U.S. v. Crisp

• Decision Date: 21 February 2008
• Docket Number: No. 2:07-cr-95-FtM-34SPC.,2:07-cr-95-FtM-34SPC.
• Citation: 542 F.Supp.2d 1267
• Parties: UNITED STATES of America v. Todd D. CRISP.
• Court: U.S. District Court — Middle District of Florida

542 F.Supp.2d 1267

UNITED STATES of America v. Todd D. CRISP.

No. 2:07-cr-95-FtM-34SPC.

United States District Court, M.D. Florida, Fort Myers Division.

February 21, 2008.

COPYRIGHT MATERIAL OMITTED

Jesus M. Casas, U.S. Attorney's Office, Ft. Myers, FL, for United States of America.

ORDER

MARCIA MORALES HOWARD, District Judge.

THIS CAUSE is before the Court on the Motion to Suppress Physical Evidence and Statements of Defendant (Dkt. No. 27; Motion to Suppress), filed on August 31, 2007. In the Motion to Suppress, Defendant alleges that the vehicle that he was driving on May 4, 2004, was illegally stopped¹ and searched, and he asks the Court to suppress the gun and ammunition found in the vehicle as well as the evidence found on the gun and the results of a fingerprint comparison. See id. at 1. The government opposes Defendant's requests. See United States' Response to Defendant's Motion to Suppress (Dkt. No. 28; Opposition). The Motion to Suppress was referred to the Honorable Sheri Polster Chappell to conduct an evidentiary hearing and recommend an appropriate resolution.

The Magistrate Judge held an evidentiary hearing on October 2, 2007. See Transcript of Motion to Suppress (Dkt. No. 39; Tr.). At the evidentiary hearing, two witnesses testified: Officer Arturo Gonzalez, Jr. (Gonzalez) and Shirley Lias (Lias). See Tr. at 30, 97. In addition, several exhibits were received into evidence, including the Fort Myers Police Department General Order 24.8, Fort Myers Police Department Inventory and Hold Form, Transcript of Taped Proceedings Motion to Suppress (Dec. 19th Tr.), and Transcript of Taped Proceedings Amended Motion to Suppress (Dec. 27th Tr.).² See Exhibit List (Dkt. No. 34); Exhibit List (Dkt. No. 35); Tr. at 28-30.

Subsequent to the evidentiary hearing, on November 1, 2007, the Magistrate Judge entered a Report and Recommendation (Dkt. No. 40; R & R) recommending that the Motion to Suppress be denied. See R & R at 13. Defendant then filed objections to the factual findings and legal conclusions in the R & R as well as the recommended disposition of the Motion to Suppress. See Defendant's Objections to Findings of Fact, Conclusions of Law, and Recommendation of Denial of Defendant's Motion to Suppress Evidence (Dkt. No. 41; Objections). The government responded to the Objections. See United States' Response to Defendant's Objections to Findings of Fact, Conclusions of Law, and Recommendation of Denial of Defendant's Motion to Suppress Evidence (Dkt. No. 42; Response). Therefore, this matter is now ripe for the Court's review.

I. Relevant Facts³

On May 4, 2004, Defendant Todd D. Crisp, whose driver's license had been revoked⁴ for five years because he was habitual traffic offender, was driving a van, rented by his girlfriend, Tyroncia Powell (Powell), from Enterprise Rent-a-Car (Enterprise). See Tr. at 31, 33, 35-36, 44, 46; Dec. 19th Tr. at 10; Dec. 27th Tr. at 5, 8; Govt's Ex. 4. Powell testified that she had given Defendant permission to use the van, even though she knew that he did not have a valid driver's license. See Tr. at 76; Dec. 19th Tr. at 6, 8. Additionally, both Powell and Defendant knew that Defendant was not authorized by Enterprise to drive the van, see Dec. 19th Tr. at 8; Dec. 27th Tr. at 8, and Powell testified that she knew that it would not have been possible to include Defendant as an authorized driver on the contract because he did not have a valid driver's license.⁵ See Dec. 19th Tr. at 8. Similarly, Defendant knew that he was not supposed to be driving the vehicle. See Dec. 27th Tr. at 8.

While on routine patrol in his marked police vehicle, Gonzalez noticed a van with a broken back window (a large piece of glass was missing) when it turned in front of him. See Tr. at 31, 41, 50. At that point, Gonzalez ran a license plate check and learned that the vehicle was owned by Enterprise. See id. at 31-32. Gonzalez decided to follow the van because these circumstances aroused his suspicions. See id. at 32, 34. He followed the van for about a block when it abruptly turned into the backyard of a residence and stopped.⁶ See id. at 32, 34, 50, 53. The driver, whom Gonzalez recognized as the Defendant based on their prior contacts, got out of the van and fled in a westward direction, turning back once to look in the direction of Gonzalez. See id. at 33-34, 52; see also Dec. 27th Tr. at 5-6. Prior to Defendant's exit from the vehicle, Gonzalez had not been able to identify the driver. See Tr. at 50. Gonzalez did not attempt to stop Defendant at any time, nor did he chase after him, as he had no reason to do so. See id. at 34, 50, 53; see also Dec. 27th Tr. at 6. Instead, Gonzalez turned his attention to the van. See Tr. at 53-54.

