United States of America v. 2002 BMW 745i, VIN WBAGL63422DP51620

Filing 28

MEMORANDUM AND ORDER - The claims of Benjamin Kasper and Mike Joyce 11 against the defendant BMW are denied and dismissed. Judgment will be entered in accordance with this memorandum and order. Ordered by Magistrate Judge Cheryl R. Zwart. (KBJ)

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United States of America v. 2002 BMW 745i, VIN WBAGL63422DP51620 Doc. 28 IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA U N IT E D STATES OF AMERICA, Plaintiff, V. 2 0 0 2 BMW 745I, VIN W BAGL63422DP51620, Defendant. ) ) ) ) ) ) ) ) ) ) 8 :1 0 C V 1 5 M E M O R A N D U M AND ORDER P u r s u an t to the parties' consent, this case is pending before me for final disposition.1 T h e plaintiff, United States of America, has filed a complaint for forfeiture of the defendant v eh icle , 2002 BMW 745i, VIN WBAGL63422DP51620 (the "BMW") (filing no. 1). C laim an t Benjamin Kasper filed an answer, (filing no. 11), and alleges the evidence seized w h ich implicates and supports forfeiture of the BMW was obtained in violation of Mr. K as p e r' s Fourth Amendment right to be free from unreasonable searches and seizures. A lth o u g h not stated in Mr. Kasper's answer, his trial brief also asserts an innocent owner d efen s e on behalf of Mr. Mike Joyce. The parties agreed to have the matter determined on d o cu m en tary evidence submitted in conjunction with their respective trial briefs. For the reas o n s set forth below, the court denies Mr. Kasper's claims and finds the BMW shall be fo rfeite d to the United States. BACKGROUND O n August 6, 2009, Nebraska State Patrol Sergeant Jeff Wilcynski was on duty and d riv in g a marked patrol car at approximately mile marker 305 of Interstate 80 in Hall County, See filing no. 1 4 , "Consent to Exercise of Jurisdiction by a United States Magistrate Ju d g e and Order of Reference," and 28 U.S.C. § 636(c). 1 Dockets.Justia.com N ebrask a. He was driving behind a blue BMW when the BMW slowed to 50 miles per hour, tu rn ed on its hazard lights, and pulled onto and parked on the shoulder of the road. Sgt. W ilcyn s k i activated his squad car lights and pulled off the road, parking directly behind the BM W . S g t. Wilcynski approached the BMW and initiated a discussion with Mr. Kasper, the d riv er and sole occupant of the BMW. Mr. Kasper indicated he had "blown out" his fan belt earlier and an error message indicating something was wrong with the transmission was d is p layed on the dashboard. Sgt. Wilcynski asked Mr. Kasper if he would like the Sergeant to call a tow truck, but Mr. Kasper said he was not sure a tow truck was needed at that time and he wanted to look under the hood first. Sgt. Wilcynski asked for identification and Mr. K asper handed Sgt. Wilcynski his Illinois driver's license. Ju st prior to handing Sgt. Wilcynski his identification, Mr. Kasper stated his "buddies h ave been looking for [him] for the past couple of days" and might have called the police. W h en asked why, Mr. Kasper explained his cell phone was dead, and he thought they had b een trying to call him because he was supposed to be home from his trip four days earlier. H e indicated he was supposed to be home on Monday. The stop occurred on a Thursday. Mr. Kasper released the hood and Sgt. Wilcynski and Mr. Kasper went to the front to examine the vehicle. Mr. Kasper indicated he recently replaced the fan belt on the car; h o w ev er, Sgt. Wilcynski did not think any of the belts appeared to have been recently re p lac ed . There was no other obvious problem with the car. While they were examining the engine, Sgt. Wilcynski asked Mr. Kasper where he was comin g from. Mr. Kasper responded that he had been in Reno, Nevada. When asked what h e was doing in Reno and how long he was there, Mr. Kasper responded he was partying with s o m e friends and he had been gone for four days. He also mentioned there was a car show 2 in Reno every year, although it is not clear from the video and audio of the encounter that Sgt. W ilc yn s k i heard the comment about the car show. Mr. Kasper attempted to restart the BMW, but it would not turn over. At Mr. Kasper's