U.S. v. Allison
| Decision Date | 24 July 2009 |
| Docket Number | No. 4:08-cr-00058-JEG.,4:08-cr-00058-JEG. |
| Citation | 637 F.Supp.2d 657 |
| Parties | UNITED STATES of America, Plaintiff, v. Jason Richard ALLISON, Defendant. |
| Court | U.S. District Court — Southern District of Iowa |
Emily K. Nydle, United States Attorney's Office, Des Moines, IA, for Plaintiff.
James F. Whalen, Des Moines, IA, for Defendant.
This matter comes before the Court on a Motion to Suppress brought by Defendant Jason Richard Allison (Defendant), which the Government resists. The Court held an evidentiary hearing on the motion on April 24, 2009. Assistant United States Attorney Emily Nydle represented the Government. Attorney James Whalen represented Defendant. After the hearing, the Court requested further briefing in light of Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The supplemental briefing is now complete. The matter is fully submitted and ready for disposition.
On March 11, 2008, City of Altoona Police Officer Amos Purcell IV (Officer Purcell) was investigating a wanted persons case, looking to apprehend Amber Shipp (Shipp) for outstanding warrants. Prior to Officer Purcell's shift that morning, law enforcement officials had spotted two vehicles registered to Amber Shipp at a motel parking lot in Altoona, Iowa. Acting on this information, Officer Purcell went to the motel, showed the desk clerk a picture of Shipp, and asked whether the clerk had seen Shipp or knew whether she was registered at the motel. The desk clerk had not seen Shipp and said she was not registered at the motel. Officer Purcell left contact information to allow the desk clerk to contact law enforcement if she later saw Shipp, and then Officer Purcell left to set up a stakeout monitoring the two vehicles.
While conducting surveillance on the vehicles, Officer Purcell contacted Sergeant Lonnie Peterman (Sergeant Peterman) with the Mid-Iowa Narcotics Enforcement Task Force (MINE Task Force) to obtain further information about Shipp. Sergeant Peterman informed Officer Purcell that the MINE Task Force was currently investigating Shipp, believing that she and her boyfriend, Defendant, were selling methamphetamine they received from Scott Nicholson (Nicholson), a large-quantity methamphetamine dealer in the Des Moines area. Sergeant Peterman alerted Officer Purcell that Defendant or Nicholson could potentially be with Shipp, that Defendant potentially had a warrant for his arrest, and that an informant said that the fugitives probably had weapons.
Officer Purcell also called Polk County Sheriff's Deputy Jake Hedgecock (Deputy Hedgecock), who was assigned to the U.S. Marshal's Fugitive Task Force (FTF), to ask for assistance in apprehending Shipp. Deputy Hedgecock then contacted Deputy U.S. Marshal Mark Shepherd (Deputy Shepherd), who was also assigned to the FTF, for additional backup in apprehending Shipp. Deputies Shepherd and Hedgecock then also set up surveillance on the motel.
At approximately 10:00 a.m., law enforcement received a call from the motel's desk clerk, saying she had seen a taxicab pull up to the motel and pick up a male and a female passenger, whom the clerk believed to be Shipp. Officer Purcell received the information and began following the taxicab. Deputies Shepherd and Hedgecock also observed Shipp and a male leaving in the taxicab, and they joined the pursuit. As he neared the vehicle, Officer Purcell could distinguish two passengers inside. Officer Purcell testified that the female passenger turned around and looked at him in his patrol car, at which point he recognized her as Shipp. Officer Purcell then testified that he observed Shipp say something to the male passenger, who slumped down in the back seat of the taxicab. At the time, Officer Purcell was unable to identify the male passenger, who was wearing a baseball hat and sunglasses.
Officer Purcell communicated what he had seen to Deputies Shepherd and Hedgecock and proceeded to initiate a traffic stop of the taxicab. Defendant was seated in the back seat on the driver's side of the vehicle, and Shipp was seated on the opposite side. Deputy Hedgecock pulled alongside the taxicab and, after exiting his vehicle, pointed at the occupants of the cab and told them to show their hands. Deputy Hedgecock testified that Defendant only raised one hand in response to his request. Officer Purcell exited his vehicle and walked to the right side of the taxicab, where he ordered Shipp out of the taxicab. Upon confirming that Shipp had two outstanding warrants—one for a probation violation for illegal possession of a prescription drug, first offense, and the other for failing to appear in court on a charge of playing her stereo too loudly—Officer Purcell took Shipp into custody and placed her in the back seat of his patrol car.
