Opinion
No. 8:01CR237
January 15, 2002
REPORT AND RECOMMENDATION
This matter is before the court on the motion of defendant Sarah Fink (Fink) to suppress evidence seized while Fink was a passenger in a minivan on September 6, 2001, and to suppress statements Fink provided to law enforcement officers on the same day (Filing No. 28). Fink is charged with codefendants Guy LaFrance (LaFrance) and Carin Drew (Drew) in the Indictment with a conspiracy to commit bank fraud, traffic in and use counterfeit access devices, and obtain money with the use of counterfeit access devices (Count 1) and bank fraud (Count 2) in violation of 18 U.S.C. § 371, 1029(a)(1), 1029(a)(2), and 1344.
The court held an evidentiary hearing on the motion to suppress on October 31, 2001. At the hearing, the court heard the testimony of Officer Jeffrey D. Shada (Officer Shada) and Sergeant Douglas P. Cook (Sergeant Cook) of the Omaha Police Department (OPD), Investigator James Krans (Investigator Krans) of the Nebraska State Patrol (NSP), and Special Agent David Kennedy (Agent Kennedy) of the U.S. Secret Service (U.S.S.S.). The court received into evidence the following exhibits: Exhibits 1 — OPD Rights Advisory Form; Exhibits 2 and 3 — Affidavit And Application For Issuance of A Search Warrant and Search Warrant; and Exhibit 101 — OPD Supplementary Report. A transcript (TR.) was prepared and filed in this matter on November 9, 2001 (Filing No. 37).
FINDINGS OF FACT
In September 2001, Officer Shada was a police officer assigned to the checks and fraud division of OPD (TR. 13). When Officer Shada arrived at work in the afternoon of September 5, 2001, he was informed by his sergeant, Sergeant Cook, that Drew had been arrested at the Wells Fargo Bank on South 24th Street in Omaha, Nebraska, in connection with a check forgery scheme (TR. 13). After the interview, Drew admitted her involvement in the scheme and told officers there were two other subjects, a male and a female, in Omaha also involved in the scheme (TR. 14; 17). Drew informed the officers that the three subjects had arrived in Omaha the night before her arrest (TR. 15). All three subjects met at the airport in the late evening of September 4, 2001, and were planning to stay in Omaha for approximately four days (TR. 15). Drew told the officers that her male cohort was using the name of Omari Wright and had rented a van in Omaha (TR. 15). Officer Shada went to the airport shortly before 3 p.m. and attempted to locate the van or witnesses to the vehicle rental with no success (TR. 16). Officer Shada requested airport security to keep a lookout for a person named Omari Wright or the van and to detain either if observed (TR. 16).
On September 6, 2001, LaFrance, using the name of Omari Wright, was detained by Investigator Krans after LaFrance left the America West Airlines counter (TR. 59). LaFrance had no luggage and a pat-down search by Sergeant Cook revealed no vehicle keys (TR. 59). When LaFrance checked in for the flight, he had no luggage, no carry-ons, no checked luggage, wore suit pants and tie but no jacket, and was walking towards the quick park garage directly across from the terminal when Investigator Krans stopped LaFrance (TR. 59). Investigator Krans deduced LaFrance was walking towards a vehicle in the quick park area (TR. 59). OPD Officer Gustafson, who was helping in the investigation, informed Investigator Krans that Officer Gustafson believed, based on information from hotel registration, that the vehicle being used in the scheme was rented from the airport and had a six-digit license plate (TR. 60). Investigator Krans requested airport security to make a quick walk through of the quick park and see if there was a vehicle with a six-digit license plate on it (TR. 65-66). Shortly thereafter, airport security informed Investigator Krans they could not locate a vehicle that matched the description given; however, there was a white van in quick park across from door three of the airport with a female sitting in the passenger side of the van with no license plates (TR. 66).
