Opinion
Case No. 98-CR-208-HA
October 19, 2001
Pamala R. Holsinger, J. Richard Scruggs, Assistant United States Attorneys, Portland, OR; Attorney for Plaintiff.
Thomas K. Coan, Attorney at Law, Portland, Oregon; Attorney for Defendant.
OPINION AND ORDER
BACKGROUND
The defendant filed a motion to suppress all evidence obtained from the warrantless search of the car that he was driving on the night of April 15, 1998. This court granted the defendant's motion, United States v. Earnest Abbit, et al., 1999 WL 129672 (D.Or. 1999), but that decision was reversed on appeal. See United States v. Penn, 233 F.3d 1111 (9th Cir. 2000). The Ninth Circuit summarized the district court finding that the
search was invalid under the Fourth Amendment because the officer had discretion to allow an occupant of an impounded vehicle to take personal property from the car prior to an inventory search, and there are no standard criteria to guide a Portland officer's decision.
Id. at 1112. However, that court was "firmly convinced that a Portland officer has no discretion to conduct anything other than a full and complete inventory." Id. at 1116. Nonetheless, the case was remanded. the appellate court said:
. . . we cannot resolve the question of whether the paper bag containing the cocaine base was wrongfully opened. The district court did not rule on the issue, nor can we because it is a fact-intensive inquiry as to which conflicting evidence was presented. We therefore leave the propriety of this search in light of Portland City Code § 14.10.030.(c)(3) to the court on remand.
Id. at 1117.
The circumstances of the April 15, 1998, traffic stop have been developed through two motions to suppress and the testimony of several witnesses in the trial of Mr. Penn's co-defendants.
After review of all of the evidence, testimony of witnesses, transcripts from earlier hearings, and the arguments of the parties, I find that the record establishes that the following events occurred.
On April 15, 1998, at approximately 11:30 p.m., Portland Police Officer Peter McConnell was on patrol in northeast Portland. He noticed a 1995 Chevrolet Camaro make an improper turn. McConnell had heard a report of a stolen Camaro. He followed the car for a few blocks and then performed a traffic stop after he learned that this Camaro was not the car that had been reported stolen. The defendant, Kyllo Penn, was the driver of the Camaro. The Camaro was owned by Denise Booker, who was not present. Latoya Carruthers was a passenger in the car.
Officer McConnell informed Mr. Penn about the improper turn, and asked to see Penn's driver's license and proof of insurance. Penn readily produced his driver's license, but could not find a current insurance card. He did find several expired insurance cards.
McConnell allowed Penn to continue to look for proof of insurance while he verified the information on the driver's license, determined that the license was valid and that Penn had no outstanding warrants. McConnell returned to the Camaro, where Penn was still looking for a valid insurance card. Penn had called Booker, who told him that the car was insured and that a current card should be in the car. After a further search, Penn again called Booker on his cell phone and gave the phone to McConnell. Although the testimony was disputed, it is clear that Booker told McConnell that there had been a mix-up with the insurance, that the car was insured, and that she was willing to bring him an insurance card from home or to find the card that she believed was in the car. McConnell assured her that she had nothing to worry about, although he had already decided to issue a citation pursuant to ORS 806.010, and impound and tow the car. He allowed Penn to keep looking for a valid insurance card until back-up arrived.
The parties spend considerable energy disputing whether or not the car was insured at the time of the traffic stop. Whether the car was insured is immaterial to the outcome of this motion.
Oregon law provides two separate statutes under which a driver can be cited for failure to provide proof of insurance, ORS 806.010 and ORS 806.012. Neither statute allows the arrest of the driver, but 806.010 allows impoundment of the uninsured vehicle. See ORS 819.715. A citation under 806.012 does not allow impoundment of the vehicle.
McConnell noted that Penn was beginning to get nervous, and sometimes McConnell did not have a clear view of Penn's hands as Penn continued looking through papers, so he asked if there were any guns in the car. McConnell felt that Penn's answer was equivocal, and he asked Penn to step out of the car. The passenger, Carruthers, also got out of the car and stood on the sidewalk with Officers Foesch and McLaughlin, who by that time had arrived at the scene of the traffic stop. Penn consented to a search of his person. During the search of the defendant, McConnell removed several wads of cash from Penn's pockets. The cash totaled over $9000. McConnell did not seize the cash, but returned it to Penn's various pockets.
