Opinion
Case No. 2:04-CR-720 DB.
April 26, 2005
REPORT RECOMMENDATION
Defendant Lori Ann Goff filed a Motion to Suppress for Illegal Search and Seizure asking the court to suppress all evidence seized as a result of the search of Defendants' room at Roberta's Cove Motel in Nephi, Utah on October 15, 2004, and all fruits of the search including statements made by the defendant. (Dkt. no. 27.) Defendant Michael Norlander subsequently filed his own Motion to Suppress in which joined in the initial motion filed by Defendant Goff. (Dkt. no. 37.) The case was referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B).
On February 8, 2005, the Magistrate Judge held a hearing on the motions to suppress. Robert Breeze represented Defendant Goff; Henri Sisneros represented Defendant Norlander; and Lana Taylor represented the government. Following the hearing, the parties submitted additional briefing which was complete on April 4, 2005.
I. FACTS
Officer Wesley Dudley of the Nephi City Police testified that the police had received information pursuant to an Attempt to Locate stating Defendants were wanted for distribution of a controlled substance on warrants out of White Pine County, Nevada. The Attempt to Locate stated that Defendants might be in the Nephi area. It also stated that they might be in possession of a meth lab, and that officers should use caution. (Tr. 6-7.)On October 15, 2004, while the officers were following up a lead at a car dealership where Defendants were thought to have sold a car, Detective Shane Johnson received a phone call that Defendants were staying at Roberta's Cove Motel on the south end of Nephi. (Tr. 7.) Upon learning this information, Officer Dudley went to the motel and drove through the parking lot to see if he could find any of the vehicles that were identified in the Attempt to Locate. (Tr. 7-8.) After failing to find the vehicles, Officer Dudley went to the manager's office to inquire if either of the subjects were registered and renting a room at the motel. The manager responded that they were staying in Room 43. Officer Dudley informed the manager that the police were going to arrest Defendants on warrants, and asked if he could use a key to enter the room if necessary so as not to cause any property damage. The motel manager agreed to provide a key. (Tr. 8.)
Officer Dudley then took a position where he could conduct surveillance of the motel while he awaited the arrival of other officers to assist in the arrest. (Tr. 8.) He waited for approximately twenty minutes during which time he observed two individuals, Stuart Wade Thompson and Brenda Gillespie exit the motel room and drive north on Main Street. Officer Dudley was familiar with Mr. Thompson and Ms. Gillespie who both lived in the area. (Tr. 8-10.) In addition, Officer Dudley knew that there was some sort of familial relationship between Defendant Goff and the woman identified as Brenda Gillespie. (Tr. 27.) Other than the familial visitors, Officer Dudley had no information about any other traffic in and out of the room. (Tr. 29.)
There was some question as to whether the female who exited the room was actually Brenda Gillespie or her daughter. (Tr. 26-27.) However, for purposes of this report and recommendation, the court will refer to her as Brenda Gillespie.
After about twenty minutes, Officer Steve Johnson, Deputy Craig Ryan and Detective Shane Johnson arrived. Officer Steve Johnson went to the motel office to retrieve the key while the other officers approached Defendants' room. After covering the peephole, Officer Dudley knocked on the door. (Tr. 10.) In response to the knock, he heard a female voice ask who was there. Defendant Goff then opened the window curtains and looked out. Officer Dudley identified himself as a police officer and asked Defendants to open the door. Defendant Goff opened the door and stepped to the threshold. Officer Dudley asked who she was and she identified herself. At that point, a male individual, whom Officer Dudley identified as Defendant Norlander, came to the door. Officer Dudley informed Defendants that they were under arrest on warrants out of Nevada and placed them in handcuffs. (Tr. 11.)
Officer Dudley testified that both Defendants had stepped just outside the door at the time they were taken into custody. (Tr. 12, 16.) After Defendant Norlander came out, he started to close the door. (Tr. 12.) Officer Dudley told him not to shut it, but Defendant Norlander said he did not want his dogs to come out. (Tr. 17, 32, 33.) Officer Dudley attempted to stop the door from closing, but Defendant Norlander pulled it shut and it locked. (Tr. 12, 16-17, 32.) It was at that point that Defendants were placed in handcuffs. (Tr. 12, 16.) On cross-examination, Officer Dudley confirmed that both defendants were outside the room and the door was closed behind them at the time they were arrested. (Tr. 33.)
