US v. Dallas
| Decision Date | 14 October 1987 |
| Docket Number | Cause No. IP 87-57-CR-03. |
| Citation | 672 F. Supp. 362 |
| Parties | UNITED STATES of America, Plaintiff, v. Kenneth Michael DALLAS, Robert Lester McPherson, a/k/a "Bobby Mack", Billy Ray Robbins, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Bradley L. Williams, U.S. Atty., C. Joseph Russell, Asst. U.S. Atty., Indianapolis, Ind., for plaintiff.
Philip R. Melangton, Jr., Lee Tarvin, Indianapolis, Ind., for defendants.
ENTRY
This matter is before the court on the June 18, 1987, motion to suppress filed by the defendant Billy Ray Robbins. The government filed a response on July 10, 1987. On September 15, 1987, one of Mr. Robbins codefendants, Robert L. McPherson, moved to adopt Mr. Robbins' motion in full and requested the court to rule on the motion as it applies to Mr. McPherson. A hearing was held on the motions in open court on September 21, 1987. The government filed its post hearing memorandum on September 30, 1987, and Mr. Robbins filed his on October 5, 1987.
The court, having heard and considered the evidence and the legal arguments of the parties, and being duly advised, now DENIES the motions to suppress. The reasons for the court's ruling are set forth in the following memorandum.
MemorandumThe evidence presented to this court reveals that the parties have numerous disagreements about many of the pertinent facts in this case. They do agree that on June 7, 1987, Mr. Robbins and his passenger, Sherri Grant, were driving Mr. Robbins' 1977 Cadillac Sedan DeVille in an easterly direction through the state of New Mexico on Highway 40. They further agree that, shortly after noon, their automobile was pulled over by New Mexico State Police officer John Ball. Beyond this, the parties concur on little.
According to Mr. Robbins, Officer Ball told him, after the arrests, that Ball's motivation for stopping Mr. Robbins' automobile was that it fit some pre-ordained "profile" that New Mexico police officers use to detect drug smugglers. Mr. Robbins' testified that, after Officer Ball had pulled Mr. Robbins over, he approached Mr. Robbins' automobile by getting out of his car, unstrapping his holster, and putting his right hand on the butt of his .357 Magnum. By the time Officer Ball had arrived at the driver's side door, Mr. Robbins had partially rolled down his window. Officer Ball then demanded Mr. Robbins' drivers license and the registration for his car. Both were promptly produced. According to Mr. Robbins, Officer Ball looked briefly at the license and the registration and then abruptly ordered Mr. Robbins to "get out of the goddamned car." Officer Ball further ordered Mr. Robbins to proceed to the rear of the car and to bring his keys with him. As he got out of his automobile, Mr. Robbins testified, he noticed it was a cold, rainy and windy day. Once Mr. Robbins arrived behind the trunk of his car, Officer Ball allegedly grabbed the keys out of Mr. Robbins' hands and opened the trunk himself without requesting Mr. Robbins' permission. Inside the trunk were two boxes, one rather large and the other somewhat smaller. According to Mr. Robbins, both boxes were sealed shut with tape, their contents hidden from view. Again, without seeking or receiving permission, Officer Ball then tore open at least one of the two boxes and found more than 111 pounds of raw marijuana. Both Mr. Robbins and Ms. Grant were then arrested and charged with conspiracy to distribute marijuana.
