Opinion
CRIMINAL NO. 07-00615 (07) SOM.
May 8, 2008
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT WAYNE KILA'S MOTION TO SUPPRESS EVIDENCE
I. INTRODUCTION.
Defendant Wayne Kila moves to suppress evidence obtained from the search of a white Toyota Celica he was driving at the time of his arrest, as well as evidence obtained from his residence pursuant to a search warrant issued based on an affidavit that cited evidence seized from the vehicle. Kila argues that the search of the vehicle was not incident to arrest. Kila also seeks to suppress post-arrest statements that he allegedly made without being advised of his Miranda rights. The Government claims that (1) the search of the vehicle was contemporaneous with Kila's arrest; (2) even if the search was not contemporaneous with the arrest, the search was valid under the automobile exception; (3) the search of the vehicle was a valid inventory search pursuant to Drug Enforcement Administration ("DEA") policy; (4) the search of Kila's home was valid because the warrant supported the search even if references to evidence obtained or flowing from the search of the vehicle were excluded; and (5) the good-faith exception justified reliance on the search warrant. With regard to Kila's Miranda challenge, the Government argues that, because Kila's statement was spontaneous and voluntary, no Miranda warnings were required.
The court concludes that (1) the search of Kila's vehicle was incident to arrest; (2) alternatively, probable cause supported the warrantless search and seizure of the vehicle under the automobile exception; (3) the search warrant of Kila's residence was supported by probable cause even excluding evidence obtained from the vehicle; (4) even if the search warrant was not supported by probable cause after evidence recovered from the car is excluded, the good-faith exception applies to justify reliance on the search warrant in searching Kila's residence; and (5) Kila's post-arrest statements were obtained in violation of hisMiranda rights. The court therefore grants in part and denies in part Kila's Motion to Suppress.
II. FINDINGS OF FACT.
This court makes the following findings of fact, by a preponderance of the evidence. The findings are set forth in numbered paragraphs for ease of future reference.
1. This court has before it four exhibits submitted by Kila: (1) a map illustrating the route and distance from Kila's residence in Ewa Beach to the federal building located at 300 Ala Moana Boulevard in Honolulu, Hawaii ("Federal Building") ("Ex. 6"); (2) a map documenting the locations of the events that occurred on the evening of November 27, 2007 ("Ex. 7"); (3) Kila's arrest warrant, issued on November 14, 2007 ("Ex. 8"); and (4) the Search Warrant for Kila's residence, dated November 28, 2007, with its accompanying application and affidavit ("Ex. 9").
2. This court held an evidentiary hearing, during which it received oral testimony from Honolulu Police Department ("HPD") Officer Reuben Oh, retired DEA Task Force Officer ("TFO") Joyce Alapa, DEA TFO Lawrence Peralta, and DEA TFO Richard Worthington. This court found Officer Oh and TFO Alapa credible on the matters to which they testified. Cross-examination of TFO Peralta and TFO Worthington revealed some discrepancies in some of the matters to which they testified, but they appeared to the court to be attempting to be truthful and were not only credible but also accurate as to most of the matters they testified to.
3. On November 14, 2007, a federal grand jury indicted Kila for conspiracy to "distribute and possess, with intent to distribute, 50 grams or more of methamphetamine." Indictment at 2. An arrest warrant issued that same day. Ex. 8.
4. On November 26, 2007, TFO Peralta, the lead agent in charge of Kila's arrest, confirmed with the United States Postal Service that Kila's mailing address was in Ewa Beach, Hawaii. Transcript of Proceedings on the Motion to Suppress Evidence (April 15, 2008) ("Tr.") at 47, 51. TFO Peralta also verified Kila's address by comparing it with a copy of Kila's driver's license. Id. at 47. From other investigations and Kila's criminal record, TFO Peralta knew that Kila had had multiple drug arrests and prior felony drug convictions. Id. 46-47.
5. On the morning of November 27, 2007, DEA officers monitored Kila at his Ewa Beach residence. They saw a white Toyota Celica parked near his home. Id. at 49-50. The vehicle was registered to Kila's girlfriend, Elaine Kina. Id. at 50.
6. At approximately 9:15 p.m., the white Toyota Celica left the house, driven by someone TFO Worthington and his partner, relying on photographs of Kila and a physical description they had, believed to be Kila. TFO Worthington reported this to other officers over the radio. Id. at 100-01. Told by TFO Peralta to follow Kila, TFO Worthington and his partner followed the white Toyota Celica onto the Moanalua freeway heading eastbound. Id. at 51, 101.
