United States v. Simon

• Decision Date: 16 March 2022
• Docket Number: 21-cr-00352-JSW-1
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MARNIQUE SIMON, Defendant.
• Court: U.S. District Court — Northern District of California

UNITED STATES OF AMERICA, Plaintiff,
v.
MARNIQUE SIMON, Defendant.

No. 21-cr-00352-JSW-1

United States District Court, N.D. California

March 16, 2022

ORDER DENYING MOTION TO SUPPRESS EVIDENCE RE: DKT. NO. 59

JEFFREY S. WHITE, UNITED STATES DISTRICT JUDGE.

Now before the Court for consideration is the motion to suppress filed by Defendant Marnique Simon (“Defendant”). The Court has determined that an evidentiary hearing is not required. The Court has considered the parties' papers, relevant legal authority, and the record in the case, and it finds this matter suitable for disposition without oral argument. For the following reasons, the Court DENIES Defendant's motion.

BACKGROUND

On May 29, 2020, two Richmond police officers, Officer Ecker and Officer Parker, stopped Defendant after he allegedly made a left turn during a red left-turn signal. (See Declaration of Graham Archer (“Archer Decl.”), Ex. A, Richmond Police Department Report (“RPD Report”) at HUMPHREY-000004.) Officer Ecker approached the driver side of the vehicle and identified Defendant and the front passenger, Ronettaparis Kindred (“Ms. Kindred”). (Archer Decl., Ex. A (“Ecker BWC”) at 1:00-1:20; see also Declaration of John Ecker (“Ecker Decl.”), ¶ 5, Ex. A.) Officer Ecker asked Defendant for his identification. He also asked Defendant if was on probation or parole. Defendant did not respond. When prompted again by Officer Ecker, Mr. Simon responded “Nah.” (Ecker BWC at 1:21-1:27.)

After confirming the car was registered to Defendant, Officer Ecker returned to his police

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vehicle to run a records check. Officer Ecker attests that he entered Defendant's identification number, name, number, gender, and date of birth. (Ecker Decl. ¶ 8; Ecker BWC at 1:40-4:10.) The query Officer Ecker initiated typically reports various information regarding a stopped vehicle and driver, including information regarding a driver's identity, California driving records, active warrants, restraining orders, and probation or parole status. (Id.; see also Supplemental Declaration of John Ecker (“Ecker Supp. Decl.”) ¶¶ 4-6.) The results of the query informed Officer Ecker that Defendant was on parole. (Ecker Decl. ¶ 8; Ex. B (Simon000147); see also Declaration of Frank Tamburello (“Tamburello Decl.”), Ex. 1.)

Officer Ecker knew from training and experience that California parolees are subject to a search condition that permits the search of their person, residence, and any property under their control at any time, with or without a search warrant, and with or without cause. (Ecker Decl ¶ 9; Govt's Opp'n., Ex. C.) Upon learning of Defendant's parole status, Officer Ecker planned to search Defendant and his vehicle as was his customary practice with all parolees with whom he encounters. (Id.)

When Officer Ecker returned to the vehicle, he asked Defendant why he had lied about being on parole. (Ecker BWC at 4:21-4:42.) Officer Ecker then directed Defendant to put his hands on his head and get out of the car. (Id. at 4:50-5:00.) Defendant complied, and Officer Ecker handcuffed him and patted him down. (Id. at 5:03-5:11.) Officer Ecker then directed Defendant to sit on the front bumper of the police vehicle and asked Ms. Kindred to exit the vehicle and wait with Defendant while he searched the car. (Id. at 5:11-6:20.) During the search of the vehicle, Officer Ecker found a gun under the front passenger seat where Ms. Kindred had been sitting. (Ecker Decl. ¶ 11; Ecker BWC at 6:24-9:43.)

Officer Ecker instructed Officer Parker to handcuff Ms. Kindred because at that time the officers had not identified who possessed the firearm. (Ecker Decl. ¶ 12.) The officers separated the two individuals. Defendant was taken to the police car and Officer Parker took Ms. Kindred's statement. She stated she was dating Defendant and did not know about anything illegal in the car. She said it was not her car. (Archer Decl., Ex. C (“Parker BWC”) at 11:05-15:40.) After Officer Parker reported this information to Officer Ecker, Officer Ecker further questioned Ms.

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Kindred and informed her that both she and Defendant would be arrested for the gun if neither party claimed it. (Ecker BWC at 19:10-20:05.)

