschmidt received information that Mr. Calderon distributed methamphetamine in ounce quantities and routinely possessed pound quantities of methamphetamine. (Tr. at 8.) The investigation resulted in the execution of a search warrant at Mr. Calderon's residence on December 20, 2003. (Tr. at 7.) During the December 20, 2003 search, officers seized approximately five and a half ounces of methamphetamine. (Tr. at 8-9.)The officers arrested Mr. Calderon that day. (Tr. at 7-8.) The State of Utah prosecuted him for drug distribution and he eventually pled guilty. (Tr. at 7.) Mr. Calderon was sentenced to six months in the Utah County Jail. He was to be deported after serving his sentence and precluded from reentering the United States. (Tr. at 8.)
On Friday, February 27, 2004, Agent Kleinschmidt received a telephone call from a confidential informant who said that Ivan Calderon's locker at the Krispy Kreme donut store in Orem, Utah, contained approximately three pounds of methamphetamine. (Tr. at 9-10.) At that time, Mr. Calderon had been confined in the Utah County Jail for over two months. (Id.)
The confidential informant, who had been released recently from custody at the jail, told Agent Kleinschmidt that he met Mr. Calderon while they were housed together at the jail. (Tr. at 10-11.) The informant said that Mr. Calderon offered him the drugs in the locker if the informant agreed to pay Mr. Calderon $10,000 per pound when Mr. Calderon returned to the United States after his deportation. (Tr. at 11.) According to the informant, Mr. Calderon had a friend named Hector, another employee of the store, who could help the informant gain access to the locker. (Tr. at 24-25.)
Agent Kleinschmidt had worked on five to ten cases with this particular informant before, and he knew the informant was credible. (Tr. at 9, 35.) Information provided by the informant in those previous cases led to arrests and drug seizures. (Tr. at 9-10.)
Moreover, Agent Kleinschmidt corroborated substantive details of the informant's information. For instance, based on his Summer 2003 investigation of Mr. Calderon, Agent Kleinschmidt independently knew that Mr. Calderon distributed methamphetamine and had access to pound quantities. (Tr. at 7, 11.) Agent Kleinschmidt independently knew that Mr. Calderon had worked at the Krispy Kreme donut store in Orem, Utah. (Tr. at 9, 11-12.) Additionally, Agent Kleinschmidt confirmed that Mr. Calderon and the informant had been incarcerated together in the Sundance One housing unit at Utah County Jail for approximately three weeks. (Tr. at 12.) He confirmed that a person named Hector Sisneros, a friend of Mr. Calderon, worked at the Krispy Kreme store. (Tr. at 35-36.) Finally, Agent Kleinschmidt confirmed that employee lockers existed at the Orem, Utah Krispy Kreme store. (Tr. at 13.)
Acting on the information from the informant, Agent Kleinschmidt and two detectives from the Utah County Major Crimes Task Force, Brian Wolken and Lane Kritzer, went to the Krispy Kreme store on the evening of Friday, February 27, 2004. (Tr. at 12-13.) They spoke with a manager named Aaron and told Aaron that illegal drugs might be in one of the employee lockers used by Ivan Calderon. (Id.) The manager confirmed that Ivan Calderon had been an employee of the store. (Tr. at 14.)
According to the United States, the transcript mistakenly refers to the detective as Brian Wilkin. (See United States' Mem. in Opp'n to Mot. to Suppress Evidence at 3 n. 1.)
Agent Kleinschmidt asked the manager whether the store had employee lockers and, if so, whether he could see them. (Id.) The manager confirmed the existence of the employee lockers and allowed Agent Kleinschmidt to look at them. (Id.) There were five lockers, all of which had locks on them (apparently the locks were of different varieties and were not supplied by Krispy Kreme). (Tr. at 20-21.) Employee lockers at the Krispy Kreme store are not assigned to individuals. (Tr. at 44.) Although there are not enough lockers for every employee, any employee can use a locker to store personal belongings. (Tr. at 44, 48.) Krispy Kreme asked its employees to clean out the lockers on a regular basis. (Tr. at 45.) It is the responsibility of a terminated employee to collect his or her belongings from a locker. (Id.) Former employees are not allowed access to non-public areas of the store. (Id.)