7. All the officers involved in the surveillance were in unmarked vehicles. Because HPD policy requires that arrests be made with marked vehicles, TFO Peralta called in marked units of the HPD Patrol and Traffic Division to have them stop and arrest Kila. Id. at 51. Over the police radio, TFO Peralta noted the make, license plate number, and location of the vehicle to be pulled over. Id. at 12, 52. While calling for HPD assistance, TFO Peralta, in a car with TFO Alapa, tried to follow Kila, but eventually passed him because he was driving so slowly.Id. at 54.
8. Two to four minutes after TFO Peralta's message went out over the police radio, Officer Oh saw the vehicle near the Ala Kapuna overpass. Id. at 12. Officer Oh was driving a subsidized vehicle, which is a personal vehicle equipped with a blue light on the roof and a siren. At about 9:20 or 9:25 p.m., Officer Oh pulled over the white Toyota Celica on the Moanalua Freeway, east of the Ala Kapuna overpass. Id. at 13-14.
9. Officer Oh told Kila he was being pulled over for a traffic offense and asked for Kila's license, registration, and proof of insurance. Instead of complying, Kila reached for his keys and tried to restart the engine. Officer Oh grabbed Kila's arms. Kila resisted for a couple of seconds until Lieutenant Walter Ozeki arrived. Lieutenant Ozeki and Officer Oh got Kila out of the vehicle, and Lieutenant Ozeki placed Kila under arrest. Id. at 15-16, 19. Lieutenant Ozeki, who was also the Group Supervisor of the task force, had been in contact with TFO Peralta and knew of the plans to arrest Kila. Id. at 88.
10. At the time of Kila's arrest, TFO Peralta and TFO Alapa were approximately 100 yards ahead of where Kila was stopped. Id. at 31. TFO Peralta learned through the police radio that Kila had been pulled over and confirmed the arrest himself visually through his rearview mirror. Id. at 55. TFO Peralta documented the time of the stop as 9:29 p.m. and the time of Kila's arrest as 9:30 p.m. Id. at 62. TFO Peralta pulled over to the right shoulder of the highway and reversed his vehicle until he was forty to fifty feet in front of the Toyota Celica. Id. at 55-56.
11. TFO Peralta and TFO Alapa ran back to where Kila had been arrested and saw Lieutenant Ozeki search Kila. Id. at 32-33. Lieutenant Ozeki handed Kila's wallet and cell phone to TFO Alapa, and TFO Alapa opened the wallet to look for a driver's license. In the wallet, TFO Alapa found a small plastic ziplock bag containing a white crystal-like substance. TFO Alapa had spent twenty-six years with HPD and eighteen years in drug enforcement and believed the white substance was methamphetamine.Id. at 34-35.
12. TFO Alapa told TFO Peralta about the substance found in Kila's wallet. Id. at 59. TFO Peralta has been employed by HPD for approximately seventeen and a half years and has worked specifically in drug investigations for about six years. Id. at 43. The substance found on Kila, Kila's past arrests, and Kila's involvement as a distributor of methamphetamine led TFO Peralta to think that additional drugs would be found in the Toyota Celica. Id. at 59-60.
13. TFO Peralta told Kila that he was under arrest for conspiracy to possess and distribute methamphetamine and that he was facing a life sentence. TFO Peralta then asked Kila whether he wanted to cooperate with law enforcement. Kila responded that he did not want to cooperate and would "do the time." Id. at 56-57, 69. No Miranda warnings were given. Kila was then placed in TFO Peralta's vehicle to be transported to the Federal Building for processing. Id. at 35.
14. TFO Peralta had safety concerns about searching the Toyota Celica on the right shoulder of the highway. It was night, there was, according to Officer Oh, "medium" traffic flow, and cars tended to pick up speed when coming to the Ala Kapuna overpass.Id. at 14, 61. When TFO Worthington arrived at the scene, Kila was sitting in TFO Peralta's vehicle. TFO Worthington saw two or three police cars parked behind the Toyota Celica, but only one car had its flashing lights on. Id. 110-11. TFO Peralta told TFO Worthington to drive the Toyota Celica to the Federal Building and to search the vehicle there. Id. at 63, 102, 110-11.
