BARRY J. PORTMAN
Federal Public Defender
ALEXANDRA McCLURE
Assistant Federal Public Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) No. CR 01-0284 MJJ
)
Plaintiff, ) DEFENDANT'S NOTICE OF
) MOTION AND MOTION TO
) SUPPRESS EVIDENCE AND
v. ) STATEMENTS; MEMORANDUM
) OF POINTS AND AUTHORITIES;
) REQUEST FOR EVIDENTIARY
) HEARING
JAY H. XXX, )
) Date: November 15, 2001
Defendant. ) Time: 2:00 p.m.
__________________________________________) Honorable Martin J. Jenkins
TO: UNITED STATES OF AMERICA, PLAINTIFF; AND DAVID SHAPIRO, UNITED STATES ATTORNEY; AND
ANDREW SCOBLE, ASSISTANT UNITED STATES ATTORNEY.
PLEASE TAKE NOTICE that on November 15, 2001 at 2:00 p.m., in the courtroom of the Honorable Martin J. Jenkins, defendant Jay H. XXX (hereinafter "Mr. XXX") will move this Court to suppress all evidence resulting from the illegal search of his lawfully parked vehicle on June 3, 2001. Mr. XXX respectfully requests an evidentiary hearing if the Court is unable to ascertain the legality of the search based upon the parties' submissions.
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INTRODUCTION
Mr. XXX is charged with one count of felon-in-possession of a firearm, in violation of 18 U.S.C. § 922(g). The firearm was discovered in a computer case inside Mr. XXX's legally parked vehicle after San Francisco police officers entered the vehicle on June 3, 2001, and searched it without a warrant. Mr. XXX moves the Court to suppress all evidence obtained through the warrantless search.
STATEMENT OF FACTS
On June 3, 2001, shortly after 12:00 p.m., Mr. XXX's car was legally parked in front of Boeddeker Park, and three people were allegedly sitting inside it. (1) The car is a white 1980 Pontiac Grand Prix. On the sidewalk next to the car, San Francisco Police Officer Peachey was attempting to break up a physical fight between two men who were fighting because one man was dating the other's ex-girlfriend. The two men fell onto the hood of another parked car, and Officer Peachey found himself between the two parked cars. The car in front of him, the white Grand Prix, then began to back up, and Officer Peachey put his hand on the trunk and ordered the driver to stop because he was worried that he would be hit. At that point, the three people allegedly stopped the car, got out, and left the area on foot. These people have not been identified.
By this point, six or seven officers had arrived on the scene, including Officer Fischer, who had arrived to provide back-up, as well as Officers Brothers, Haskell, and Kiely. See Grand Jury Testimony of Officer Peachey, Ex. B, at 4, 11, 19, 20. Officer Peachey then noticed a twenty-dollar bill on the ground next to the driver's side door. He and Officer Fischer looked in the car and saw a small white object in the back seat. Officer Fischer described it as "a small white rock by the rear window of the vehicle which we believed to be suspected crack cocaine." (2) The officers also saw a computer case on the rear seat with unspecified U.S. currency "hanging out of it." (3) According to the officers, the window on the passenger side was down and the door was unlocked. See Incident Report, Ex. A, at 6; Grand Jury Testimony of Officer Peachey, Ex. B, at 10. In light of "the high level of narcotics activity in this area," Officer Fischer stated that they "believed that the occupants who fled the vehicle earlier may have been involved in narcotics activity." (4)
The officers then ran a computer check on the vehicle which showed it registered to Mr. XXX. Lieutenant Kerr arrived on the scene and the officers advised her that they wanted to search the car. (5) Without conducting any additional investigation and without attempting to obtain a warrant, Officer Peachey then entered the vehicle through an unspecified method and recovered the suspected crack cocaine. The officers also conducted a full search of the vehicle, locating a loaded .22 caliber revolver inside the computer case, three cell phones, a wallet containing Mr. XXX's California I.D., and other items. The car was then towed.