Agent Kleinschmidt wanted to identify the specific locker containing the drugs so that he could apply for a warrant to search that locker. (Tr. at 13-14.) To that end, he asked the manager for permission to allow a trained dog to sniff the exterior of the lockers for the scent of drugs, and the manager agreed. (Tr. at 13.) A drug sniffing dog was brought in, but the dog did not indicate the presence of drugs in any of the lockers. (Tr. at 16.) Agent Kleinschmidt also wanted to swab the locks and analyze the swabs with an ion scanner to determine whether illegal substances were present on any of the lockers. (Id.)
Before the agents could conduct the ion swab test, Wayne Johansson, the area manager for Krispy Kreme, called the store and spoke to the store manager. (Tr. at 15, 58.) Mr. Johansson then spoke to Agent Kleinschmidt on the phone. (Tr. at 15, 39.) Mr. Johansson was upset that the agents had not contacted him before going to the store. (Tr. at 15.) Mr. Johansson told Agent Kleinschmidt that the officers were not allowed to search the lockers without a warrant. (Tr. at 15, 39.) Agent Kleinschmidt explained that he was trying to identify which locker contained the methamphetamine so that he could apply for a warrant. (Id.) Still, Mr. Johansson asked the agents to leave while he consulted with his corporate legal department, and the agents left. (Tr. at 16, 39.)
Because the dog sniff revealed nothing and because the agents left the store before taking and testing an ion swab, Agent Kleinschmidt planned to have the informant visit Mr. Calderon in jail to get Mr. Calderon to identify the specific locker at issue. (Tr. at 17, 37.) Nevertheless, based on the information he had at that time, Agent Kleinschmidt believed he had sufficient probable cause to seek a warrant. (Tr. at 36.)
On Monday, March 1, 2004, Mr. Johansson called Agent Kleinschmidt and said that the Krispy Kreme legal department told him to assist law enforcement. (Tr. at 15.) Agent Kleinschmidt explained that he could not ask Mr. Johansson to clean out the lockers, because Mr. Johansson would then become an agent of the government. (Tr. at 33, 43.) Mr. Johansson replied that management had discussed cleaning out the lockers before the agents ever visited the store. (Tr. at 17.) Nothing further happened that day with respect to a search of the lockers.
During the evening of Tuesday, March 2, 2004, a stranger appeared in the Krispy Kreme store and asked the store's manager to retrieve the contents of Mr. Calderon's locker. (Tr. at 18, 40.) After the store manager refused the request, the stranger said "Well, if you don't do it, I'll come back and do it." (Id.) Feeling threatened, the store manager called the local police and then called Agent Kleinschmidt at about 10:40 p.m. (Tr. at 18.) Agent Kleinschmidt in turn called Detective Wolken and requested that he respond to the Krispy Kreme store. (Id.)
That night, Mr. Johansson also learned about the stranger's visit to the store. Based on the perceived threat to Krispy Kreme employees, Mr. Johansson decided to open the employee lockers, retrieve the contents, and remove any contraband from the store. (Tr. at 40-42, 53-54.) Consequently, Mr. Johansson went to the store to open the lockers. (Tr. at 43.)
Feeling there was a threat to Krispy Kreme employees and fearing the stranger might return, he wanted the police present during the search. (Tr. at 42.) Moreover, Mr. Johansson decided that if he found anything illegal he would turn it over to the police. (Id.) Therefore, he invited the police to be present when he opened the lockers. (Id.)
