Opinion
No. CR01-1016
November 14, 2001
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's September 14, 2001, motion to suppress evidence (docket number 20). This matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. The court held an evidentiary hearing on this motion on October 5, 2001, at which the defendant was present and represented by Leslie Stokke. The government was represented by Assistant United States Attorney Daniel Tvedt. It is recommended that the motion to suppress be denied.
The motion to suppress arises out of the warrantless arrest and search of the defendant's person on June 11, 2001, in a hallway outside of an apartment that police had secured and for which the police were waiting for a search warrant. The defendant contends that he was detained without reasonable suspicion and that he was arrested without probable cause. The government contends that there was a consensual encounter between the police and the defendant that ultimately turned into probable cause to arrest the defendant for driving without a motorcycle license. The court makes the following findings of facts and conclusions of law.
FINDINGS OF FACT
On June 11, 2001, Officer Russ Stecklein with the Dubuque Police Department was conducting an investigation of Mickey Yager at her residence on 3000 Central Avenue in Dubuque, Iowa. The postal service had intercepted a package from Canada containing a large quantity of pseudoephedrine. The police placed transponders in the packages and delivered them to Ms. Yager at 10:37 a.m. One of the transponders went off at approximately 10:54 a.m. The police made entry into her apartment building by kicking down a security door and then demanding entry into her apartment. Ms. Yager was taken to the police station and police secured her apartment and waited outside while a search warrant was sought.
At approximately 12:30 p.m., the defendant arrived at the apartment complex and entered the security door that Officer Stecklein had forcibly opened. Stecklein and other officers were standing at the top of the stairs near the door to Ms. Yager's apartment. As the defendant came through the security door, Sgt. Egan asked the defendant, "Can I help you?" The defendant stated that he was looking for "Nate." Officer Stecklein stated, "I'm Nate." At this time, the defendant looked at Officer Stecklein, did not respond and backed up as though he was going to leave. Officer Stecklein thought that the defendant was going to run. Officer Stecklein quickly descended the staircase and identified himself as a police officer. He then asked the defendant, "Who is Nate?" The defendant responded that Nate was a person whom he had met at a bar, that he did not know Nate's last name, and that he was there to see him. The defendant was dressed in black leather. Officer Stecklein asked him how he had gotten to the apartment, and the defendant responded that he had driven his motorcycle. Deputy Sheriff Dale Snyder had heard a motorcycle pull up to the apartment complex just before the defendant had come in. He commented to the defendant that it was a nice day for a ride. The defendant responded in the affirmative.
The defendant may have stated that he was looking for "Nick" but Officer Stecklein believed that he stated that he was looking for "Nate."
Officer Stecklein told the defendant that they were conducting a police investigation. He told the defendant that if he was not wanted for anything, he was free to leave. The defendant became very cooperative, informed the police that his name was Matthew Lee. Deputy Snyder called into dispatch to determine if there were any warrants out for Matthew Lee and found there were no warrants. The defendant produced a Wisconsin driver's license (Government's Exhibit 1) in the name of Matthew Lee. The picture on the license shows a man with similar facial hair to the defendant but it was obviously a picture of someone else. Officer Stecklein believed that the defendant was Mark Tinkham. Earlier this year, Officer Stecklein had put together a power point presentation pertaining to the manufacture of methamphetamine and included in it pictures of suspected methamphetamine manufacturers from the Dubuque area. Mark Tinkham's picture was in that power point presentation that Officer Stecklein prepared and showed on a number of occasions.
The Wisconsin driver's license for Matthew Lee did not have a motorcycle endorsement. Deputy Dale Snyder ran the license again to determine whether the defendant was a valid motorcycle operator as it is common for persons to acquire the motorcycle endorsement after they received their automobile driver's license. The records check determined that the defendant was not a valid motorcycle operator.
Deputy Snyder asked the defendant whether the motorcycle that he had driven belonged to him. The defendant admitted that it did not belong to him. When asked whose it was, the defendant refused to answer. However, Deputy Snyder told the defendant that he would simply go to the motorcycle and run its registration and determine who it belonged to. The defendant then stated it belonged to Mark Tinkham.
Iowa is a member of a 33-state compact that permits drivers from the signatory states to sign a signature bond when stopped for traffic offenses in other states. Wisconsin is not one of those states. Therefore, the decision was made between Officer Stecklein and Sgt. Egan that the defendant would be arrested for driving without a motorcycle endorsement and permitted to secure bail at the police station. A search incident to that arrest revealed identification in the name of Mark Tinkham and the quantity of methamphetamine.
CONCLUSIONS OF LAW
The defendant argues in his suppression motion that the police improperly seized him during that initial discussion and the evidence obtained thereafter should be suppressed pursuant to the Fourth Amendment. The government contends that the information needed to determine that the defendant violated a law resulted from a consensual encounter and should not be suppressed.