Officer Ball's testimony presents a somewhat different report of events. According to Officer Ball, his sole motivation for stopping Mr. Robbins was his belief that Mr. Robbins had just committed a traffic violation, and he denied telling Mr. Robbins the arrest was based on any "profile"-type techniques. Officer Ball testified that his radar equipment indicated that Mr. Robbins was driving at 67 miles per hour in an area with a posted maximum speed limit of 65 miles per hour. Officer Ball further testified that at no time in his dealings with Mr. Robbins did he unsnap his holster or put his hand on his gun. He also testified that the day was hot and without rain or wind. After approaching the car and seeing the driver's side window rolled down, Officer Ball did request to see Mr. Robbins' driver's license and the registration for his car. Mr. Robbins had to open the glove compartment to get the registration and Officer Ball testified it is normally his practice to bend over slightly and lean toward the driver's window in order to observe the opening of a glove compartment by a detainee; assertedly, this is done in order to confirm that the driver is not retrieving a weapon. Officer Ball testified that by thus bringing his face closer to the opened window, he for the first time detected the strong and distinctive odor of raw marijuana, an odor he had come to recognize based on his expertise in law enforcement. Seeing nothing in the back seat other than a small suitcase, Officer Ball testified that he then requested of Mr. Robbins that he voluntarily open the trunk of his car. Mr. Robbins did so. Once the lid was open, Officer Ball saw two boxes in the trunk. According to Officer Ball, the smaller box had several small, uncovered holes in the sides through which he could plainly view packages of raw marijuana. Based on this observation, Officer Ball placed Mr. Robbins and Ms. Grant under arrest.
Mr. Robbins' passenger, Sherri Grant, also testified at the suppression hearing. Her testimony was noteworthy because she stated that at no time did she see Officer Ball unstrap his holster or otherwise act in a menacing manner. She also testified that, when requested to open the trunk of his car, Mr. Robbins did so voluntarily and without hesitation.
Mr. Robbins now moves to suppress the evidence that Officer Ball obtained when he searched the trunk of the automobile. Mr. Robbins argues that the more than one hundred pounds of discovered marijuana is the product of an illegal search. Mr. Robbins posits several arguments in support of his charge of illegality. First, he alleges there was no probable cause for the initial stop of his automobile. Second, he urges that the search of both his trunk and the boxes contained therein was without a warrant and fails to fit into any of the enunciated exceptions to the warrant requirement. More specifically, he argues that Officer Ball had neither consent to open the trunk and boxes nor adequate probable cause to justify application of the so-called "automobile exception" to the warrant requirement.
The government counters by arguing that Officer Ball in fact had probable cause to make the initial stop of Mr. Robbins' automobile. As for the searches themselves, the government admits that they were conducted without a warrant, but maintains that they were justified under at least two exceptions to the warrant requirement. First, the government asserts that Mr. Robbins consented to Officer Ball's searches; second, it asserts that, even if Mr. Robbins' consent was inadequate or nonexistent, Officer Ball's detection of the marijuana odor provided the officer with adequate probable cause to conduct an immediate search under the automobile exception to the warrant requirement.
Additionally, the pleadings and testimony of the parties have raised two ancillary issues which the court must consider. First, Mr. Robbins has moved this court to not only suppress the evidence of marijuana discovered by Officer Ball, but to also suppress any statements allegedly made by Ms. Grant subsequent to her arrest. Mr. Robbins asserts that, because any such statements would be the product of Officer Ball's illegal search and arrest, they must therefore be excluded from any criminal trial of Mr. Robbins as the "fruit of the poisonous tree." Second, Mr. Robbins' co-defendant, Robert McPherson, has moved to adopt Mr. Robbins' suppression motion. Mr. McPherson urges that any evidence which this court determines must be excluded from the prosecution of Mr. Robbins must likewise be excluded from any prosecution of Mr. McPherson.
The court first turns briefly to the motion by Mr. McPherson to adopt the suppression motion of Mr. Robbins. The court finds that Mr. McPherson lacks adequate standing to move for the suppression of the evidence seized by Officer Ball. The threshold requirement for any fourth amendment claim is a legitimate expectation of privacy in the thing or place searched. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Mr. McPherson has made no such showing with respect to the evidence seized by Officer Ball. Mr. McPherson was neither the owner of the automobile searched nor was he present during the search. Indeed, no evidence at all of Mr. McPherson's interest in the search and seizure of June 7, 1987, was presented at the hearing before this court. Apparently Mr. McPherson asserts that his fourth amendment right arises derivatively through Mr. Robbins and urges that, because Mr. Robbins and Mr. McPherson have been charged with conspiracy, Mr. Robbins was somehow Mr. McPherson's agent for fourth amendment purposes. The...
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