United States v. Phillips, No. 2:13–CR–00398–MCE.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtMORRISON C. ENGLAND, JR., Chief Judge.
Citation9 F.Supp.3d 1130
PartiesUNITED STATES, Plaintiff, v. Lavelle PHILLIPS, Defendant.
Docket NumberNo. 2:13–CR–00398–MCE.
Decision Date25 March 2014

9 F.Supp.3d 1130

UNITED STATES, Plaintiff
v.
Lavelle PHILLIPS, Defendant.

No. 2:13–CR–00398–MCE.

United States District Court, E.D. California.

Signed March 25, 2014.
Filed March 27, 2014.


9 F.Supp.3d 1131

Jason Hitt, United States Attorney's Office, Sacramento, CA, for Plaintiff.

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MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR., Chief Judge.

On December 12, 2013, the grand jury returned an indictment as to Defendant Lavelle Phillips (“Defendant”). ECF No. 1. The indictment contains two charges: (1) possession with intent to distribute cocaine base and (2) possession with intent to distribute heroin, both in violation of 21 U.S.C. § 841(a)(1). Id. On January 6, 2014, Defendant filed a Motion to Suppress. Mot., Jan. 6, 2014, ECF No. 5. Subsequently, Defendant filed an Amended Motion to Suppress (“Motion”), which seeks to suppress all evidence obtained by a search of a vehicle and a cellular telephone seized after Defendant's arrest on February 18, 2012. Mot., Jan. 30, 2014, ECF No. 6. The government opposed the Motion. Opp'n, Feb. 13, 2014, ECF No. 8.

The Court held a hearing on the Motion on February 27, 2014. At the hearing, the Motion was GRANTED IN PART and DENIED IN PART; this written order follows.1

BACKGROUND2

On February 18, 2012, at 8:43 PM, Officer Huff and Officer Boyce of the Vallejo Police stopped Defendant, who was driving a black Lexus, for failure to have any illuminated headlights or tail lights while driving at night in violation of California Vehicle Code section 24250. Defendant believes his vehicle lights were on, and the officers stopped him for some other reason. Officer Huff could smell the odor of marijuana emanating from Defendant's vehicle. Defendant, by contrast, did not smell any marijuana in the vehicle. Officer Boyce illuminated the interior of Defendant's passenger compartment, and observed a one-quarter full bottle of Hennessey on the passenger side rear floorboard, in violation of California Vehicle Code section 23223. However, according to Defendant, it would have been “impossible” for the officer to see the bottle on the floor from his position outside the car, given the size of the vehicle's back seat. Rather, according to Defendant, the officer would have needed to open the door and reach his head inside the vehicle to see the bottle.

During his contact with Defendant, Officer Huff noticed Defendant fumbling with his wallet and attempting to conceal the wallet next to his right thigh while getting out his identification card. Officer Huff directed Defendant several times to put his cellular phone on the seat next to him, and to turn the car off. However, Defendant continued to attempt to use his phone. Defendant also repeatedly reached into his pockets and around the car, despite Officer Huff's instructions to put his hands on the steering wheel. Due to Defendant's lack of cooperation and furtive movements, Officer Huff ordered Defendant to put both hands on his head. Defendant refused to put his hands on his head, and instead repeatedly attempted to get his left leg out of the vehicle. Officer Huff managed to handcuff Defendant's left hand. Defendant then charged at Officer Huff, pushed him to the ground, and ran from the officers. Officer Huff held on to the other end of the handcuff and used the handcuff to pull Defendant back toward him. Defendant used his free hand to repeatedly strike Officer Huff's arm in an attempt to free himself of Officer Huff's

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hold. At this point, Officer Boyce used his taser on Defendant. The electrical current carried through Defendant and briefly shocked Officer Huff, who was still holding Defendant. The shock caused Officer Huff to release Defendant. Defendant ran from the officers, but was ultimately tackled by Officer Huff. Defendant continued to struggle with the officers until he was finally subdued. Defendant was finally arrested, away from his vehicle.

