Opinion
Case No. 2:00-CR-489 TS
October 22, 2003
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
I. Background
On October 18, 2000, Defendant Jesus Valdez-Hocker (Mr. Hocker) was indicted for Possession of Methamphetamine with Intent to Distribute. On November 17, 2000, Mr. Hocker filed this Motion to Suppress, arguing that the search that produced drugs in the car he was driving violated his Fourth Amendment right to privacy. Finding that Mr. Hocker did not have a reasonable expectation of privacy in the car that the officers searched, and thus Jacked standing to claim protection under the Fourth Amendment, this Court denied the Motion to Suppress on June 25, 2001. Mr. Hocker appealed that order to the Tenth Circuit.
On appeal, the Tenth Circuit ordered this Court to reconsider its order denying the defendant's Motion to Suppress evidence. Specifically, this court was instructed to "make a credibility determination as to Mr. Rocker's testimony regarding the facts relevant to the standing inquiry, including Mr. Hocker's belief that Sandra Savala (who lent the car to Mr. Hocker) either owned the car or was soon to purchase it." U.S. v, Mocker, 333 F.3d 1206 at 1211 (10th Cir. 2003). The Tenth Circuit ruled that if this Court finds Mr. Hocker's testimony to be credible, this Court is to find that Mr. Hocker has standing to claim a Fourth Amendment violation, and the Court should then proceed to evaluate the merits of that claim.
II. Factual Review
A brief recapitulation of the relevant facts in this case is helpful in analyzing Mr. Hocker's Motion to Suppress:
Mr. Hocker's troubles began when Officer Knowles of the Utah County Sheriffs Department received a tip from a confidential informant that a man was in town selling methamphetamine. Officer Knowles had received reliable information from this informant in the past and trusted him. Officer Knowles checked on the limited information he was given about the car the suspect would be driving, but was not able to independently corroborate any of the allegations concerning whether the suspect possessed or intended to sell drugs.
After arriving at a location suggested by the informant, Knowles spotted his suspect, who turned out to be Mr. Hocker, getting into a car. Officer Knowles then followed him for a time before calling officers Ferguson and Davis to pull Mr. Hocker over. The officers pulled Mr. Hocker over, asked for identification, and the three officers detained him and his passenger by the side of the road. Following this initial encounter, Officer Davis retrieved his police service dog, Dex, and directed it to search around the outside of the car Mr. Hocker was driving. After alerting to show that he had picked up the scent of contraband, Dex jumped through Mr. Rocker's driver's side window and continued searching inside the can
After the canine search was completed, the officers wanted to search the car for themselves, and sought to obtain Mr. Hocker's consent for such a search. Mr. Hocker resisted at first, and then obliquely consented. Feeling insecure about this consent, the officers asked Mr. Hocker to sign a written consent form, which Officer Knowles translated into Spanish for Mr. Hocker. Mr. Hocker showed initial hesitation and unwillingness, but eventually he signed the consent form. The officers searched the car and discovered methamphetamine under Mr. Hocker's seat.
III. Analysis
The evaluation of Mr. Mocker's Motion to Suppress comprises both the preliminary question of Mr. Hocker's standing, and the substantive question of the merits of Mr. Hocker's arguments. These issues are addressed separately below,
A. Standing
The Tenth Circuit has ordered this Court to determine whether it deems the testimony Mr. Hocker gave in the March 28, 2001, suppression hearing to be credible. Hocker, supra, at 1211. If this Court finds Mr. Hocker's testimony to be credible, it is directed to grant him standing to claim protection of the Fourth Amendment.
Mr. Hocker's standing turns on whether he believed Sandra Savala (Savala), who lent him the car he was driving when he was pulled over and searched, had authority to lend the car to him. If he did not believe Savala had such authority, then he was operating the car without permission, and therefore had no expectation of privacy in the automobile, But if Mr. Hocker believed Savala was the owner of the car, or that she was authorized to allow him to drive it, Mr. Mocker's expectation of privacy in the car was reasonable.
Mr. Mocker testified in the suppression hearing that he believed Savala had the right to grant him permission to drive the car. He inferred this from the fact that she possessed the keys to the car, and that she possessed the car the entire time Mr. Hocker was with her. The government never produced any evidence nor elicited any testimony showing how this testimony might be false. Thus, given that Mr. Mocker's testimony was uncontroverted, and that his story was consistent and plausible, the Court finds Mr. Hocker to be a credible witness,
Having made this finding, the Court follows the direction of the Tenth Circuit, and acknowledges Mr. Hocker's standing to claim protection under the Fourth Amendment. The remaining discussion addresses the merits of the Motion to Suppress.
B. The Merits of the Motion to Suppress
Mr. Hocker's Motion to Suppress invokes the Fourth Amendment to challenge the search that produced the methamphetamine. He claims that the canine sniff of his car was a search under the Fourth Amendment, and thus was illegal if not preceded by probable cause. Mr. Hocker further contends that the illegality of the canine sniff tainted the consent he later gave for the search that produced the narcotics in his car.
