US v. Ibarra

• Decision Date: 03 January 1990
• Docket Number: No. CR89-0025J.,CR89-0025J.
• Parties: UNITED STATES of America, Plaintiff, v. Alejandro Garcia IBARRA, Defendant.
• Court: U.S. District Court — District of Wyoming

731 F. Supp. 1037

UNITED STATES of America, Plaintiff, v. Alejandro Garcia IBARRA, Defendant.

No. CR89-0025J.

United States District Court, D. Wyoming.

January 3, 1990.

Lisa Leschuck, Asst. U.S. Atty., D. Wyoming, Cheyenne, Wyoming, for plaintiff.

Steven Michael Kissinger, Cheyenne, Wyo., for defendant.

ORDER DENYING GOVERNMENT'S MOTION FOR RECONSIDERATION

ALAN B. JOHNSON, District Judge.

THE ABOVE CAPTIONED MATTER came before the court on December 27, 1989, for hearing on the government's motion for reconsideration of this court's November 15, 1989, memorandum opinion and order granting the defendant's May 10, 1989, motion to suppress evidence. The defendant, Alejandro Garcia Ibarra, is charged in a one count indictment with possession of cocaine with intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). On September 12, 1989, the case came before the court for an evidentiary hearing on the defendant's motion to suppress, which the court granted after carefully considering the arguments of counsel for the government and the defendant in light of the evidence presented.

The court will not recite in detail the facts of this case because they are already found in its November 15, 1989, memorandum opinion and order, United States v. Ibarra, 725 F.Supp. 1195 (D.Wyo.1989). On March 24, 1989, Ibarra and a friend were traveling at a lawful rate of speed in a 1981 Oldsmobile Cutlass with California plates east through southern Wyoming on Interstate 80 (I-80). At that time, Wyoming highway patrolman Scott Mahaffey noticed the car because its driver, Ibarra, appeared to be driving slightly below the speed limit. After following the vehicle for approximately five miles, Mahaffey stopped Ibarra because he noticed that Ibarra "weaved," and abruptly passed two other vehicles without signaling.

After informing Ibarra why he stopped him, Mahaffey discovered that Ibarra's driver's license had been suspended for failure to pay a reissue fee and that Ibarra had recently purchased the vehicle from a Mr. Charles J. Petrocchi. Ibarra was issued a citation for the license problem for which he posted a $220-appearance bond. Meanwhile, a second Wyoming highway patrolman, Gregory Leazenby, arrived on the scene and sat in the back of Mahaffey's patrol car and observed the interchange between Mahaffey and Ibarra. Ibarra, who is from Mexico and evidently speaks halting English,¹ aroused Mahaffey's suspicions by giving conflicting answers about his itinerary.

His suspicions aroused, Mahaffey asked Ibarra three questions, which appear to have become routine among Wyoming highway patrolmen. He asked if the vehicle contained any "weapons, large amounts of money, or controlled substances" to which Ibarra replied "no." Mahaffey then obtained Ibarra's permission to look in the trunk, the search of which revealed nothing illegal. When it was discovered that Ibarra's friend also had an expired driver's license, Mahaffey, without consulting with Ibarra, radioed for a wrecker to tow the vehicle into Laramie, which was a short distance away. In its prior order, the court found that this was done without lawful authority and was motivated by an investigatory motive, rendering any inventory search unreasonable under the fourth amendment. Ibarra, 725 F.Supp. at 1202 and 1204.

The officers then separated Ibarra and his friend and drove them in their respective patrol cars to a motel in Laramie. Immediately after leaving them there, the officers proceeded to the place where Ibarra's vehicle had been towed and, believing they still had his consent, searched the vehicle again. The search revealed approximately one kilogram of cocaine for which Ibarra was later indicted by a federal grand jury.

In its original opposition to the defendant's motion to suppress, the government argued that the second warrantless search was valid under a continuing consent theory. See United States' Supplemental Memorandum In Support of Proposed Findings of Fact And Conclusions of Law at 1. Prior to the suppression hearing, however, the government abandoned the theory of continuing consent, stating that "contrary to its prior-stated position, the United States no longer argues that the second search of the Defendant's vehicle is supportable on the basis of continuing consent. Additional research has failed to provide legal support for this position, and the argument is conceded." United States Supplemental Memorandum In Support of Proposed Findings of Fact And Conclusions of Law at 1. Thus, at the suppression hearing held on September 12, no evidence was presented on this issue and the court decided the motion on the issues whether the search was a valid inventory search or whether the search was valid under the "inevitable discovery" doctrine. The court also decided the issue whether the stop of Ibarra's vehicle was a pretext to investigate more serious unrelated crime for which the officer had neither probable cause nor reasonable suspicion to justify a detention. Although it resolved the pretext issue in favor of the government, the court found that the issue presented a close call.

