US v. Daniel

• Decision Date: 28 September 1992
• Docket Number: No. CR-S-91-319-PMP (LRL).,CR-S-91-319-PMP (LRL).
• Parties: UNITED STATES of America, Plaintiff, v. Dorian Lee DANIEL, Lester Wilson and Terhain Woods, Defendants.
• Court: U.S. District Court — District of Nevada

804 F. Supp. 1330

UNITED STATES of America, Plaintiff, v. Dorian Lee DANIEL, Lester Wilson and Terhain Woods, Defendants.

No. CR-S-91-319-PMP (LRL).

United States District Court, D. Nevada.

September 28, 1992.

Bradford R. Jerbic, and Anthony S. Murry, Asst. U.S. Attys., Las Vegas, Nev., for U.S.

Franny A. Forsman, Federal Public Defender, Las Vegas, Nev., for defendant Dorian Lee Daniel.

Michael V. Stuhff, Las Vegas, Nev., for defendant Lester Wilson.

Theodore J. Manos, Las Vegas, Nev., for defendant Terhain Woods.

ORDER

PRO, District Judge.

On May 18, 1992, Defendant Daniel filed a Motion to Suppress Statements and Evidence (# 322). On May 22, 1992, Defendants Wilson, Daniel and Woods filed a Motion to Suppress Evidence (# 361), which was supplemented on July 20, 1992 (# 513 and # 514). The Government filed a Consolidated Response thereto (# 389) on June 3, 1992, which was supplemented (# 522) on July 27, 1992. On September 9, 1992, the Honorable Lawrence R. Leavitt entered a Report and Recommendation (# 542) recommending the granting of Defendants' above-referenced Motions. No Objections were filed to the Magistrate Judge's Report and Recommendation in accordance with Local Rule 510-2 of the Rules of Practice of the United States District Court for the District of Nevada. On September 24, 1992, the Clerk of Court referred this matter to the undersigned for consideration.

The Court has conducted a de novo review of the record in this case in accordance with 28 U.S.C. § 636(b)(1)(B) and (C) and Local Rule 510-2 and determines that the Report and Recommendation of the United States Magistrate Judge entered September 9, 1992, should be affirmed.

IT IS THEREFORE ORDERED that the Magistrate Judge's Report and Recommendation entered September 9, 1992 (# 542) is affirmed, and Defendant Daniel's Motion to Suppress Statements and Evidence (# 322) and Defendants Wilson, Daniel and Woods' Motion to Suppress Evidence (# 361) are granted.

REPORT AND RECOMMENDATION

LEAVITT, United States Magistrate Judge.

The defendants are awaiting trial on a variety of drug-related charges. They have filed two suppression motions relating to a search and seizure which occurred on May 4, 1991. All three defendants jointly filed a Motion to Suppress Evidence (# 361, filed May 22, 1992). Defendant Daniel separately filed a Motion to Suppress Statements and Evidence (Arrest of May 4, 1991) (# 322, filed May 18, 1992). Collectively the defendants contend that the seizure of a Baretta handgun from the engine compartment of the automobile in which they were riding on May 4, 1991, and their arrest immediately thereafter, were the product of an unlawful detention. They seek an order suppressing the handgun and any statements they made to the police during the unlawful encounter.

THE EVIDENCE

An evidentiary hearing was held on July 10 and 14, 1992. The government called as its only witness Officer Eric Kruse of the Las Vegas Metropolitan Police Department (Metro). Defendant Woods called three witnesses: Metro Officers Martin Wildman and Cindy Wells, and Sgt. Michael Dailey. The testimony revealed the following.

On May 4, 1991, four members of Metro's Selective Enforcement Detail (SED), riding in pairs,¹ were engaged in "gang suppression activity" in the vicinity of Carey and Ellis Streets in North Las Vegas, an area in which gang members are known to live.² At approximately 5:00 p.m., Dailey and Wells noticed a station wagon containing four young black men proceeding westbound on Carey. The officers pulled in behind the station wagon and began to follow it. The station wagon was being driven by defendant Terhain Woods and was registered to Woods' mother. In the front passenger seat was defendant Dorian Lee Daniel, whom the SED officers immediately recognized as the leader of a gang known as "Anybody's Murderers." In the rear seat were defendant Lester Wilson and another man.

