USA v. Vickers
Filing
34
Initial Report and Recommendation
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA
Plaintiff,
vs.
3:11-cr-063-HRH-JDR
RECOMMENDATION
REGARDING
MOTIONS TO SUPPRESS
ANDREA LAVELLE VICKERS,
(Docket Nos. 13 & 14)
Defendant.
Defendant Andrea Lavelle Vickers moves to suppress evidence seized
from a vehicle he was driving on March 22, 2011. Docket 13. In a separate motion
he moves to suppress evidence seized from his person and effects at the Anchorage
Jail where he was taken following his arrest, which he asserts was invalid.
Docket 14.
The motions are opposed by the government.
Docket 20.
An
evidentiary hearing was conducted on September 12, 2011 before the assigned
magistrate judge. Upon due consideration of the evidence adduced and arguments
of counsel, the magistrate judge recommends that the court adopt the findings of
facts and conclusions of law as set forth below and that the motions to suppress be
granted as to the inventory search and denied as to the search of Vickers
person at the jail.
Standing
The motions to suppress were timely filed on August 12, 2011. In its
opposition the government challenged the defendant’s standing to move to suppress
the evidence seized from the vehicle. In order to contest the legality of a search or
seizure, the defendant must establish that he or she had a “legitimate expectation
of privacy” in the place searched or in the property seized. Rakas v. Illinois, 439 U.S.
128, 143-44 (1978). The defendant must have exhibited an actual, subjective
expectation of privacy and, more importantly, the expectation must be one that
society is prepared to accept as reasonable and therefore legitimate. Smith v.
Maryland, 442 U.S. 735 (1979); United States v. Pollock, 726 F.2d 1456, 1465 (9th
Cir.1984). Vickers has the burden of establishing that, under the totality of the
circumstances, the search or seizure violated his legitimate expectation of privacy
in a particular place. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).
The evidence establishes the defendant’s right to assert the standing.
Vickers has shown a legitimate basis for possessing the vehicle, namely permission
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from the vehicle owner, to support his standing and reasonable expectation of
privacy in the vehicle. United States v. Perez, 689 F.2d 1336, 1338 (9th Cir.1982)
(defendants had a legitimate expectation of privacy in a truck they did not own);
United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir.1980) (defendant had a
legitimate expectation of privacy in a car he did not own because he was in
possession of the car with the permission of the owner and had a key to it, thus
having the requisite level of control over the car), cert. denied, 450 U.S. 1043 (1981).
United States v. Garcia, 897 F.2d 1413, 1417-18 (7th Cir. 1990) (driver using vehicle
with permission of absent owner has reasonable expectation of privacy therein);
United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990) (permission
from owner to use vehicle supports privacy expectation therein).
United States v. Padilla, 111 F.3d 685, 687 (9th Cir. 1997), relied upon
by the government prior to the evidentiary hearing, is distinguishable on its facts.
Padilla was not driving the vehicle nor did he own it when it was stopped. The issue
was whether a bailment relationship between defendants and the owner of the car
whom the defendants hired to transport cocaine conferred on the defendants a
possessory interest in the car protected from unreasonable search and seizure.
After the Ninth Circuit Court of Appeals found that the Padillas had
standing to contest the search, the case was remanded by the U.S. Supreme Court
for determination of whether the Padillas had a property interest that was interfered
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with by the stop of the car, or a reasonable expectation of privacy that was invaded
by the search. The Ninth Circuit affirmed the district court’s holding that the
defendants lacked standing.
Findings of Fact
On at March 22, 2011, at about 1:30 AM Anchorage Police Officer Troy
Clark was proceeding westbound on DeBarr approaching the intersection of Bragaw
when he observed a Mercury Mountaineer proceeding with one headlight working.
It was dark outside. Officer Clark turned his vehicle around and followed the
Mercury Mountaineer. While doing so he notice that the tail lights of vehicle were
not turned on.