The government's position is that the officers' actions at every step in Mr. Hocker's arrest were predicated on probable cause. Specifically, the government claims that Officer Knowles' conversation with his confidential informant gave him probable cause to search the car Mr. Hocker was driving. In the alternative, the government asserts that Dex's sniff of the car also produced probable cause for a search, or, if the sniff itself constituted a search, then Dex's reaction while sniffing the outside of the car created probable cause for the canine sniff inside the car. Finally, the government asserts that Mr. Hocker consented to the search of the car, so that no probable cause was needed.
The preliminary and crucial question in the Motion to Suppress is whether the officers had probable cause to conduct a search of the car, apart from the canine search. The Court concludes below that the law enforcement officers had probable cause to search the car previous to the canine sniff, and thus the Court need not deal with the question of whether the sniff constituted a police search.
1. Probable Cause
"An officer has probable cause to search a car if under the totality of the circumstances, there is a fair probability that the car contains contraband or evidence." United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995) (citations omitted). Probable cause to make a traffic stop or search may be provided by a tip from a confidential informant, especially when that information has been independently corroborated by police, United States v. Gama-Bastidas, 142 F.3d 1233, 1239 (10th Cir. 1998). Further, in determining whether probable cause existed based on a confidential informant's tip, courts should consider the informant's 'Veracity/' "reliability," and "basis of knowledge," Illinois v. Gates, 462 U.S. 213, 230 (1983). Finally, a known tipster should be thought of as more reliable than an anonymous informant, as the known tipster is more likely to be held accountable for false information. United States v. Gay, 240 F.3d 1222, 1227 (10th Cir. 2001) (quoting United States v. Salazar, 945 F.2d 47, 50-51 (2nd Cir. 1991)).
The government's informant relayed information that was condemning of Mr. Hocker. Officer Knowles took measures to check the license plate and registration of the car he was informed Mr. Hocker would be driving, but he obtained no independent verification of the specific criminal activity conducted by Mr. Hocker. Thus, all Officer Knowles had to depend on was a description of the suspect, the car he was driving, his likely location, and uncorroborated allegations that the suspect was in the area to distribute methamphetarnine. While this information proved to be accurate, it revealed nothing verifiable to police except the identification of the suspect. See United States v, Gay, 235 F.3d 482, 488 (10th Cir. 2000) ("An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity").
While the information the officer received from his informant did not allow sufficient corroboration of criminal activity, it compares well with other cases where probable cause was found. In Gama-Bastidas, supra, the Tenth Circuit concluded that there was probable cause for a search of a car based on a tip from two confidential informants that included only the description of a car and its license plate number, its location and the direction it was heading. When the FBI was able to confirm this basic identifying information, the Court found, they had probable cause to search the vehicle,
If the information provided in the tip were the only basis for probable cause, the government's case here would be quite thin. However, because probable cause is determined based on the totality of the circumstances, the informant's past credibility is also relevant. Gates, 462 U.S. 213. If the confidential informant has been known to provide reliable information in the past and has a known and credible basis for that knowledge, the Court should view the information obtained from that informant as more reliable for purposes of obtaining probable cause. Id.
Officer Knowles testified in the March 28, 2001, hearing that the informant had aided law enforcement agencies for over two years, providing information that had led to "many felony arrests of individuals and seizure of thousands of dollars worth of illegal narcotics." Thus, the informant's reliability appears to be high. Officer Knowles also testified that the informant's basis of knowledge was through his or her many connections in the drug world. This evidence qualifies as showing that the informant was reliable and had an appropriate basis of knowledge for the type of information that he or she passed on to Officer Knowles.
Because the informant was sufficiently reliable and credible, and because Officer Knowles was able to corroborate some of the informant's allegations, Officer Knowles had sufficient information to ground probable cause to search Mr. Hocker's car.
The final problem presented here is whether Officer Knowles' probable cause to search the automobile that Mr. Hocker was driving was properly transferred to Officer Davis, who had no independent knowledge of the content of the informant's tip. The U.S. Supreme Court has held that "where law enforcement authorities are cooperating in an investigation, as here, the knowledge of one is presumed shared by all." Illinois v. Andreas, 463 U.S. 765 (1983). Thus, the Court finds that the fact that Officer Davis did not have his own independent knowledge of the allegations against Mr. Hocker did not make the canine search illegal, as he acted on the directions and probable cause provided by Officer Knowles.
Because the officers had probable cause to search the car Mr. Hocker was driving, the remaining issues presented in Mr. Hocker's Motion to Suppress are moot. Mr. Hocker's challenges to the canine sniff and the later search of the car depend upon a finding that the police had no probable cause to search the car. Having found that the officers did have probable cause, the Court need not consider those arguments. IV. Conclusion
For the foregoing reasons, the Court finds that while Mr. Hocker has standing to claim protection under the Fourth Amendment, his motion must fail because the search in question was based on probable cause. Therefore, the officers did not violate Mr. Hocker's Fourth Amendment rights. Accordingly, it is hereby
ORDERED, that Mr. Hocker's Motion to Suppress is DENIED.