McConnell testified that the purpose of having the defendant get out of the car was to conduct an inventory search of the car prior to towing. Also, McConnell told Penn that he was not under arrest.
McConnell then began his inventory search of the Camaro. Portland City Code chapter 14.10 governs inventory searches. Section 14.10.030(c)(3), which is relevant in this case, states:
Unless otherwise provided in this Chapter, closed containers located either within the vehicle or any of the vehicle's compartments will not be opened for inventory purposes.
A closed container "means a container whose contents are not exposed to view." Portland City Code § 14.10.020(C).
McConnell began his search in the passenger compartment. When he opened the console between the two front seats (the jockey box), he noticed a brown paper bag that was compacted down to fit within the small compartment. He lifted the bag out to look beneath it, and then replaced the bag. McConnell did not notice the contents of the bag when he first removed it, but after he replaced the bag he noted that there was a very small opening at the top.
There was actually a smaller brown paper bag inside of the first bag. The size and condition of the bags were the subjects of extensive testimony. The bags were typical brown paper bags, well used but not torn or ripped in any way. The larger, outer bag was less than half full when McConnell found it. Once the bag was open, approximately six to seven inches of the outer paper bag extended up beyond its contents. The bags were admitted into evidence and were carefully examined during the hearing.
It is clear from all of the evidence and testimony that the top of the bag was closed and rolled at least somewhat, and that McConnell grabbed the rolled top of the bag when he lifted it from the jockey box. McConnell claims that he was able to look down into the bag and see a brownish residue in the top corner of a ziploc baggie after he replaced the bag in the jockey box. The ziploc bag was positioned about three inches below the top of the paper bag, and the residue was an inch or so lower than that. The ziploc baggie was inside of the second, smaller brown paper bag. McConnell would have been looking straight down at the baggie past at least three inches of paper bag through a one-inch opening in the top of the paper bag, and he was not directing his flashlight into the bag at that time.
This conclusion is consistent with the testimony of two eyewitnesses, who noticed McConnell unroll the top of the bag, and is also consistent with the condition of the bag itself, which was presented at the hearing. McConnell has consistently testified that he cannot remember unrolling the bag. Only the testimony of Officer Foesch contradicts this finding, and his description of what he was able to see simply is not credible, even if the bag had been completely open with lights shining directly into it. Officer McConnell commented that Foesch could not have seen what he claims to have seen.
It is unnecessary to make a finding that McConnell did or did not see the brownish residue because the paper bag was closed prior to its removal from the jockey box and should not have been opened.
It is clear from all of the evidence and testimony that the brown paper bag which Officer McConnell removed from the console was a closed container as that term is defined in the Portland City Code. As the government can point to no other provision in § 14.10 of the Code that would have allowed Officer McConnell to open the closed brown paper bag, the bag was wrongfully opened.
The defendant has supplemented his motion to suppress with claims that the government violated both the equal protection clause and the due process clause of the Constitution of the United States. Neither argument merits much discussion.
The defendant's equal protection argument fails because the data upon which he bases his statistical analysis simply does not support the conclusions he attempts to draw. The government's arguments on this issue are correct. The defendant's procedural due process claim is meritless, and was disposed of by the Ninth Circuit's opinion in U.S. v. Penn, 233 F.3d at 1117.
CONCLUSION
The defendant's motion (#1886) to suppress is granted. All evidence seized from the 1995 Camaro is ordered suppressed, including all of the contents of the paper bag, the contents of two briefcases that were in the trunk on the car, and evidence obtained from the cell phones that were in the car. Further, all evidence seized from the defendant's person, including the approximately $9000 cash, is ordered suppressed.
Although the cash itself must be suppressed as it was the indirect product of the unlawful inventory search, Wong Sun v. United States, 371 U.S. 471, 484 (1963), the fact of Officer McConnell's discovery of the cash during the consent search of the defendant's person is admissible evidence.
Defendant's motion (#1887) to suppress evidence obtained from one of the cell phones based on the government's failure to obtain a warrant is denied as moot. Defendant's motion (#1883) to suppress based on an equal protection violation is denied. Defendant's motion (#1884) to suppress based on a procedural due process violation is denied.