Thereafter, the officers searched Defendant's car incident to the arrest. The officers discovered a tan Burberry satchel containing a Hello Kitty zipper bag. Within the Hello Kitty bag were several tied plastic bags. Inside three of the plastic baggies, officers discovered multiple small baggies of crack cocaine. The total gross weight of crack cocaine was 54.9 grams. This evidence forms the basis of Count One of the Indictment. Inside two of the tied plastic bags, the officers discovered an ounce of black heroin split between the two bags. The total gross weight of the heroin was 28.1 grams. This evidence forms the basis of Count Two of the Indictment.

The officers also searched a cell phone discovered in Defendant's vehicle. The phone contained text messages which referred to “Lavelle” and which were consistent drug sales. The phone also contained a photo of an AR-style assault rifle.

STANDARD

“The Fourth Amendment protects the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ ” Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011) (quoting U.S. Const. amend. IV). “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 356, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). Because the Constitution is “silent about how this right is to be enforced [,]” the Supreme Court “created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.” Davis, 131 S.Ct. at 2423.

A. Search Incident to Arrest Exception

“Among the exceptions to the warrant requirement is a search incident to a lawful arrest.” Gant, 556 U.S. at 338, 129 S.Ct. 1710 (citing Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914) ). “The modern search-incident-to-arrest doctrine emerged from Chimel v. California. United States v. Wurie, 728 F.3d 1, 3 (1st Cir.2013) (citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ). In Chimel, the Supreme Court addressed the warrantless search of an entire three-bedroom home, made pursuant to an arrest. The Court found that the search incident to arrest exception allows an arresting officer to search the person arrested “to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape” and to “seize any evidence on the arrestee's person in order to prevent its concealment or destruction.” 395 U.S. at 763, 89 S.Ct. 2034. Chimel also held that “[t]he area into which an arrestee might reach in order to grab a weapon or evidentiary items” is “governed by a like rule....” Id. The justifications articulated for allowing an officer to search the arrestee, and the area immediately around him,

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were officer safety and ensuring the preservation of evidence. Id. Because neither of these justifications applied, the Court struck down the warrantless search of the home as a search in violation of the Fourth Amendment.

Then, in United States v. Robinson, 414 U.S. 218, 220, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), “the Supreme Court examined how the search-incident-to-arrest exception applies to searches of the person.” Wurie, 728 F.3d at 4 (citing Robinson, 414 U.S. 218, 94 S.Ct. 467 ). Robinson concerned a police officer who stopped the vehicle that the respondent, Robinson, was driving based on a belief that Robinson's license had been revoked. Robinson, 414 U.S. at 220, 94 S.Ct. 467. After Robinson exited the vehicle, the officer arrested him for operating a vehicle after license revocation. Id. During the search of Robinson, the officer felt an object in the breast of Robinson's coat. Id. The officer removed the item, which was a crumpled cigarette package. Id. at 223, 94 S.Ct. 467. The officer looked inside the package and found gelatin capsules of heroin. Id. Robinson was subsequently convicted of drug charges. The Supreme Court held that the officer's warrantless search of Robinson did not violate the Fourth Amendment, and “reiterated the principle, discussed in Chimel, that ‘[t]he justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.’ ” Wurie, 728 F.3d at 4 (quoting Robinson, 414 U.S. at 234, 94 S.Ct. 467 ). The Robinson court thus established the rule that incident to a lawful custodial arrest, an officer may conduct a full search of the arrestee, including any containers on his person. Such a search is per se reasonable, and although the justifications behind such a search are officer safety and preservation of evidence, the officer need provide no additional justification for the search. Robinson, 414 U.S. at 235–36, 94 S.Ct. 467. The Court therefore found that the officer's search of Robinson was a valid search incident to...

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