Opinion
CR 01-60009-03-HO.
June, 2001.
ORDER
The February 15, 2001, superseding indictment charges defendant with one count of passing counterfeited currency. Now before the court is defendant's motion to suppress (#22) all evidence seized from his person, and any fruits thereof, on the grounds that the seizure of such evidence was made without probable cause or a warrant and no exception to the Fourth Amendment's warrant requirement applied to the search.
The court heard oral argument on this matter on June 5, 2001, and requested that the parties submit additional briefing. The original and additional briefing has been received and considered.
I. Factual Background
The following facts, relevant to this motion, are substantially agreed upon by the parties, and are set out in the police reports (exhibits 1 and 2 to defendant's motion), and Officer Mason's testimony and affidavit submitted following the hearing.
A. Prior to Defendant's Arrest
On January 12, 2001, at about 8:30 a.m., Eugene police officers Hall and Mason responded to a report of suspicious subjects in a car parked in a cemetery at the streets of South Lambert and Hawkins in Eugene, Oregon. Officer Hall arrived first. She approached the car and spoke with the apparent driver, Melissa Prescott. Officer Hall asked defendant, the passenger, for his name, and he told her it was "Armon Moore" with a birth date of June 22, 1974. Officer Hall smelled the odor of burning marijuana and observed that Prescott's eyes were glassy and red and her reactions slow. She also observed defendant make a "furtive motion as if he were hiding something in his pants or on the floor." Based on the observations, Officer Hall believed Prescott might be under the influence of drugs or alcohol and that she and defendant might be concealing marijuana or alcohol in the car.
When Officer Mason arrived, Officer Hall was in the process of attempting to run the names provided by the vehicle's occupants. She briefed Officer Mason on her observations. Officer Mason then spoke to defendant, who again said his name was "Armon Moore," and that he was not carrying any identification. Officer Mason thought defendant looked familiar but she "couldn't recall a name to put with his face." Transcr. at p. 8. Officer Mason believed defendant was not being honest about his name. Transcr. at p. 41.
Defendant denied that he or Prescott had been smoking marijuana. When the officer asked to see what was in the knit cap on his lap, defendant showed her a pint bottle of Monarch alcohol. Officer Mason also observed a bottle of vodka on the back seat of the car. Defendant admitted to having come to the location to talk and drink. Prescott admitted to having "a couple of drinks" of the alcohol hidden in defendant's cap. Prescott's driver's license indicated that she was seventeen.
Believing that she had probable cause to arrest defendant for providing alcohol to a minor, Officer Mason asked defendant to step out of the vehicle and put his hands behind his back so that Officer Mason could conduct a search. Transcr. at p. 10. Officer Mason found several off color currency bills in his left front pocket, and immediately recognized it to be counterfeit money. She also found a debit card with a female's name in his pocket. Officer Mason then placed defendant under arrest for forgery. Officer Mason continued her search and found an Oregon ID card in defendant's right front pocket identifying him as Leon Sweeting. Officer Mason then associated the face with his name. Transcr. at p. 12. Officer Mason also discovered six yellow gel capsules in his pocket. Officer Hall placed defendant in her patrol car while Officer Mason continued her investigation. Prescott was asked to exit the vehicle and was placed into handcuffs, so that Officer Mason could conduct a search for alcohol, marijuana, and weapons, and Prescott complied. Officer Mason found a passport belonging to Leah Michelle Kent in Prescott's purse and a small amount of marijuana in a piece of aluminum foil in the ashtray. Officer Mason detained Prescott for a minor in possession charge. After investigating the found passport, Prescott was arrested for theft/mislaid property.
B. Following Defendant's Arrest
Officer Mason transported defendant to City Hall where Detective Jordan and Special Agent Rueber interviewed him regarding the counterfeit bills. When Officer Mason asked, defendant responded that the alcohol and marijuana in the vehicle were Prescott's. Defendant advised he had the debit card in his pocket for the last four or five months, and that he had found it laying around at the house where he was staying. He indicated he thought it might be stolen and knew it did not work because his friends had told him so. He denied ever having attempted to use it.