The officer activated his overhead lights in his marked vehicle and
followed the Mercury about 4 to 6 blocks before it pulled over. Officer Clark
observed the Mercury swerving and the turn signal turning on and off several times
before the driver pulled over. He also observed the vehicle drift over to a parking
lane on the side of the road and come back into the traffic lane while turning the turn
signal off and on. It appeared to the officer that the driver was preoccupied.
Officer Clark had no idea who was driving the vehicle until it actually
stopped. He asked the driver, who was alone, for his driver’s license, his insurance,
and his registration. The driver was Andrea Vickers who was known to the officer.
After producing his driver’s license Vickers provided a registration indicating that the
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car belonged to Jennifer Granvold.
Vickers had borrowed the vehicle from
Granvold. She gave him the keys to the vehicle and he had driven the vehicle on
prior occasions.
Vickers was unable to provide the officer with an insurance card. At
some point, Vickers indicated to the officer that he was talking to the owner of the
vehicle on the phone. Vickers told Officer Clark that the owner said that the car was
insured through Geico. The officer went back to the patrol car and called the Geico
Company on an 800 number to see if they had any record of insurance for a vehicle
with that VIN number or under the name of Granvold or Vickers. Geico had no
record of anybody being insured for that vehicle.
As soon as Officer Clark saw that it was Andrea Vickers driving the
vehicle he called for backup. He knew that Vickers had been involved in weapons
crimes in the past and had safety concerns. Once he received the information from
Geico about the absence of insurance Officer Clark decided to arrest Vickers for a
violation of AMC 9.28.030A.1
Anchorage Police Officer Michael Wisel arrived at the scene at about
1:35 AM to assist Officer Clark with the traffic stop. At the time of his arrival Officer
1
9.28.030 Insurance or other security required.
A. The owner or operator of a motor vehicle shall have a current
motor vehicle liability policy, or other security that complies with
Alaska Statutes Title 28, when operating the vehicle within the
municipality.
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Clark was verifying whether Vickers had insurance on the vehicle. Officer Wisel also
had safety concerns about Vickers based on prior experience in which Vickers was
a victim in a reported drive-by shooting.
After Officer Clark decided to arrest Vickers for driving without insurance
he and Officer Wisel walked up to the Mercury and had Vickers get out of the
vehicle. Officer Clark placed Vickers in handcuffs, did a pat-down search and took
him to his police vehicle. The pat-down search disclosed soap but nothing that
concerned the officer.2 Officer Clark then started the paperwork for the charge of
driving without insurance in violation of the Municipal Code. Neither officer asked
Vickers for permission to search the vehicle.
Officer Wisel began an inventory search and quickly came back and
informed Officer Clark that he had found a gun in the car. Officer Clark had just run
Vickers criminal history and knew that he was a felon and not allowed to have a gun.
Officer Clark then decided to charge Vickers with being a felon in possession of a
firearm in violation of Alaska State law. He knew that the State’s attorney’s office
would want to handle the entire case so he decided to charge Vickers with driving
without insurance under Alaska State law rather than the Municipal Code.
2
Apparently Officer Clark did not discover the baggie of about twenty .22
caliber bullets on defendant’s person that was later found at the jail.
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Officer Wisel had conducted many inventory searches in the past. He
was a field training officer and had instructed other officers about the police policy
for inventory searches. He was aware that the inventory policy stated that he could
only look for items in plain view. He testified that typically his inventory searches of
vehicles were for high value items, that if there was a coat he would lift the coat and
also look underneath the seats where people might stash valuables to conceal them.
On cross-examination Officer Wisel was asked about his standard
policy in moving things during an inventory search. He testified that he would not
open up a gym bag, but if it were already open he would look inside. He stated that
he would probably look inside a purse to see if there was a gun if he could do so
without manipulating it.
He knew that one of the reasons for an inventory search was to protect
the police against liability claims. When asked about looking for valuable items in the
vehicle during an inventory search he added “and for safety reasons . . .” explaining
that an officer conducting an inventory search needs to document or remove
firearms, propane bottles, and other such items for safety concerns particularly
because impound yards are not totally secure. Officer Wisel testified that he usually
looks in a center console or glove box if it is unlocked.