Investigator Krans, dressed in plain clothes and armed with his weapon, which was not exposed, walked across the street to the quick park to investigate (TR. 67; 70). As Investigator Krans arrived in the quick park area, he observed Fink stepping out of the van (TR. 67). Investigator Krans approached Fink, displayed his identification and badge, told Fink he (Investigator Krans) was a police officer, that Fink was not under arrest or in trouble, but Investigator Krans would like to ask her (Fink) some questions (TR. 67). Investigator Krans asked to see some identification from Fink (TR. 67). Fink got back into the van and started to go through her purse looking for some identification (TR. 67). Standing outside the open door, Investigator Krans asked Fink what she was doing in Omaha (TR. 67-68). Fink said she was visiting some relatives (TR. 68). Investigator Krans asked Fink where her relatives lived in Omaha (TR. 68). Fink recanted her story about relatives in Omaha and said she was on vacation and just passing through (TR. 68). Investigator Krans asked what hotel Fink was using (TR. 68). Fink told Investigator Krans the name of the hotel where she was staying (Investigator Krans recalls the name of the hotel to be Days Inn), but while Investigator Krans was talking with Fink, Investigator Krans could see door keys for a different motel (TR. 68). Investigator Krans asked who was driving the vehicle, and Fink responded it was some guy named John (TR. 68). Fink handed Investigator Krans an identification which identified her as Sarah Fink (TR. 68). Investigator Krans asked Fink if she would come inside the airport and answer some questions from some other police officers (TR. 68). Fink agreed to do so (TR. 68). Investigator Krans asked Fink if she would roll up the windows to the van and lock it before they went inside the airport (TR. 69). As Investigator Krans walked towards the airport, Fink followed him (TR. 69).
Fink was seated in a room in the airport security office and questioned by OPD Officer Wyant, but Fink did not provide any useful information (TR. 79). Sergeant Cook took the photo identifications of LaFrance and Fink and drove the short distance to the Omaha Police Station where Drew was being held (TR. 80). Sergeant Cook displayed the two photo identifications to Drew and asked if these were the two people Drew was involved with in the check forgery scheme in Omaha (TR. 81). Drew identified the two as the two she was involved with in the scheme (TR. 81). Sergeant Cook telephoned Officer Wyant at the airport security offices and informed him of Drew's identification (TR. 81).
Sergeant Cook returned to the airport and notified LaFrance and Fink they were under arrest and would be brought to the police station for questioning (TR. 81). Thereafter, Sergeant Cook and Officer Shada went out to the quick park area where the van was parked (TR. 82). A representative of the rental car agency was present (TR. 82). Rather than towing the van to the OPD impound lot and then releasing it to the rental car agency, Sergeant Cook and Officer Shada did an inventory search of the van and removed all of the property (TR. 82). Sergeant Cook testified it is the procedure of OPD to conduct inventory searches when they come into possession of a vehicle, and the inventory search of the van was conducted in accordance with such procedures (TR. 82-83). The luggage was removed from the van and not opened at the time (TR. 83). There were approximately five pieces of luggage together with some miscellaneous items removed from the van (TR. 23). These items were booked into the OPD property room for safekeeping until a search warrant for the luggage was obtained (TR. 23).
Officer Shada prepared an affidavit and application for a search warrant of the luggage (Exhibit 2; TR. 25). The search warrant was signed by a Douglas County Judge (TR. 25). When Officer Shada started a search of the luggage, he located some electronic items he did not list on the search warrant application (TR. 25). Officer Shada stopped the search, placed the luggage back in the property room, and prepared a second search warrant which was presented to a duty Douglas County Judge who signed the search warrant (TR. 25-26). Officer Shada returned to the property room, removed the luggage and continued the search of the luggage (TR. 26-27). Officer Shada seized various items from the luggage (TR. 27-29). When Fink was seated at the airport security offices on September 6, 2001, she was given her Miranda rights by Officer Wyant and declined to give a statement (TR. 43). There is no evidence she requested an attorney (TR. 43). At approximately 7:45 on the morning of September 7, 2001, Fink was taken out of her detention cell at police headquarters and interviewed by Agent Kennedy and OPD Officer Brumagen (TR. 44). The interview took place in a fourth floor interview room where only Fink, Agent Kennedy, and Officer Brumagen were present (TR. 44). Agent Kennedy used an OPD Rights Advisory Form and advised Fink of her Miranda rights (TR. 44-46; Exhibit 1). Fink stated she understood her rights and agreed to talk with Agent Kennedy and Officer Brumagen (TR. 46-47). Fink was not promised anything, nor was she threatened or coerced to provide a statement to Agent Kennedy.