After Defendants were arrested, Officer Johnson came back with the room key which was used to open the door. Officer Dudley then conducted what he called a protective sweep of the room to determine if there were any other suspects in the room or any danger to officers. (Tr. 12.) Officer Dudley admitted he had no indication of criminal activity at the time (Tr. 30-31), and no sense of immediate danger emanating from the room. (Tr. 31.) When Officer Dudley checked the bathroom, he saw a possible meth lab. At that point, Detective Shane Johnson of the Nephi City/Juab County Drug Task Force, entered the room to confirm that it might be a meth lab. Thereafter, the officers exited the room. (Tr. 13, 50-51.) Once the room was secured, Officer Dudley stayed at the motel while the other officers went back to the office to prepare an affidavit for a search warrant. (Tr. 13.)
Officer Dudley explained that the officers were concerned about danger because the Attempt to Locate had said to use caution, and because the officers had seen other individuals leaving the room. (Tr. 12.) However, Officer Dudley did not know why the Attempt to Locate said to use caution. (Tr. 27.) He admitted he had no particular concern about his safety based on the "use caution" notice other than he did not know the defendants, and had no information as far as weapons were concerned. (Tr. 27-28.) He acknowledged that he had no information that other persons were present in the room (Tr. 28), and no indication that other people were involved other than Thompson and Gillespie. (Tr. 20.) No other individuals were in the motel room, and no one else was arrested in connection with the investigation. (Tr. 14.)
The officers had no information that Defendants were carrying firearms, or that they had ever made threats against law enforcement. (Tr. 18, 26, 28.) Similarly, the officers had no knowledge that the two individuals who left the motel room, Thompson and Gillespie, were the type of people who carry firearms. Rather, they were basically peaceable drug users. (Tr. 19.)
The motel manager had noted nothing odd about Defendants, other than that they initially said that they were only going to stay one night, but ended up staying three more nights, paying one day at a time. They also requested that the maid not enter the room. (Tr. 20, 28.) The manager did not indicate that there had been other visitors to the room, that there had been any complaints about Defendants, or that she felt there might be some type of danger associated with them. They had not caused her any trouble. (Tr. 28-29.)
In dealing with the officers, Defendant Goff was compliant, followed instructions, used a calm tone of voice, and did not threaten the officers in any way. (Tr. 21, 31.) The officers had no knowledge of Defendants' criminal records, and had no indication that they were violent persons, or that they associated with violent persons. (Tr. 25-26.)
Defendant Norlander was compliant with the officers' orders, except for pulling the door closed. After he was outside, Defendant Norlander asked what was going to happen to the dogs. (Tr. 43.) Officer Dudley and Deputy Ryan brought the dogs out of the room and put them in a truck. (Tr. 43.) Officer Dudley was unsure whether the dogs were brought out of the room before or after the officers entered the room. (Tr. 43-45.) However, Defendant Norlander assisted in removing the dogs from the room and lifted one of the dogs into the bed of the truck. (Tr. 44-46, 55.) Officer Dudley admitted that he was fairly comfortable in his sense of security in allowing Norlander to assist him in removing the dogs. (Tr. 46.) Similarly, Detective Johnson admitted that he did not feel that Defendant Norlander presented an imminent danger, or he would not have allowed him to assist in putting the dog in the truck. (Tr. 55-56.) At the time that Defendants were assisting in getting the dogs out of the room, Officer Dudley had no sense that there was anybody else in the room that might be threatening to him. (Tr. 45-46.)
Officer Dudley at first testified that the protective sweep occurred before the dogs were removed from the room. "Q: At some point [after Norlander was arrested], did he start to talk to you about the dogs in the room? A: Yes. After we had gone in the room and come back out, he asked what was going to happen to the dogs." (Tr. 43.) In response to questions intended to clarify the issue, Dudley testified. "I am having a hard time remembering exactly how the dogs came out or we went in. I am not sure. . . . I can't remember exactly how they came out or if we went in at the same time the dogs came out." (Tr. 45.)