When Officer Wisel arrived at Vickers’ vehicle the driver’s door was
open. He stepped inside and saw a black bandana between the driver’s seat and the
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center console. A large part of the bandana was folded over towards the console.
It looked to the officer that something was being concealed under the bandana
although he could not see what it was until after he moved the bandana. Officer
Wisel never testified that he thought the bandana was concealing a firearm. He
merely said it could have been something of value.
Because of the location of the bandana next to the seat belt buckle
anyone fastening the driver’s seatbelt would have been aware that there was an
object under the bandana. Officer Wisel pulled on the corner of the bandana and
saw what appeared to be the butt of a gun. He then stopped his search and notified
Officer Clark that there was a weapon in the vehicle.
Officer Wisel returned to his vehicle, retrieved a camera, and took
pictures of the bandana before he removed the pistol. Officer Wisel admitted that
he could not see the pistol until he moved the bandana. He agreed that the bandana
was not a thing of value.
An inventory search is conducted by APD on all impounded vehicles.
Once Officer Clark decided to charge Vickers under the State law, Officer Wisel
recognized that the vehicle would not be impounded. He knew that he could not
search any further without a search warrant. The keys to the vehicle were given back
to Vickers and he was transported to the jail.
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Before Department of Correction officers admit a person into the
Anchorage jail they conduct a search of his person. The correction officers searched
Vickers and located a plastic sandwich baggie of about twenty .22 caliber bullets in
his right pocket. Tr. 55. Officer Clark was standing nearby waiting for the return of
his handcuffs. He observed the correction officer remove the ammunition from the
defendant’s pocket. The correction officer handed the bullets directly to Officer Clark
who took custody of them and stored them in evidence at APD.
Officer Clark testified that he would have arrested Vickers based just on
driving without insurance because of Vickers’ criminal convictions. He would not
have allowed Vickers to drive the vehicle away without insurance because that
would constitute a continuing violation of the law.
The state magistrate set bail for the two offenses at $750 designating
$500 for the weapons charge and $250 for the charge of driving without insurance.
According to Officer Clark, if there is a chance that a person arrested is going to
make bail they are not always stripped searched. They would have their picture and
finger prints taken before leaving the jail facility. Municipal Code 9.28.026 E.3 allows
the seizure of a motor vehicle for impound upon a showing of probable cause to
believe the vehicle was operated in violation AMC 9.028.030.
Discussion
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A.
Legality of Stop
Vickers was lawfully stopped by Officer Troy Clark after the officer
observed that one headlight of the vehicle was not working and no tail lights were
on. When the officer asked the driver, later identified as Andrea Vickers, for a
driver’s license, registration and proof of insurance, Vickers could not produce any
proof of insurance as required by Anchorage Municipal Code (AMC) 9.28.030. The
defendant was properly placed under arrest for operating a vehicle without
insurance.
B.
Validity of Inventory Search
The Fourth Amendment to the U.S. Constitution guarantees “[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”
Officers may conduct an inventory search to document the vehicle’s
contents once the vehicle is lawfully seized by police. South Dakota v. Opperman,
428 U.S. 364 (1976). Such searches serve the purpose of protecting the police from
danger, protecting police against bogus claims and disputes over lost or stolen
property; and protection of the owner’s property while it remains in police custody.
Id. at 377; United States v. Wanless, 882 F.2d 1459, 1463 (9th Cir. 1989). Inventory
searches must be conducted pursuant to “standard criteria and on the basis of
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something other than suspicion of evidence of criminal activity.” Colorado v. Bertine,
479 U.S. 367 (1987).
The Municipality of Anchorage has a policy for towing and impounding
vehicles. See 3.03.010 of the Operational Procedures in the Regulations and
Procedurals Manual for the Anchorage Police Department (Government’s Exhibit 1).
This policy permits impounds for vehicles involved in a violation pursuant to AMC
9.28.026 (Driving without insurance) One of the criteria for impounds is stated in
Section I.B.3 of that Policy as follows:
Personal property which is in plain view inside the vehicle,
and is determined to be valuable by the arresting officer,
or by the defendant, must be documented in the inventory
section of the impound report or in the narrative section of
the report.
