USA v. Greenwood
Filing
40
Initial Report and Recommendation, Memorandum Opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA
Plaintiff,
vs.
LUCAS CHARLES GREENWOOD,
Defendant.
3:10-cr-088-TMB-JDR
RECOMMENDATION
REGARDING
MOTION TO
SUPPRESS SEARCH OF AUTO
(Docket Nos. 16)
Defendant Lucas Charles Greenwood, moves for an order
suppressing evidence seized as a result of a warrantless search of his automobile
on September 24, 2009 and the fruits of that search. Docket 16. The government
filed an opposition to the motion. Docket 24. An evidentiary hearing on the motion
was conducted on November 10, and December 2, 2010. Upon due consideration
of the evidence adduced and arguments of counsel the magistrate judge
recommends that the court adopt findings of fact and conclusions of law as set forth
below and that the Motion to Suppress be DENIED.
Defendant’s Claims
The defendant argues that the government has not met its burden of
showing that the officers conducted a reasonable search constituting an exception
to the warrant requirement when the rifle and ammo were found and seized. He
argues that the warrant exception of an inventory search was merely an afterthought
to what actually was only a search incident to arrest. The defendant argues that
Trooper Peltier was not truthful in his testimony that he observed the butt of the rifle
through the window because Trooper Chambers testified that he could not see
anything of significance when he walked around Greenwood’s Blazer. The defense
is critical of the inventory search because valuable items such as a camera and
computer were still left in the vehicle and the inventory search was not conducted
in strict compliance with the Trooper’s Procedural Manual. The government argues
that the seizure of the gun and ammo were valid under three separate theories,
namely plain view, incident to arrest, and inventory search.
//
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Findings of Fact
On September 24, 2009 between midnight and 1:00 AM, Richard
Chambers, an Alaska State Trooper assigned to the Mat-Su precinct as a patrol
officer received information that a citizen had complained about a maroon colored
Chevy Blazer being driven recklessly at a high rate of speed. Trooper Chambers
observed the vehicle and turned around to follow it. The blazer was turning left on
Knik Goose Bay Road on the Palmer Wasilla Highway. The officer’s vehicle was
equipped with a device which video recorded his chase of the vehicle. The trooper
observed the driver’s erratic driving at an excessive rate of speed. When the
officer’s vehicle reached 99 miles per hour he activated his police lights to pull the
vehicle over.
Trooper Chambers approached the vehicle and the driver seemed very
lethargic and inattentive to the officer’s questions. There were no passengers in the
vehicle. The driver later identified as Lucas Greenwood brought his hands below the
doorway so it was difficult for the officer to see them. When Trooper Chambers took
a quick walk around the Blazer he did not see anything of particular note worthy. At
the time he knew that another officer would conduct any inventory search.
For officer safety he asked Greenwood to step out of the vehicle when
Greenwood declined to answer the trooper’s questions or produce documentation
to the vehicle. He then proceeded to ask him standard questions relating to driving
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under the influence of alcohol. He asked Greenwood if he had any guns or knives
in the vehicle and Greenwood said “No.” The officer noticed the defendant’s blood
shot and watery eyes, slurred speech, sluggish movements and an odor of alcohol
about his person. Trooper Chambers decided to conduct a field sobriety test.
Greenwood refused to take the test. Greenwood also declined to provide a sample
of his breath for a breathalyser test.
After Greenwood stepped out of the vehicle the officer conducted a patdown search for safety. During the pat-down search the trooper felt hard objects but
he did not remove them from Greenwood’s pockets because he did not consider the
objects to be a gun or knife. He patted Greenwood’s waist and pockets. At this time
Greenwood was not under arrest. He placed Greenwood in the passenger front
side of the police vehicle while he considered whether to charge Greenwood with
reckless driving or impaired driving. The officer allowed Greenwood to make a
telephone call on his own cell phone.
Greenwood was arrested by Trooper Chambers for driving while
intoxicated, driving with revoked license and reckless driving. As incident to the
arrest the trooper searched the pockets of Greenwood. This search produced a
scale with an iPhone cover and a pipe containing a leafy substance in the bowl
giving off the scent of burnt marijuana from the pipe. The scales were disguised as
an iPhone. The presence of the scales indicated to the trooper the possibility of
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distribution of drugs. After listening to the statements of Greenwood during his cell
phone conversation the officer concluded that Greenwood must have been on
probation or parole and was driving in violation of his conditions. Greenwood was
then placed in the rear of the police vehicle. The trooper transported Greenwood to
the Mat-Su Pretrial Facility.