15. Approximately ten minutes after Kila's arrest, TFO Alapa and TFO Peralta drove Kila to the Federal Building. Id. at 37, 61. TFO Worthington drove the Toyota Celica to the Federal Building. Id. at 102, 111. Although TFO Worthington was not entirely clear regarding how long he remained at the scene of arrest before leaving in the Toyota Celica, see id. at 102, he appeared to recollect having left not long after speaking with TFO Peralta, see id. at 102, 111, and after TFO Peralta had left the scene, id. at 63.
16. It took TFO Worthington around fifteen minutes to drive the Toyota Celica about four miles from the Ala Kapuna overpass to the Federal Building. Id. at 63, 103. TFO Worthington made no stops on his way to the Federal Building and parked the Toyota Celica in the secure underground parking facility at the Federal Building. Id. at 105-07. TFO Peralta was notified when the Toyota Celica arrived at the Federal Building and documented the time of arrival as approximately 9:45 p.m. Id. at 62.
17. The evidence that Kila left the scene about ten minutes after his arrest at 9:30 p.m., the Toyota Celica left shortly after Kila left, and it took fifteen minutes to get from the Ala Kapuna overpass to the Federal Building, suggests that the Toyota Celica may have reached the Federal Building a little later than the time noted by TFO Peralta. Possibly, the car arrived around 9:55 p.m. Even that time was less than half an hour from Kila's arrest.
18. Officer Worthington, along with other DEA Officers, searched the Toyota Celica and found a backpack and a cellular phone on the passenger seat, and another cellular phone on the floor of the passenger seat. Id. at 104. The backpack contained $34,620 in U.S. currency and three small ziplock bags containing a white crystal-like substance. Ex. 9 at 31-32. All the items were seized.
19. DEA Officers conducted a field test on the substance in the bags, which confirmed the presence of methamphetamine. Later laboratory tests also confirmed that the bag found on Kila's body during his arrest contained .19 grams of pure methamphetamine.Id.
20. On the afternoon of November 28, 2007, DEA Officers obtained a search warrant for Kila's residence from Magistrate Judge Barry Kurren. Id. at 2. The application for the search warrant included a thirty-three-page affidavit detailing the twenty-seven-month investigation into the methamphetamine organization with which Kila was allegedly involved. See id. Less than two pages of the affidavit concerned items seized from Kila's Toyota Celica. Id. at 31-32.
21. That same day, DEA Officers searched Kila's home pursuant to the search warrant. They found a bag containing $24,723 in U.S. currency, several ziplock plastic bags containing a white crystal-like substance, a digital scale, and documents with Kila's name and his home address. DEA laboratory tests later confirmed that the white substance recovered from the ziplock bags was 34.9 grams of actual methamphetamine.
III. CONCLUSIONS OF LAW.
A. The Search of the Toyota Celica was a Contemporaneous Search Incident To Arrest.
1. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." See United States v. Place, 462 U.S. 696, 701 (1983). The Fourth Amendment generally requires police to secure a warrant before conducting a search, California v. Carney, 471 U.S. 386, 390-91 (1985), as searches conducted outside the judicial process, without prior approval by a judge, are per se unreasonable under the Fourth Amendment. United States v. Ross, 456 U.S. 798, 825 (1982); Katz v. United States, 389 U.S. 347, 357 (1967).
2. There are a few specifically established and well-delineated exceptions to this warrant requirement. See United States v. Ross, 456 U.S. 798, 825 (1982); Katz v. United States, 389 U.S. 347, 357 (1967). A warrantless search of an automobile, incident to arrest, is one of those exceptions. "[W]hen a policeman has made a lawful custodial arrest of the occupants of an automobile he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460 (1981); see also United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004). During the search, the police may also examine the contents of any container within reach of the arrestee. Belton, 452 U.S. at 460.
3. The Supreme Court has upheld warrantless searches incident to arrest because of the need to remove any weapon that might pose a safety concern and the need to prevent the concealment or destruction of evidence. Chimel v. California, 395 U.S. 752, 763 (1969); see also Smith, 389 F.3d at 951. The Ninth Circuit has concluded, however, that a warrantless automobile search incident to arrest "is a bright-line rule that may be invoked regardless of whether the arresting officer has an actual concern for safety or evidence." United States v. McLaughlin, 170 F.3d 889, 891 (9th Cir. 1999). Thus, "the applicability of the Belton rule does not depend upon a defendant's ability to grab items in a car but rather upon whether the search is roughly contemporaneous with the arrest." Id. at 891-92; see also Smith, 389 F.3d at 1106 (noting that the critical inquiry under the Belton rule is whether the search is "roughly contemporaneous with the arrest").