req u es t, Sgt. Wilcynski called a tow truck. After calling for the tow truck, Sgt. Wilcynski and M r. Kasper engaged in general conversation about Mr. Kasper's work and some current h ealth problems Mr. Kasper was experiencing. Sgt. Wilcynski asked Mr. Kasper if he had an y documentation for the car because when Sgt. Wilcynski called in the plates, dispatch did n o t have any information from him. Mr. Kasper retrieved a manilla envelope, the contents o f which properly tied Mr. Kasper to ownership of the BMW. Sgt. Wilcynski also asked Mr. Kasper where his luggage for the trip was located. Mr. K a sp er pointed to a few articles of clothing in the back seat and indicated that was all he had, n o tin g he did not need much because "I'm a guy." Sgt. Wilcynski also asked what was in the tru n k , and Mr. Kasper responded "clothes and other [stuff]." Sgt. Wilcynski asked for p ermission to look in the trunk and Mr. Kasper agreed. However, Mr. Kasper could not open th e trunk. Neither the fob on the key ring, nor the button on the dash designated to open the tr u n k would unlatch the trunk. Sgt. Wilcynski asked if he could have a drug dog come aro u n d the outside of the vehicle before the tow truck arrived to make sure "there were no d rug s in the car." Mr. Kasper consented and indicated that he did not do drugs and that there w er e no other drugs in the car besides some prescription medication. Mr. Kasper also con sented to allow Sgt. Wilcynski to search the inside of the car. Mr. Kasper was ordered to stand in front of Sgt. Wilcynski's car while he searched the BMW and continued to attempt to open the trunk. 3 W h ile Sgt. Wilcynski was searching the BMW and searching for a way into the trunk, N ebrask a State Trooper Bauer arrived on the scene.2 Sgt. Wilcynski requested Trooper Bauer "g o talk to [Mr. Kasper]." It is unclear from the evidence where Mr. Kasper was located at th at time.3 Trooper Bauer returned to the area where Sgt. Wilcynsiki was searching the B M W . Trooper Bauer informed Sgt. Wilcynski that he did not believe Mr, Kasper's story that he stayed at Circus Circus hotel in Reno. At that time, Trooper Bauer did not believe a C ircu s Circus was located in Reno. Sgt. Wilcynski continued the search of the BMW, but w a s still unable to access the trunk. A few minutes after Sgt. Wilcynski initiated the search, T roo p er Bauer informed him that Mr. Kasper had withdrawn his consent to the vehicle search b ecau se he was concerned Sgt. Wilcynski would break something. Sgt. Wilcynski stopped th e search at that time. Trooper Russell Lewis and his police service dog, Bruno, arrived at the scene at ap p ro x imately the same time as the tow truck, approximately 14 minutes after Trooper Lewis h ad been summoned to the scene. Bruno has been trained and certified to detect the odor of d ru g s since February of 1999. Although Bruno's typical indication behavior was to sit and s tare at the drug odor's source, he also reliably indicates by lying down and staring, or s tan d in g and staring at the source of the odor. In other words, Bruno indicates to the odor of d ru g s by stopping and staring at the source of a drug odor, and although he usually sits, he s o m etim es stands or lies down while doing so. Trooper Bauer instructed the tow truck to wait to hook up the BMW until Trooper L ew is and Bruno completed the external sweep of the vehicle. The canine sniff lasted It is not clear from the record whether Trooper Bauer was called in as back-up or s to p p ed on his own accord. The video evidence suggests Mr. Kasper was placed in Trooper Bauer's car, but Sgt. W ilcyn sk i testified that he was still standing outside the car's during Sgt. Wilcynski's initial s ea rc h . 