Other officers had arrived and conducted an inventory search of the
defendant’s vehicle which they intended to impound. The impounded vehicle was
towed to the Mat-Su towing and recovery impound yard in Palmer, Alaska, a secured
police impoundment lot. Greenwood’s permission for the inventory search was not
sought. Greenwood was not granted the opportunity to choose whether to permit or
refuse to permit the inventory search.
While the defendant was being processed at the Pretrial Facility,
Trooper Chambers was informed by another officer that officers had found a loaded
AK-47 Assault Rifle inside the vehicle during the inventory of the vehicle for
impoundment. Reference to this assault rifle was made in Trooper Chambers’
affidavit when he applied for a search warrant for the vehicle on October 12, 2009.
A search warrant was issued for the vehicle by State Judge Wolfe and the warrant
was executed on October 13, 2009. This search revealed a glass multi-colored pipe
that smelled strongly of burnt marijuana.
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In the first page of Trooper Chambers’ police report it states that the rifle
was within the reach of the driver. Under the synopsis section of the report it refers
to the assault rifle as being found “incident to arrest.” In the details of his report
Trooper Chambers refers to finding the rifle during an “inventory search”. He
testified that because he did not personally find the rifle, he did not state in his report
that it was seen in plain view.
When Trooper Chambers executed the search
warrant for the vehicle he photographed items found including a small Jazz brand
camera and a laptop computer.
The Assist by Troopers Peltier and Banc
On September 24, 2009, Alaska State Trooper Mike Peltier was a field
training officer and patrol supervisor. Independently of Trooper Chambers he
responded to the scene in response to a call from dispatch. He had with him
Trooper Banc, a new recruit.
When Trooper Peltier arrived at the scene
Greenwood’s vehicle had been stopped. Both Trooper Chambers and Greenwood
were out of their vehicles. Greenwood appear to him uncooperative and displayed
a demeanor beyond that observed in the average traffic stop.
Trooper Peltier walked around Greenwood’s vehicle and observed
through a window the butt of a rifle wedged between clothes and tools. He asked
Trooper Banc to remove the gun from of the vehicle and assist him in an inventory
search. He located four 30 round magazines in the pile of “clothes and stuff” behind
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the front passenger seat. It appeared to the troopers that Greenwood had been
living out of his vehicle.
Trooper Peltier did not write a report because his role was as “an assist”
including impoundment of the vehicle. Nor did he prepare a report on his supervising
the recruit. Trooper Peltier did not take any photographs of the gun and ammo
removed from the vehicle.
The impoundment report Form 12-218 (Exhibit B to the Evidentiary
Hearing) states that the reason for holding the vehicle was for DUI/Drug
investigation. Item 10 in that Report captioned “Inventory” reads as follows: “Misc
tools, clothing, iPod, radar detector.” This report is dated September 24, 2009 at
0142 hours and is filled out by Trooper Banc. The purpose of the impound form is
to list items of high value remaining in the vehicle before it is taken to the impound
yard. The firearm and ammunition were removed from Greenwood’s vehicle and
placed in Trooper Peltier’s police vehicle.
Trooper Peltier made hand written notes of what he observed in the
vehicle while at the scene. The notes make no mention of a camera or computer.
There is no evidence that Trooper Peltier saw those items at the scene before the
vehicle was impounded. Trooper Peltier testified that the inventory search was not
a complete search but an effort to locate and list items of value that a third party
might observe from outside the vehicle at the impoundment lot.
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The impound form did not list all of the clothing or tools Trooper Peltier
observed in the vehicle. Trooper Peltier acknowledged that he and Trooper Banc
did not complete a “detailed” inventory as directed in the Alaska Department of
Public Safety Operating Procedures Manual (Rev. 2002), Chapter 209.050D wherein
it states:
“D.
Inventory of the vehicle’s contents. Officers will
complete a detailed inventory of the contents of a
vehicle when they impound it. Officers are not
required to open closed containers or locked
compartments. The containers should be listed on
the inventory.
If officers do not inspect locked
compartments they should note that fact in their
notebooks.”