Both the government and Vickers agree that the inventory search in this
case must have been carried out in accordance with the standard procedure of the
local police department. See Opperman, supra at 375. An improper inventory
search results in suppression where the police fail to follow the local policy. See
Wanless, 882 F.2d at 1463 (1989) (police failed to follow local policy of asking a
present owner for consent).
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Vickers argues that the inventory search conducted by Officer Wisel
exceeded the scope of the Anchorage Police Department Policy. He argues that the
gun located under the bandana was not in “plain view” observation but was visible
only after the policeman moved the bandana within the vehicle. The initial question
then is whether the discovery of the gun occurred within the meaning of “plain view”
as that language is contained in the Municipal Code.
The Anchorage Municipal Code does not define the meaning of “plain
view” in its criteria for impoundment. Alaska case law does not provide a definitive
guideline as to the meaning of “plain view” as used in AMC 9.28.026. Under the
ordinary meaning of “plain-view doctrine” the rule permits a police officer’s
warrantless seizure and use as evidence of an item seen in plain-view from a lawful
position. See definition of Plain View Doctrine in Blacks Law Dictionary, 9th Ed.
In an unpublished opinion in Putzel v. State of Alaska, No. A-6095, 1997
WL 593806 (Alaska Ct. App. Sept 24, 1997) the Court of Appeals of Alaska affirming
the Superior Court addressed the validity of an inventory search pursuant to AMC
9.28.026 which authorized impoundment for a vehicle involved in a driving while
intoxicated violation. That code provision provided: “Personal property which is in
plain view inside the vehicle, and is determined to be valuable by the arresting
officer, or by the defendant, must be taken for safe keeping and noted in the official
report.” Id. at 2.
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In Putzel an officer lifted a blanket to see if there might be more money
or other objects which Putzel would want to take with him. In doing so they found
a revolver. Putzel argued that the search violated Anchorage Police Department
regulations. The Alaska Court of Appeals did not view the officers actions of moving
the blanket as inconsistent with Anchorage Police Department General Order No.
94-1(c). In Putzel, however, the Court assumed that a blanket qualified as valuable
personal property. The court held the right to take possession of the blanket as
inventory necessarily implied the authority to lift or move it. Upon exercising that
authority and moving the blanket the pistol came into plain view and the officer was
entitled to possess it for safe keeping. The instant case is distinguishable because
the bandana is not a valuable item for purposes of an inventory and the officer did
not consider it as such.
Under the plain view doctrine it must be “immediately apparent to the
police that they have evidence before them.” Collidge v. New Hampshire, 403 U.S.
443 (1971). In the context of an inventory search conducted under AMC 3.03.010
it must have been immediately apparent to the officer that the item he was going to
move or seize was “valuable” for purposes of listing it in the inventory. Just as a
policeman does not have the right under the plain-view doctrine to seize an object
in his view in order to examine it and determine if it is or would be evidence in a
criminal prosecution, the APD officer did not have the right to seize a non-valuable
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object in order to determine if there was a valuable property underneath it. “To
assure that warranted searches do not result in ‘exploratory rummaging,’ the plainview doctrine limits the right of seizure to items, the incriminating nature of which is
immediately apparent to the searching officer.” United States v. Wright, 667 F.2d
793, 797 (9th Cir. 1982). (“An officer cannot inspect or examine every item that falls
within his vision . . . without contravening the Constitutional prohibition against
‘exploratory rummaging.’”) Id. at 798. Under APD Regulations and Procedural
Manual, 3.03.010 (Exhibit 1).
The government does not argue that Officer Wisel had probable cause
to search the vehicle for a weapon independent of an inventory search. The
government cites no factors making it reasonable to conclude that Vickers may have
been trying to hide something or prevent the officer from obtaining a view of an item
lying about the vehicle. Compare United States v. Sanders, 631 F.2d 1309 (8th Cir.
