U.S. v. Yamba

• Decision Date: 06 January 2006
• Docket Number: No. 2:04 CR 329.,2:04 CR 329.
• Citation: 407 F.Supp.2d 703
• Parties: UNITED STATES of America, v. Vikram YAMBA Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

407 F.Supp.2d 703

UNITED STATES of America, v. Vikram YAMBA Defendant.

No. 2:04 CR 329.

United States District Court, W.D. Pennsylvania.

January 6, 2006.

COPYRIGHT MATERIAL OMITTED

Brendan T. Conway, United States Attorney's Office, Pittsburgh, PA, for United States of America.

OPINION

HARDIMAN, District Judge.

On December 22, 2004, a grand jury indicted Defendant Vikram Yamba (Yamba) on seven counts of wire fraud in violation of 18 U.S.C. §§ 1342 and 1343. On April 11, 2005, Yamba filed a motion to suppress evidence and the Court held an evidentiary hearing on November 29, 2005. For the reasons that follow, Yamba's motion will be denied.

I. Findings of Fact

On March 17, 2004, Officer Matthew Livingstone (Livingstone) observed a U-Haul truck parked at a gas station in such a way that it partially blocked one of the station's main entrances and some of its parking spaces. Officer Livingstone approached the vehicle to determine why the driver had left it in this position. As he came alongside the vehicle, Livingstone noticed that the driver, Charles Coleman (Coleman), was holding an open pocket knife in a raised position. In addition, Officer Livingstone observed quick and furtive movements by the other two passengers, Defendant Yamba and Jimaah Kpakpo (Kpakpo).

Officer Livingstone inquired of Coleman about his business at the station. Coleman responded that he, Yamba, and Kpakpo were meeting friends so they could deliver the furniture contained in the U-Haul truck. When asked by Officer Livingstone, however, Coleman could provide neither the location of the delivery nor the names of the friends he was meeting. After hearing Coleman's response, Livingstone then asked to see Coleman's driver's license and the rental agreement for the truck, and asked him if there was anything else in the truck that he should know about. Coleman responded in the negative and told Livingstone that he could search the truck. Before Livingstone searched the truck, he asked Coleman to step out of the vehicle so he could conduct a patdown search. Livingstone then relayed Coleman's information to the dispatcher, who reported that there was an outstanding arrest warrant on Coleman. Upon hearing of the outstanding warrant, Livingstone handcuffed Coleman and placed him in the police car.

Once Coleman was in the police car, Livingstone asked Yamba and Kpakpo to step out of the truck so he could conduct a patdown search of both men. During the patdown, Livingstone felt a plastic bag in Yamba's right jacket pocket. Officer Livingstone testified credibly:

As I was conducting the pat-down, along the right side, right coat pocket, I could feel a plastic bag. I noted through training and experience narcotics are stored and transported in plastic baggies. After a brief second of just feeling it, I could tell that there was a soft spongy-like substance that is consistent with marijuana inside. I then recovered the bag from his pocket and found it contained suspected marijuana.

Hearing Transcript (Tr.) at 13-14. Once Livingstone concluded that the bag contained marijuana, he handcuffed Yamba and put him in the police car with Coleman. The patdown search of Kpakpo was uneventful and Livingstone handcuffed him merely for officer safety.

At this point, Livingstone and another officer searched the rear of the truck and found that it contained new furniture, still wrapped in plastic. Livingstone questioned the three men about the furniture, and eventually Kpakpo said that he owned it, had purchased it with a credit card, and was selling it. About this time, the dispatcher radioed Officer Livingstone to advise him that her previous statement that Coleman was the subject of an outstanding arrest warrant was erroneous but that Coleman had a suspended license. Livingstone then wrote Coleman a citation for driving with a suspended license and let Coleman and Kpakpo go. Because Coleman was the only driver authorized by the U-Haul rental contract and was ineligible to drive because of his suspended license, Livingstone impounded the U-Haul. In addition, he arrested Yamba because of the suspected marijuana found on his person.

Livingstone brought Yamba to the police station and during a standard inventory search he turned over several slips of paper with the words "credit card" and lines of numbers alternating down the page. Livingstone inquired "what are these?" and Yamba responded that he received them from a friend. At this point, Livingstone read Yamba his Miranda warnings and questioned him. Based on Yamba's answers, Livingstone obtained a search warrant for the U-Haul truck.

II. Analysis

A. Constitutionality of Officer Livingstone's Interaction With Coleman

The threshold requirement for any Fourth Amendment analysis is government action that constitutes a search or seizure. The Supreme Court has made clear that not all interactions between police and citizens implicate Fourth Amendment concerns. Police officers may approach individuals without reasonable suspicion or probable cause, and may question them without violating the Fourth Amendment. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Such a "citizen encounter," the Court has explained, does not constitute a search or seizure under the Fourth Amendment: "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen ...." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). An individual approached in this manner "need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way." Royer, 460 U.S. at 498, 103 S.Ct. 1319. Accordingly, the Court has held this to be a "consensual encounter that implicates no Fourth Amendment interest." Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 83 L.Ed.2d 165 (1984).

Beyond such a casual encounter, a brief "stop and frisk" is constitutionally acceptable if the officer has a "reasonable suspicion that criminal activity is afoot." U.S. v. Rickus, 737 F.2d 360, 365 (3d Cir. 1984) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Because a Terry stop is more intrusive then the citizen encounter described in Bostick, it constitutes a search and seizure within the meaning of the Fourth Amendment. The reasonable suspicion upon which the officer relies to institute a Terry stop must "be based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. In determining whether a stop is justified, the court must view the circumstances surrounding the stop in their entirety, giving due weight to the experience of the officers." Id.

In the case at bar, Livingstone's initial approach of the vehicle and interaction with Coleman constituted a citizen encounter that did not implicate Fourth Amendment protections. Livingstone's subsequent decision to question and patdown Coleman was based on the behavior of the individuals in the truck and the immediate discovery of a weapon, both of which were sufficient to give a reasonable officer articulable suspicion that criminal activity was afoot. In Rickus, the officers observed a car moving very slowly, stopped the vehicle, and asked the driver for identification. The Supreme Court found this conduct consistent with Terry, stating: "A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Id. at 366. Accordingly, Officer Livingstone's initial conduct was reasonable under the Fourth Amendment.

B. Constitutionality of Officer Livingstone's Interaction With Yamba

1. Terry Frisk of Yamba

Despite the facts surrounding the questioning, frisk, and detention of Coleman, Yamba argues that Livingstone did not have reasonable, articulable suspicion sufficient to justify a protective frisk of him, as required by the Supreme Court in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct 338, 62 L.Ed.2d 238 (1979). The evidence belies Yamba's argument.

In Ybarra, the Supreme Court reiterated that the scope of Terry frisks must remain limited to the specific purposes and justifications that support them. Id. at 93, 100 S.Ct. 338. There, the police entered a restaurant to execute a search warrant and chose to frisk every patron present, without any particular suspicion of criminal activity. The Court found that "the `narrow scope' of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place." Id. at 94, 100 S.Ct. 338. In applying this principle to the facts, the Court concluded that "the initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons." Id. at 92-3, 100 S.Ct. 338.

Subsequent to Ybarra, the Supreme Court has taken a slightly different approach in analyzing situations involving searches of individuals found in an automobile that has been stopped. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) and Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) demonstrate that a police officer may order the driver and passengers to exit the vehicle while the stop is being conducted. Moreover, the Court of Appeals for the Third Circuit recognized that "utilizing the standards set forth by the Supreme Court in cases such as Terry, Long, and Mimms, many courts of appeals have upheld...