Initially, he tried to use bolt cutters that were too small to handle the job. (Tr. at 56.) He then borrowed larger bolt cutters from a police officer who was watching the search. (Tr. at 37-38, 52.) Using the larger bolt cutters, he successfully cut the locks off the lockers. (Tr. at 56.) After cutting and removing the lock on what was apparently Mr. Calderon's locker, Mr. Johansson opened the locker and retrieved the locker's contents. (Tr. at 43, 57-58.) Apparently he found the methamphetamine and handed it over to the police.
At the time the lockers were opened, Mr. Calderon was not an employee of Krispy Kreme. (Tr. at 36.) He had been absent without leave for over two months, and the store had no idea where he was. (Tr. at 43, 60.) For that reason, he had been terminated as a Krispy Kreme employee in early January 2004, and he was no longer on the company's payroll. (Tr. at 36, 43.)
Between December 20, 2003 (when Mr. Calderon was arrested and placed in custody), and March 2, 2004 (when the locker search occurred), neither Mr. Calderon nor anyone on his behalf sought to collect any personal belongings from an employee locker at the store, nor did Mr. Calderon seek permission to leave any property in a Krispy Kreme locker. (Tr. at 45-46.)
CONCLUSIONS OF LAW
Three issues need to be addressed. First, was the search of the locker a private, rather than a government, search? Second, if the search was a public (i.e., government) search implicating the Fourth Amendment, did Mr. Calderon abandon the property in the locker (i.e., does Mr. Calderon have standing to challenge the search)? And third, if Mr. Calderon has standing, would the evidence have been inevitably discovered by the police by lawful means?1. Was the locker search a private search outside the scope of the Fourth Amendment?
A search or seizure by a private party, no matter how unreasonable, does not violate the Fourth Amendment. United States v. Jacobsen, 466 U.S. 109, 113 (1984). However, a private search may implicate the Fourth Amendment if the private party acts as an instrument or agent of the government. Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971).
The search may become a government search "if the government coerces, dominates, or directs the actions of a private person" who conducted the search. Pleasant v. Lovell, 876 F.2d 787, 796 (10th Cir. 1989). Courts decide whether the Fourth Amendment applies to a private search "after considering all the facts and circumstances of the case." Id.
In Pleasant v. Lovell, the Tenth Circuit held that "[i]n deciding whether a private person has become an instrument or agent of the government, two important inquiries are: `1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.'" Id. at 797 (internal citation omitted); see also United States v. Smythe, 84 F.3d 1240, 1242 (10th Cir. 1996). Both prongs of the test must be satisfied before the search may be deemed a government search. United States v. Souza, 223 F.3d 1197, 1201 (10th Cir. 2000).
The first prong of the Pleasant test — government knowledge and acquiescence — requires more than mere government awareness of the search before a private search will be covered by the Fourth Amendment. "[K]nowledge and acquiescence, as those terms are used in Pleasant and the cases cited therein, encompass the requirement that the government agent must also affirmatively encourage, initiate or instigate the private action." Smythe, 84 F.3d at 1243.
The second prong of the Pleasant test, as interpreted by the Tenth Circuit, is very similar to the first prong. In United States v. Leffall, 82 F.3d 343 (10th Cir. 1996), the Tenth Circuit explained:
We believe our earlier statement of the [Pleasant] test's second prong . . . does not mean that the court simply evaluates the private person's state of mind — whether his motive to aid law enforcement preponderates. Almost always a private individual making a search will be pursuing his own ends. . . . We hold this part of the test also requires that the court weigh the government's role in the search. A government agent must be involved either directly as a participant — not merely as a witness — or indirectly as an encourager of the private person's search before we will deem the person to be an instrument of the government.82 F.3d at 347 (emphasis added).
In this case, the government had more than a passive role in the search. However, the question of whether the government's role was too minimal to implicate the Fourth Amendment is a close one.
