U.S. v. Howe

• Decision Date: 19 December 2003
• Docket Number: No. 1:02-CR-64-B.,1:02-CR-64-B.
• Citation: 313 F.Supp.2d 1178
• Parties: UNITED STATES of America, Plaintiff, v. Robert HOWE, Defendant.
• Court: U.S. District Court — District of Utah

313 F.Supp.2d 1178

UNITED STATES of America, Plaintiff, v. Robert HOWE, Defendant.

No. 1:02-CR-64-B.

United States District Court, D. Utah, Northern Division.

December 19, 2003.

COPYRIGHT MATERIAL OMITTED

Michael J. Boyle, Esq., Boyle & Drage, Ogden, UT, for defendant.

Veda M. Travis, Esq., U.S. Attorney's Office, for plaintiff.

MEMORANDUM ORDER AND OPINION

BENSON, Chief Judge.

INTRODUCTION

After being found in a red Jeep Cherokee grasping a pipe and torch-like lighter Defendant Robert Howe was arrested for possession of drug paraphernalia on April 24, 2002. Subsequent to that arrest, a search of the vehicle yielded, among other things, additional drug paraphernalia, guns and methamphetamine. As a result, Defendant was indicted in a three-count indictment on July 2, 2002 charging him with violating 21 U.S.C. § 841(a)(1)(A) (possession with intent to distribute fifty (50) grams or more of a Schedule II controlled substance), 18 U.S.C. § 924(c) (possession of a firearm in relation to drug trafficking), and 18 U.S.C. § 922(g)(1), (2) (possession of a firearm by a convicted felon).

BACKGROUND/FINDINGS OF FACT

At the evidentiary hearing held January 15, 2003 Officer Adam Szerszen and Officer Adam Madsen testified to the facts surrounding the search of Defendant's car on April 24, 2002. Officer Szerszen has specialized training in narcotics interdiction and is certified with POST as a drug recognition expert and, during his five-year tenure with the Roy City Police Department, has had almost daily contact with individuals under the influence of narcotics. (Tr. at 7.)

At approximately 3:30 a.m. on April 24, 2002, Officer Szerszen, while on uniformed patrol in Roy, Utah, was doing a business check in the area of 5600 South 2050 West, where he saw a red Jeep Cherokee in the parking lot of the America First Credit Union. (Id. at 7-9, 26.) Officer Szerszen had never seen the vehicle parked in this area before. (Id. at 26.) The vehicle was backed in near the rear-exit door of the credit union. (Id. at 9.) Officer Szerszen first thought a burglary might be in progress. (Id.)

Officer Szerszen directed his spotlight at the vehicle and noticed a male occupant, who was later identified as Defendant, in the driver's seat, slumped over to the side. (Id. at 9, 14.) He became concerned for the Defendant, approached the vehicle and then noticed the occupant had a torch-like lighter in one hand and a glass pipe in the other. (Id. at 9-10.) Based on his training and experience as a police officer, Officer Szerszen believed the items were drug paraphernalia. (Id. at 10.)

Officer Szerszen called for back-up. (Id. at 11.) To satisfy their concerns regarding Defendant's safety, Officer Szerszen approached the vehicle on the driver's side and Officer Madsen, the back-up officer, approached the vehicle on the passenger side. (Id. at 11, 57.) Officer Szerszen tapped on the window with his flashlight but Defendant did not immediately respond. (Id. at 11.) Defendant eventually regained consciousness and asked Officer Szerszen who he was. (Id. at 11.) Officer Szerszen identified himself as a police officer and asked if he could speak with Defendant. (Id.) After attempting to roll down the power window manually and fumbling with the door, Defendant stumbled out of the vehicle, using the vehicle for balance, all the while grasping the glass pipe and the torch. (Id. at 11-12.)

Officer Szerszen thought Defendant was impaired and possibly drunk because he had poor balance, a slumping head that swayed back and forth, slow and slurred speech and difficulty standing. However, Officer Szerszen was unable to detect alcohol on Defendant's breath.¹ (Id. at 12-13.) After receiving no response to his request that Defendant hand over the items he was carrying, Officer Szerszen took the items and noticed that the glass pipe was warm. (Id. at 13.) He then placed Defendant under arrest for possession of drug paraphernalia. (Id.) Defendant was placed in handcuffs and Officer Szerszen conducted a pat-down search. (Id. at 14.) Officer Szerszen walked Defendant to the police car and there conducted an additional search, which included emptying Defendant's pockets. (Id.)

Officer Szerszen found five vials in Defendant's front pocket, which contained a substantial amount of a white substance. (Id. at 14-15) Based on Officer Szerszen's experience, the white substance appeared to be methamphetamine. (Id. at 15.) In Defendant's back pocket Officer Szerszen found a number of small baggies which, again, based on Officer Szerszen's experience, appeared to be packaging for smaller amounts of methamphetamine. (Id. at 14-15.) In Szerszen's training and experience, the packaging indicated drug distribution. (Id. at 15.)