4 3 2 app rox imat ely one minute and thirty seconds. Trooper Lewis signaled to Sgt. Wilcynski that B run o indicated drugs were present in the trunk, at which point Sgt. Wilcynski and Trooper B auer again attempted to access the trunk. They eventually located a switch inside the center co n s o l allowing them to release the trunk latch. Once the trunk was open, the officers found tw o locked suitcases. They were able to break the locks and found a total of 15 packages of marijuana. Mr. Kasper was subsequently arrested and the BMW was impounded by the law en fo rc em en t officials. LEGAL ANALYSIS T h e United States alleges that the BMW is forfeitable property under 21 U.S.C.A. § 8 8 1 (a), which provides as follows: (a) ... T h e following property shall be subject to forfeiture to the United States an d no property right shall exist in them: (4) A ll conveyances, including aircraft, vehicles, vessels, which are u sed , or are intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, possession, or co n cealmen t of [controlled substances]. 2 1 U.S.C.A § 881(a)(4). In such cases, the Government "must establish by a preponderance o f the evidence, that the property is subject to forfeiture." 18 U.S.C.A. § 983. A vehicle used to transport contraband falls well within the auspices of the statute. See United States v. Dodge Caravan SE/Sports Van, 387 F.3d 758 (8th Cir. 2004); United S tates v. One 1982 Chevrolet Corvette, 976 F.2d 392 (8th Cir. 1992); United States v. One 1 9 8 0 Red Ferrari, 875 F.2d 186 (8th Cir. 1989). The BMW was found with substantial amou n ts of marijuana in its trunk and was used to transport the controlled substance. 5 A ss u min g the officers' conduct in finding the marijuana was lawful under the Fourth A men d men t, and Mr. Kasper's cannot validly raise an innocent owner defense, the BMW is su b ject to forfeiture. A. M r. Kasper's Fourth Amendment Rights. "The Fourth Amendment's exclusionary rule applies to quasi-criminal forfeiture p roceed ing s." United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 646 (8th Cir. 1 9 9 9 ). Thus, if evidence should be suppressed because it was discovered through an impermissi b le search and/or seizure, the "government must prove probable cause with other, u n tainted evidence." Id. "A `search' occurs when an expectation of privacy that society con siders reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 133 (1984). " S eizu re includes official detention of a person as well as meaningful interference with a p erson 's possessory interests in property." $404,905 in United States Currency, 182 F.3d at 6 4 6 (internal citations omitted). In other words, if the United States violated Mr. Kasper's F o u r th Amendment rights in obtaining the contraband, the exclusionary rule applies and the g o v ern m en t will have to prove its claim of forfeiture without the evidence seized from the tru n k of the BMW. 1. In itia l Encounter. Mr. Kasper activated the BMW's hazard lights and pulled off to the side of the in ters tate. Sgt. Wilcynski responded by activating his patrol vehicle lights, parking behind th e BMW, and contacting the driver to determine if there was a problem. A law enforcement o ffi ce r 's duties include performing community caretaking functions, such as assisting d is tre s s e d motorists. See, e.g., Winters v. Adams, 254 F.3d 758, 763-64 (8th Cir. 2 0 0 1 )(n o tin g police officers perform "community caretaking functions" separate from the "d etection , investigation, or acquisition of evidence relating to the violation of a criminal 6 statu te"). Under the circumstances presented, Sgt. Wilcynski was lawfully carrying out his comm u n ity caretaking duties when he stopped to assist Mr. Kasper, and under such circumstances, an objective person in Mr. Kasper's position would not have believed he was b ein g detained at that time. While conferring with Mr. Kasper at the roadside, Sgt. Wilcynski asked questions ab o u t Mr. Kasper's identity, travel schedule, and the purpose of his trip. Although the BMW w a s not functional at the time Sgt. Wicynski stopped, Mr. Kasper was free to disregard the q u est io n s and walk away. See United States v. $91,960.00, 897 F.2d 1457, 1461 (8th Cir. 1 9 9 0 ). Instead, he engaged in a consensual encounter with the officer by remaining at the v eh icle and responding to the officer's permissible questioning. Sgt. Wilcynski's roadside q u estion ing did not violate the Fourth Amendment. See United States v. Griffith, 533 F.3d 9 7 9 , 983 (8th Cir. 2008); United States v. White, 81 F.3d 775, 778-79 (8th Cir. 1996). 