US v. Maher

• Citation: 724 F. Supp. 1348
• Decision Date: 15 November 1989
• Docket Number: No. CR89-0056-01J.,CR89-0056-01J.
• Parties: The UNITED STATES of America, Plaintiff, v. Patrick Lynn MAHER, Defendant.
• Court: U.S. District Court — District of Wyoming

724 F. Supp. 1348

The UNITED STATES of America, Plaintiff, v. Patrick Lynn MAHER, Defendant.

No. CR89-0056-01J.

United States District Court, D. Wyoming.

November 15, 1989.

Lisa E. Leschuck, Asst. U.S. Atty., Cheyenne, Wyo., for plaintiff.

Bill McKellar, Cheyenne, Wyo., for defendant.

MEMORANDUM OPINION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS

ALAN B. JOHNSON, District Judge.

This matter comes before this court on defendant's Motion to Suppress and an evidentiary hearing was held on October 5 and 6, 1989. The significant facts in this case are not in dispute.

FACTS

On Thanksgiving Day, November 24, 1988, Patrick Lynn Maher, was enroute from his home in California to Iowa with his four children, when he experienced car trouble on Interstate 80 near Lyman, Wyoming. Maher's vehicle was a 1975 Dodge van pulling a homemade flatbed trailer. He arranged for a tow to a motel in Lyman, where he rented a room for the evening.

At approximately 11:40 the next morning, while Maher was working on his van, he was observed by Officer Robert Walser of the Lyman Police Department (hereinafter LPD). Walser testified that, although he saw nothing suspicious about the van or trailer, he ran an NCIC check on both vehicles' license plates. He stated that running random checks on vehicles was part of his normal routine. The license plate attached to Maher's trailer registered an NCIC "hit," which revealed that the license plate belonged to a yellow 1977 Chevrolet Camaro that had been reported stolen in California.

Walser approached Maher, asked for his driver's license, and informed him that the license plate had been reported stolen. Maher stated his driver's license had been stolen, and had no other identification with his picture. Walser checked Maher's name and date of birth and found that he did have a valid California driver's license. He also learned there were no outstanding warrants for him in either California or Wyoming.

Consistent with procedure, Walser called for backup after learning that the trailer's plate registered a "hit." Sgt. Howard Coombs of the LPD and Uinta County Deputy Sheriff Jim Watson were dispatched to the motel for backup assistance. Both officers arrived in marked police vehicles shortly after Walser confronted Maher. When asked if he had any documentation showing ownership of the trailer and van, Maher replied that the bill of sale for the trailer was at his California home, but that he had the van registration in his vehicle. Before Maher entered the vehicle, Sgt. Coombs asked Maher if he had any weapons, and if he could conduct a brief search of the cab of the van to ascertain whether any weapons were there. Maher consented to this limited search, which was conducted and revealed no weapons. Maher also informed the officers that he had an unloaded weapon, and that it was in his motel room, on top of the television set. Walser testified that he asked Maher if he could look in the trailer, to which Maher also consented. After lifting the corner of the tarp covering the trailer, Walser found the trailer loaded with wooden crates. Walser abandoned his search, however, because he had already decided to impound the trailer, where a more detailed search would be performed. At some time during this exchange, Walser made a cursory and unsuccessful search for the trailer's vehicle identification number (hereinafter VIN).

The officers then informed Maher of their intent to seize the pistol from his room, and asked if they could enter the room to get it. Maher again consented. Entering the room, Officer Coombs and Deputy Watson found the unloaded weapon where Maher told them it was located, wrapped in a plastic bag containing a gun clip and some loose ammunition. Coombs took the names and ages of the children in the room, which ranged from 17 to 2 years of age, and informed them that they would be taking Maher to the police station to clear up some things, and that he was not under arrest. Coombs gave the children the LPD phone number and instructed them to call the department or 911 if they needed anything. The pistol was turned over to Walser, who ran a check on it and found it was not reported stolen.