Regarding Thompson and Gillespie, the two individuals seen leaving the room, Officer Dudley testified that his prior dealings with Thompson included a domestic assault, and several traffic stops for driving without a license, and that sort of thing. (Tr. 38-39.) Officer Dudley had never dealt with Thompson on any drug charges. However, he testified that it was common knowledge that Thompson possibly was involved in either consumption or distribution of controlled substances. (Tr. 39.) He further stated that people who are high on methamphetamine usually are excited, belligerent, and sometimes can be physically violent. (Tr. 39-40, 41.) On cross-examination, Officer Dudley admitted that the two visitors, Thompson and Gillespie, were not excited, belligerent, or violent, and there was nothing that caused him any concern about those two individuals. (Tr. 41-42.) Likewise, Defendants were not excited, belligerent, or physically violent. (Tr. 42.)
On redirect, Officer Dudley stated that the Attempt to Locate contained information that Defendants might be in possession of a "hot lab." He explained that a hot lab occurs when the precursor chemicals are heated, and such labs can be volatile or explosive. He thus had some concern about the danger of explosion and chemical disposal. (Tr. 40.) He also was concerned because in his experience with individuals who were involved in the distribution of controlled substances, several of them had weapons and had been violent. (Tr. 41.) However, Officer Dudley admitted that the officers had no evidence of any potential manufacturing in the room. (Tr. 29-30.) There were no meth lab smells. (Tr. 20, 30.)
Detective Johnson testified that as a general rule, he was concerned for his safety when serving any type of arrest warrant, particularly when the warrants were related to methamphetamine or narcotics. (Tr. 49-50.) He stated that he always takes extra caution when dealing with a narcotics charge, because in his experience, persons under the influence of methamphetamine have a propensity for violence. (Tr. 50.) Detective Johnson admitted, however, that he had no information about Defendants being violent, or that they had dangerous associates that might have been lurking in the room, or that they possessed a firearm, or that firearms might have been present in the room. (Tr. 52.) Detective Johnson further admitted that he did not observe any threatening behavior by the Defendants; they did not exhibit any violent tendencies toward him or any of the officers; and both of them were compliant. (Tr. 53.)
Detective Johnson stated, however, that he did have a concern about someone else being in the room because in his previous experience, "the room isn't clear until it has actually been cleared." (Tr. 56.) However, other than his normal caution based upon his experience, there was nothing specific that raised red flags concerning danger to the officers. (Tr. 56.)
II. DISCUSSION
A. Protective SweepDefendants contend that the sweep of the motel room and the subsequent search violated the Fourth Amendment. The Fourth Amendment protects against unreasonable searches and seizures. "It is a `basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton v. New York, 445 U.S. 573, 586 (1980);accord United States v. Mendoza-Salgado, 964 F.2d 993, 1010 (10th Cir. 1992). This protection extends to a hotel room.Hoffa v. United States, 385 U.S. 293, 301 (1966); Stoner v. California, 376 U.S. 483, 490 (1964); United States v. Owens, 782 F.2d 146, 149 (10th Cir. 1986).
In the instant case, the Government relies upon the "protective sweep" doctrine to justify the initial search of Defendants' motel room. A "protective sweep" is "a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie, 494 U.S. 325, 327 (1990). The Fourth Amendment allows a protective sweep if police have "a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[s]' the officer in believing that the area swept harbor[s] an individual posing a danger to the officer or others." Id. (citations omitted). Thus, a protective sweep is "appropriate only where officers reasonably perceive an immediate danger to their safety." United States v. Owens, 782 F.2d 146, 151 (10th Cir. 1986). The sweep is limited in scope and time. It "may extend only to a cursory inspection of those spaces where a person may be found," and "lasts no longer than is necessary to dispel the reasonable suspicion of danger." Buie, 494 U.S. at 335-36.
The government argues that the officers had a reasonable belief that the room might contain people who posed a danger to them. In support of this assertion, the government states that the officers were dealing with people who were wanted on felony warrants for selling drugs, and the officers were warned to use caution in making the arrests. Further, the officers had information that the suspects might be in possession of a "hot lab."
Regarding the "hot lab," Officer Dudley admitted that there were no meth lab smells emanating from the room and he had no reason to suspect that manufacturing was occurring in the room. Further, it should be noted that the arrest warrants were eleven days old at the time the officers executed the warrants. (Tr. 66-67, 73.) Thus, information about any "hot lab" was stale.