4. Kila contends that the warrantless search of the Toyota Celica "was not roughly contemporaneous with [his] arrest, and was so separated by time and by intervening acts that it cannot be characterized as `incident to arrest.'" Defendant's Motion to Suppress Evidence (Feb. 7, 2008) ("Motion") at 6. The Government responds that the "short time lag is inherently reasonable given the fact the officers needed to move the vehicle from the shoulder of the busy Moanalua Freeway to a controlled location where it could be safely searched." United States of America's Response and Opposition to Defendant Kila's Motion to Suppress Evidence (Feb. 29, 2008) ("Opp'n") at 5.
5. A search may be contemporaneous even if arresting officers do not conduct the search immediately after the arrest. Smith, 389 F.3d at 951 ("[W]e have held that a search need not be conducted immediately upon the heels of an arrest, but sometimes may be conducted well after the arrest, so long as it occurs during a continuous sequence of events."). "[T]ime alone is never dispositive of the contemporaneity inquiry." United States v. Weaver, 433 F.3d 1104, 1107 n. 1 (9th Cir. 2006). "There is no fixed outer limit for the number of minutes that may pass between an arrest and a valid, warrantless search that is a contemporaneous incident of the arrest." McLaughlin, 170 F.3d at 892.
6. Rather, a court examining whether a search is contemporaneous with an arrest must determine whether the arrest and search constituted "one continuous series of events closely connected in time," McLaughlin, 170 F.3d at 893, and whether the search was reasonable in light of the circumstances of the arrest. Smith, 389 F.3d at 951; see also McLaughlin, 170 F.3d at 893 ("The relevant distinction turns not upon the moment of arrest versus the moment of the search but upon whether the arrest and search are so separated in time or by intervening acts that the latter cannot be said to have been incident to the former.") (quoting United States v. Abdul-Saboor, 85 F.3d 664, 668 (D.C. Cir. 1996)).
7. In McLaughlin, the Ninth Circuit upheld an automobile search as incident to arrest when the search took place five minutes after the defendant had been arrested and taken from the scene. The police officer filled out impoundment forms for the car during that five-minute gap. McLaughlin, 170 F.3d at 890. The court concluded that the "defendant's arrest, the filling out of the impound paperwork, and the search of his car were all part of a continuous, uninterrupted course of events, all occurring within a relatively brief period of time." Id. at 892.
8. Similarly, in Weaver, the Ninth Circuit upheld an automobile search as contemporaneous with the arrest when the defendant's automobile was searched ten to fifteen minutes after the arrest in an effort to conduct a "safe search." Weaver involved a "typical procedure" of using three officers to search a vehicle. One officer monitored the suspects, one officer searched the car, and one officer observed the search. To conduct a safe search, two arresting officers delayed the search until a third officer arrived. Weaver, 433 F.3d at 1105-06. The court concluded that the search was contemporaneous with the arrest, as "no intervening act occurred between the arrest and the search." Id. at 1106.
9. In United States v. Dento, 382 F.2d 361 (3rd Cir. 1967), the Third Circuit considered a situation similar to the one before this court. In Dento, police officers arrested the defendant on Route 22 but, for reasons of safety, did not search the car while it was parked along Route 22. Instead, the officers drove the defendant's car to the police station and searched the car there, approximately twenty minutes after the defendant's arrest. Id. at 363. The Third Circuit upheld the automobile search as incident to arrest, noting that "[a]lthough the place of the search was remote from that of the arrest, the safety of the officers and the defendant required that the vehicles be moved away from the flow of highway traffic." Id. at 365.
10. A longer delay did not destroy the contemporaneous nature of a search in United States v. Scott, 428 F. Supp. 2d 1126, 1132 (E.D. Cal. 2006). The United States District Court for the Eastern District of California concluded that a vehicle search conducted fifty minutes after the defendant's arrest was a search incident to arrest, given the safety concerns that caused the delay. In Scott, the defendant's car had overturned in an accident and was found down an embankment. Safety concerns posed by the vehicle's position, broken glass from the accident, and an unidentified liquid near the vehicle led the officers to wait until the car was towed up the slope and positioned upright before searching the vehicle.Id. at 1130. Although fifty minutes passed between the defendant's arrest and the search of the car, the court upheld the search as contemporaneous with the arrest. Id. at 1133. "When a delay in vehicle search occurs because of a safety concern for the officers on the scene, a search will not be considered remote from the time of the arrest if the search is conducted as soon as possible after the safety concern has been eliminated." Id. at 1132.