Walser informed Maher that the trailer was going to be impounded. Maher assisted the officers in raising the trailer and moving the van so the tow truck could secure it. Walser testified that Maher was not given an opportunity to provide for the trailer's storage. According to his testimony, at this point in the investigation, Walser could only charge Maher with having an improperly registered trailer. However, because he suspected that the trailer may have been stolen, Walser decided to impound it. He testified that it was the department's policy to impound stolen vehicles or vehicles with stolen license plates attached to them. A copy of LPD's impound policy was presented to the court as Government's Exhibit 2.¹

It is unclear at precisely what point Maher was asked to go to the police station, but either soon before or soon after the confiscation of the pistol, Walser asked Maher to accompany him there. Maher testified that he felt he had no choice but to go with Walser, a feeling supported by Walser's testimony that had Maher refused to go with him "voluntarily," he would have arrested him. In any case, Maher was not given an opportunity to drive himself to the police station. Instead, Walser frisked Maher for weapons and placed him in the caged section of his patrol car.

At 1:10 p.m., Walser and Maher arrived at the police station, where Walser read Maher his Miranda rights, asked if he understood, and asked if he wanted to speak with a lawyer. Maher answered that he did understand, but did not wish to speak to an attorney.² In an attempt to verify Maher's story about how he obtained the trailer, Walser began making phone calls to law enforcement agencies in the southern California area where Maher resided. Walser continued making these calls until approximately 3:05 p.m. Meanwhile, Officer Coombs and Deputy Watson went to Bridger Valley Motors in Lyman, the private garage where Maher's trailer had been towed and impounded.

The officers removed the tailgate and tarp from the trailer, and noticed that the payload consisted of 20 to 25 wooden boxes. Between 2:30 and 3:00 p.m., Coombs called LPD to tell Walser that he would like to get Maher to sign a consent form before searching the trailer. At about 3:00, after being informed by Walser that a consent form had been obtained, Coombs and Watson, Deputy Sheriffs Paul Arness and George Wolslenben; and Investigator Rex Gaylord and his drug sniffing dog began to search the trailer. The majority of the contents of the trailer were consistent with what Maher had told them, mainly carpet scraps and building materials. There were several boxes containing odds and ends. Watson testified that one box contained what appeared to be military memorabilia. In an envelope in that box, Watson discovered a "reddish-orangish brown" looking substance, which they suspected to be a plastic explosive, and five military mine activators. Also in the box was a coil of military safety fuse. Unsure of exactly what the materials were, the officers discontinued the search and contacted Investigator Ron Noorda, an explosives expert. Noorda separated the explosives from the trailer and the search was eventually completed by the officers.

The request for a written consent was relayed to Walser sometime between 2:30 and 3:00 p.m. Maher testified that he felt that he had to sign the forms, or that he may be arrested. He was aware at that time that his trailer had been impounded. Investigator Noorda arrived at the police station at approximately 5:00 p.m. and began questioning Maher. Maher's story about obtaining the trailer was consistent with his written statement³ and the information he had given Walser.

Noorda subsequently conducted tests on the material and discovered the plastic substance to be an explosive material with internal oxidizers that was both heat and shock sensitive. The Bureau of Alcohol, Tobacco and Firearms later informed him that the substance was a solid rocket fuel.

After the search of the trailer was complete, Officer Coombs, Deputy Watson, and Special Investigator Rex Gaylord of the Southwest Drug Enforcement team proceeded to Maher's van to search. Gaylord brought with him a narcotics trained dog, which had also been utilized in the "inventory" of the trailer.⁴ The dog alerted on the exterior of the van and the officers searched the interior where they discovered a metal cannister containing a "power-hitter," a known marijuana smoking device, and two small brown vials, identified by the officers as drug paraphernalia. These items were taken to the police station and Maher was confronted with them. At the hearing, Maher explained that none of the paraphernalia had been used in several years, and that he was unaware that it was in the van. The paraphernalia was not tested for traces of any illicit substances, and investigator Gaylord testified that the presence in Maher's van could not have sustained a criminal charge. Although the possession violated a Lyman city ordinance, Walser did not issue a citation for the paraphernalia possession. Instead, after consulting the county attorney, Walser issued Maher a citation for improper registration and allowed him to post a $50 bond. The trailer, however, was never returned to Maher and is still being held at Bridger Valley Motors.

During Maher's stay at the police station, which lasted approximately five hours, he was never formally placed under arrest. He testified that he did not believe he was free to leave, however, and felt that at any time he would be placed under arrest. Walser testified that although never formally under arrest, Maher was not free to leave at any point until the citation issued sometime after 6:00 p.m. Officer Walser testified that he did not, during the almost seven...