As Dailey's car began to follow the station wagon westbound, Daniel turned and stared at the officers. Dailey radioed to Officer Kruse that he (Dailey) was about to stop the station wagon. A short distance up the street, Kruse turned a corner and began to proceed eastbound on Carey, towards the approaching cars. Suddenly Woods made a U-turn directly in Kruse's path, causing Kruse to jam on his brakes to avoid a collision. Kruse and Wildman promptly stopped Woods' car, ostensibly for the unsafe U-turn.³ Daley and Wells came around to back them up.⁴

With guns drawn, the officers ordered the defendants to keep their hands in plain view and step out of the car. As the four men got out of the station wagon, the officers recognized Woods and Wilson, and knew from previous encounters that they were gang members also. The men were ordered to raise their hands behind their heads, and were frisked for weapons. None was found. Kruse performed a cursory search of the passenger compartment of the wagon, and found no weapons. The defendants were then permitted to lower their hands. Kruse immediately asked Woods whether there were any guns or drugs in the car. When Woods said "No," Kruse asked whether he could take a look. Woods responded, "Go ahead." Kruse looked through the interior of the vehicle, then lifted the hood. In the engine compartment he found a Baretta handgun adjacent to the motor mounts.

As soon as the Baretta was found the defendants were ordered down on their knees. On his police radio Kruse requested a records check on the Baretta to determine whether it was stolen. While the police awaited word on the status of the Baretta, the defendants remained on their knees at the front of Kruse's car.⁵ When Kruse was informed that the gun was stolen, he placed the defendants under arrest for possession of stolen property.

DISCUSSION

1. Standing

The government does not question Woods' standing to challenge the search of the car.⁶ Nor does the government contest Daniel's and Wilson's standing to challenge the stop of the car or their subsequent detention.⁷ The government does, however, contest Daniel's and Wilson's standing to challenge the search of the car. Whether they have standing depends on whether the challenged search violated their personal Fourth Amendment rights. Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). That question in turn depends on whether Daniel and Wilson had "a legitimate expectation of privacy in the invaded place." Id. at 143, 99 S.Ct. at 430. See also United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2552-53, 65 L.Ed.2d 619 (1980). Daniel and Wilson carry the burden of proof on this issue. United States v. Nadler, 698 F.2d 995, 998 (9th Cir.1983).

Daniel and Wilson were passengers in a car in which they asserted neither a property nor a possessory interest. Nor did Daniel or Wilson assert a possessory interest in the gun that was found in the area under the hood. Clearly such an area is not one in which a mere passenger would ordinarily have a legitimate expectation of privacy, and the two defendants have made no showing that they had such an expectation.

Nevertheless, relying on United States v. Padilla, 960 F.2d 854 (9th Cir.1992), Daniel contends that an exception to the Rakas rule should be made in his case. In Padilla the court held that where the defendants have "demonstrated joint control and supervision over the contraband and vehicle and engaged in an active participation in a formalized business arrangement, they have standing to claim a legitimate expectation of privacy in the property searched and the items seized." Id. at 860-61. Under the rationale of Padilla, Daniel would have standing if on the day of the stop there was a formal arrangement among the defendants to use Woods' car for the purpose of transporting the gun in question, and Daniel had a possessory interest in the gun and a coordinating and supervisory role in the transportation venture. The record before the Court is devoid of evidence to support such a conclusion. Nothing in the record remotely suggests that the defendants had a formalized arrangement about anything, let alone one to use Woods' car to transport a stolen weapon. Moreover, as noted above, Daniel has offered no evidence that he had a possessory interest in the gun. Hence, the Padilla claim lacks merit. Neither Daniel nor Wilson have standing to challenge the search of the engine compartment as such.

2. The Traffic Stop

It is well settled that any police-initiated stop of a moving automobile, including a simple traffic stop, constitutes a limited seizure under the Fourth Amendment and falls within the purview of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Colorado v. Bannister, 449 U.S. 1, 4 n. 3, 101 S.Ct. 42, 43 n. 3, 66 L.Ed.2d 1 (1980); Delaware v. Prouse, 440 U.S. 648, 661-63, 99 S.Ct. 1391, 1400-01, 59 L.Ed.2d 660 (1979).⁸ When a police officer effects an automobile stop on the ground that the driver has violated a traffic law, the scope of the resultant detention is strictly limited to the enforcement of that law. U.S. v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988); U.S. v. Gonzalez, 763 F.2d 1127, 1130 n. 1 (10th Cir.1985). Cf. U.S. v. Werking, 915 F.2d 1404, 1409 (10th Cir.1990). An officer conducting a traffic stop may detain the motorist so long as is necessary to check his driver's license and registration, ask a few perfunctory questions, and write out a ticket. Any expansion of the scope of the stop to include investigation of other suspected illegal activity will only be allowed if the officer has a reasonable, articulable suspicion that other criminal activity is afoot. See United States v. Pena, 920 F.2d 1509, 1514 (10th Cir.1990); United States v. Arango, 912 F.2d 441, 446-47 (10th Cir.1990); United States v. Contreras-Dias, 575 F.2d 740, 744-45 (9th Cir.1978).

It is clear that Woods made an unsafe U-turn. NRS 484.337(4).⁹ The government therefore seeks to justify the stop on the ground that it...