Officer Szerszen then advised Defendant of his Miranda rights and Defendant agreed to speak with him. (Id. at 16.) Upon being questioned as to the identity of the white substance, Defendant responded that it was crank (another word for methamphetamine). (Id.) Officer Szerszen placed Defendant in the back seat of the police car and, intending to impound Defendant's car, Officer Szerszen proceeded to search Defendant's vehicle. (Id. at 16-17.) Officer Szerszen's search was allegedly performed pursuant to Roy City Police Department written policy, which authorizes officers to impound and search a vehicle in instances similar to this. (Tr. at 18.) The policy explicitly authorizes the opening of locked containers located in a vehicle subject to an inventory search. (Id.)

During Officer Szerszen's search of Defendant's vehicle he found: (1) a closed black container that contained two glass pipes; (2) baggies similar to those found earlier during the search of Defendant's person;² (3) a handgun stuffed behind a baby carrier in the back seat;³ (4) several guns behind the back seat;⁴ (5) two zippered gun carriers containing two weapons, scales, packaging materials and what appeared to be methamphetamine; and (6) a silver briefcase locked with a combination lock. (Id. at 17-24.) Upon finding the locked briefcase, Officer Szerszen asked Defendant for the combination. (Id. at 21.) Defendant refused. (Id.) Defendant told the officer that he (Officer Szerszen) knew what was in the briefcase and that he (Defendant) wanted to talk with a lawyer. (Id.) Officer Szerszen told Defendant that he did not know what was inside the briefcase, that he did not want to damage the briefcase, and that the briefcase would be opened with or without the combination. (Id.) Defendant did not give Officer Szerszen the combination and stated that he wanted a lawyer. (Id.)

Officer Szerszen pried open the latch on the briefcase with a screwdriver he found in the vehicle. (Id. at 22.) Inside the locked briefcase he found several large packages of methamphetamine. (Id.) Officer Szerszen located methamphetamine throughout the vehicle. (Id. at 24.)

The Roy City Police Department written policy states that an inventory search is to be conducted by one officer; however, the standard procedure in Officer Szerszen's experience is that multiple officers generally participate in inventory searches of greater magnitude. (Id. at 33.) In addition, according to the written policy, all items found within the vehicle are to be inventoried and the inventory report is to be signed. (Id. at 37, 41). Officer Szerszen did not include every item found in the vehicle on his inventory report and the report was not signed due to an oversight. (Id. at 41, 44).

DISCUSSION

Defendant brought the instant motion to suppress the physical evidence found by Officer Szerszen during his search of the vehicle. Defendant argues the officer's search of the vehicle violated his Fourth Amendment rights because the police officer did not follow Roy City's established policy regarding inventory searches, and that Defendant did not give consent to the police officer to search a locked briefcase found in the vehicle, thus rendering the search unreasonable. (Memo ISO Motion, p. 2-5.) In addition, Defendant argues that even if the inventory search was constitutional, breaking the lock of the briefcase was not. (Id. at p. 5-6.) Defendant also argues that his post-custody statements should be suppressed because he was not adequately advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). (Id. at p. 7-8.) The government responds by challenging Defendant's standing, outlining the justifications it believes rendered the warrantless search legal, and arguing that Defendant was adequately advised of his Miranda rights.

I. Standing

The government originally argued Defendant lacked standing to challenge the search of the vehicle because Defendant neither owned the vehicle nor asserted an ownership interest over the items seized from the vehicle. (Memo ISO Opp., p. 8-9.) To establish standing to contest the search of an automobile "the defendant bears the burden at the suppression hearing to show a `legitimate possessory interest in or lawful control over the vehicle.'" United States v. Allen, 235 F.3d 482 (10th Cir.2000) (citing United States v. Gama-Bastidas, 142 F.3d 1233, 1239 (10th Cir.1998)). The Court held a supplemental hearing on November 18, 2003 regarding Defendant's standing. (Docket No. 64.) Defendant presented his uncle, James E. Howe, as a witness at the hearing. Howe testified that in October 2001 he loaned Defendant his red Jeep Cherokee on the premise that Defendant would eventually purchase the vehicle. (Tr3. at p. 6.) From the date of transfer until the date of Defendant's arrest, Howe did not use the vehicle. (Id.) Based on Howe's testimony the government withdrew its argument contesting Defendant's standing. (Id. at 14.) Accordingly, the Court does not address whether Defendant has standing to raise the instant motion to suppress.

II. The Search of the Vehicle⁵

Defendant contends that Officer Szerszen violated his Fourth Amendment rights when he performed a...