2. C a n in e Sniff. M r. Kasper asserts his Fourth Amendment rights were violated when the canine sniff w as conducted on the BMW. Mr. Kasper argues the law enforcement officers lacked "reason able and articulable suspicion to deploy the police service dog" and that he revoked an y consent to the canine sniff prior to the time the K-9 unit arrived on the scene. The canine sniff did not violate Mr. Kasper's Fourth Amendment rights for at least th ree reasons; specifically, the canine sniff was conducted in a public location and in the absen ce of any unlawful detention of Mr. Kasper's person or vehicle; the officers had reas o n ab le suspicion to detain the vehicle to conduct a canine sniff and the detention, if any, o f Mr. Kasper or the BMW to conduct the canine sniff was not unreasonable; and Mr. Kasper con sented to the canine sniff and did not unambiguously and unequivocally withdraw that co n s en t. 7 a. P u b lic Location. A "canine sniff of the exterior of personal property in a public location `is so limited b o th in the manner in which the information is obtained and the content of the information rev ealed by the procedure' that it does not constitute a `search' within the meaning of the F o u rth Amendment." $404,905 in U.S. Currency, 182 F.3d at 647 (quoting United States v. P lace, 462 U.S. 696, 707 (1983)). The "exterior of personal property" has consistently been fo u n d to include vehicles, including parked cars. See United States v. Friend, 50 F.3d 548, 5 5 1 (8th Cir. 1995) (overruled on other grounds) (holding a canine sniff of a parked car on a public street was not a search for Fourth Amendment purposes); see also $404,905 in U.S. C u rren cy, 182 F.3d at 647 (holding a canine sniff of a U-Haul trailer stopped along the in terstate did not implicate the Fourth Amendment); Merrett v. Moore, 58 F.3d 1547, 1553 (1 1 th Cir. 1995) (canine sniff of the exterior of a car waiting at a roadblock was permissible w ith o u t reasonable suspicion). In this case, Mr. Kasper's vehicle broke down and was parked on the side of the in ters ta te ­ clearly, an area open and accessible to the public. Thus, it was well within the au th o rity of the law enforcement officers to conduct a canine sniff around the outside of the v ehicle while the vehicle remained on the side of the road. See Friend, 50 F.3d at 551. Although the tow truck and canine unit arrived at the scene at about the same time, and th e tow truck driver was instructed to wait briefly while the canine sniff was conducted, the res u lt delay lasted, at most, a few minutes. A de minimus delay to conduct a canine sniff is n o t an unreasonable detention, and it does not constitute an impermissible search. See United S tates v. Mohamed, 600 F.3d 1000, 1005 (8th Cir. 2010); United States v. Rivera, 570 F.3d 1 0 0 9 , 1013 (8th Cir. 2009). 8 T h e BMW was completely disabled at the time the canine sniff was ordered and co n d u cted , and Mr. Kasper was unable to remove the BMW from the roadside without a tow tru ck . Mr. Kasper's personal freedom of movement was not delayed as a result of the canine sn iff or while the canine sniff was conducted, and had the canine not indicated to the presence o f a controlled substance, the BMW would have been towed without any meaningful delay. A n y delay caused by conducting the canine sniff before the towing procedures could begin d id not violate Mr. Kasper's Fourth Amendment rights. See, e.g., United States v. Va Lerie, 4 2 4 F.3d 694, 706 (8th Cir. 2005) (applying similar principles to the brief detention and can in e sniff of a traveler's luggage); United States v. Quoc Viet Hoang, 486 F.3d 1156, 1162 (9 th Cir. 2007) (finding a brief detention of a package did not violate the fourth amendment w h e re it did not interfere with the delivery in the normal course of business without m ea n in g fu l delay). b. R ea s o n ab le Suspicion. Even if the canine sniff had not occurred in a public setting, the law enforcement o fficers had reasonable suspicion to temporarily detain Mr. Kasper while the canine sniff was co n d u cte d . A consensual encounter can escalate into the type of investigatory stop contemplated in Terry v. Ohio, 32 U.S. 1, 30 (1968) when the law enforcement officer