When Defendant exited the van, he closed all of the doors, but left the driver's window rolled down. See id. at 55; Dec. 27th Tr. at 7. Gonzalez could not remember whether Defendant locked the doors before he left. See Tr. at 54. However, Defendant did not leave behind the keys to the van. See id. at 36, 54. Gonzalez accessed the vehicle through the open driver's window and, upon inspection, determined that the van did not appear to be stolen as the ignition and steering column were intact. See id. at 54-55, 62.

Before inspecting the van, Gonzalez asked the dispatcher to contact Enterprise to determine whether Defendant was an authorized driver of the vehicle, inform them of the broken window and that Defendant had fled, and inquire as to what they wanted to do with the vehicle. See id. at 34, 53-54, 57-60. The dispatcher then informed Gonzalez that Enterprise said Defendant was not an authorized driver and it was sending a tow truck to pick up the vehicle. See id. at 34-35, 56-57. At that point in time, after about nine to ten minutes had passed since Defendant exited the vehicle, Gonzalez decided to conduct an inventory search of the vehicle, which he believed had been abandoned by Defendant. See id. at 37-38, 58. During the inventory search, Gonzalez found a gun in the pocket of a yellow Sean John coat. See id. at 38-41. Gonzalez took possession of the gun and returned the other items he had located to the van. See id. at 41. After the search of the van, Gonzalez learned that Defendant's license had been revoked for being a habitual traffic offender. See id. at 43-46; Govt's Ex. 4.

Gonzalez testified that, while he was awaiting the tow truck, Powell arrived at the residence and told him that she had rented the van from Enterprise on May 1, 2004, she and Defendant had driven to Tampa, where she left Defendant, and she did not know how the vehicle arrived at the location where it was parked as she had left it in her driveway and the keys at the house. See Tr. at 35-36. Additionally, in the state court proceedings, Gonzalez testified that Powell told him that Defendant was supposed to be in Tampa and she did not mention that she had given Defendant permission to use the vehicle. See Dec. 27th Tr. at 14.⁷

Ultimately, the van was towed from the residence, by a tow truck arranged for by Powell with the express approval of Enterprise, and returned to Enterprise. See Tr. at 48-49, 64-65, 85, 92. Gonzalez took the gun to the police department and placed it in the evidence vault. See id. at 81.

II. Analysis

Although the Motion to Suppress and Objections raise numerous issues relating to the unreasonableness of the search of the van, the Court must first consider a preliminary issue — whether Defendant had a legitimate expectation of privacy in the van or "standing"⁸ to challenge the search of the van.⁹ The government asserts that Defendant did not have an objectively reasonable expectation of privacy in the vehicle because Defendant abandoned the vehicle and Enterprise sought to repossess it. See Opposition at 5-7; Response at 2-3. Defendant, on the other hand, contends that he had a reasonable expectation of privacy in the vehicle because he had permission from Powell, the lessee, to use the van; he was the operator of the van; and he did not abandon the vehicle or his expectation of privacy in it. See Motion to Suppress at 6; Tr. at 18-23.¹⁰

A. Applicable Law

In order to assert a violation of the Fourth Amendment, a defendant must establish that he or she had a legitimate expectation of privacy in the place that was searched or that his or her Fourth Amendment rights were violated. See Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Brazel, 102 F.3d 1120, 1147-48 (11th Cir.1997). The reason for such a requirement is that "`Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.'" Rakas, 439 U.S. at 133-34, 99 S.Ct, 421 (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)); see also Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); United States v. Padilla, 508 U.S. 77, 81, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993) (per curiam) (finding that "[i]t has long been the rule that a defendant can urge the suppression of evidence obtained in violation of the Fourth Amendment only if that defendant demonstrates that his Fourth Amendment rights were violated by the challenged search or seizure" (emphasis in original)). "A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas, 439 U.S. at 134, 99 S.Ct. 421.

A defendant's legitimate expectation of privacy exists when he or she can show a subjective expectation of privacy that "`society is prepared to recognize as "reasonable."'" United States v. Ford, 34 F.3d 992, 995 (11th Cir.1994) (quoting Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)); see also Carter, 525 U.S. at 88, 119 S.Ct. 469; United States v....