Agent Kleinschmidt alerted Mr. Johansson that illegal drugs might be stored in one of the employee lockers. The government emphasizes in its brief that Mr. Johansson told Agent Kleinschmidt that he and others had considered cleaning out the lockers before the agents ever alerted Krispy Kreme to the possible presence of contraband in the lockers. But, upon further inquiry by defense counsel, it became clear that Mr. Johansson could not recall when he had discussed the possibility or with whom. It appears that the search was conducted in response to events arising after the agents first visited the Krispy Kreme store, not pursuant to some vague and unrelated "plan" to clean out the lockers.
Mr. Johansson clearly intended to assist the government when he opened the lockers. He invited the police to be present during the search so he could give them the illegal drugs, and he specifically told Agent Kleinschmidt that he had been instructed by the Krispy Kreme corporate legal department to assist law enforcement. Still, Mr. Johansson's motive to assist law enforcement is not a dispositive factor. See, e.g., Leffall, 82 F.3d at 348 (citing with approval United States v. Andrews, 618 F.2d 646, 650 (10th Cir. 1980), where court refused to apply Fourth Amendment to search by airline freight inspector whose action was "prompted solely by his desire to assist law enforcement"). But he also apparently had an independent motivation to open the lockers. He did not want contraband in the store, and he was concerned about the employees' safety — that is, he was concerned that the threatening stranger would return and use force to get the contents of Mr. Calderon's locker.
There is no question that the government knew of and acquiesced in the search. At least one police officer was present during the search and observed the events. The officer was more than a witness. The officer aided in the search by volunteering and providing larger bolt cutters after noticing that Mr. Johansson's smaller bolt cutters were not sufficient to cut the locks. See United States v. Souza, 223 F.3d 1197, 1202 (10th Cir. 2000) (finding "damning" the fact that when employee of private shipping company had difficulty opening the suspected package, the DEA agents assisted by taking the package from her and using a knife to cut through the hardened packing foam).
Absent use of the large bolt cutters provided by the police officer, Mr. Johansson would not have been able to open the lockers. Arguably, the officer encouraged and participated in the search. Accordingly, given all the facts and circumstances, and erring on the side of caution, the court finds that the search implicated the Fourth Amendment. But that does not end the analysis.
2. Did Mr. Calderon abandon the property in the locker?
Warrantless searches and seizures of abandoned property do not violate the Fourth Amendment. Abel v. United States, 362 U.S. 217, 241 (1960). "Abandonment is akin to the issue of standing because a defendant lacks standing to complain of an illegal search or seizure of property which has been abandoned." United States v. Garzon, 119 F.3d 1446, 1449 (10th Cir. 1997). According to the Tenth Circuit, the test for abandonment is "whether an individual has retained any reasonable expectation of privacy in the object." Id. This test has both an objective and a subjective component. Id. The court finds that even if Mr. Calderon had a subjective expectation of privacy in the locker (which he arguably did if the confidential informant is to be believed), Mr. Calderon did not have an objectively reasonable expectation of privacy in the locker and its contents at the time the search occurred.
On the day the locker was searched (March 2, 2004), Mr. Calderon had been in jail for seventy-three days (he was booked into Utah County Jail on December 20, 2003). Krispy Kreme had no idea where Mr. Calderon had gone, and the company terminated Mr. Calderon's employee status in early January 2004. According to Mr. Johansson, it is the responsibility of the terminated employee to clean out the contents of his locker when he is no longer employed by Krispy Kreme. At the same time, former employees are not given access to the non-public areas of the store. As far as Krispy Kreme was concerned, Mr. Calderon took no action to retrieve his property from the locker (nor did anyone do so on his behalf) during the time he was absent from the store. Moreover, Mr. Calderon did not ask for permission to store his property in the locker until he could retrieve it. Finally, Mr. Calderon was scheduled to be deported when he finished serving his sentence. From an objective point of view, Mr. Calderon no longer had any apparent connection or right of access to the locker and its contents.