11. Of course, some circumstances will cause searches not to be contemporaneous with arrests. For example, the Ninth Circuit concluded that an automobile search was not incident to arrest when an officer spent forty-five minutes after an arrest trying to get the defendant to consent to a search of the car. United States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987). Similarly, when officers arrested the defendant, took the defendant's car and defendant to a police station, and searched the car only after deciding that the car would be towed from the station, the search was deemed not incident to the arrest. United States v. Ramos-Osequera, 120 F.3d 1028, 1036 (9th Cir. 1997), overruled on other grounds by Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000). In both those cases, the court noted that the delay between arrest and search was not part of a "continuous, uninterrupted course of events." See McLaughlin, 170 F.3d at 892.
12. Whether the search of the Toyota Celica occurred fifteen or twenty-five minutes after Kila's arrest is not determinative of this court's ruling, as time alone is never dispositive of the contemporaneity inquiry. Rather, the court focuses on whether the search was part of a continuous series of events.
13. The court concludes that the search of the Toyota Celica was contemporaneous with Kila's arrest and thus incident to the arrest. This case presents circumstances similar to those inMcLaughlin and Weaver. There was no intervening event or pause in the decisionmaking process leading to the search of the Toyota Celica. The delay resulted from reasonable safety concerns. Unlike the officers in Ramos-Osequera, the officers here did not decide to search Kila's Toyota Celica only after driving the vehicle to the Federal Building. Rather, TFO Peralta decided at the scene of the arrest that the Toyota Celica would be searched. He instructed TFO Worthington to drive the vehicle to the Federal Building to ensure a safe search, away from freeway traffic. Kila's arrest, the removal of the Toyota Celica from a location that posed safety concerns, and the search of the vehicle were all part of a continuous series of events similar to the events in McLaughlin.
14. The court is not persuaded by Kila's arguments that a vehicle search could have been conducted safely at the location of the stop, or that the vehicle search should have been conducted near a closer highway exit rather than at the Federal Building. Kila was arrested at night on a highway with "medium" traffic conditions, in an area where cars tended to pick up speed. It was entirely reasonable to conduct the vehicle search at another location, especially because a vehicle search could reasonably require officers to open all doors and look under seats, leaving the officers physically vulnerable to highway traffic. In addition, it was not unreasonable to conduct the search at the Federal Building rather than to pull off at a nearby exit to conduct the search in an unknown area. As the court in Scott noted, a search is not considered remote from the arrest when the delay is caused by safety concerns. The search of the Toyota Celica was incident to Kila's arrest.
B. Alternatively, The Warrantless Search of the Toyota Celica Was Supported by Probable Cause Under the Automobile Exception.
1. Even if the search of the Toyota Celica was not incident to Kila's arrest, the search was valid. A warrantless search of a car is also permitted under the automobile exception to the warrant requirement under the Fourth Amendment. If there is probable cause for believing that an automobile contains contraband, officers are entitled to search it. Carroll v. United States, 267 U.S. 132, 153-54 (1925); see also Maryland v. Dyson, 527 U.S. 465, 467 (1999) (a finding of probable cause that a car contains contraband is sufficient to support a warrantless search, and there is no separate exigency requirement); United States v. Pinela-Hernandez, 262 F.3d 974, 978 (9th Cir. 2001) ("police may conduct a warrantless search of a vehicle if they have probable cause to believe that it contains contraband"). A search is similarly permitted if there is probable cause to believe there is evidence of a crime in the automobile. Ornelas v. United States, 517 U.S. 690, 696 (1996).
2. The automobile exception is grounded in two basic principles: (1) the mobility of vehicles, and (2) a reduced expectation of privacy given the pervasive regulations applicable to vehicles. See Carney, 471 U.S. at 393; Pinela-Hernandez, 262 F.3d at 978 ("The reasons for this exception are twofold: the expectation of privacy in one's vehicle is less than in one's home, and the mobility of vehicles necessitates faster action on the part of law enforcement officials.").
3. Although the automobile exception may have initially grown out of a concern regarding the mobility of vehicles, the Supreme Court has been clear that mobility is not a requirement in conducting a warrantless automobile search:
It is thus clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing court's assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.Michigan v. Thomas, 458 U.S. 259, 261 (1982). See also United States v. Henderson, 241 F.3d 638, 649 (9th Cir. 2000) (concluding that the automobile exception applies as long as there was probable cause to search the car, and that the authority to search did not "evanesce" because the car had been impounded).