LEGAL ANALYSIS
Fink asserts she was improperly detained at the airport by Investigator Krans and other officers, the van was illegally searched without a warrant, and she was interviewed at police headquarters by officers on September 7, 2001, after she declined to make a statement at the airport security offices on September 6, 2001.
Encounter in the Quick Park Area
Encounters between the police and citizens fall into three general categories:
(1) consensual or voluntary encounters, which are not seizures and do not implicate the Fourth Amendment, see, e.g., Florida v. Bostick, 501 U.S. 429 (1991); Florida v. Royer, 460 U.S. 491 (1983); United States v. Robinson, 984 F.2d 911 (8th Cir. 1993); United States v. Gilbert, 936 F.2d 377 (8th Cir. 1991);
(2) investigative detentions, which are seizures of limited scope and duration within the meaning of the Fourth Amendment and must be supported by a reasonable articulable suspicion of criminal activity, see, e.g., United States v. Sokolow, 490 U.S. 1 (1989); Reid v. Georgia, 448 U.S. 438 (1980); Terry v. Ohio, 392 U.S. 1 (1968); United States v. Weaver, 966 F.2d 391 (8th Cir.), cert. denied, 506 U.S. 1040 (1992); United States v. Galvan, 953 F.2d 1098 (8th Cir. 1992); and
(3) physical arrests, which must be supported by probable cause. U.S. Const. amend. IV.
The issue is whether the first contact between Investigator Krans and Fink was a purely consensual encounter or an investigatory detention or seizure. "Obviously, not all personal intercourse between policemen and citizens involves `seizures' of persons." Terry, 392 U.S. at 19 n. 16. A seizure does not occur when a police officer approaches an individual and merely questions her or asks to examine her identification — so long as the officer does not convey a message that compliance with his request is required. Bostick, 501 U.S. at 434. If "a reasonable person would feel free `to disregard the police and go about his business,' . . . the encounter is consensual and no reasonable suspicion is required." Id. ( quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). "It is well established that law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place . . . [and] putting questions to him if the person is willing to listen." United States v. Green, 52 F.3d 194, 198 (8th Cir. 1995) (citations omitted). A request for information does not turn consensual questioning into an investigatory stop. United States v. Poitier, 818 F.2d 679, 682-83 (8th Cir. 1987), cert. denied, 484 U.S. 1006 (1988). The court finds Fink voluntarily accompanied Investigator Krans back to the airport security offices after their conversation at the parked van in the quick park area of the airport.
Even assuming, arguendo, Fink was detained immediately following the quick park encounter, such an investigative detention was justified as a Terry stop. An investigative detention must be supported by a reasonable articulable suspicion of criminal activity.
[The Eighth Circuit] has summarized the standards used to consider whether reasonable suspicion exists as follows:
The standard of articulable justification required by the fourth amendment for an investigative, Terry-type seizure is whether the police officers were aware of particularized, objective facts which, taken together with rational inferences from those facts, reasonably warranted suspicion that a crime was being committed. In assessing whether the requisite degree of suspicion exists, we must determine whether the facts collectively establish reasonable suspicion, not whether each particular fact establishes reasonable suspicion. The totality of the circumstances — the whole picture — must be taken into account. We may consider any added meaning certain conduct might suggest to experienced officers trained in the arts of observation and crime detection and acquainted with operating modes of criminals. It is not necessary that the behavior on which reasonable suspicion is grounded be susceptible only to an interpretation of guilt, however, the officers must be acting on facts directly relating to the suspect or the suspect's conduct and not just on a "hunch" or on circumstances which describe a very broad category of predominantly innocent [people].United States v. Beck, 140 F.3d 1129, 1136 (8th Cir. 1998) (internal citations and quotations omitted); see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Additionally, courts have held evasive and erratic behavior can contribute to a finding of reasonable suspicion. The court noted that even where all of the suspect's conduct is lawful, if the conduct is ambiguous and susceptible to an innocent explanation as well as creating a reasonable suspicion of criminal activity, police officers may detain the individual to resolve the ambiguity. Id. at 125 ( citing Terry, 392 U.S. at 30). In this case, Investigator Krans was aware, from the information from Drew, that there were three persons involved in an ongoing check forgery scheme in Omaha, a man and two women, one of them being Drew. Further, LaFrance was walking towards the quick park of the airport at the time of his detention. Fink was waiting in the van in the passenger seat. When she talked with Investigator Krans, she lied or changed her story three different times (TR. 68). Even if Fink did not voluntarily follow Investigator Krans to the airport security office, Investigator Krans would have had the right to temporarily detain her until he could resolve the ambiguities which were present.