The court concludes that at the time the search was conducted Mr. Calderon had abandoned his interest in the locker and its contents. Accordingly, Mr. Calderon does not have standing to challenge the search.
3. Would the evidence inevitably have been discovered by the police by lawful means?
Even assuming Mr. Calderon has standing, the court finds that the inevitable discovery rule applies to this situation so that suppression of the evidence would be improper.
"Although a search may violate the Fourth Amendment, the exclusionary rule is inapplicable if the evidence inevitably would have been discovered by lawful means." Souza, 223 F.3d at 1202-03 (citing Nix v. Williams, 467 U.S. 431, 444 (1984)). There must be a showing of probable cause as well as evidence that the police had taken affirmative steps to obtain a search warrant that would have revealed the evidence. Id. at 1204 ("`[W]hat makes a discovery `inevitable' is not probable cause alone . . . but probable cause plus a chain of events that would have led to a warrant (or another justification) independent of the search.'"). "The key issue in these cases, one of probability, is how likely it is that a warrant would have been issued and that the evidence would have been found pursuant to the warrant." Id. at 1204. The government bears the burden of proof by a preponderance of the evidence. Id. at 1203.
In Souza, the Tenth Circuit cited the Second Circuit's decision in United States v. Cabassa, 62 F.3d 470 (2d Cir. 1995), which describes four factors useful in this determination: "1) `the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search,' [Cabassa, 62 F.3d] at 473; 2) the strength of the showing of probable cause at the time the search occurred, see id. at 473-74; 3) whether a warrant ultimately was obtained, albeit after the illegal entry, see id. at 473; and 4) `evidence that law enforcement agents `jumped the gun' because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli,' id. at 473 n. 2." Souza, 223 F.3d at 1204.
In this case, although a warrant was never actually obtained, Agent Kleinschmidt had taken meaningful steps towards obtaining a search warrant by the time the search took place. He visited the store with the purpose of obtaining evidence for a warrant. He confirmed the existence of employee lockers, that Mr. Calderon had been an employee at the store, and the existence of Hector Sisneros. He attempted to locate the specific locker by use of a trained drug-sniffing dog and an ion swab test, and he planned to have the confidential informant meet again with Mr. Calderon to identify the exact locker.
He also had credible information from an informant with a proven history of reliability. Statements of a confidential informant can support probable cause by themselves if the totality of the circumstances provides sufficient indicia of reliability. United States v. Goodson, 165 F.3d 610, 614 (8th Cir. 1998). The informant in this case had a strong basis for his knowledge — the information came directly from Mr. Calderon. Likewise, the informant's track record was very good. He had worked with Agent Kleinschmidt on several other occasions and had always provided reliable information. There is no evidence in the record that he had any incentive to lie or that he expected compensation for the information. Further, the informant's information was corroborated. Agent Kleinschmidt knew independently from his previous investigation of Mr. Calderon that Mr. Calderon was a methamphetamine distributor who had access to pound quantities such as the informant described. Agent Kleinschmidt also verified Mr. Calderon's previous employment at the Krispy Kreme Orem store, the existence of the employee lockers, Mr. Calderon's connection to Krispy Kreme employee Hector, and the fact that the informant had been incarcerated with Mr. Calderon.
Also, Agent Kleinschmidt was in the process of getting more information from Mr. Calderon via the informant regarding a more specific description of Mr. Calderon's locker. And the agent had credible information from a Krispy Kreme employee and Mr. Johansson that a stranger had threatened to come and take the contents of Mr. Calderon's locker by force.
The court finds that the government has proven by a preponderance of the evidence that if the information available to Agent Kleinschmidt had been presented to a judge in an affidavit in support of a warrant application, Agent Kleinschmidt would very likely have received a search warrant. Accordingly, the evidence seized during the locker search inevitably would have been discovered pursuant to a search warrant.
ORDER
For the foregoing reasons, Defendant Ivan Calderon's Motion to Suppress is DENIED.