4. Whether probable cause exists to justify a warrantless search of an automobile must be determined at the time of the seizure, rather than at the time of the search. See United States v. Trejo-Zambrano, 582 F.2d 460, 463 (9th Cir. 1978) (determination of whether probable cause exists for a warrantless search is made at the time of the seizure, not at the time of the search). Once there is probable cause to seize a car, a subsequent warrantless search of it is valid. Henderson, 241 F.3d at 649; see also United States v. Johnson, 820 F.2d 1065, 1072 (9th Cir. 1987) (holding that once police have lawfully seized an item, a subsequent search of that item may be conducted without a warrant).
5. "There is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure." United States v. Johns, 469 U.S. 478, 484 (1985). The Supreme Court has upheld searches that have occurred numerous days after the initial seizure when there was "probable cause to believe that the [vehicle] contained contraband." Id. at 387. In Johns, the Supreme Court reversed a Ninth Circuit decision holding that a delay in searching packages located in a vehicle made the search of those packages unreasonable. Id. Because law enforcement officials could have lawfully searched the packages at the time they were seized from the vehicle, the Supreme Court concluded that a three-day delay was not unreasonable and did not violate the Fourth Amendment. In Cooper v. California, 386 U.S. 58, 58, 61 (1967), the Supreme Court similarly held that a warrantless search of a vehicle one week after its initial seizure was not unreasonable.
6. Probable cause exists "where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Ornelas, 517 U.S. at 696. In determining the existence of probable cause, this court examines the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 238 (1983).
7. In United States v. Miller, 812 F.2d 1206, 1209 (9th Cir. 1987), the Ninth Circuit concluded that there was probable cause to search a vehicle when the police had knowledge that the defendant was a suspected methamphetamine manufacturer, there was a strong smell of a substance known to be used in the production of methamphetamine coming from the car, and there was a handgun and laboratory equipment used in methamphetamine production in plain view in the car. The Ninth Circuit concluded that "[t]hese plain view, plain smell observations, added to the [police] knowledge that [the defendant] was a suspected methamphetamine manufacturer," established probable cause to search the car. Id. at 1209.
8. Similarly, probable cause supported the warrantless search of Kila's Toyota Celica. At the time of Kila's arrest, TFO Peralta and TFO Alapa were aware of Kila's criminal background, which included multiple drug arrests and two prior felony drug convictions. In addition, a grand jury had indicted Kila for conspiracy to distribute methamphetamine. Most telling, however, was that the search of Kila himself revealed a plastic bag containing what TFO Alapa believed to be methamphetamine. Both TFO Alapa and TFO Peralta testified that, based on their years of experience in drug investigations, finding drugs on an arrestee is highly indicative that drugs will also be found in the arrestee's vehicle. Tr. at 35, 57 Given the totality of the circumstances, probable cause supported the warrantless search and seizure of the Toyota Celica.
9. Kila says there was no probable cause to search his car, noting that the officers were relying on a criminal history that concerned an alleged drug conspiracy in 2005, along with drug arrests and convictions that substantially preceded 2005. Defendant's Reply to Government's Response to Motion to Suppress Evidence (Mar. 13, 2008) ("Reply") at 5. Kila's argument fails to account for the substance that the officers found on Kila on the night of his arrest.
10. Kila's reliance on United States v. Wanless, 882 F.2d 1459 (9th Cir. 1989), is unavailing. In Wanless, the police searched a car based on suspicions that the defendant was a drug user. The police had not recovered any apparent drugs from the defendant's person before searching the car. The court concluded that evidence of "track marks" on the defendant's arm, the defendant's comment that he had "shot up" two days earlier, and a syringe cap and empty bindle found on the defendant were insufficient to establish probable cause that the vehicle contained contraband.Id. at 1466. The Wanless court specifically noted that the police "did not detect any drug or drug-related odors, nor did they see any items that they could reasonably believe were controlled substances." Id. (internal citations omitted). The circumstances in Kila's case are clearly analogous to those in Miller and distinguishable from those inWanless.
11. The court also disagrees with Kila's contention that, once the Toyota Celica was immobilized, the officers were required to obtain a search warrant before searching it. As the Supreme Court has made clear, the mobility of a vehicle is not a requirement for the automobile exception. Thomas, 458 U.S. at 261. Kila's motion to suppress evidence seized from the Toyota Celica is denied based on the automobile exception.