Inventory Search of the Van
The van was not inventoried until LaFrance and Fink had been arrested after the photo identification by Drew. The rental car agent was standing by to take custody of the rental van. All the property in the van was removed including the five closed luggage pieces. Under the Fourth Amendment, the propriety of inventory searches is judged by the standard of reasonableness. If the inventory was undertaken according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity, an inventory is not infirm. Florida v. Wells, 495 U.S. 1, 4 (1990); Colorado v. Bertine, 479 U.S. 367, 371 (1987); United States v. Woolbright, 831 F.2d 1390, 1394 (8th Cir. 1987). Although no written policies were introduced into evidence in this matter, Officer Shada's testimony that the inventory procedure was a standard policy was sufficient (TR. 25-26, 31-32). Written guidelines or policies are not necessary so long as the evidence shows the inventory to have been conducted pursuant to standard procedure. United States v. Kornegay, 885 F.2d 713, 717 (10th Cir. 1989), cert. denied, 495 U.S. 935 (1990). "The requirement that standardized criteria or established routine exist as a precondition to a valid inventory search `is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.'" United States v. Marshall, 986 F.2d 1171, 1175 (8th Cir. 1993) ( quoting Wells, 495 U.S. at 4). Even if the inventory officer may have a belief or motive that evidence will be found, as long as the officer was exercising his care-taking function under a legitimate inventory policy of his department, the legality of the inventory is not altered. United States v. Garner, 181 F.3d 988, 991 (8th Cir. 1999); United States v. Porter, 859 F.2d 83, 85 (8th Cir. 1988).
Sufficiency of the Affidavit
An affidavit for a search warrant must contain probable cause of four ingredients: time, crime, objects, and place. 2 Wayne R. LaFave, Search and Seizure, § 3.7(d) at 372 (3d ed. 1996). As the Supreme Court stated in Illinois v. Gates, 462 U.S. 213, 238 (1983): "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Thus, when viewing a search warrant, the court must look at the totality of the circumstances set forth in the affidavit. See Gates, 462 U.S. at 238; United States v. Etheridge, 165 F.3d 655, 656 (8th Cir. 1999). "The duty of the judge issuing a search warrant is to make a `practical, common-sense decision' whether, considering all the circumstances, a reasonable person could have reason to suspect that evidence would be discovered. . . . Probable cause is a fair probability that contraband or evidence of a crime will be found in the location to be searched." United States v. LaMorie, 100 F.3d 547, 552 (8th Cir. 1996). See Gates, 462 U.S. at 238. The Eighth Circuit has explained the issuing magistrate's obligation as follows:
The task of the issuing magistrate is to make "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for . . . concluding that probable cause existed." Id. When the magistrate relied solely on the affidavit presented to him, "only that information which is found within the four corners of the affidavit may be considered in determining the existence of probable cause. United States v. Leichtling, 684 F.2d 553, 555 (8th Cir. 1982), cert. denied, 459 U.S. 1201, 103 S.Ct. 1184, 75 L.Ed.2d 431 (1983). Affidavits must be read in "a common-sense and realistic fashion," United States v. Cadwell, 864 F.2d 71, 74 (8th Cir. 1988), citing United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). "Deference is accorded an issuing magistrate's probable cause determination . . ." United States v. Brown, 584 F.2d 252, 256 (8th Cir. 1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1220, 59 L.Ed.2d 458 (1979).United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995) (emphasis added). See also: United States v. Spinosa, 982 F.2d 620 (1st Cir. 1992) ( noting "[t]he affidavit must be `viewed in its entirety,' and `must be given a common-sense and realistic, rather than a hyper technical interpretation.'").
Both affidavits in issue in this matter sufficiently set forth probable cause for the issuance of the search warrants. There is no legal infirmity in either.