1980) (probable cause that a brown packet on the floor contained drugs where
defendant had prior drug conviction and police had information he supplied drugs to
another when the defendant took something from his pocket and placed it beneath
the seat and exhibited excited facial expression when the officers approached the
vehicle).
The Supreme Court in Arizona v. Hicks, 480 U.S. 321 (1987), rejected
the approach by some courts that it was permissible to seize an object based only
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on a reasonable suspicion that the object was subject to seizure. Professor LaFave
suggest that after Hicks, “a close examination of items within a vehicle which has no
other lawful basis cannot be justified on the ground that reasonable suspicion
suffices for such a minimal intrusion.” See 3 LaFave, Search and Seizure, § 7.5(b)
(4th Ed. 2009)
The Supreme Court has drawn distinctions between searches and
seizures in applying the plain view doctrine. In Arizona v. Hicks, the court held that
no seizure occurred when the police officer, called to the scene of a shooting
incident, recorded serial numbers of stereo equipment he observed in plain view and
which he believed had been stolen. However, his action in moving the equipment
to find the serial numbers constituted a search which was not support by probable
cause. See also, State v. Murray, 527 P.2d 1303 (1974), cert. denied 421 U.S. 1004
(1975) (television serial numbers not within plain view because officers had to tilt the
sets to find the numbers and nothing about the location of the sets “looked
incongruous” enough to satisfy the “immediately apparent” requirement).
A search implies a prying into hidden places for something that is
concealed. See United States v. Ramos-Osequera, 120 F.3d 1028, 1036 (9th Cir.
1997), cert denied 118 S. Ct. 1094 (1998) (inventory search procedures authorizing
the cataloguing and safe keeping of visible property did not authorize search of
pocket of jeans). It is not a search however, for an officer to observe or hear
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something by using his natural senses. See 1 LaFave, Search and Seizure § 2.2 (4th
Ed. 2009).
In Florida v. Wells, 495 U.S. 1 (1990), the Supreme Court held that
absent a policy with respect to the opening of closed containers encountered during
an inventory search, the inventory search conducted which involved the opening of
a locked suitcase was not sufficiently regulated to satisfy the Fourth Amendment.
Wells was stopped for speeding. Wells agreed to accompany the trooper to the
police station to take a Breathalyzer test. He gave his permission to the officer to
open the trunk of the car he was driving. An inventory search of the car turned up
a locked suitcase in the trunk. Under the troopers direction, the suitcase was
opened and marijuana discovered. The marijuana found in the suitcase was subject
to suppression. The record in Wells contained no evidence of any highway patrol
policy on the opening of closed containers found during inventory searches.
The Wells court held that standardized criteria must regulate the
opening of containers found during inventory searches based on the principle that
an inventory search must not be a ruse for general rummaging in order to discover
incriminating evidence. The policy or practice governing the inventory searches
should be designed to produce an inventory. The individual police officer must not
be allowed so much latitude that inventory searches are turned into “a purposeful
and general means of discovering evidence of crime.” 495 U.S. at 4.
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The court in Wells added that the police officer may be allowed
sufficient latitude to determine whether a particular container should or should not
be opened in light of the nature of the search and the characteristics of the container
itself. The court opined that it would be permissible (under the Fourth Amendment)
to allow the opening of closed containers whose contents officers determined they
were unable to ascertain from examining the containers’ exteriors. “The allowance
of the exercise of judgment based on concerns related to the purposes of an
inventory search does not violate the Fourth Amendment.” Id. The Anchorage
Municipal Code does not allow APD officers such latitude.
