United States v. Alabi

• Decision Date: 30 April 2013
• Docket Number: No. CR 11–2292 JB.,CR 11–2292 JB.
• Citation: 943 F.Supp.2d 1201
• Parties: UNITED STATES of America, Plaintiff, v. Oladipo ALABI and Kehinde Oguntoyinbo, Defendants.
• Court: U.S. District Court — District of New Mexico

943 F.Supp.2d 1201

UNITED STATES of America, Plaintiff,

v.Oladipo ALABI and Kehinde Oguntoyinbo, Defendants.

No. CR 11–2292 JB.

United States District Court,

D. New Mexico.

April 30, 2013.

Kenneth J. Gonzales, United States Attorney, Jonathon M. Gerson, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

John F. Samore, Albuquerque, NM, for Defendant Oladipo Alabi.

Donald Kochersberger, Streubel, Kochersberger & Mortimer LLC, Albuquerque, NM, for Defendant Kehinde Oguntoyinbo.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) Defendant Kehinde Oguntoyinbo's Motion to Suppress, filed January 23, 2013 (Doc. 95) (“Motion to Suppress”); and (ii) Agreed Order to Join in Defendant Oguntoyindo's [sic] Motion to Suppress, filed March 4, 2013 (Doc. 109). ¹ The Court held an evidentiary hearing on February 26, 2013. The primary issues are: (i) whether the warrantless reading of magnetic strips on the backs of credit and debit cards by United States Secret Service agents violates the Fourth Amendment of the United States Constitution's prohibition against unreasonable searches and seizures; (ii) if the warrantless reading of the magnetic strips violates the Fourth Amendment, whether the evidence discovered by reading the cards fits within the inevitable-discovery doctrine's exception to the exclusionary rule; and (iii) given that the information discovered from the reading was used in a search warrant application, whether the warrantless reading of the magnetic strips requires the Court to exclude the evidence found in execution of the search warrant as fruit of the poisonous tree. The Court will deny the Motion to Suppress. The Secret Service agent's scan of the magnetic strip on Defendants Oladipo Alabi's and Kehinde Oguntoyinbo's credit and debit cards to read the electronically stored account information contained in the strips, when the agent already physically possessed the cards, did not violate the Defendants' Fourth Amendment rights. Scanning the credit and debit cards' magnetic strips to read the account information was not a government invasion of a constitutionally protected area and thus not a Fourth Amendment search under the trespass-based search analysis, which the Supreme Court of the United States used in its two most Fourth Amendment search cases: Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), and United States v. Jones, –––U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). The government's scan of credit and debit cards' magnetic strips is also not a Fourth Amendment search under the reasonable-expectation-of-privacy approach in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), because, given that the financial institutions which issue credit and debit cards encode the same information on all credit and debit cards—account information identical to the account information embossed on the card's exterior—and given that the electronically stored account information is necessarily disclosed to private parties when credit and debit cards are used as intended, the scan does not implicate a legitimate privacy interest. Regardless whether the scan violated the Fourth Amendment, however, the evidence that the Secret Service found in the cards' scan is admissible under the inevitable-discovery doctrine. Moreover, because the evidence was derived from an independent source as there was probable cause without information gleaned from the credit and debit cards' scan, and because the officers' objectively reasonable reliance on the search warrant brings the search under the good-faith exception to the exclusionary rule, the Court will not exclude the evidence that law enforcement discovered while executing the search warrant.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. SeeFed.R.Crim.P. 12(d) (“When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record.”). This Memorandum Opinion and Order's findings of fact shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269–70 (10th Cir.1982) (“[U]nder Rule[ ] 104(a) ..., the district court ‘is not bound by the Rules of Evidence except those with respect to privilege.’ ”) (quoting United States v. Matlock, 415 U.S. 164, 174, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. SeeFed.R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269 (“The purpose of the suppression hearing was, of course, to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it, notwithstanding the hearsay rule.”); United States v. Garcia, 324 Fed.Appx. 705, 708 (10th Cir.2009) (unpublished) (“We need not resolve whether Crawford [ v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ]'s ² protection of an accused's Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court's error cannot be adjudged ‘plain.’ ”); ³United States v. Ramirez, 388 Fed.Appx. 807, 810 (10th Cir.2010) (unpublished) (“It is beyond reasonable debate that Ramirez's counsel were not ineffective in failing to make a Confrontation Clause challenge to the use of the confidential informant. The Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay statements made in suppression hearings.”). Cf. United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M.2011) (Browning, J.) (concluding “that Crawford v. Washington does not apply to detention hearings”).⁴