Through testing, the white substance that the officers saw in the back of the car was determined not to be cocaine. See Report of Sergeant Murphy re: Initiation of Joint Investigation,attached hereto as Exhibit C, at 2. (6) It does not appear from the report that the actual nature of the object was ever determined, nor does the report indicate whether the test was conducted in the field or at some point thereafter. Several of the items found in the car, including the computer case, were traced to a man named Daniel Defay, who had reported them stolen from the trunk of his car on June 3, 2001. See Report of Sergeant Murphy re: Interview of Daniel Defay, attached hereto as Exhibit D. Mr. Defay stated that he has never had a gun in the computer case. See id. The gun was found to be registered to a man named Lawrence Lee, who said that he had sold the gun to an older white man in the early 1980s. See Report of Sergeant Murphy re: Interview of Lawrence Lee, attached hereto as Exhibit E. The gun had not been reported stolen. No useable prints were found on the gun. See Ex. C at 3.
On June 3, 2001, Mr. XXX called the Tenderloin Police Station to find out why his car had been towed. See Ex. A at 7-8. On June 4, 2001, Mr. XXX went to the Tenderloin Police Station to request the return of his property. See Officer O'Reilly's Incident Report at 2, attached hereto as Exhibit F. According to Officer O'Reilly, he asked Mr. XXX about the computer and Mr. XXX said he had bought it off the street. See id. Officer O'Reilly then asked about the gun and Mr. XXX said he got it all off the street. See id. According to the officer, Mr. XXX also stated that he knew he was a felon. See id. Mr. XXX was not detained.
On June 13, 2001, the ATF and the San Francisco Police Department initiated a joint investigation into the charge of felon-in-possession of a firearm. See Ex. C at 1. On June 19, 2001, the San Francisco District Attorney declined to prosecute Mr. XXX and Inspector Daniele with the SFPD closed the case because the identity of the person who possessed the weapon was unknown. See Chronological Report of Investigation, attached hereto as Exhibit G, at 3.
This federal prosecution followed. On August 23, 2001, Mr. XXX was arrested by Officers Fischer and Peachey on the federal warrant issued in this case after he was observed standing in Boedekker Park.
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ARGUMENT
I. IT IS THE GOVERNMENT'S BURDEN TO PROVE AN EXCEPTION TO THE WARRANT REQUIREMENT
The Fourth Amendment safeguards "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Warrantless searches are per se unreasonable, subject to a few carefully drawn exceptions.
Here, the San Francisco police officers had no warrant to enter or search Mr. XXX's legally parked vehicle. The search was therefore presumptively illegal. See United States v. Katz, 389 U.S. 347 (1967). "Any exception to the Fourth Amendment warrant requirement must be proven by a preponderance of evidence, and this burden is upon the government." United States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989) (emphasis added). If the government fails to meet this burden, all evidence flowing from the warrantless search must be suppressed.
II. IN THE ABSENCE OF OTHER EVIDENCE THAT THE VEHICLE OR ITS OCCUPANTS WERE
INVOLVED IN DRUG TRAFFICKING, THE MERE PRESENCE OF A WHITE OBJECT IN THE VEHICLE
SHOULD NOT PROVIDE PROBABLE CAUSE
"The word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears." Coolidge v. New Hampshire, 403 U.S. 443, 461-62 (1971). Rather, under the "automobile exception" to the Fourth Amendment's warrant requirement, the search of a vehicle may be conducted only upon probable cause to believe that the vehicle contains evidence of a crime. See United States v. Ross, 456 U.S. 798, 823 (1982). The facts known to the officer at the time of the search must be sufficient to justify the issuance of a search warrant. See id. (where officer conducts vehicle search on probable cause, "[o]nly the prior approval of the magistrate is waived; the search otherwise [must be one] the magistrate could authorize").
In the Ninth Circuit, the warrantless search of a lawfully parked vehicle will fall within the automobile exception where officers have probable cause to believe that the vehicle is associated with criminal activity. See United States v. Bagley, 772 F.2d 482, 491 (9th Cir. 1985). The search itself, however, must be reasonable in scope. See id. (citing California v. Carney, 471 U.S. 386 (1985)).
The Ninth Circuit adopted this test in Bagley in light of the Supreme Court's decision inCarney, in which the Supreme Court permitted the warrantless search of an occupied mobile home after police officers observed suspected narcotics activity inside. See Carney, 471 U.S. at 388. The Eleventh Circuit, by contrast, has disagreed with the Ninth Circuit and concluded that Bagleyconstituted an unwarranted extension of Carney because Carney did not involve an unoccupied car. See United States v. Alexander, 835 F.2d 1406, 1410-11 (11th Cir. 1988). The Eleventh Circuit, focusing on the mobility of vehicles as the basis for the automobile exception, requires a "minimal" showing of exigency in addition to probable cause for the search of a parked car. See id.