When asked about the yellow capsules, defendant stated it was "juice" that he had paid one dollar apiece for. He denied they were a controlled substance, but that they acted to "soup me up." Due to defendant's level of cooperation, Officer Mason cited defendant for forgery and theft of lost/mislaid property. Following the instance with Officers Mason and Hall, defendant was interviewed by Secret Service Special Agent Jake Dye. Defendant admitted having been given the counterfeit bills by Eddie Russell (a co-defendant) but denied passing any counterfeit currency to any businesses. He was then released. A week later, on January 19, 2001, the Secret Service received a counterfeit $50 federal reserve note from Centennial Bank which had reportedly been received on January 12, 2001, at a Java John's drive-in coffee shop in Eugene. On January 23, Agent Dye showed the employee who accepted the bills a photo line-up that included a photograph of defendant. The employee identified defendant as the person who had given him the counterfeit bill. Defendant was then again arrested. While fingerprinting defendant, Deputy U.S. Marshal Mike Williams commented to Agent Dye that defendant "was the first counterfeiter he had processed in awhile." Defendant responded that he was not a counterfeiter but that he "just passed some counterfeit."
II. Defendant's Motion to Suppress
Defendant seeks to suppress the bills found in his pockets, the photo line-up identification, and statements allegedly made to Agent Dye and Deputy Marshal Williams. Defendant argues that there was no reasonable suspicion or probable cause to ask him to get out of the vehicle and to perform a pat down of him; and that if it was a "stop" pursuant to Terry v. Ohio, 392 U.S. 1 (1968), Officer Mason's act of reaching into defendant's pocket exceeded the scope of a valid Terry pat down.
In response, the government argues that the officers had probable cause to arrest defendant for furnishing alcohol to a minor and/or providing false identification, and thus, were authorized to ask defendant to get out of the vehicle and subject him to a search incident to arrest. The government does not argue that this was a Terry stop and does not respond to defendant's argument about exceeding the scope of such a stop.
The government further argues that even if the search was unconstitutionally conducted prior to defendant's actual arrest, the counterfeit bills would have inevitably been discovered when defendant was processed for furnishing alcohol to a minor or providing false identification, and thus, the evidence and other subsequently discovered evidence should not be suppressed.
III. Discussion
A. Terry Stop
To legitimately order defendant out of the car and conduct a pat down, the officer must have had at least reasonable suspicion that he had committed a crime. Terry v. Ohio, supra. Here, the following factors amounted to at least reasonable suspicion that defendant had furnished alcohol to a minor responding to a call of a suspicious vehicle in the cemetery; observation of defendant making a "furtive movement," as if attempting to conceal something in his pants or on the floor; smelling burning marijuana; observation of a half-gallon bottle of vodka in the back seat of the car and confirmation that defendant was concealing a bottle of Monarch alcohol under a knit cap on his lap; defendant and the minor driver (confirmed as being seventeen) admitting that the minor had "a couple of drinks" of the alcohol hidden in defendant's cap; and defendant stating that he had come to the location to talk to Prescott and drink.
Although the officer was authorized under Terry to temporarily detain defendant and pat him down, a pat down may only intrude into the suspect's outer clothing, to search for weapons. Terry v. Ohio, supra. An officer oversteps the lawful bounds of Terry when the officer determines that the contents of a pocket constitute contraband "only by squeezing, sliding and otherwise manipulating the contents of the pocket." Minnesota v. Dickerson, 508 U.S. 366, 377 (1993).
Here, the officer's actions of reaching in to defendant's pockets and pulling out dollar bills and a debit card bearing a woman's name exceeded the authorized scope of Terry. The officer could have discovered the illegal nature of the dollar bills and debit card only by removing them from the pockets — their illegal nature was not evident by a permissible outer clothing pat down. See Dickerson, 508 U.S. at 379. This search was not authorized by Terry, supra.