develops reasonable articu lab le suspicion of criminal activity. See Griffith, 533 F.3d at 983-84 (finding law en fo rcem en t officers may convert a consensual encounter into a Terry stop if they have "reason able articulable suspicion of criminal activity). "Reasonable suspicion requires `that th e officer's suspicion be based on particularized, objective facts which, taken together with ratio n al inferences from those facts, reasonably warrant suspicion that a crime is being comm itted .'" Lopez-Mendoza, 601 F.3d at 865 (quoting United States v. Jones, 269 F.3d 919, 9 2 7 (8th Cir. 2001)(internal quotations omitted)). "Whether an officer has reasonable 9 s u s p icio n to expand the scope of a stop is determined by looking at `the totality of the circumstances, in light of the officers experience.'" United States v. Morgan, 270 F.3d 625, 6 3 1 (8th Cir. 2002) (quoting United States v. Carrate, 122 F.3d 666, 668 (8th Cir. 1997)). " T h o u g h each factor giving rise to suspicion might appear innocent when viewed alone, a co m b in atio n of factors may warrant further investigation when viewed in its totality." M o rg an , 270 F.3d at 631 (citing United States v. Bloomfield, 40 F.3d 910, 919 (8th Cir. 1 9 9 4 ) ). Conduct producing articulable suspicion must be evaluated on a case by case basis. R eas o n ab le suspicion may arise from contradictory statements and unusual or suspicious travel plans. See Griffith, 533 F.3d 979 at 983-84; United States v. Beck, 140 F.3d 1129, 1 1 3 9 (8th Cir. 1998)(citing United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997)). A lth o u g h the encounter between Sgt. Wilcynski and Mr. Kasper was initially a consensual o n e, Mr. Kasper's conduct and his answers to Sgt. Wilcynski's questions provided reasonable su sp icio n to convert the encounter to a Terry stop. Specifically, Mr. Kasper stated he recently rep laced a fan belt on the BMW, but the vehicle belts appeared worn upon examination by S g t. Wilcynski. In addition, Mr. Kasper had no visible luggage and only a few clothes in the v eh icle; claimed he was unable to open the trunk of his own car, but when questioned about th e lack of luggage or clothing for his trip, stated he had "clothes and other [stuff]" in the tru n k ; stated his friends may have called the police looking for him because his cell phone q u it working; and was carrying two cellular telephones, neither of which apparently were in w o rkin g order. These facts, considered in the totality, were sufficient to expand the encounter b etw een Sgt. Wilcynski and Mr. Kasper from consensual to a Terry stop supported by re as o n ab le suspicion. Once Sgt. Wilcynski believed reasonable suspicion was present, he could lawfully d etain the vehicle and its passengers for a reasonable period of time while a canine sniff of the BMW's exterior was conducted. See Morgan, 270 F.3d at 631. Mr. Kasper's BMW was 10 d isab led and could not be removed from the scene. The only potential delay occurred, when th e law enforcement officer asked the tow truck to wait with hooking up the vehicle while the canine sniff was conducted, and this request was made for the safety of the tow truck driver. T h e canine sniff took less than two minutes and did not extend the Terry stop for an u n re as o n ab le amount of time in violation of the Fourth Amendment. Id. c. C o n sen t. A lth o u g h his consent was unnecessary, Mr. Kasper consented to having a canine sniff the BMW's exterior. Once consent has been given, it may only be revoked through "an act clearly inconsistent with the apparent consent to search, an unambiguous statement ch allen g i n g the officer's authority to conduct the search, or some combination of both." U n ited States v. Sanders, 424 F.3d 768, 774 (8th Cir. 2005). In the presence of an am b ig u o u s statement or act, a defendants failure to object to a subsequent search will be relevan t in determining the scope of his consent. See United States v. Lopez-Mendoza, 601 F .3 d 861, 868-69 (8th Cir. 2010). Mr. Kasper was asked by Sgt. Wilcynski whether he could have a dog "run around" the outside of the car to search for drugs, citing the fact that Interstate 80 was a thoroughfare