C. Inventory Search.
Having already determined that the search of the Toyota Celia was conducted as a search incident to arrest, or, alternatively, that the search was conducted under the automobile the exception, the court need not reach the issue of whether the search of the Toyota Celica was alternatively a valid inventory search. The court notes that an inventory search would be inconsistent with an investigatory search supported by probable cause.
D. Probable Cause Supported the Search Warrant.
1. Kila also challenges the search of his home, arguing that, "[o]nce the illegally seized evidence from Mr. Kila's automobile, and its tainted fruits, are excised from the search warrant affidavit," there was no probable cause supporting a search warrant. Reply at 6. The court has already concluded that the search of the Toyota Celica was a search incident to arrest or, alternatively, supported by probable cause under the automobile exception to the warrant requirement. Even assuming that the search of the Toyota Celica was invalid and that references to evidence obtained from the Toyota Celica must therefore be redacted from the application for the search warrant, the court concludes that the warrant of Kila's home was supported by probable cause.
2. A judge's issuance of a search warrant is reviewed to determine whether "the magistrate had a substantial basis for concluding that probable cause existed. In doubtful cases, preference should be given to the validity of the warrant."United States v. Schmidt, 947 F.2d 362, 371 (9th Cir. 1991) (internal quotation marks and citations omitted); accord United States v. Chavez-Miranda, 306 F.3d 973, 979 (9th Cir. 2002) ("We need only find that the issuing magistrate had a substantial basis for finding probable cause."). Probable cause is determined by looking at the totality of the circumstances, and will be found when there is "a fair probability that contraband or evidence of a crime will be found." United States v. Gil, 58 F.3d 1414, 1419 (9th Cir. 1995).
3. When a search warrant relies on illegally obtained evidence, the warrant may still be upheld if probable cause exists without inclusion of the tainted evidence. United States v. Giordano, 416 U.S. 505, 555 (1974) ("[T]he inclusion of indisputably tainted allegations does not necessarily render the resulting warrant invalid. The ultimate inquiry on a motion to suppress evidence seized pursuant to a warrant is not whether the underlying affidavit contained allegations based on illegally obtained evidence, but whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause."); see also United States v. Driver, 776 F.2d 807, 812 (9th Cir. 1985).
4. Even excluding the evidence obtained from the search of Kila's Toyota Celica, Magistrate Judge Kurren had a "substantial basis" for determining that evidence relating to the alleged methamphetamine conspiracy would be found at Kila's home. The application for the search warrant included a thirty-three-page affidavit describing a twenty-seven-month investigation of a methamphetamine conspiracy in which methamphetamine was purchased from distributors in Las Vegas, Nevada, to be sold in Hawaii. The affidavit set forth the accounts of numerous cooperating defendants who had personally sold large amounts of methamphetamine to Kila over a five-year period. See Ex. 9 at 18, 27-29. Kila allegedly received the methamphetamine by sending someone to Las Vegas to retrieve it and by directing shipments to an office building located in Honolulu, Hawaii. Id. at 26-27. One of the cooperating defendants identified Kila from a photographic lineup. Id. at 29. Based on TFO Peralta's experience and training, he believed that it was a "common practice for drug traffickers to store their drug inventory and drug-related paraphernalia" and records concerning their drug trafficking in their residences. Id. at 3. Less than two full pages in the application described the items recovered from Kila's Toyota Celica. Even excluding evidence recovered from the Toyota Celica, there was a substantial basis for the Magistrate Judge to determine that probable cause supported the issuance of the search warrant for Kila's home.
E. Alternatively, The Good-Faith Exception Supports the Search of Kila's Home.
1. Even if the warrant authorizing the search of Kila's residence was not supported by probable cause after the evidence seized from the Toyota Celica is excluded, the search of Kila's home was sustainable under the good-faith exception set forth inUnited States v. Leon, 468 U.S. 897 (1984). "[P]hysical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible in the prosecution's case in chief." Id. at 912; see also United States v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984) (holding that "evidence should not be suppressed if the officers' reliance on the warrant was reasonable").