After the rifle was pulled out Trooper Peltier searched the area more
thoroughly for evidence of the DUI offense and found the ammunition. The assault
rifle was partially buried in a pile of clothing but in a place where the driver could
have reached around and grabbed it. The ammo was probably contained in a pouch
among the clothing. The magazines were loaded. Trooper Peltier knew that the
possession of the gun constituted an offense of misconduct involving a weapon and
also searched for other weapons nearby.
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Discussion
The stop of the vehicle by Trooper Chambers was lawful. The officer
had reasonable suspicion to believe that the driver was committing a moving traffic
violation. When Chambers observed the driver after the vehicle had pulled over he
had reasonable suspicion to believe that the driver was driving while alcohol
impaired. The lack of cooperation of Greenwood and his refusal to take a field
sobriety test further heightened the officer’s suspicions that the driver had been
driving while intoxicated. The trooper had the lawful authority to ask the driver to exit
the vehicle for questioning.
There is no evidence that Trooper Chambers searched the vehicle at
the scene and in fact he testified that he had no knowledge of the assault rifle in the
vehicle until he was informed of such by officers who impounded the vehicle.
Trooper Chambers did not testify that a person would have been unable to see the
butt of the rifle; rather he stated that he had not observed the gun during his walk
around of the vehicle. It was reasonable for Trooper Chambers to believe that the
vehicle contained controlled substances or drug paraphernalia based on the scales
and pipe found on the defendant’s person.
The search warrant authorizes the seizure of evidence of alcohol use.
It was reasonable for the officer to seek a search warrant of the vehicle for evidence
of alcohol use based on the defendant’s appearance and demeanor at the scene.
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Inventory Search
Once a vehicle has been lawfully impounded the police may conduct an
inventory search. South Dakota v. Opperman, 428 U.S. 364, 369 (1975). The Ninth
Circuit Court of Appeals has discussed the reasons for conducting the inventory
search as three-fold, namely: (1) the protection of the vehicle owner’s property; (2)
the protection of police against claims by the owner; and (3) the protection of the
police from potential danger. United States v. Wanless, 882 F.2d 1459, 1463 (9th
Cir. 1989), citing Opperman, supra. Wanless holds that the inventory search must
be limited in scope to the extent necessary to carry out “the care taking function” and
must be carried out in accordance with the standard procedures of the local police
department. Id. The evidence shows that the inventory search was conducted in a
limited manner in accordance with the standard procedures of the Alaska State
Troopers.
Trooper Peltier’s testimony that he saw the butt end of the rifle while
looking through a side passenger window is credible. Once the rifle was discovered
it was reasonable for the officer to look for ammunition during the inventory search.
Even if the initial discovery of the ammo was unlawful, the government may rely
upon the inevitable discovery doctrine for its seizure.
The officers were justified in impounding Greenwood’s Blazer for
safekeeping. He was arrested away from home in the middle of the night while
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intoxicated and there was no one there to drive his vehicle away. The fact that
Greenwood may have used his vehicle for overnight sleeping did not give him any
greater Fourth Amendment protection against the seizure of the vehicle. Police may
lawfully impound the personal affects that are with a person at the time he is
arrested to ensure the safety of those effects. See for example, United States v.
Hood, 183 F.3d 744 (8th Cir. 1999) (Impoundment of car upon driver’s arrest lawful
where parked in “lot of a residential building in which [defendant] did not live and
where he could not properly leave his car”).
Reasonable police regulations relating to inventory procedures
administered in good faith satisfy the Fourth Amendment. Colorado v. Bertine, 479
U.S. 367 (1987). That the officers may not have compiled a detailed inventory of
the many personal effects in the Blazer on an impound form before the vehicle was
towed to the impoundment lot does not invalidate the legality of the impoundment
of the vehicle. The observation of the rifle was made by Trooper Peltier at the scene
before the impoundment inventory was taken. The impoundment was supported by
probable cause, an undertaking consistent with the police role as caretaker. See
South Dakota v. Opperman, 428 U.S. 364 (1976). The officers were also justified
in impounding the vehicle while they sought a search warrant for the vehicle for
evidence upon probable cause that certain objects of that character would be found
therein.
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An inventory search is not exempt from requirements of reasonableness
set down in the Fourth Amendment. Under the facts of this case I find no credible
evidence that the officers rummaged through Greenwood’s private effects in violation
of Greenwood’s reasonable expectation of privacy in his automobile and its contents
by conducting their inventory search. The inventory search was conducted within
the limits necessary to meet the reasonableness requirement of the Fourth
Amendment. The practice of an inventory of an impounded vehicle is consistent with
the Trooper’s regulations regarding vehicles that they have caused to be placed in
the custody of a towing company. An inventory search protects the vehicle and the
property in it and safeguards the police from claims of lost possessions. United
States v. Ducker, 491 F.2d 1190 (5th Cir. 1974).