for drug trafficking. Mr. Kasper expressly gave his consent. He also separately gave Sgt. W ilcyn sk i permission to conduct a search of the trunk. Mr. Kasper argues that he revoked h is consent to the canine sniff. However, the evidence is at best inconclusive as to exactly w h at conduct the revocation covered. Although it does appear that Mr. Kasper eventually revo k ed his consent to the search of the inside of his car, the record provides no evidence that h e ever unambiguously revoked his consent to the canine sniff. At the state court suppression h e ar in g , Sgt. Wilcynski testified that Mr. Kasper "withdrew consent for the search" because M r. Kasper was concerned Sgt. Wilcynski would break something. Based on Mr. Kasper's reas o n for wanting Sgt. Wilcynski to stop searching the BMW, it is reasonable to infer his 11 rev o catio n did not include the canine sniff. Once the canine unit arrived, Mr. Kasper made n o further attempt to withdraw his consent or protest the sniff, providing further evidence he d id not revoke his consent to the canine sniffing the vehicle. See Lopez-Mendoza, 601 F.3d at 868-69; see also United States v. Gallardo, 495 F.3d 982, 990 (8th Cir. 2007)(finding a d efend ant was not deprived of the opportunity to revoke his consent even though he was p laced in the back of a squad car during the search). 3. P r o b a b le Cause. Mr. Kasper argues that an indication by Bruno cannot support a finding of probable cause. Although not entirely clear from Mr. Kasper's brief, he apparently believes the officers s h o u ld not have relied on Bruno's conduct as an "indication" because Bruno indicated by s tan d in g and staring, rather than sitting and staring at the trunk of the BMW. Where a canine is trained and certified in drug detection and the handler/trainer testifies that a positive indication has occurred, the canine sniff was reliable. See United S tates v. Olivera-Mendez, 484 F.3d 505, 515 (8th Cir. 2007); see also United States v. O liv ares -R o d r ig u ez, ___ F. Supp. 2d ___ , 2010 WL 2265661(N.D. Iowa 2010). A reliable d ru g detection dog's "positive indication alone is enough to establish probable cause for the p resen ce of a controlled substance." Olivera-Mendez, 484 F.3d at 512. Trooper Lewis, Bruno's canine handler, testified as to Bruno's training, certification an d his conduct when indicating to the odor of a controlled substance. Trooper Lewis p ro v id ed uncontroverted testimony that Bruno indicated in a permissible manner at the trunk o f the BMW when he stood and stared at the trunk. The court therefore finds Bruno made a reliab le indication to the odor of controlled substances, and Bruno's indication provided s u fficien t probable cause for law enforcement officers to search the BMW. 12 B. In n o cen t Owner Defense. A s a defense, Mr. Kasper argues that Mike Joyce is an "innocent owner"of the BMW, p rev en tin g the forfeiture of the BMW pursuant to 18 U.S.C.A § 983(d)(1). However, Mr. Jo yce has not filed a claim in this case, is not mentioned in any of the evidence, and has failed to make any showing that he has a colorable interest in the BMW. Therefore, Mr. Joyce lacks stan d in g to assert an innocent owner defense and such a defense cannot be asserted on his b ehalf by Mr. Kasper. See United States v. One Lincoln Navigator, 328 F.3d 1011, 1013 (8th C ir. 2003). Accordingly, IT IS ORDERED: 1. T h e claims of Benjamin Kasper and Mike Joyce (filing no. 11) against the d efen d an t BMW are denied and dismissed. Ju d g men t will be entered in accordance with this memorandum and order. 2. N o v e mb er 5, 2010. B Y THE COURT: s/ Cheryl R. Zwart United States Magistrate Judge *This opinion may contain hyperlinks to other documents or Web sites. The U.S. D is trict Court for the District of Nebraska does not endorse, recommend, approve, or g u ar an t ee any third parties or the services or products they provide on their Web sites. L ik ew is e, the court has no agreements with any of these third parties or their Web sites. The co u rt accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the o p in io n of the court. 13

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