Fink's Statements
The touchstone for the admissibility of a defendant's statements is voluntariness. Brown v. Mississippi, 297 U.S. 278 (1936). The court must look to the totality of circumstances in determining whether or not the statements were voluntary. Mincey v. Arizona, 437 U.S. 385, 401 (1978); Colorado v. Connelly, 479 U.S. 157 (1986); Schneckloth v. Bustamonte, 412 U.S. 218 (1973). In this case, Fink was advised of her constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). There is no evidence Fink did not understand the advice of rights. Even though Fink was advised of her Miranda rights, the court must examine the conduct of the law enforcement officials to determine whether or not there was an overreaching by law enforcement officials amounting to coercive police activity. Coercive police conduct will render a confession inadmissible. Blackburn v. Alabama, 361 U.S. 199 (1960). In determining whether a defendant made statements voluntarily, the court must determine if the accused was coerced or his will was overborne. United States v. Wilson, 787 F.2d 375, 380-81 (8th Cir.), cert. denied, 479 U.S. 857 (1986). The court must consider the totality of the circumstances, including the specific interrogation tactics employed, the details of the interrogation, and the characteristics of the accused. Schneckloth, 412 U.S. at 225-26. Coercive police pressure is a predicate to the finding that the confession is not voluntary and violates the accused's due process rights. Connelly, 479 U.S. at 167. However, any police questioning has coercive aspects to it simply by reason of the confrontation. The police officer is part of the law enforcement system that will cause a charge to be made against a suspect. The questioning by a police officer, while uncomfortable, is not coercive per Se. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
The court finds the agents employed no coercive tactics to overbear Fink's will in the interview on September 7, 2001, at the police headquarters interview room. Nor did the fact Fink declined to answer questions the day before at the airport security offices render her September 7, 2001, statements involuntary and inadmissible. In Michigan v. Mosley, 423 U.S. 96 (1975), the Supreme Court held that an invocation of one's right to silence did not mean that questioning could never be resumed. The Supreme Court concluded "that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his `right to cut off questioning' was `scrupulously honored,' " Mosley, 423 U.S. at 104. The Supreme Court listed the following factors in making such a determination: (1) whether the police had given the suspect Miranda warnings at the first interrogation and the suspect acknowledged that he understood the warnings; (2) whether the police immediately ceased the interrogation when the suspect indicated that he did not want to answer questions; (3) whether the police resumed questioning the suspect only after the passage of a significant period of time; (4) whether the police provided a fresh set of Miranda warnings before the second interrogation; and (5) whether the second interrogation was restricted to a crime that had not been a subject of the earlier interrogation. Mosley, 423 U.S. at 104-07.
In this case Fink had been given her Miranda rights at the airport security office on September 6, 2001. Officer Wyant reported he ceased questioning Fink after she invoked her right to be silent. The questioning of Fink by Agent Kennedy resumed after a significant passage of time, i.e., the next day. See United States v. McClinton, 982 F.2d 278, 282 (8th Cir. 1993) (noting parenthetically that two hours is a significant amount of time). Fink was again advised of her Miranda rights which she waived and consented to talk with Agent Kennedy. While Agent Kennedy interrogated Fink as to federal charges that could be filed, the interrogation did cover the same subject as on September 6, 2001. However, the Eighth Circuit has previously held that "a second interrogation is not rendered unconstitutional simply because it involves the same subject matter discussed during the first interview." United States v. House, 939 F.2d 659, 662 (8th Cir. 1991); accord United States v. Finch, 551 F.2d 1234, 1236 (8th Cir.), cert. denied, 434 U.S. 927 (1977). See also United States v. Hsu, 852 F.2d 407, 411-12 (9th Cir. 1988). Under the circumstances, the court finds Agent Kennedy "scrupulously" honored Fink's prior invocation not to answer questions within the meaning of the Mosley rationale and its progeny. The court finds Fink's statements to Agent Kennedy on September 7, 2001, made during the interrogation at the interview room at police headquarters to be voluntary and admissible.
IT IS RECOMMENDED TO JUDGE JOSEPH F. BATAILLON that Fink's motion to suppress (Filing No. 28) be denied.
ADMONITION
Pursuant to NELR 72.4 any objection to the Report and Recommendation shall be filed with the Clerk of the Court within ten (10) days after being served with a copy of the Report and Recommendation. Failure to timely object may constitute a waiver of any such objection. The brief in support of any objection shall be delivered to Judge Joseph F. Bataillon at the time of filing such objection. Failure to submit a brief in support of any objection may be deemed an abandonment of the objection.