Once Trooper Peltier observed what appeared to him to be the butt of
a rifle, he was justified in removing it before the vehicle was towed to an
impoundment lot. If the officers had not conducted an inventory search at the scene
then an assault rifle with magazines loaded with ammo would have remained in the
vehicle subject to theft or use by someone else to commit a crime. They also
constituted evidence of the offense of misconduct with a weapon by a person who
was intoxicated.
Based upon exigent circumstances an inventory search was conducted
in temporal proximity between the lawful seizure of the vehicle and impoundment.
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Where valuable property is left on the seat or floor of the car and plainly visible to
anyone peering through the window the danger of theft is substantial. United States
v. Mitchell, 458 F.2d 960 (9th Cir. 1972). Once the police have reason to believe that
the car contains a gun the search for the weapon is justified because of “concern for
the safety of the general public who might be endangered if an intruder” removes a
weapon from the vehicle. Cady v, Dombrowski, 413 U.S. 433 (1973).
In Harris v. United States, 390 U.S. 234 (1968) a vehicle was seized at
the time of defendant’s arrest for robbery and the officer found incriminating
evidence therein while acting pursuant to a Department regulation requiring a
thorough search of impounded vehicles. There, the evidence in question was found
in plain view while the officer was doing no more than securing the doors and
windows. The Supreme Court upheld the discovery of the evidence without passing
upon the legality of a full inventory.
There is a “diminished” expectation of privacy as to automobiles in the
customary need for police inventory of impound vehicles.
South Dakota v.
Opperman, supra. The Constitution permits routine inventory searches. Id. In his
concurring opinion in Opperman, Justice Powell observed that such searches should
be permitted without a search warrant because there are no special facts for a
neutral magistrate to evaluate.
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The objective of an inventory search to protect the owner’s property is
certainly served by removing a rifle that is visibly observed protruding from a pile of
clothing in the vehicle. Trooper Chambers had been falsely told by Greenwood that
he had no firearms in the vehicle. Pursuant to Cady v. Dombrowski, supra, if officers
have reason to believe that there is a gun in the car they may search the vehicle for
the weapon in order to protect the public.
An inventory list is prepared by the police. Considering the policy’s
stated purposes an item by item inventory is not inevitably necessary to accomplish
the objective to guard against alleged loss of property from the vehicle. Where the
impoundment lot is a relatively secure facility a full inventory appears unnecessary
at the scene.
The matter of assessing whether the inventory list on the
impoundment form is “detailed” is essentially an administrative matter that does not
effect the validity of the seizure of the gun and ammo in the instant case. The
inventory itself was prompted by the presence in plain view of a number of
potentially valuable items inside the car.
The right to inventory is not limited by a probable cause requirement
with respect to valuables that are within the particular vehicle. Once the trooper was
lawfully inside the car to secure the personal property in plain view it was not
unreasonable to inspect the pouch for ammunition because a vandal would have
had ready and unobstructed access once inside the car. Opperman, supra.
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The search itself was conducted in accordance with establish police
department policy. As the courts have recognized the regularized set of procedures
adequately guard against arbitrariness. On the evidence of record the government
has shown that there was an established reasonable procedure for safe guarding
impounded vehicles and their contents and that the police activity was essentially in
conformance with that procedure. The standard inventory form was completed and
kept. Although the inventory form fails to list the small camera and computer no bad
faith occurred in this oversight. The officers may have been satisfied with their
inspection of the carload of stuff in the vehicle or they may not have seen those two
items of property. They intended to seek a search warrant “to search” the vehicle
for evidence.
The inventory was conducted in a manner reasonably related to its
purpose to protect the car owner from loss and the police or other custodian from
liability on an unjust claim. Trooper Chambers promptly applied for and obtained a
search warrant for the vehicle. To wait for a detailed inventory list to be prepared
after the execution of the search warrant was not unreasonable. Even if Trooper
Peltier should not have opened the pouch to seize the ammo the government would
have inevitably have obtained that piece of evidence upon the execution of the
search warrant.