This tension regarding the scope of permissible police activity with respect to parked cars arises because the warrantless search of a legally parked and unoccupied vehicle stretches the outer limits of the automobile exception. Indeed, until the Supreme Court's decision in Carney, the Ninth Circuit did not permit warrantless searches of parked cars unless the vehicle had been in transit when stopped or there were exigent circumstances that would have made it impracticable to get a warrant. See Bagley, 772 F.2d at 490 (discussing earlier rule set forth in United States v. Spetz, 721 F.2d 1457 (9th Cir. 1983)). In light of the potentially extreme consequences of the Bagley rule, several state courts have relied on state law to preclude warrantless searches of parked cars in the absence of exigent circumstances. See, e.g., State v. Harnisch, 954 P.2d 1180, 1183 (Nev. 1998) (Nevada Constitution requires a showing of probable cause and exigency to justify warrantless search of parked, unoccupied, and immobile vehicle); State v. Coleman, 2 P.3d 399, 401-02 (Or. 2000) (Oregon Constitution requires probable cause and showing of exigency beyond inherent mobility of vehicle for warrantless search of parked and unoccupied car). (7)
In jurisdictions following Carney and Bagley, courts have applied the rule carefully and have upheld the search of a parked car only after noting the abundance of evidence tying the vehicle and its occupants to criminal activity. A common theme uniting these cases appears to be the strength of the investigation preceding the search, pursuant to which the officers were able to develop and corroborate specific information that the vehicle was being used to facilitate a crime.
Bagley itself, for example, involved the search of a suspected getaway car in a bank robbery. An eyewitness to the robbery observed the robber driving away in a large, gold-colored car. See Bagley, 772 F.2d at 485. Two officers in the area heard a transmission of the eyewitness' report and saw the defendant drive by in a similar car. See id. After the officers saw the defendant park the car and leave the area, the eyewitness was brought to the scene and identified the car as the getaway car. See id. at 486. The officers could see sunglasses and gloves on the front seat that were similar to those worn by the robber. See id. One of the officers then broke into the car, but decided to leave the evidence inside and wait for a tow truck. See id. The car was later searched pursuant to a warrant. See id. The Ninth Circuit concluded that the initial search and seizure of the car were permissible in light of the eyewitness' identification of the car within minutes of the robbery and in light of the officers' observation of the gloves and sunglasses on the front seat. See id. at 491.
Similarly, in United States v. Miller, 812 F.2d 1206 (9th Cir. 1987), officers obtained a warrant to search a home that was suspected to contain a methamphetamine lab. The affidavit supporting the warrant indicated that the information had been provided by a confidential informant. See id. at 1207. The warrant also authorized the search of the defendant, two other people, and their vehicles, all of which were searched during the night pursuant to the warrant. See id. at 1207-08. However, the district court suppressed all evidence because the warrant had not been endorsed for night service. See id. at 1207. On appeal, the government challenged only the suppression of the evidence found in the defendant's car, on grounds that independent probable cause supported that search. The Ninth Circuit agreed that probable cause supported the search of the car in light of the following facts: the search had been conducted after the defendant and his car were located at his girlfriend's house. Officers first determined that the car belonged to the defendant by checking its make and license plate. See id. at 1209 n.1. The officers then brought the defendant outside and searched him next to his car. At the same time, the officers:
detected a strong smell of phenalytic acid, known to be used in the manufacture of methamphetamine, emanating from
Miller's car. In addition, the officers observed a hand gun in plain view on the front floor and laboratory equipment
commonly used in the manufacture of methamphetamine on the back seat of Miller's car. These plain view, plain smell
observations, added to their knowledge that Miller was a suspected methamphetamine manufacturer, and that the car was
clearly his, gave the officers sufficient independent probable cause to search Miller's car without a warrant.
Id. at 1208-09 (internal footnote omitted). Thus, in both Bagley and Miller, the search of the parked car occurred only after officers had developed a substantial basis to believe that the driver of the car was involved in criminal activity, and that the driver's unoccupied car contained evidence of that activity. See also Alexander, 835 F.2d at 1409 (finding probable cause for search of parked car that had been driven by bank robbery suspect in days after robbery where F.B.I. found "significant evidence" incriminating defendant during search of his apartment but police had not discovered robbery weapon and believed it was in car).
