Unitd States v. Hawkins, 8:99CR228 (D. Neb. 2000)
| Decision Date | 01 February 2000 |
| Docket Number | 8:99CR228. |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. REGINALD HAWKINS, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the court on the defendant's motion to suppress (Filing No. 13). The defendant, Reginald Hawkins (Hawkins), moves to suppress statements made on August 25, 1999, and evidence uncovered on August 25, 1999, and November 4, 1999. See Defendant's Brief. Hawkins is charged with one count of conspiracy to distribute and possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841 and 846, three counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and one count of using and carrying a firearm during a drug trafficking offense in violation of 21 U.S.C. § 924(c). See Filing No. 1.
On December 1, 1999, the court held an evidentiary hearing on Hawkins' motion. City of Omaha Police Officer Mark S. Kiley (Kiley) and Special Agent Raymond D. Essman (Essman) testified at the hearing. The court received into evidence a forensic laboratory report (Exhibit 1), a rights advisory form (Exhibit 2), and five photographs of a van (Exhibits 101-105). On December 17, 1999, a transcript (TR.) of the hearing was filed (Filing No. 29). Hawkins submitted a post-hearing brief on December 13, 1999. The government submitted a response brief on December 17, 1999, whereupon the motion was deemed submitted.
Officer Kiley has been employed with the Omaha Police Department for approximately six years (TR. 10). On August 25, 1999, at approximately 8:00 p.m., Officer Kiley observed a vehicle driving left of center and conducted a traffic stop (TR. 10-11). Officer Kiley and Officer Randy Anderson made contact with the driver, who was Hawkins, and determined through a computer check that Hawkins had a felony warrant on file (TR. 12-13). The officers place Hawkins under arrest (TR. 13). Officer Anderson placed Hawkins in the police cruiser while Officer Kiley prepared Hawkins' vehicle for towing (TR. 14). Officer Kiley testified he conducted a "Channel 5" or an inventory search of the vehicle to prepare it for towing (TR. 14). The inventory search comported with the regular inventory procedure used by the officer (TR. 25-26, 31-32). Officer Kiley testified he smell a strong odor of marijuana when he entered the vehicle (TR. 14-15). Further, Officer Kiley testified because of the strong odor he conducted a more "in-depth search of the vehicle" (TR. 15). Officer Kiley testified he unsnapped the carpet covering the transmission cover toward the front dashboard area on the driver's side of the vehicle (TR. 16, 38). Officer Kiley uncovered 118 grams of marijuana (TR. 16). Officer Kiley uncovered $570 from underneath a movable console between the front seats. Two pagers were also found in the vehicle (TR. 19). While transporting Hawkins to the police station, Hawkins revealed marijuana from his shoe, which the officer placed in evidence (TR. 17). At the police station, Officer Kiley advised Hawkins of his Miranda rights utilizing a standard advice of rights form (TR. 21, Exhibit 2). Subsequent to the advice of rights, Officer Kiley asked Hawkins questions about the quantity of marijuana found in the vehicle (TR. 24).
Special Agent Essman has been employed by the Department of Housing and Urban Development, Office of the Inspector General, for approximately one and a half years (TR. 45). Special Agent Essman operates under a project called Operation Safe Home, which targets violent crimes, drug crimes and gang activity in and around public and assisted housing (TR. 45). On October 29, 1999, at approximately 2:00 p.m., Special Agent Essman conducted surveillance waiting to serve an arrest warrant on Hawkins (TR. 46, 57). Special Agent Essman saw Hawkins enter a vehicle and drive to a car wash (TR. 47). Special Agent Essman called for back-up police officers who assisted in Hawkins' arrest (TR. 47-48).
A preliminary inventory search began, but was stopped because of the number of people at the scene (TR. 52). The Omaha Police Department assisted Special Agent Essman with the inventory search (TR. 51). Special Agent Essman intended to complete the inventory search later when the vehicle was located in the police tow lot (TR. 53). On November 4, 1999, Special Agent Essman and an Omaha Police Officer with a canine continued the inventory search of the vehicle (TR. 53, 56). Special Agent Essman searched the car more thoroughly, including under the hood and through the trunk (TR. 53-54). Special Agent Essman specifically checked under the plastic horn-covering on the steering wheel and under the carpet near the right foot area of the driver's seat because the canine alerted to those locations (TR. 54). Special Agent Essman uncovered marijuana in both locations in the total amount of approximately 25 grams (TR. 56).
