Opinion
Crim. No. 00-593-HA
March 22, 2001
Attorneys for the Government :
Kristine Olsen, United States Attorney District of Oregon, Billy J. Williams, Assistant United States Attorney, Portland, Oregon
Attorney for Defendant :
Michael Levine, Assistant Federal Public Defender, Portland, Oregon
OPINION AND ORDER
Pending before this court is defendant's motion to suppress. Testimony and oral arguments regarding this motion were heard in court on March 13, 2001. For the following reasons, the motion to suppress (doc. # 15) is denied.
BACKGROUND
Defendant is charged with one count of being a felon in possession of a firearm, one count of felon in possession of ammunition, possession of heroin, and possession of methamphetamine. The defendant has moved to suppress the seizure of evidence and statements involved in defendant's arrest.
Defendant's arrest occurred early on the morning of October 30, 2000, after he was observed entering and leaving a "7-11" convenience store at 8635 S.W. Barbur Boulevard in Portland, Oregon. During the officer's patrol along the boulevard that night, he noticed that defendant's pick-up truck was parked parallel to the side of the store, across two parking spaces and facing the rear exit of the parking lot. The officer considered the vehicle to be in a possible "getaway" position for a robbery, and he had been previously advised at his precinct of a recent armed robbery at an auto supply store in another area of Portland.
The police officer parked his patrol car across from the 7-11 on Barbur Boulevard and observed defendant exit the truck and enter the store. Officer Richardson then drove through the 7-11 parking lot and obtained the truck's license plate number. He drove back to his previous spot and checked the plate number. The truck was not reported stolen. Richardson observed defendant leave the store and enter his truck. Defendant then sat in the vehicle for two minutes.
Officer Richardson decided to make contact and parked his patrol car behind defendant's truck. Richardson approached defendant and asked what he was doing. Defendant explained that he was scratching off a lottery ticket. The officer told defendant that the truck was parked in a suspicious manner, and that people who rob stores sometimes park that way.
Defendant testified at the suppression hearing that at this point, Richardson asked for and received defendant's license, and returned to the patrol car to check the license. The officer has no recollection of this, but testified that he typically records the information from a person's license in his notepad at the scene of the stop, and returns the license immediately.
The record reflects that defendant's license information was written in Richardson's notepad. During the stop, the officer asked defendant if he would consent to a vehicle search. Both parties paraphrase defendant's response differently, but counsel agree that defendant acquiesced to a search. Defendant testified that he told the officer that he had no choice in consenting because he was on parole.
The officer asked defendant to step out of the car, and when defendant did so, Richardson patted him down for safety purposes. Richardson found six bullets in the right front coin pocket of defendant's pants. Defendant testified that he was then handcuffed and placed into the back of Richardson's patrol car. The officer gave conflicting testimony. He stated that he explained to defendant that he wanted defendant to sit in the patrol car while the truck was searched for "officer safety," that defendant agreed, and that defendant was not handcuffed or arrested until after the search of defendant's truck revealed narcotics. During his search of the vehicle's cab, officer Richardson found a drug "fix kit," a black pouch with a clear top revealing several syringes, a spoon with residue, and a green plastic container. Richardson took the pouch back to defendant, who stated that the green container held a quarter gram of heroin. The officer testified that at this point, he opened the container, found what he believed to be heroin, and arrested defendant. He recited defendant's rights to him and handcuffed him.
Officer Richardson then continued the search, with the assistance of officer Livingston, who had arrived as back-up. Livingston was searching the lockbox in the pick-up bed when he felt a hard object rolled up in a red flannel shirt. Richardson went back to defendant and asked if a gun would be found in the lockbox. Defendant purportedly said yes. Richardson returned to the truck, unrolled the flannel shirt, and found the object still concealed in a rolled black T-shirt. In that shirt was a .22 caliber pistol (matching the caliber bullets seized from defendant).
A further search revealed two Halloween masks and other clothing in the truck. Defendant volunteered that he had been transporting the gun to a drug dealer's house. He was then taken to Portland's Central Precinct and placed in a holding cell. A further search of his person revealed two plastic gloves in the front area of his underwear. Defendant explained that he intended to wipe prints off of the gun and a bottle of "MSG" before turning these items over to the dealer.
At the suppression hearing, defendant testified that he had ingested heroin and methamphetamine a few hours prior to his encounter with Richardson. He acknowledged that he became ill as a result of these drugs while in custody at the precinct, but asserted that he was aware of his surroundings and not impaired at the time of his arrest.
ARGUMENT
Defendant moves to suppress, arguing that he was held in custodial detention without a recitation of his rights when Richardson parked behind him and confiscated his driver's license; that the detention was not supported by reasonable suspicion of criminal activity; that the detention was unlawfully prolonged after all suspicion of possible criminal activity was dispelled; that the subsequent request from the officer to search the vehicle was unlawful; and that the subsequent pat-down of defendant was unsupported by a reasonable suspicion that defendant was armed or dangerous, and was therefore also unlawful.