The Wells Court found the Florida Highway Patrol had no policy
whatever with respect to the opening of closed containers encountered during an
inventory search. Thus, the absence of such a policy led to the holding that the
search was not sufficiently regulated to satisfy the Fourth Amendment and that the
marijuana which was found in the suitcase was properly suppressed by the Supreme
Court of Florida. The U.S. Supreme Court held that police may not be given total
discretion to decide whether to open closed containers found during an inventory
search.3 Concurring separately, Justice Blackman wrote that the Supreme Court
3
In his dissent Justice Brennan, with whom Justice Marshall joined, found
the majority statement that a State may adopt an inventory policy that vests
individual police officers with some discretion to decide whether to open such
containers as pure dictum. The dissenters in Wells wrote that an inventory
search is reasonable under the Fourth Amendment only if it is done in
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cases establish that an individual police officer cannot be given complete discretion
in choosing whether to search or leave undisturbed containers and other items
encountered during an inventory search. Wells at 11. Justice Blackman also
disagreed with the majority that an individual policeman could be afforded discretion
in conducting an inventory search as opposed to a policy choosing a scheme with
an objective standard criteria. Wells teaches that a standard criteria is needed, not
just the exercise of a police officer at the scene to comply with South Dakota v.
Opperman, supra, and Illinois v. LaFayette, 462 U.S. 640 (1983).
The government argues that Officer Michael Wisel acted reasonably
when he moved the bandana to look under it. It is true that the Fourth Amendment
does not prohibit all searches; it forbids only unreasonable searches and seizures.
An inventory search may be conducted to the extent permitted pursuant to police
inventory practices. In order to avoid being designated as an evidentiary search, the
inventory practices must limit discretion. Florida v. Wells, supra. Thus, the fact that
the inventory search was reasonable per se under the Fourth Amendment standard
of objective reasonableness is not enough to comply with federal law limiting the
officer’s individual discretion in an inventory search.
Under the facts presented, Vickers would not have been able to post
bail immediately for the charge of driving without insurance. He still would have
accordance with standard procedures that limit the discretion of the police.
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been subjected to the search at the jail facility. The search of Vickers’ person at the
jail was the result of the lawful arrest for driving without insurance and not based
solely on the seizure of the firearm from the vehicle.
The government argues that Officer Wisel would have been derelict to
leave the firearm in the vehicle. That argument assumes that the gun was lawfully
discovered. The remedy for seizing the gun in violation of the law is suppression of
the evidence. The focus here is upon lawfulness of the seizure of the weapon not
whether it should have been left in the vehicle once discovered. If the police have
probable cause that there are seizable items in the vehicle, these objects can be
obtained by the police without reliance upon the power to inventory.
Cady v. Dombrowski, 413 U.S. 433 (1973) teaches that, if the police
have reason to believe there is a gun in the car they may search the vehicle for the
weapon in order to protect the public. In Dombrowski, officers searched the trunk
of an impounded vehicle to find the driver’s revolver, knowing that he was a police
officer required to carry a service revolver at all times and he did not have a revolver
when he was arrested for drunk driving.
The Supreme Court approved the
warrantless search because there was probable cause to believe the vehicle
contained a weapon.
Officer Wisel’s inventory practice to move an item of clothing during an
inventory search to see if there is something underneath it may be valid under Putzel
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if the article of clothing would arguably qualify as a valuable item. Putzel does not
provide authority for the movement “of any” item in the vehicle being impounded. It
is not sufficient that the inventory is the standard practice of the particular officer.
United States v. Kordocky, 909 F.2d 219 (7th Cir. 1990).
The government has not offered as authority any policy of APD or the
Municipality to avoid the “plain view” limitation of AMC 9.28.026. Because the
seizure of the firearm from the vehicle was not a valid inventory search the court
need not address the defendant’s argument that the officer used the inventory
search as a ruse to get into the car to look for things of evidentiary value.
C.
Fruits of the Unlawful Search
Vickers argues that the search by the correctional officer is tainted by
the unlawful inventory search and that the evidence resulting from the search at the
jailhouse should be suppressed under Wong Sun v. United States, 371 U.S. 471
(1963).
The exclusionary rule precludes law enforcement officers from using
“information obtained in violation of the Fourth Amendment to . . . [justify] a search.”
United States v. Roberts, 747 F.2d 537, 541 (9th Cir. 1984). Under the doctrine of the
“fruit of the poisonous tree” evidence may not be used if the evidence to which the
instant objection is made has come at by exploitation of the primary illegality but not
if the evidence is obtained by means sufficiently distinguishable to be purged of the
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primary taint. United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085,
1105 (9th Cir. 2008).