In this case, by contrast, the information available to Officers Peachey and Fischer was plainly inadequate to meet that test, because the officers saw nothing more than a small white object in the back seat of the car. Any number of innocuous items would fit that description, including a piece of a child's toy or a bit of food, sandstone, or plastic, to name just a few possibilities. Indeed, in this case, it is unknown what the object was actually determined to be, although we know that it was not illegal narcotics.
Under Ross, this Court must determine whether the presence of the white object would have been sufficient to justify the issuance of a warrant for the search of the entire car. See Ross, 456 U.S. at 823. Following the analysis in Ross, Bagley, and Miller, there would have been no basis for the issuance of a warrant because the officers had no knowledge about the occupants or owner of the car; had no proof that the object was actually contraband; and had no compelling reason to believe that the car was involved in criminal activity.
To bolster its showing, the government may point to the following additional "facts": (1) the car was parked in an area known for narcotics activity and a twenty-dollar bill was on the street; (2) the car was near an altercation on the street; (3) the occupants of the car left the area after the officer told them not to back up their car; and (4) there was a computer case in the car with money hanging out of it. None of these "facts" support a finding of probable cause.
First, in the absence of specific facts tying these individuals to criminal activity, their mere proximity to a dangerous neighborhood is simply irrelevant to the Fourth Amendment analysis, as is the coincidental presence of a twenty-dollar bill on the street. Second, as Officer Peachey testified to the grand jury, the officers found no reason to believe that the occupants of the car were involved in the fight in the street. See Grand Jury Testimony of Officer Peachey, Ex. B, at 7. Third, the fact that the people got out of the car after the officer ordered them to stop backing out of their curbside parking space simply demonstrates that they wanted to leave, but they could not do so in their car. Indeed, Officer Peachey himself saw nothing unusual about their behavior. See id. at 19-20.
Finally, the computer case adds nothing to the calculus, and may even muddy the waters. In Officer Peachey's testimony before the grand jury, he described the case as "a black generic canvas, cloth-type case." See id. at 29. He further stated that the case had a flap over the front and that the money was sticking out of a pocket on the flap. See id. at 27-28. However, defense counsel has been informed by AUSA Andrew Scoble that the computer case actually has no flap, which casts doubt on his observation. (8) Moreover, even if there was money sticking out of the case, there is simply nothing incriminating about keeping a case in one's car that has money in it, whether or not there is a white object nearby.
In fact, it appears from Officer Peachey's testimony that the computer case itself was the true impetus for the search. Indeed, as he testified, he first noticed the case and then circled around the car out of curiosity. During proceedings before the grand jury, AUSA Scoble asked Officer Peachey to consider a hypothetical scenario in which "there were not a belief that there had been narcotics in the car, there was just a computer with money in the car," to determine what the officers would have done in that situation. Officer Peachey responded, "We probably would have seized the computer, the money for safekeeping." See id. at 14. Plainly, the seizure of the computer for its own sake would be a patent Fourth Amendment violation. More to the point, though, the officer's motivation is important here because it indicates that the white object was not the justification for the search, which casts greater doubt on the officers' claims that the white object appeared to be contraband.
In light of the potentially absurd consequences of permitting officers to search any parked vehicle simply because it
contains a small white object in plain view, this Court should carefully follow the reasoning set forth in both Bagley and
Miller. Considering the absence of any corroborating evidence linking the owner or occupants of the vehicle to criminal
activity, and in light of the many innocuous items that could fit the description of the white substance, the warrantless
search violated important restrictions on police conduct set forth in the Fourth Amendment. Mr. XXX respectfully
requests that the Court suppress all evidence obtained through the warrantless search of his parked and unoccupied
vehicle.
III. EVEN IF THE OFFICERS HAD PROBABLE CAUSE WITH RESPECT TO THE WHITE OBJECT, A FIELD TEST WOULD HAVE REVEALED THAT IT WAS NOT ACTUALLY CRACK COCAINE
Even if the officers were justified in entering the vehicle to obtain the white object, the Fourth Amendment should nonetheless have limited their investigative authority to permit only a seizure of that item. See California v. Acevedo, 500 U.S. 565, 567, 580 (1991) (holding that probable cause regarding item in vehicle supported seizure of that item but noting that probable cause regarding one item would not have supported search of entire vehicle). Absent evidence that the vehicle would contain additional contraband, the officers had no basis to conduct a full vehicle search because their knowledge of suspected criminal activity was limited to their observation of that one item. See id.