The title of the government's motion is a misnomer because it now asks the court to "reconsider" an issue that was never considered by the court. Instead, the government is asking the court to decide a new issue for which no record was specifically developed.² The court decided the motion to suppress on issues for which an adequate factual basis was developed during a long evidentiary hearing. The court issued its ruling only after carefully considering the evidence presented.

The government now argues that it has found caselaw that supports a "continuing consent" theory. The government has the burden of proving that Ibarra freely and voluntarily consented to a warrantless search of his vehicle. United States v. Recalde, 761 F.2d 1448, 1453 (10th Cir. 1985). The government, of course, must present "clear and positive testimony that the consent was unequivocal and specific ... and establish that the consent was given without duress or coercion." Id. Because a warrantless search conducted pursuant to a "continuing consent" is an exception to the fourth amendment's warrant requirement, the government likewise must prove that Ibarra in fact gave a "continuing consent" to the officers' second search of his vehicle. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) (government has burden of showing that a search comes within one of the exceptions to the fourth amendment's warrant requirement). The court must view the evidence presented with a presumption that the defendant did not waive his constitutional right to be free from an unreasonable warrantless search. Villano v. United States, 310 F.2d 680, 684 (10th Cir.1962).

In support of its theory, the government relies principally on the following cases: United States v. White, 617 F.2d 1131 (5th Cir.1980); Phillips v. State, 625 P.2d 816 (Alaska 1980); Ferguson v. Caldwell, 233 Ga. 887, 213 S.E.2d 855 (1975); State v. Luther, 63 Or.App. 86, 663 P.2d 1261 (1983); Gray v. State, 441 A.2d 209 (Del. Super.Ct.1982); People v. Trujillo, 40 Colo. App. 186, 576 P.2d 179 (1977); and People v. Nawrocki, 6 Mich.App. 46, 148 N.W.2d 211 (1967). In reviewing those cases, the court finds that in none of them did the defendant ever withdraw his consent to search. Nor did the courts in those cases find an unlawful seizure of the object searched.

At the September 12 suppression hearing, the evidence showed that Ibarra closed and locked the trunk upon the conclusion of the officer's first warrantless search. At some point the officers decided to impound the vehicle to conduct a second investigatory search of it. They never informed Ibarra that a second warrantless investigatory search would be conducted. The court finds that "the act of locking the trunk effectively revoked the defendant's consent to any future searches" of his vehicle. Cooper v. State, 480 So.2d 8, 11 (Ala.Crim. App.1985). This rule is in harmony with the general principle that "except in unusual circumstances, it would seem that a consent to search may be said to be conducted forthwith and that only a single search will be made." 3 La Fave, Search and Seizure, § 8.1(c), at 170 (2d ed. 1987). The government must show that by closing and locking the trunk, Ibarra did not revoke his consent to additional searches.

In attempting to discharge this burden, the government merely argues that Ibarra's act of locking the trunk did not constitute a revocation of consent because the officers subsequently gained possession of the keys to the vehicle. The government's argument, however, overlooks the fact that the officers gained possession of the keys after Ibarra closed and locked the trunk. Further, their gaining possession of the keys was incident to an unlawful seizure of Ibarra's vehicle, thereby making it difficult if not impossible to conclude that such an act constituted a specific and unequivocal second consent to a later search of which Ibarra was never informed would in fact occur. The issue of unlawful seizure, that is, a fourth amendment violation, was, of course, nonexistent in the cases cited to the court by the government. Even assuming Ibarra did not revoke his consent by closing and locking the trunk, the court finds that any "continuing consent" became infected by a fourth amendment violation, the seizure of Ibarra's vehicle for the purpose of conducting an investigative search.

"The fourth amendment protects `effects' as well as people from unreasonable searches and seizures." United States v. Place, 462 U.S. 696, 716, 103 S.Ct. 2637, 2649, 77 L.Ed.2d 110 (1983) (Brennan, J., concurring). Under the fourth amendment, law enforcement officers may seize one's personal property and briefly detain it for investigative purposes where there exists a minimum level of objective justification based on ...