Before the inventory search was conducted, Officer Clark had already
arrested Vickers, placed him in handcuffs and placed him in his police vehicle.
Vickers was arrested for driving without insurance. The officer did not rely upon the
inventory search to establish probable cause for this arrest.
Vickers argues that had he not been arrested for the charge of being a
felon in the possession of a firearm his bail set by the magistrate would have been
no greater than the $250 set for the charge of driving without insurance. He claims
that he might have been able to post that bail immediately, implying that he would
not have been searched by the correction officer.
It is clear under the law that a defendant should not prevail in a tainted
fruits argument merely because “but for” the facts of the prior illegal search the
subsequent item would not have been uncovered. See 6 LaFave Search and
Seizure, § 11.4(f) (4th Ed. 2009) Case law provides no litmus test which can be
applied to the instant case. In Wong Sun v. United States, the court declined to
hold “that all evidence is ’fruit of the poisonous tree’ simply because it would not
have come to light but for the illegal actions of the police.”
In the instant case, the illegally gained knowledge of the gun in the
vehicle formed the impetus and basis for charging Vickers with felon in possession
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of a firearm.
The arrest of Vickers on this charge cannot be considered an
independent source removed from the taint of the original illegal search. The
government does not argue that this criminal charge should stand if the evidence of
the inventory search is suppressed. The issue is whether the processing of Vickers
at the local jail on the valid charge of driving without insurance and an invalid charge
of felon in possession of a firearm constitutes an independent source supporting the
jail house search of Vickers person.
The firearm observed from the illegal inventory at the scene of the traffic
stop prompted Officer Clark’s decision to charge Vickers under State law rather than
the Municipal code. But that discovery did not prompt the officer to arrest Vickers
at the scene because the officer had already made that decision. The question is
not what would have actually happened had the inventory search not disclosed the
firearm, rather, what counts is whether the actual illegal inventory search had any
effect in producing the jail house inventory search. The motivation for the jail house
search was not prompted by Officer Wisel’s search of the vehicle.
Vickers argues that but for the illegal inventory search Vickers would
have been eligible for making bail without being processed for the remaining charge
of driving without insurance. It is understandable that the jail processed Vickers,
including inventorying the items on his person, since he was present at the facility
after being arrested for felon in possession of a gun as well as driving without
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insurance. Presumably the officers involved would have followed the Alaska State
law including Zehrung v. State, 560 P.2d 189 (1977) if a different factual scenario
had been presented to them.
In Zehrung, the trial court had denied a rape defendant’s motion to
suppress certain credit cards found in his wallet during an inventory search at the
Anchorage Jail following his arrest on misdemeanor charges. The Alaska Supreme
Court suppressed the evidence holding that “when one is arrested and brought to
a jail for a minor offense for which bail has already been set in a bail schedule he
should be allowed a reasonable opportunity to attempt to raise bail before being
subjected to the remand and booking procedures and the incident inventory search.”
Id. at 195. Applying this rule, the court held that the warrantless jail house inventory
search of Zehrung’s wallet was without justification, since his employer had arrived
and offered to make bail within minutes of the arrest.
In the instant case the record does not show exactly what the bail would
have been. It does not show whether Vickers had $250 in his pocket or whether he
would have been able to call someone to come immediately and post the scheduled
bail amount for the offense of driving without insurance before he would have been
processed.
Federal law governs the admissibility of evidence in the instant
prosecution. The Alaska Constitutional guarantee against unreasonable searches
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and seizures is more broad than the Fourth Amendment guarantees. Zehrung, at
199. In Zehrung the Alaska Supreme Court held that the current procedure at the
jail (requiring complete processing of an arrestee, including inventory of his property,
even if the arrestee is able to post bail at the time he arrives at the jail)
unconstitutional under the Alaska Constitution.
The court discussed similar
contemporary procedures in other jurisdictions and noted that some jurisdictions
follow the procedure struck down by the Alaska Supreme Court. In dicta the court
wrote “[s]ince Zehrung’s search was incident to a lawful custodial arrest, his federal
Constitutional rights were not violated by the search.” Id.