B. Search Incident to Arrest
Although this may not pass constitutional muster under Terry because the scope of the pat down was overly intrusive, the search may be justified under the "search incident to arrest" exception to the Fourth Amendment warrant requirement.
According to Officer Mason's affidavit and testimony, she was in the process of arresting defendant for furnishing alcohol to a minor when she conducted the search. See Or. Rev. Stat. § 471.410(2) (furnishing alcohol to a minor is a misdemeanor); Or. Rev. Stat. § 133.310 (authorizing arrest for misdemeanor violation).
Officer Mason's affidavit further asserts "Because I was unable to positively identify defendant . . . I decided to place defendant under arrest and lodge him for the purpose of identification."
Officer Mason explained that, had she not discovered the counterfeit bills and debit card, she would have arrested defendant for furnishing alcohol to a driving minor, and especially so because she was not satisfied with defendant's identification. Transcr. at pp. 42-43.
"Once there is probable cause for an arrest without a warrant it is immaterial that a search (without a warrant) precedes the arrest. . . . As long as probable cause to arrest exists before the search, a search substantially contemporaneous with the arrest is incident thereto." United States v. Chatman, 573 F.2d 565, 567 (9th Cir. 1978).
Accordingly, the issues for the court are whether (1) probable cause to arrest existed before the search; and (2) whether the search was substantially contemporaneous with the arrest.
Based upon the police report, and Officer Mason's testimony and affidavit, the court finds that probable cause to arrest defendant for furnishing alcohol to a minor existed prior to the search. Oregon Revised Statutes section 471.410 provides, "No one other than the person's parent or guardian shall sell, give or otherwise make available any alcoholic liquor to a person under the age of 21 years."
Here, the following circumstances provided probable cause to arrest defendant for furnishing alcohol to a minor responding to a call of a suspicious vehicle in the cemetery; observation of defendant making a "furtive movement," as if attempting to conceal something in his pants or on the floor; smelling burning marijuana; observation of a half-gallon bottle of vodka in the back seat of the car and confirmation that defendant was concealing a bottle of Monarch alcohol under a knit cap on his lap; defendant and the minor driver admitting that the minor had "a couple of drinks" of the alcohol hidden in defendant's cap; and defendant stating that he had come to the location to talk to Prescott and drink.
According to Officer Mason, probable cause was based on: "[t]he fact that the minor had admitted to having drank from the bottle that [defendant] possessed in his lap; and him being over the age of 21, or at least the date of birth that he had given us at that point, would lead me or, I believe, a reasonable person to believe that he had purchased the alcohol and provided it to her." Transcr. at p. 25.
The next issue is whether the search was substantially contemporaneous with the arrest. Based upon the police report, and Officer Mason's testimony and affidavit, the court finds that the search of defendant was substantially contemporaneous with his arrest. Officer Mason requested that defendant exit the car and restrained his hands behind his back with her hand for the purpose of conducting a search incident to arrest. Transcr. at p. 10. Once the suspected counterfeit money and debit card were found, Officer Mason placed defendant under arrest for forgery and continued her search. Although the actual charge made during the arrest was for something other than the probable cause which initially authorized the arrest and search incident thereto, Officer Mason explained that the furnishing charge was not included because it was a lesser charge. The search of defendant was authorized as a search incident to arrest.
Specifically, Officer Mason explained, "He wasn't charged with [furnishing alcohol to a minor] because of the significance of the felony of the forgery, and the significance it had to the [counterfeit monies] case that Detective Jordan was working, as well as the theft of lost and mislaid property. We tend not always to charge initially with every single offense available, and leave it to the discretion of the attorneys to add charges where appropriate." Transcr. at p. 38.