Consensual Encounter
Not every police-citizen encounter triggers Fourth Amendment scrutiny.United States v. Ninety One Thousand Nine Hundred Sixty Dollars, 897 F.2d 1457, 1461 (8th Cir. 1990). Where a police officer merely approaches an individual in a public place, identifies himself and asks the individual to produce identification and answer questions, a consensual conversation is present. Id., quoting Florida v. Royer, 460 U.S. 491, 497 (1983). The Fourth Amendment is not implicated when police encounter a person in a public place, ask him a few questions, and request to see the person's identification. United States v. Wright, 971 F.2d 176, 179 (8th Cir. 1992). As long as the person to whom questions are put remains free to walk away, no intrusion requiring Fourth Amendment scrutiny occurs. Ninety One Thousand Nine Hundred Sixty Dollars 897 F.2d at 1461, quoting United States v. Mendenhall, 446 U.S. 544, 547 (1980).
A consensual encounter ripens into a seizure implicating Fourth Amendment protections only when all the circumstances surrounding the encounter would lead a reasonable person to believe that he was not free to decline the officer's requests or to otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 439 (1991). Factors to consider when making the determination whether the consensual encounter ripened into a Terry-type stop include:
the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the [person's body] . . ., the use of language or tone of voice indicating that compliance with the officer might be compelled . . ., the officer's retention of the person's airline ticket or driver's license . . ., and the officer's statement to the person that he is the particular focus of a narcotics investigation. (citations omitted).Ninety One Thousand Nine Hundred Sixty Dollars, 897 F.2d at 1461,see also Wright, 971 F.2d at 179-80.
The police officers in this case approached the defendant in a public entrance to an apartment complex and asked him for his identification. The defendant cooperated with the officers and produced a Wisconsin driver's license. There were only two officers asking the defendant questions and there is no evidence of intimidation or force. The officers did not make any physical contact with the defendant and they did not keep his driver's license. The defendant was not told that he was the focus of a narcotics investigation. However, the police indicated to the defendant that he would be free to leave after they determined that he was not wanted by the police. This implied that the defendant was obligated to produce identification before he could leave. This restriction of the defendant's movements was arguably enough to elevate the encounter into a Terry stop.
Terry Stop
More is required to turn consensual questioning into a Terry stop than the display of badges, the request for information, and the suggestion that the parties move to a nearby area out of the flow of traffic. See United States v. Poitier, 818 F.2d 679, 682 (8th Cir. 1987). A seizure does not occur simply because an officer approaches an individual and asks him a few questions or requests permission to search an area, even if the officer has no reason to suspect the individual is involved in criminal activity, provided the officer does not indicate that compliance is required. See United States v. Beck, 140 F.3d 1129,1135 (8th Cir. 1998). A Terry-type investigative stop must be supported by a reasonable, articulable suspicion that criminal activity may have been afoot. See Terry v. Ohio, 392 U.S. 1, 30 (1968). A trained officer may properly infer from a collection of circumstances, no one of which itself indicates illegal activity, that further inquiry is appropriate. United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994).
The police officers initially stopped the defendant because of his strange reaction to seeing the police at the residence. He turned and appeared to be ready to run when he saw the police. His explanation for showing up at the residence was that he met "Nate" at a bar and was stopping over to visit him. He did not know "Nate's" last name despite the fact that "Nate" had given him detailed directions to his residence. Based on his suspicious behavior, the police asked for identification to prove that he was not wanted for anything. He was not free to leave until the police officers were satisfied that the defendant was not wanted.
After the police asked the defendant to prove he was not someone the police wanted, he said that he drove a motorcycle over to the apartment complex. A police officer called into the dispatcher to check the Wisconsin driver's license. The license did not have a motorcycle endorsement. By producing the false identification the defendant provided the officers with reasonable suspicion for further inquiry. The defendant was found to be in violation of the law prohibiting the operation of a motorcycle without a license. Since Wisconsin is not in the compact of states that allows drivers from other states to sign signature bonds when cited for violating a law outside their home state, the defendant had to go to the law center to either post bond or wait to see a magistrate judge. The defendant had to be transported to the law center because officers cannot accept bond money in the field. The police had reasonable, articulable suspicion that the defendant was engaged in criminal activity to satisfy the requirements of Terry. The Terry investigation was proper and the evidence obtained as a result of the investigation should not be suppressed.
Search Incident to Arrest
The Defendant also contends that he was improperly searched when the police checked his wallet and his pockets. However the search was done incident to the arrest of the defendant for operating a motorcycle without a license. The issue is whether the officers could properly conduct a search of the defendant incident to the arrest.
Warrantless searches incident to a custodial arrest are "justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained." Curd v. City Court of Judsonia, Arkansas, 141 F.3d 839, 842 (8th Cir. 1998), quoting, United States v. Edwards, 415 U.S. 800, 802-803 (1974). It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. United States v. Robinson, 414 U.S. 218, 224 (1973). The Court in Robinson went on to say,
The authority to search the person incident to a lawful custodial arrest . . . does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. Nor are [we] inclined, on the basis of what seems to us to be a rather speculative judgment, to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes. It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry-type stop.Id. at 234-235.
The defendant also argues that the police should have given himMiranda warnings. Police are required to issue Miranda warnings only prior to custodial interrogation. United States v. Venerable, 807 F.2d 745, 747 (8th Cir. 1986). The police were not required to give the defendantMiranda warnings in the context of this Terry stop. United States v. Johnigan, 90 F.3d 1332, 1337 (8th Cir. 1996); United States v. Johnson, 64 F.3d 1120, 1126 (8th Cir. 1995).
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the defendant's September 14, 2001, motion to suppress evidence (docket number 20) be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).