The government also argues that Defendants might have been dangerous because they were associated with the drug trade. Indeed, the officers testified that they were concerned due to the fact that persons associated with methamphetamine were often violent, and that the Attempt to Locate said to use caution. In addition, one of the officers apparently had information that Defendants had threatened an informant, although no information was presented at the hearing concerning the nature of the threat. Nevertheless, Defendants posed little or no danger at the time of the protective sweep because they already had been arrested and were in handcuffs outside the locked door of the motel room. Further, the dangerousness of the arrested individuals is not relevant to the protective sweep analysis once they have been arrested. "[T]he danger which justifies a protective sweep comes from the possible presence of other armed and dangerous persons in the vicinity."United States v. Tisdale, 921 F.2d 1095, 1097 (10th Cir. 1990); Owens, 782 F.2d at 151. As the Sixth Circuit has pointed out, `[t]he facts upon which officers may justify a Buie protective sweep are those facts giving rise to a suspicion of danger from attack by a third party during the arrest, not the dangerousness of the arrested individual." United States v. Colbert, 76 F.3d 773, 777 (6th Cir. 1996). The defendant's dangerousness "is not germane to the inquiry into whether the police may conduct a protective sweep in response to a reasonable suspicion of a threat from some other person inside the home."United States v. Colbert, 76 F.3d 773, 777 (6th Cir. 1996).See also United States v. Henry, 48 F.3d 1282, 1284 (D.C. Cir. 1995) (stating that officers' awareness that defendant had a prior weapons conviction and could be dangerous did not justify protective sweep; once he was in custody, he no longer posed a threat to officers' safety); United States v. Ford, 56 F.3d 265, 269 (D.C. Cir. 1995) (threat posed by person already in custody does not justify a protective sweep).
The government also suggests that the officers might have had a reasonable fear for their safety because one of the persons seen leaving the room had been involved in violence, i.e., some sort of domestic assault. However, little information was presented concerning this incident. Further, the officers admitted that the two individuals were not considered violent, but were basically "peaceable drug users." (Tr. 19.) More importantly, the officers knew that these two individuals were not in the room at the time of the arrest.
Further, the officers admitted that they had no information that there might be someone else inside the motel room. (Tr. 28, 52.) "Lack of information cannot provide an articulable basis upon which to justify a protective sweep." Colbert, 76 F.3d at 778. See also United States v. Hogan, 38 F.3d 1148, 1150 (10th Cir. 1994) (holding unconstitutional protective sweep conducted after arrest of murder suspect where there was "no indication that the officers were in danger from a hidden accomplice"); United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298-99 (9th Cir. 1988) (holding protective sweep unconstitutional where officers had "no information that any other persons were in the apartment"); United States v. Akrawi, 920 F.2d 418, 420-21 (6th Cir. 1990) (holding sweep of second floor unconstitutional where arrest occurred on first floor and officers could point to "no specific basis" for believing that second floor harbored an individual posing a threat). As the Tenth Circuit has stated, "Of course, there could always be a dangerous person concealed within a structure. But that in itself cannot justify a protective sweep, unless such sweeps are simply to be permitted as a matter of course, a result hardly indicated by the Supreme Court in Buie." United States v. Carter, 360 F.3d 1235, 1242-43 (10th Cir. 2004). Accordingly, the protective sweep was not justified, and the evidence discovered as a result should be suppressed.
B. Inevitable Discovery
The Government relies on the inevitable discovery exception to the exclusionary rule to argue that even if a Fourth Amendment violation occurred, the evidence should not be suppressed. Under the inevitable discovery exception, even if the initial search of the motel room was unlawful, "the exclusionary rule is inapplicable if the evidence inevitably would have been discovered by lawful means." United States v. Souza, 223 F.3d 1197, 1202 (10th Cir. 2000); accord United States v. White, 326 F.3d 1135, 1138 (10th Cir. 2003); United States v. Tueller, 349 F.3d 1239, 1243 (10th Cir. 2003); see Nix v. Williams, 467 U.S. 431, 444 (1984).
The government has the burden to prove by a preponderance of the evidence that the evidence in question would have been discovered absent the Fourth Amendment violation. Souza, 223 F.3d at 1203; White, 326 F.3d at 1138. In evaluating whether the Government has met its burden of proof, the court considers only "`demonstrated historical facts,' not `speculative elements.'" White, 326 F.3d at 1138 (quoting Nix, 467 U.S. at 445 n. 5).