C. Fourth Amendment Scrutiny
Even if the "bright line" search incident to arrest exception to the warrant requirement did not apply because defendant was not being arrested, but rather, was being issued a citation for furnishing alcohol to a minor, and thus a search incident to arrest was not automatically authorized, see Knowles v. Iowa, 525 U.S. 113 (1998), the search still survives Fourth Amendment scrutiny. Under Knowles, "when a situation similar to an arrest arises [such as issuance of a citation], courts should determine whether the interests of police safety and the preservation of evidence support a warrantless search." United States v. Hawkins, 2001 WL 103542, *9 (D.Me., Feb. 6, 2001) (addressing situation where defendant was unconscious) (citing Knowles, 525 U.S. 113).
Wording of the police report supports the theory that defendant was being subjected to a Terry stop and then was going to be cited. However, the balance of the evidence, including Officer Mason's testimony and affidavit, indicate that defendant was being arrested and the search of his person was incident to the arrest.
In Knowles, an Iowa police officer stopped defendant for speeding, but issued him a citation rather than arresting him. The officer then conducted a full search of the car, and under the driver's seat he found a bag of marijuana and a "pot pipe." Defendant was then arrested and charged with violation of state laws dealing with controlled substances. Defendant moved to suppress the evidence arguing that the search could not be sustained under the search incident to arrest exception because he had not been placed under arrest. The Court noted the two historical rationales for the search incident to arrest exception, and found that neither was sufficient to justify the search in that case. Knowles, 525 U.S. at 116.
Here, although a potential threat to officer safety may not have justified Officer Mason's search of defendant, preservation of evidence and a necessity for obtaining valid identification did justify the search. Cf. Knowles, 525 U.S. at 118 ("As for the destruction of evidence relating to identity, if a police officer is not satisfied with the identification furnished by the driver, this may be a basis for arresting him rather than merely issuing a citation.").
Here, Officer Mason was dissatisfied with the identity provided by defendant who claimed that he had no identification documents with him and that his name was "Armon Moore." Officer Mason had a prior interaction with defendant and she did not associate the name provided in this instance with his face. In addition, Officer Mason testified that "[t]he name that he provided initially with the date of birth, we didn't have any local record whatsoever for that person. Our dispatchers did tell us that they found a name similar. It had an additional letter at the end of Armon that ended with `d,' although that subject had a significantly different birth date than what the subject gave us." Transcr. at pp. 42-43. Discovering this information heightened Officer Mason's concern as to whether or not defendant had provided authentic identification. Transcr. at p. 43. Once defendant's correct name was revealed, Officer Mason associated the face with the name and recalled a prior attempt to arrest defendant in which he escaped.
Under these circumstances, Officer Mason's search was authorized as a search for identification. Cf. People v. Hart, 86 Cal.Rptr.2d 762 (Cal.App. 1999) (distinguishing Knowles; finding search justified as search for identification where defendant failed to produce identification).
D. Inevitable Discovery
Defendant argues that if defendant had received a citation for furnishing alcohol to a minor, he could have produced the valid identification present in his pocket, and thus, there would have been no need for a search of his person for identification. However, according to the government's supplemental letter brief, defendant had two outstanding arrest warrants in the system. Had defendant provided Officer Mason with his valid identification, Officer Mason would have then discovered the outstanding arrest warrants and had another basis for arresting defendant. Upon such arrest, the counterfeit bills and debit card would inevitably have been discovered. See United States v. Mancera-Londono, 912 F.2d 373, 375 (9th Cir. 1990) ("inevitable discovery" doctrine applies when "the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching") (citation omitted).
Similarly, the court finds that if defendant had been cited for furnishing alcohol to a minor, the counterfeit bills and debit card had not been found, and his true identity had not been discovered through the Oregon ID card, defendant would have been detained or lodged in order to determine his true identity. Transcr. at pp. 42-43. Once his true identity was determined, the arrest warrants would have been revealed, authorizing a search incident to arrest.
Here, the items and statements sought to be introduced in evidence would have inevitably been lawfully found and obtained. Id.
IV. Conclusion
Based on the foregoing reasons, defendant's motion (#22) to suppress evidence and fruits thereof is denied.