Here, the officers' suspicion regarding the white object could have been easily satisfied in the field because the San Francisco Police Department uses field test kits that can test for cocaine, methamphetamine, ecstasy, Valium, PCP, heroin, marijuana and other drugs. See Declaration of Rob Ultan, attached hereto as Exhibit H. The kits are manufactured by ODV Corporation of South Paris, Maine, which provides easy training materials and a videotape on how to train officers. Seeid.; see also ODV Spring 1997 Newsletter (2nd ed.), "Correct Cocaine/Crack Field Testing Procedures," attached hereto as Exhibit I, online at http://www.odvinc.com/newsletters/sp97-2.html.
In this case, the "suspected crack cocaine" observed in the rear of the vehicle was tested and was found not to be crack cocaine. The investigation report, however, does not indicate when or how this test was conducted. Because the SFPD has the capability to conduct such a test in the field, it is likely that the test was performed as soon as the suspected contraband was removed from the vehicle. If so, there was no basis for any further search of Mr. XXX's car and all evidence must be suppressed.
In the alternative, the officers may have waited to test the suspected contraband until after they had already searched the vehicle rather than using the testing equipment that was only a few feet away. If the officers failed to rule out the presence of narcotics before searching the vehicle, then suppression is warranted because the serious invasion of privacy occasioned by a full vehicle search should not be permitted when officers have probable cause only with respect to one item, and when the officers may take reasonable steps to rule out the presence of contraband. Cf. Florida v. Royer, 460 U.S. 491, 500 (1983) (observing that, in context of traffic stop, Fourth Amendment requires police to utilize "the least intrusive means reasonably available" in the performance of their duties).
CONCLUSION
For the foregoing reasons, Mr. XXX respectfully requests that this Court suppress all evidence arising from the illegal search of his vehicle on June 3, 2001. If the Court is unable to ascertain the legality of the search based on the parties' submissions, Mr. XXX requests that an
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evidentiary hearing be held to resolve this issue.
Dated:
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
ALEXANDRA McCLURE
Assistant Federal Public Defender
1. This statement of facts is taken from the Incident Report prepared by San Francisco Police Officer Joe Fischer, attached hereto as Exhibit A, and from the grand jury testimony of Officer Peachey, attached hereto as Exhibit B.
2. Officer Peachey, in his grand jury testimony, further described the object as "wrapped in clear plastic." See Grand Jury Testimony of Officer Peachey, Ex. B, at 8.
3. There is a discrepancy regarding which item the officers noticed first. According to Officer Fischer's report, the officers first saw the white object and then noticed the computer case. SeeIncident Report, Ex. A, at 6. In contrast, Officer Peachey testified before the grand jury that he initially noticed the computer case, which caused him to walked around the car out of curiosity, after which he saw the white object. See Grand Jury Testimony of Officer Peachey at 8.
4. Officer Fischer's description of the three occupants as "fleeing" may not be entirely accurate. Officer Peachey, by contrast, said that they "walked quickly." See Grand Jury Testimony of Officer Peachey, Ex. B, at 6. In fact, their behavior was apparently so innocuous that the officers initially had no reason to detain them. As Officer Peachey testified, "At the time there was no -- no reason to believe that they were involved in any criminal activity. As far as I was concerned, it was a car trying to pull out and leave a parking place." Id. at 19-20.
5. According to Officer Peachey's testimony, Lt. Kerr gave authorization for the search. SeeGrand Jury Testimony of Officer Peachey, Ex. B, at 10-11.
6. Confusingly, the report states: "A computer check of the recovered suspect crack cocaine showed that it was not crack cocaine." Mr. XXX presumes that this determination was made through chemical analysis and not by a computer check.
7. The California courts have had no occasion to address this issue because the California Constitution dictates that California's exclusionary rule cannot extend any farther than the federal exclusionary rule. See, e.g., Lance v. People, 694 P.2d 744 (Cal. 1985) (discussing amendment to California Constitution under which suppression of evidence is permissible only upon violations of the federal Constitution).
8. By affixing her signature to this motion, defense counsel declares under penalty of perjury that the foregoing is true and correct.