Hawkins argues the officer's search of the vehicle on August 25, 1999, constituted an illegal search without probable cause. See Defendant's Brief, p. 3-4. Moreover, Hawkins argues, because the search lacked probable cause, later statements which Hawkins made to officers are suppressible as fruit of the unlawful search under Wong Sun v. United States, 371 U.S. 471 (1963). See Defendant's Brief, p. 4.
A[A] police officer who personally observes a traffic violation has probable cause to stop the vehicle." United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 646 (8th Cir. 1999) citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977). Additionally, probable cause exists when the totality of circumstances demonstrates that a prudent person would believe that an individual has committed or was committing a crime. Kuehl v. Burris, 173 F.3d 646, 650 (8th Cir. 1999). The courts must give law enforcement officers "substantial latitude in interpreting and drawing inferences from factual circumstances." United States v. Washington, 109 F.3d 459, 465 (8th Cir. 1997). There is no dispute Officers Kiley and Anderson had the requisite reasonable basis for the initial stop which was based on an observed traffic violation.
Search incident to arrest.
Within a very short time of the initial traffic stop and detention, Officers Kiley and Anderson arrested Hawkins based on an outstanding warrant for Hawkins' arrest (TR. 12-13). The warrant provided probable cause for Hawkins' lawful arrest, which is not disputed. Searches incident to arrest are per se reasonable. Chimel v. California, 395 U.S. 752 (1969); United States v. Robinson, 414 U.S. 218 (1973). "The law is clear that officers may search the passenger compartment of an automobile and examine the contents of any containers found within the passenger compartment when they have made a lawful custodial arrest of the occupant of an automobile." United States v. Williams, 165 F.3d 1193, 1195 (8th Cir. 1999) citing New York v. Belton, 453 U.S. 454 (1981).
Hawkins argues Officer Kiley went beyond the scope of an interior compartment search by removing carpeting in the vehicle. See Defendant's Brief, p. 3. Hawkins argues the scope of the search requires probable cause similar to that in United States v. Sample, 136 F.3d 562 (8th Cir. 1998). In Sample, the court held the warrantless search of the dashboard compartment was supported by probable cause, based upon, inter alia, the dashboard configuration, money visible through air vents, and ammunition found in vehicle. Sample, 136 F.3d at 564.
The government distinguishes Sample by stating probable cause was necessary because the dashboard compartment would be difficult to remove, whereas a carpeting in this case was easily unsnapped and readily accessible to occupants of the vehicle. See Government's Brief, p. 5. The government argues occupants of the vehicle could easily have the time and opportunity to conceal a weapon or evidence under the carpeting. See Government's Brief, p. 5.
The scope of a search of a vehicle incident to the arrest of the driver was determined in Belton. The Court, in Belton, reasoned the passenger compartment of a vehicle is generally, "within "the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m]." Belton, 453 U.S. at 460, citing Chimel v. California, 395 U.S. 752, 763 (1969). Further, "[i]t follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach." Belton, 453 U.S. at 460. The court defined container as Id. at 460 n. 4. An officer may search a container whether it is open or closed. Id. at 461 ().
In this case, Officer Kiley observed the carpeted area near the driver's right-hand side covering the transmission cover was snapped on, he unsnapped the carpet covering to reveal contraband (TR. 16, 38, Exhibit 103). The court finds the snapped carpeted area constitutes a container and was easily accessible by Hawkins within the passenger compartment of the vehicle. Officer Kiley did not exceed the scope of a search incident to arrest when he unsnapped the carpet. See United States v. Lugo, 170 F.3d 996, 1000, 1003 (10th Cir. 1999) ().
Probable cause.
The parties do not dispute Officer Kiley was lawfully inside the vehicle. While lawfully inside the vehicle, the court believes...
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