1. New Mexico State Police Officer Chester Bobbitt was patrolling Interstate 40 near Tucumcari, New Mexico, on April 6, 2011, at 8:20 a.m. when he saw a 2010 Toyota Camry with expired California license plates driving eastbound. See Motion to Suppress at 1; Government's Memorandum in Opposition to Defendant Oguntoyinbo's Motion to Suppress at 1, filed February 7, 2013 (Doc. 96) (“MTS Response”); Transcript of Hearing at 25:13–26:10 (taken Feb. 26, 2013) (Kochersberger, Vela) (“Tr.”) (both parties proffer as factual evidence the factual background provided in their briefs and agree that, except for the locations where the state police officer is alleged to have found the cards, the facts are undisputed).⁵

2. The Defendants were traveling in a rental car, the Toyota Camry, eastbound on Interstate Highway 40 near Tucumcari, New Mexico. See Motion to Suppress at 1.

3. The rental agreement was in Oguntoyinbo's name alone. See MTS Response at 2.

4. At approximately 8:20 a.m., Bobbitt initiated a traffic stop of Oguntoyinbo's vehicle. See Motion to Suppress at 1; MTS Response at 1.

5. Bobbitt engaged his lights and siren, and pulled Oguntoyinbo's vehicle over. See MTS Response at 1.

6. There were two men in the Toyota Camry. See MTS Response at 1.

7. Oguntoyinbo was the driver. See MTS Response at 1.

8. Alabi was the passenger. See MTS Response at 1.

9. Oguntoyinbo presented a driver's license and the rental agreement for the vehicle to Bobbitt. See MTS Response at 1–2.

10. Bobbitt gave Oguntoyinbo a traffic warning and told him that he was free to leave. See MTS Response at 2.

11. At some point during this routine traffic stop, Bobbitt obtained Oguntoyinbo's limited consent to search his rental vehicle and luggage. See Motion to Suppress at 1–2.

12. Alabi also consented to the search of the vehicle and luggage. See MTD Response at 2.

13. As a result of the search, Bobbitt seized, among other things, thirty-one credit and debit cards from the Defendants possession. See Motion to Suppress at 2; MTS Response at 2 (“Officer Bobbitt found that, between the two defendants, they possessed approximately 31 credit and debit cards.”).

14. Bobbitt also seized: (i) approximately sixty-seven Wal–Mart cash cards valued at $1,650.00; (ii) approximately $5,673.00 in cash; (iii) two laptop computers; (iv) six cellular telephones; (v) a bundle of paperwork which contained a list of approximately 500 names with birth dates, Social Security numbers, addresses, and telephone numbers; and (vi) two Louis Vuitton bags. See Search Warrant and Search Warrant Application at 9, filed February 7, 2013 (Doc. 96–1) (“Search Warrant Application”).

15. Bobbitt then arrested the Defendants on state charges related to identity theft. See MTS Response at 2.⁶

16. The Defendants were then transported to the New Mexico State Police station located in Tucumcari, where they were detained. See Motion to Suppress at 2; MTS Response at 2 (“Bobbitt transported Oguntoyinbo and Alabi to a New Mexico State Police facility to process their arrests and to conduct an inventory search.”).

17. Following the Defendants' arrest, Bobbitt relinquished custody of the credit/debit cards to the Department of Homeland Security, Immigration, and Custody Senior...