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In the course of the inventory process once the rifle as evidence of a
crime was discovered, this conferred upon the police the authority to further search
the vehicle on probable cause in areas beyond that allowed to be inspected during
an inventory search. The officers had probable cause to suspect Greenwood of the
offenses of driving while intoxicated, possession of drug paraphernalia, and
possession of a firearm while being intoxicated.
Search Incident to Arrest
A search incident to a lawful arrest exception to the warrant requirement
arises from the interest in officer safety and evidence preservation that are typically
present during an arrest. If there is no possibility that an arrestee may reach into the
area that law enforcement officers seek to search the safety and safeguarding
evidence justifications underlying Chimel v. California, 395 U.S. 752 (1969) are
absent.
In Arizona v. Gant, 129 S. Ct. 1710 (2009) the Supreme Court
recognized that circumstances unique to the automobile context may also justify
search incident to a lawful arrest when it is “reasonable to believe evidence relevant
to the crime of arrest might be found in the vehicle.” Gant, at 1713, citing Thornton
v. United States, 541 U.S. 615, 632 (2004). In Thornton the Supreme Court held
that the Fourth Amendment allows an officer to search a vehicle’s passenger
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compartment as a contemporaneous incident of arrest even when the officer does
not make contact until the person arrested has already left the vehicle.
In Gant, the evidentiary basis for the search incident to arrest was
lacking because Gant was arrested for driving with a suspended license, an offense
for which the police could not reasonably have expected to find evidence in Gant’s
car. In contrast, Thornton was arrested for a drug offense.
Greenwood was arrested for driving while intoxicated but he was also
suspected of distributing drugs based on items found in his pockets. Officers could
reasonably have searched Greenwood’s vehicle for evidence related to the charge
of driving under the influence of alcohol. In the instant case circumstances unique
to the vehicle context justify search incident to a lawful arrest because it was
reasonable to believe evidence relevant to the crime of arrest might be found in the
vehicle. Gant, supra.
There is no fixed outer limit for the duration of time that may pass
between an arrest of an occupant of an automobile and the valid warrantless search
of the passenger compartment of the vehicle that is contemporaneous incident of the
arrest. United States v. Weaver, 433 F.3d 1104 (9th Cir. 2006). In Weaver the
search of the defendant’s vehicle commenced 10 to 15 minutes after the defendant’s
passenger was arrested and the search of the vehicle was delayed while the
arresting officer summoned a third officer to the scene.
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Weaver applied the
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automobile exception (the Belton Rule) arising from New York v. Belton, 453 U.S.
454, 460 (1981). Belton was arrested for drug offenses. In the instant case it was
reasonable to believe that Greenwood’s vehicle contained evidence of the offense
of arrest, and it was reasonable for Trooper Chambers to wait for Troopers Peltier
and Banc to provide assistance before any search of the automobile occured.
Inevitable Discovery
The government argues that the evidence found as a result of the
execution of the search warrant should be admissible under the inevitable discovery
doctrine. Under this doctrine, evidence that would normally be excluded will be
admitted if the prosecution is able to show by a preponderance of the evidence that
any materials unlawfully seized would inevitably have been discovered by lawful
means. United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986). Although it
is clear that the ammo was not visible by looking through the window the assault rifle
and ammo would have inevitably been discovered if the troopers had delayed their
inventory search until a search warrant could be issued.
Summary
The arrest of Greenwood and the impoundment of his vehicle were
lawful. Moreover, the assault rifle would inevitably have been discovered once the
law enforcement officers impounded the vehicle and executed the search warrant.
Accordingly, the Motion to Suppress should be denied. IT IS SO RECOMMENDED.
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DATED this 7th day of December, 2010, at Anchorage, Alaska.
/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge
Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed
finding and recommendation shall file written objections with the Clerk of Court no
later than NOON, Monday, December 13, 2010.
The failure to object to a
magistrate judge's findings of fact may be treated as a procedural default and waiver
of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185,
1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes
that a district court is not required to consider evidence introduced for the first time
in a party's objection to a magistrate judge's recommendation United States v.
Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed
five (5) pages in length, and shall not merely reargue positions presented in motion
papers. Rather, objections and responses shall specifically designate the findings
or recommendations objected to, the basis of the objection, and the points and
authorities in support. Response(s) to the objections shall be filed on or before
4:00 PM, Wednesday, December 15, 2010. The parties shall otherwise comply
with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice
of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the
district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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