Deputies Hedgecock and Shepherd then moved to Defendant's side of the taxicab. Deputy Hedgecock testified that Defendant was bent down low in his seat. Deputy Shepherd opened the door, grabbed Defendant, and removed him from the taxicab, leaning him over the vehicle's rear side panel. Deputies Hedgecock and Shepherd then handcuffed Defendant and performed a Terry1 patdown to search for weapons. During this time, Defendant was also surrounded by a third law enforcement officer, identified at the hearing as Deputy Formaro. Deputy Hedgecock testified that, at that moment, Defendant was not under arrest but was being searched for reasons of officer safety. Deputy Shepherd testified that Defendant, handcuffed and surrounded by three law enforcement officers, was under control and posed no threat to the officers. Both Officer Purcell and Deputy Hedgecock testified that Defendant's actions in slumping down in his seat and not immediately showing both his hands were significant factors that raised their suspicions and influenced their decision to detain him.
Deputy Hedgecock proceeded to ask Defendant his name, and then passed that information along to the dispatcher to see if there were any active warrants for Defendant's arrest. A black, zippered, nylon gym bag was laying in the middle of the back seat, and Deputy Hedgecock went to remove it. Deputy Hedgecock testified that the bag was unzipped, but closed, and he was unable to see into it when he reached into the taxicab; however, as he pulled the gym bag out of the taxicab, the top flap on the soft bag came open, and he saw a carton of cigarettes containing a glass pipe. In his report, Officer Purcell wrote that Deputy Hedgecock had informed him that the gym bag was closed and lying in the middle of the seat, but Deputy Hedgecock opened it and saw the glass pipe.2 Deputy Hedgecock testified that he asked Defendant whether the gym bag belonged to him, and Defendant responded that it did. At no time prior to questioning Defendant about his identity or ownership of the gym bag did any law enforcement officials read Defendant his Miranda3 rights.
Officer Purcell radioed his dispatcher to perform a warrant check on Defendant and was notified that Defendant had one outstanding warrant from Polk County due to a probation violation for illegal possession of a prescription drug, second offense. After confirming that Defendant had an outstanding warrant for his arrest, Defendant was taken into custody. City of Altoona Police Lieutenant Dennis Parker (Lieutenant Parker) arrived at the scene to take possession of the gym bag and transport it to police headquarters. Lieutenant Parker testified that, when Deputy Hedgecock handed him the gym bag, Deputy Hedgecock said he found a "crank" pipe when he unzipped the gym bag. During a search at the police station, law enforcement found over $900 in cash on Defendant's person and from the black bag approximately $7000 in cash, some digital scales, a glass pipe, and fourteen plastic bags containing approximately 29 grams of methamphetamine each.
On April 8, 2008, Defendant was indicted with one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2 (Count One). On February 6, 2009, Defendant moved to suppress statements made to the officers and other evidence obtained in the search, contending that (1) the officers violated Defendant's Fourth Amendment rights by forcibly detaining him and questioning him about his identity; (2) the search of the gym bag exceeded the permissible scope of the Terry search and was consequently an illegal seizure; (3) the statements made by Defendant should be suppressed as fruit of the illegal stop and search; and (4) the statements should be suppressed because they were made before Defendant had been advised of his Miranda rights.
The Fourth Amendment states that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const. amend. IV. If law enforcement officers possess a reasonable suspicion of criminal activity, they may briefly detain a suspect to investigate the possible criminal activity, even though there is no probable cause for an actual arrest. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). If the officer also reasonably believes the person may be armed and dangerous, the officer may frisk the suspect for weapons. See id. at 24, 88 S.Ct. 1868. The detention is permissible to determine the suspect's identity or to maintain the status quo while obtaining more information. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The officer may ask "a moderate number of questions to determine the person's identity and to try to obtain information confirming or dispelling the officer's suspicions." United States v. Rodriguez-Arreola, 270 F.3d 611, 617 (8th Cir.2001) (qu...
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