STANDARDS
Defendant asserts that Richardson's detention of him was custodial because under the circumstances, he reasonably believed he was not free to leave after the officer parked his patrol car behind defendant's truck and later obtained defendant's driver's license. The Fourth Amendment to the United States Constitution provides protections and mandates certain requirements in the event of government seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721 (1969).
The Fourth Amendment mandates that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons to be seized.
United States Constitution, Amend. IV. This is applied to the states, and state actors, through the Fourteenth Amendment. Elkins v. United States, 364 U.S. 206, 213 (1960).
An officer approaching a person and asking questions does not necessarily constitute a seizure. United States v. Mendenhall, 446 U.S. 544, 554-55 (1980) (plurality opinion) (a person is seized in a manner invoking the protections of the Fourth Amendment to the United States Constitution when "in view of all of the circumstances surrounding the incident a reasonable person would have believed that he was not free to leave"); see also United States v. Booth, 669 F.2d 1231, 1235 (9th Cir. 1981) (defendant is in custody when, based upon a review of all the pertinent facts, "a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave"). Pertinent facts to consider include (1) the language used to summon the individual, (2) the extent to which the defendant is confronted with evidence of guilt, (3) the physical surroundings of the interrogation, (4) the duration of the detention, and (5) the degree of pressure applied to detain the individual. United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985); United States v. Crisco, 725 F.2d 1228, 1231 (9th Cir.), cert. denied, 466 U.S. 977 (1984); Booth, 669 F.2d at 1235; United States v. Curtis, 568 F.2d 643, 646 (9th Cir. 1978). See also United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997) ("[w]hen a law enforcement official retains control of a person's identification papers, such as vehicle registration documents or a driver's license, longer than necessary to ascertain that everything is in order, and initiates further inquiry while holding on to the needed papers, a reasonable person would not feel free to depart"). Under Miranda v. Arizona, 384 U.S. 436 (1966), a person held in custodial detention or subject to custodial interrogation is entitled to procedural protections that are designed to secure an accused's privilege against self-incrimination, including an effective explanation of applicable constitutional rights. There is no dispute that in this case, defendant was not provided with what are commonly referred to as his "Miranda rights" until after his truck was searched and narcotics were found.
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court addressed the scope of Fourth Amendment protections applicable in situations regarding police questioning of individuals suspected of breaking the law. The Court held that a limited intrusion for investigatory purposes is proper when predicated upon a reasonable suspicion that the detained person was involved in an illegal activity:
And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate?
Id. at 21-22 (footnotes omitted).
Accordingly, brief detentions, falling short of formal arrest, are lawful. See United States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2000), quoting United States v. Michael R., 90 F.3d 340, 346 (9th Cir. 1996); see also Barlow v. Ground, et al., 943 F.2d 1132 (9th Cir. 1991), cert. denied, 505 U.S. 1206 (1992) (the Fourth Amendment permits police to detain an individual only when the police have an articulable and reasonable suspicion that the individual has committed or is about to commit a crime).
"Reasonable suspicion" is created by specific, articulable facts that, when considered together with objective and reasonable inferences, establishes a basis for suspecting that the particular person detained is engaged in criminal activity. Lopez-Soto, 205 F.3d at 1105, quoting Michael R., 90 F.3d at 346; see also Florida v. Royer, 460 U.S. 491, 500 (1983) ("reasonable suspicion" is established by a showing from an officer that he or she relied upon specific and articulable facts supporting an inference that (1) some criminal activity was occurring, and (2) the detained individual had been involved in such activity).
In determining whether reasonable suspicion exists, an officer "is entitled to rely on his training and experience in drawing inferences from the facts he observes, but those inferences must also be grounded in objective facts and be capable of rational explanation." Lopez-Soto, 205 F.3d at 1105 (citations and internal quotations omitted). Officers making such factual determinations are not required to be always correct, but must "always be reasonable." Illinois v. Rodriguez, 497 U.S. 177, 185 (1990).
Similarly, the United States Supreme Court has held that determining whether a Fourth Amendment violation has occurred "turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time."Scott v. United States, 436 U.S. 128, 136 (1978). The Court reasoned,
almost without exception in evaluating alleged violations of the Fourth Amendment the Court has first undertaken an objective assessment of an officer's actions in light of the facts and circumstances then known to him. The language of the Amendment itself proscribes only "unreasonable" searches and seizures. * * * We have since held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. * * * The Courts of Appeals which have considered the matter have likewise generally followed these principles, first examining the challenged searches under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.