Any rational assessment of application of the fruit of the poisonous tree
doctrine must take into account the objective of deterrence. See Brown v. Illinois,
422 U.S. 590 (1975). Justice Powell in his concurrence, stated “[t]he notion of the
‘dissipation of the taint’ attempts to mark the point at which the detrimental
consequences of illegal police conduct become so attenuated that the deterrent
effect of the exclusionary rule no longer justifies its cost.” Id. at 609. The correctional
officer was unaware of the inventory search conducted at the place of arrest. The
purpose of exclusion is to make “those administering the criminal law understand
that they must do it that way.” Bynum v. United States, 262 F.2d 465 (D.C. Cir.
1958). It is hard to conclude that an officer conducting an inventory on a vehicle
being impounded would contemplate what evidence might be found on the driver if
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24
he were processed into the jail facility. Here, different officers arrested Vickers and
conducted the inventory.
In Brown v. Illinois, supra, the court provided an analysis to assess the
connection between an illegal arrest and a confession. The three enumerated
factors in that situation include “temporal proximity,” “the presence of intervening
circumstances” and “the purpose and flagrancy of the official misconduct.” Id. at 603604. As for the first factor, it does not make any difference how much time elapsed
between the inventory search of the vehicle and the defendant’s processing at the
jail. Regarding the “purpose and flagrancy factor,” no such flagrancy exists in the
instance case. The absence of “purpose and flagrancy” does not alone dissipate the
taint, but Professor LaFave suggests this would require less by way of intervening
circumstances as compared to cases in which the Fourth Amendment violation was
flagrant and undertaken for the purpose of seeking the specific evidence. 6 LaFave
Search and Seizure, § 11.4(g), p.350.
Vickers’ motion to suppress the bullets is premised on the fruits of the
poisonous tree doctrine not an independent Fourth Amendment violation. Upon due
consideration of the totality of the circumstances, the magistrate judge declines to
extend the exclusionary rule to the fruits of the jail house search of Vickers when he
was booked into the jail.
Upon considering the deterrence objective of the
exclusionary rule the
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purpose of depriving the government of any gain is to
remove any incentive which exists toward the unlawful
practice. The focus is forward-to prevent future violations,
not punish for past ones. Consequently, where the chain
between the challenged evidence and the primary illegality
is long or the linkage can be shown only by ‘sophisticated
argument,’ exclusion would seem inappropriate. In such
a case it is highly unlikely that the police officers foresaw
the challenged evidence of the probable product of their
illegality; thus it could not have been a motivating force
behind it. It follows that the threat of exclusion could not
possibly operate as a deterrent in that situation. Absence
this, exclusion carries with it no benefit to society and
should not prejudice society’s case against a criminal.
Comment, 115 U.PA.L.Rev. 1136, 1148 (1967). For reasons discussed above the
motion to suppress the ammunition should be denied.
Summary
The Motion to Suppress the gun found during the inventory search of
the vehicle driven by Vickers on March 22, 2011, Docket 13, should be GRANTED.
The exclusionary rule does not require the suppression of the bullets found by the
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26
correctional officer at the jail. The Motion to Suppress the bullets, Docket 14, should
be DENIED. IT IS SO RECOMMENDED.
DATED this 23rd day of September, 2011, at Anchorage, Alaska.
/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge
The shortened objection and response deadlines are necessary
due to the looming trial date. D.Ak.L.M.R. 6(a) authorizes the court to alter the
standard objection deadlines. A party seeking to object to this proposed finding and
recommendation shall file written objections with the Clerk of Court no later than
NOON, September 27, 2011.
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.
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.
Objections and responses shall not exceed five (5) pages in length,
and shall not merely reargue positions presented in motion papers.
objections
and
responses
shall
specifically
designate
the
Rather,
findings
or
recommendations objected to, the basis of the objection, and the points and
authorities in support.
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27
Response(s) to the objections shall be filed on or before NOON,
September 29, 2011.
The parties shall otherwise comply with provisions of
D.Ak.L.M.R. 6(a).
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