"The `inevitable discovery exception applies whenever an independent investigation inevitably would have led to discovery of the evidence, whether or not the investigation was ongoing at the time of the illegal police conduct.'" Souza, 223 F.3d at 1203 (quoting United States v. Larsen, 127 F.3d 984, 986 (10th Cir. 1997). Factors to be considered are (1) the extent to which the process of obtaining a warrant had been completed at the time of the illegal search; (2) the strength of probable cause for the warrant at the time of the search; (3) whether a warrant ultimately was issued; and (4) evidence that officers "jumped the gun" because they lacked confidence in their showing of probable cause. Souza, 223 F.3d at 1204.
In the instant case, no independent line of investigation was being pursued at the time of the protective sweep. The officers did not begin the process of obtaining a warrant until after the search of the room turned up the lab equipment. Further, prior to the search, no probable cause existed for obtaining a search warrant for the room. Although a search warrant ultimately was issued in this case, it was tainted by the prior unlawful search of the room.
The government points out that the Eleventh Circuit has extended the inevitable discovery exception to evidence that would have been discovered by a private party. See United States v. Hernandez-Cano, 808 F.2d 779, 782-84 (11th Cir. 1987). In support of its argument that the evidence inevitably would have been discovered, the government states that Defendants were paying for the room on a daily basis, and their checkout time would have been 11:00 on the morning following their arrest. Because Defendants were in custody, they would not have been able to pay for the room past checkout time the next day. Once Defendants were in default on the rent, they no longer would have had an expectation of privacy in the room, and the motel staff would have been entitled to enter the room and remove their belongings from the room. Since the key to the room was left on top of the television set, as one of the officers testified, Defendants' relatives would not have been able to enter the room and retrieve the evidence. Thus, under the government's scenario, on the morning after the arrest, the motel staff would have entered the room, seen the lab equipment, and turned it over to law enforcement.
In a case in which the government relied on a similar argument, the Tenth Circuit refused to apply the inevitable discovery exception to preclude suppression of evidence found in a motel room. United States v. Owens, 782 F.2d 146 (10th Cir. 1986). InOwens, the defendant had been arrested outside his motel room on a charge of receiving stolen property. Officers then entered the room ostensibly to remove the defendant's girlfriend at the request of motel management. While inside, the officers quickly scanned the room, including the bathroom, finding no one else present. However, the officers observed marijuana, a white powder substance, and drug paraphernalia in plain view. The officers then entered the room a second time and searched the room without a warrant. They found a bag containing two ounces of cocaine.Id. at 148-49.
On appeal, the government argued that the evidence would have been discovered during the motel's routine cleaning of the room. The Tenth Circuit rejected this argument as too speculative. The court stated that even if the motel staff had discovered the evidence, they would not necessarily have recognized the powder as cocaine or called the police if they had so recognized it. Further, absent the illegal search, the defendant might have been able to post bail and return to the room to retrieve his property before either the motel staff or police discovered it. Alternatively, he might have had a friend return to claim it.Id. at 152-53.
Similarly, there is no guarantee in the instant case that motel management would have discovered the lab equipment, recognized it as a potential meth lab, and called police. Moreover, the fact that a motel key was left inside the room does not preclude the possibility that there were other motel keys, or that Defendants' relatives or friends could not have obtained a key from motel management to retrieve their belongings from the room. Further, Defendants might have been able to post bond and retrieve their property prior to checkout time the next day. The court therefore concludes that the inevitable discovery argument is too speculative and that the evidence should be suppressed.
III. RECOMMENDATION
The search of Defendants' motel room violated the Fourth Amendment, and the evidence obtained as result should be suppressed. Accordingly, Defendants' motions to suppress should be GRANTED. (Dkt. nos. 27, 37.)
It is further RECOMMENDED that pursuant to 18 U.S.C. § 3161(h)(1)(F) and (J), any order of the district judge regarding this Report and Recommendation should exclude from the computation of the Speedy Trial Act, the time from the filing of the Motion to Suppress through the date of entry of the order of the district judge.
Copies of the foregoing Report and Recommendation are being mailed to the parties, who are hereby notified that they have the right to object to the Report and Recommendation. The parties are further notified that they must file any objections to the Report and Recommendation with the clerk of the district court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.