Officer Ecker then returned to the police car and advised Defendant of his rights. (Id. at 20:26-21:47.) Officer Ecker repeated several of the warnings. Defendant acknowledged his understanding. (Id.) Officer Ecker asked Defendant what was in the car, and Defendant stated, “I don't want to talk, I don't want to say nothing, I don't want to talk unless I have an attorney present.” Officer Ecker responded, “Okay. That's fine. I guess both of you are going then.” (Id. at 21:48-22:10.) The officers placed both Defendant and Ms. Kindred in the back of the patrol vehicle, and Officer Ecker place his bodycam in the vehicle to capture any conversation between the two. (RPD Report at HUMPHREY-000005.)

After attending to other matters related to the investigation, Officer Ecker returned to the police vehicle, and Defendant told Officer Ecker that he did not want Ms. Kindred to take responsibility for the gun. (Ecker BWC at 29:29-29:37.) Officer Ecker told Defendant, “you just told me you didn't want to talk without an attorney, are you telling me you want to talk without an attorney now?” (Id. at 29:38-29:45.) Officer Ecker attests that at this point he left the police car so that Defendant could not make further statements to him and called his Sergeant to discuss the most appropriate way to respond to Defendant's statements. (Ecker Decl. ¶ 16.)

Officer Ecker returned to the police car, escorted Defendant out of the car, and explained that he needed to reread his rights to ensure Defendant understood them. (Officer Ecker at BWC 34:10-35:28; Ecker Decl. ¶ 17.) Officer Ecker advised Defendant of his rights, and Defendant stated that he understood. (Id.) Officer Ecker then asked whether Defendant would like to speak to him without an attorney present and Defendant said “yeah.” (Ecker BWC at 35:19-36.) Defendant told Officer Ecker that Ms. Kindred was not involved with “whatever” the officers found in his car. (Id. at 35:40-47.) Officer Ecker continued to question Defendant about what was in the car because he believed that Defendant wanted to take general ownership of the items in the car in the hopes the officers would release Ms. Kindred without incriminating himself by admitting his knowledge of the gun. (Ecker Decl. ¶ 18.) Defendant eventually referred to weed and the gun, the description of which was consistent with the firearm found in the car. (Ecker

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BWC at 35:29-37:22.) The officers released Ms. Kindred and let her take the car. (RPD Report at HUMPHREY-000005.) Defendant was indicted on one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. section 922(g)(1). He now moves to suppress evidence uncovered during the traffic stops and statements he made to the police during the encounter.

ANALYSIS

A. An Evidentiary Hearing is Not Required.

An evidentiary hearing on a suppression motion is necessary “only when the moving papers allege facts with sufficient definiteness, clarity and specificity to enable the trial court to conclude that contested issues of fact exist.” United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000). Defendant has not identified any material facts in dispute, and the Court concludes that an evidentiary hearing is unnecessary.

B. The Traffic Enforcement Stop Was Proper.

An investigatory vehicle stop is lawful when the officer has reasonable suspicion that the vehicle has committed a traffic infraction. United States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006). Here, the officers stopped Defendant's vehicle after he ran a red light. Defendant does not argue that the initial traffic enforcement stop was unlawful.

C. The Police Officers Did Not Improperly Prolong the Seizure.

The reasonable duration of a traffic stop depends on the stop's mission-to address the traffic violation that triggered the stop and “attend to related safety concerns.” Rodriguez v. United States, 135 S.Ct. 1609, 1614 (2015). The officer's “mission includes ‘ordinary inquires incident to [the traffic] stop, '” which typically involve inquires such as “checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.” Id. at 355 (quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005). An “officer's inquiries to matters unrelated to the justification for the stop…do not convert the encounter into something other than a lawful seizure, so long as those inquires do not measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S. 323, 333 (2009). Inquiries into a suspect's past criminal conduct is relevant to officer safety.

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Defendant first argues that Officer Ecker impermissibly prolonged the traffic stop when he asked Defendant whether he was on probation or parole. After Officer Ecker pulled Defendant over and approached the vehicle, he advised Defendant of the reason he was pulled over and asked for Defendant's identification. While reviewing the identification provided by Defendant, Officer Ecker asked Defendant if he was on probation or parole, and Defendant said he was not. Officer Ecker then returned to the patrol car to conduct a records check.

The Ninth Circuit has not yet decided if asking whether a driver is on probation is “part of the traffic mission.” At least three judges in this district have held that an officer may not ask a driver whether they are on probation or parole during a traffic stop, as this question “is not aimed at ensuring that vehicles on the road are operated safely and responsible, ” but rather “is intended to uncover evidence of criminal activity.” United States v. Mati, 466 F.Supp. 1046, 1056 (N.D. Cal. 2020), United States v. Ward,...