Id. at 137-38 (citations omitted); see also United States v. Sokolow, 490 U.S. 1, 7 (1989)
( Fourth Amendment requires some minimal level of objective justification for making the stop). The Ninth Circuit has similarly held. "Courts look to the totality of the circumstances known to the officers prior to any search conducted incident to the arrest." United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990) (citations omitted).
ANALYSIS
1. Reasonable Suspicion Justifying Detention
Defendant argues first that Richardson's belief that defendant's truck was parked suspiciously was insufficient to create a reasonable suspicion that criminal activity was afoot. At the hearing there was some dispute regarding the precise location of defendant's truck when it was observed by the officer. The parties agree, however, that the truck was parked to the side of the convenience store, across two lined parking spaces and near the curb leading to the store entrance. The position of the vehicle precluded it being observed by store occupants, and facilitated an unusually rapid departure from the parking lot. This court concludes that the officer's suspicions regarding the manner in which the truck was parked were reasonable. In light of the time (after midnight), the officer's knowledge of a recent armed robbery at a store, and the odd position of the truck that suggested it might be a "getaway" vehicle following criminal activity, his decision to investigate was objectively justifiable.
Defendant's assertions that the truck was not parked illegally, the engine was not left running while defendant entered the convenience store, and that there were no other circumstances suggesting that a robbery was underway, fail to persuade the court that Richardson's suspicions were unreasonable. The officer testified that defendant waited for at least two minutes in his vehicle after returning from the store, and that the officer was concerned whether defendant was surveilling the store and preparing for a robbery. Facts that merely suggest a robbery was not in progress at the time of defendant's initial detention do not diminish the reasonableness of the inferences of possible criminal activity that Richardson drew from what he observed.
2. Detention Unreasonably Prolonged
Defendant next argues that Richardson's detention of defendant was unlawfully prolonged. Even if the totality of the circumstances warranted a brief detention, that detention must be temporary and unintrusive, see Florida v. Royer, 460 U.S. 491, 500 (1983), and the accompanying investigation must be limited to the scope of the suspicion giving rise to the stop. See United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975). Once the purpose of the stop is complete, further detention is impermissible unless something else occurs generating more suspicion. United States v. Mesa, 62 F.3d 159, 162 (9th Cir. 1995).
Moreover, the scope of any governmental invasion of a citizen's personal security "must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible." Terry, 392 U.S. at 19 (quoting Warden v. Hayden, 387 U.S. 294, 310 (1967) (Justice Fortas, concurring)).
Defendant argues that Richardson's suspicion of a robbery was dispelled after the officer contacted defendant in his truck. This argument is rejected. Despite the lack of any obvious indication that defendant was engaged in criminal activity upon Richardson's contact with him, this court concludes that the purpose of the officer's stop was not yet complete when he engaged defendant in questioning. The circumstances that gave rise to Richardson's reasonable suspicion and defendant's initial detention had not dissipated during the questioning, and this questioning was not so intrusive as to lead a reasonable person to think that he or she was no longer free to leave.
Defendant testified that Richardson confiscated his license during this questioning. As noted above, the Ninth Circuit recognizes a seizure "within the meaning of the Fourth Amendment" where an officer obtains and fails to return a person's driver's license and registration and proceeds with an investigation. See Chan-Jimenez, 125 F.3d at 1326. Richardson testified that he had no recollection of taking defendant's license back to his patrol car, and that his standard practice is to simply copy information from a person's license into his notepad rather than to leave a stop scene with the license. Accordingly, the parties dispute what occurred during Richardson's questioning of defendant with regard to defendant's display of his license.
This conflict compels the court to evaluate the parties' respective credibility. After hearing the testimony and observing the demeanor of the witnesses, the court deems Richardson to be more credible. Moreover, the record supports the officer's testimony, since defendant's license information was, in fact, copied into Richardson's notepad. This court concludes that Richardson did not confiscate defendant's driver's license.
The court also concludes that the questions Richardson asked of defendant were reasonable and within the scope of the purpose for the initial stop. The officer's suspicions of possible criminal activity were not dispelled in the first few moments of his encounter with defendant, and his questioning of defendant did not unlawfully prolong his detention.
3. Lawful to Request to Search Truck
Defendant also complains that Richardson had no grounds to expand the detention to include requests to search the truck and to pat down defendant. This argument reasserts the position that Richardson's suspicion of robbery was dispelled after Richardson made contact with defendant, and that there were no independent, legal grounds to ask defendant for permission to search his truck, or to pat defendant down after he stepped from the truck. This court disagrees.