2. The officers searched Kila's residence only after first obtaining a search warrant from Magistrate Judge Kurren. Although the good-faith exception is inapplicable when the searching officer introduces the tainted evidence in an effort to obtain a search warrant, see Vasey, 834 F.2d at 789, no evidence was submitted to this court suggesting that TFO Peralta had any reason to doubt the validity of the search of the Toyota Celica. "In the ordinary case, an officer cannot be expected to question the magistrate's probable-cause determination or his judgment that the form of the warrant is technically sufficient." Leon, 468 U.S. at 920. Even if the search warrant was deficient in some respect, the officers relied on the warrant in good faith, and their search of Kila's residence pursuant to a search warrant falls under Leon's good-faith exception.
F. Miranda Warnings Were Required Because Kila Was Subjected to Custodial Interrogation.
1. Miranda warnings are required whenever a person is subject to custodial interrogation. Interrogation "refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect."Rhode Island v. Innis, 446 U.S. 291, 301 (1980). An incriminating response is "any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial." Id. at n. 5; see also Miranda v. Arizona, 384 U.S. 436, 476-77 (1966) (clarifying that statements introduced by the prosecution solely for impeachment purposes are incriminating).
2. Whether custodial questioning constitutes custodial interrogation is an objective inquiry, and the subjective intent of the police, though relevant, is not conclusive. The focus is on the defendant's perceptions. Innis, 446 U.S. at 301. Thus, the fact that a question is objective, or was not "asked in an attempt to elicit evidence of crime," is insufficient for finding that the questioning is not an interrogation. United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981). "Even a relatively innocuous question may, in light of the unusual susceptibility of a particular subject, be reasonably likely to elicit an incriminating response." Id. (citing Innis, 446 U.S. at 302 n. 8); see also United States v. Henley, 984 F.2d 1040, 1042 (9th Cir. 1993) ("When a police officer has reason to know that a suspect's answer may incriminate him, however, even routine questioning may amount to interrogation.").
3. In United States v. Padilla, 387 F.3d 1087, 1093 (9th Cir. 2004), the Ninth Circuit concluded that a federal agent's statement "to the effect" that it was defendant's "last chance to cooperate" constituted interrogation because "the agent should have known that it was reasonably likely that such a comment would evoke an incriminating response." Id.
4. Similarly, in Henley, the Ninth Circuit concluded that a fairly innocuous question constituted interrogation given the context of the questioning and the content of the question. Specifically, when the police officer investigating a bank robbery asked the defendant whether he was the owner of the getaway car, the police officer was "reasonably likely to elicit an incriminating answer." Id. at 1043; see also Booth, 669 F.2d at 1238 (routine questions regarding whether the defendant had a prior arrest record and defendant's reason for being in the area constituted interrogation under the circumstances).
5. The Government does not dispute that Kila was in custody, arguing only that Kila was not subject to custodial interrogation. United States of America's Amended Response and Opposition to Defendant Kila's Motion to Suppress Evidence (Mar. 10, 2008) ("Amended Opp'n") at 2. The Government claims that because TFO Peralta's questioning was not designed to elicit an incriminating response, Kila was not subjected to custodial interrogation. The court disagrees.
6. TFO Peralta's subjective intent is not dispositive in this court's analysis, as the court is primarily concerned with whether the questioning was reasonably likely to elicit an incriminating response from Kila. Although TFO Peralta claims to have only been looking for a "yes" or "no" response from Kila, the circumstances of the situation may have made Kila especially susceptible to giving an incriminating response. Kila had just been arrested and placed in handcuffs, and he was being asked whether he wanted to cooperate in the investigation of a drug conspiracy that he was being arrested for and for which he was told he could be sentenced to life in prison. The court finds the questioning in this case similar to that in Padilla, in which the Ninth Circuit noted that, with regard to the Government statements, "It is difficult to imagine any purpose fo such a statement other than to elicit a[n incriminating] response."Padilla, 387 F.3d at 1093. Given the circumstances of the questioning, the court similarly concludes that the questions and statements made by TFO Peralta were likely to elicit an incriminating response from Kila. Because Kila was subjected to custodial interrogation without being advised of his Miranda rights, Kila's post-arrest statements are suppressed.
IV. CONCLUSION.
For the foregoing reasons, Kila's motion to suppress is granted in part and denied in part. The court suppresses Kila's post-arrest statements, but declines to suppress the evidence recovered from the search of the Toyota Celica or Kila's residence. This order also disposes of the Government's separate motion regarding use of what it refers to as "Rule 404(b)" evidence concerning Kila. As the purported "Rule 404(b) evidence" is the evidence at issue on the present motion to suppress, that "Rule 404(b) evidence" is not inadmissible at trial.
IT IS SO ORDERED.