As stated above, the court concludes that Richardson's reasonable suspicions were not dispelled after his initial contact with defendant. The officer lawfully requested defendant's consent to search the truck, and defendant acquiesced to the request. The burden is on the government to demonstrate that a person's consent to a search "was freely and voluntarily given." Chan-Jimenez, 125 F.3d at 1327. Whether consent was voluntarily given" `is to be determined from the totality of all the circumstances.'" United States v. Reid, 226 F.3d 1020, 1026 (9th Cir. 2000), (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)); see also United States v. Furrow, 229 F.3d 805, 813 (9th Cir. 2000). Several factors are considered when assessing whether a person's consent was voluntary: (1) whether the person was in custody; (2) whether the officers had their guns drawn; (3) whether a Miranda warning had been given; (4) whether the person was told that he had the right not to consent; and (5) whether the person was told that a search warrant could be obtained. Id.; see also United States v. Torres-Sanchez, 83 F.3d 1123, 1129-30 (9th Cir. 1996). While no one factor is determinative, see United States v. Castillo, 866 F.2d 1071, 1082 (9th Cir. 1988), the Ninth Circuit's decisions upholding consent as voluntary are typically supported by at least several of these factors. Reid, 226 at 1026-27, citing Chan-Jimenez, 125 F.3d at 1327 n. 3.
Additionally, for consent to be valid, the consentor's capacity for self-determination must not be critically impaired. Schneckloth, 412 U.S. at 225; Culombe v. Connecticut, 367 U.S. 568, 602 (1961). This court has reviewed the testimony from defendant that he was under the influence of heroin and methamphetamine on the evening in question. Defendant does not contend that his capacity to give consent freely was impaired, however. To the contrary, defendant testified that while at the convenience store that night, he was coherent, aware of his surroundings, and able to understand and respond to Richardson's questions. Richardson's testimony accords with defendant's — he described the dialogue between officer and defendant as calm and rational. In response to repeated cross examination from defense counsel, Richardson testified that defendant was not sweating profusely, shaking or trembling, and did not appear overly nervous. There is no argument made, and nothing in the record to suggest, that defendant failed to understand Richardson's request to search the truck, or that defendant's consent to do so was accompanied by any impairment.
Moreover, nothing in the record suggests that Richardson exerted any overt coercion on defendant to consent, and the situation at the time was not inherently coercive: defendant was not under arrest or physically detained at the time, and Richardson did not have his gun drawn. See Castillo, 866 F.2d at 1082. For these reasons, and after considering the totality of all the circumstances at the time, the court concludes that the government has met its burden of establishing that defendant's consent to search was freely and voluntarily given. Accordingly, Richardson's search of the vehicle was lawful.
4. Lawful to Pat-down Defendant
Finally, defendant asserts that his pat-down search was unlawful because Richardson lacked a reasonable suspicion that defendant posed a threat to officer safety or the safety of others. Defendant argues there were no reasonable grounds to believe defendant was armed, and that the bullets did not feel like a weapon to the officer, so they should not have been seized.
This court concludes that it is reasonable for an officer to conduct a pat-down during a stop that arose out of a reasonable suspicion regarding robbery, and that the subsequent seizure of the bullets was proper. Officers are permitted to investigate within the parameters of a Terry stop without fear of flight or violence from the detainee. See Adams v. Williams, 407 U.S. 143 (1972). The Ninth Circuit has recognized that "[s]ometimes, an investigatory stop may involve more than the ordinary risks inherent in any contact between police officers and suspects. Even though the officers may not have sufficient cause to make an arrest, they may have to take particular measures to protect themselves during the course of the stop. As a result, we allow intrusive and aggressive police conduct without deeming it an arrest in those circumstances when it is a reasonable response to legitimate safety concerns on the part of the investigating officers." Washington v. Lambert, 98 F.3d 1181, 1186 (9th Cir. 1996); see also United States v. Hensley, 469 U.S. 221, 235 (1985) (during a Terry stop police officer may take reasonable measures to neutralize the risk of physical harm and to determine whether the person in question is armed); United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987) (use of force does not convert an investigatory stop into an arrest when force is justified given fears of personal safety); United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir.), cert. denied, 476 U.S. 1185 (1986) (officers may instruct detainees to put their hands on a car, and also may draw weapons during an investigatory stop). As the Supreme Court has recognized, risks of harm to both the police and citizens are minimized when officers are permitted to routinely exercise unquestioned command of the situation during investigatory stops. Michigan v. Summers, 452 U.S. 692, 702-06 (1981).
CONCLUSION
Under the facts and circumstances presented, the police officer's detention and initial investigation of defendant on October 30, 2000 arose from reasonable suspicions and was lawful. Defendant's consent to a search of his vehicle was given freely and voluntarily, and was therefore lawful. The subsequent pat-down of defendant and the confiscation of bullets found in defendant's pocket were also lawful. Accordingly, defendant's motion to suppress (doc. # 15) is DENIED.
IT IS SO ORDERED.