US v. Kikumura

• Decision Date: 21 October 1988
• Docket Number: Crim. No. 88-166.
• Citation: 698 F. Supp. 546
• Parties: UNITED STATES of America, Plaintiff, v. Yu KIKUMURA, Defendant.
• Court: U.S. District Court — District of New Jersey

698 F. Supp. 546

UNITED STATES of America, Plaintiff, v. Yu KIKUMURA, Defendant.

Crim. No. 88-166.

United States District Court, D. New Jersey.

October 21, 1988.

Samuel A. Alito, U.S. Atty. and John P. Lacey, Asst. U.S. Atty., Newark, N.J., for the Government.

William M. Kuntsler, and Ronald L. Kuby, New York City, for defendant.

OPINION

LECHNER, District Judge.

Introduction

On April 12, 1988, Defendant Yu Kikumura ("Kikumura") was detained by New Jersey State Trooper Robert Cieplensky ("Cieplensky") for careless driving. As a result of the ensuing exchange between Cieplensky and Kikumura, Cieplensky saw seven cylinders of gunpowder and shot on the backseat of Kikumura's car. Suspecting Kikumura may be armed, Cieplensky proceeded to pat down Kikumura. Cieplensky next searched the interior of Kikumura's vehicle. The objects of this suppression motion — evidence including a large bag of lead shot, seven gunpowder cannisters and three homemade bombs — were discovered.

Kikumura was indicted for unlawful interstate transportation of explosive devices in violation of 18 U.S.C. § 842(a)(3)(A), unlawful possession and transportation of firearms by an illegal alien in violation of 18 U.S.C. § 922(g)(5) and unlawful possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5845(a)(8). He now moves to suppress the evidence discovered in his car, arguing that it is the tainted fruit of an unconstitutional stop, search and seizure.

Because Cieplensky's initial stop of Kikumura was lawful and the subsequent pat down, search and arrest were conducted in accordance with fourth amendment principles, the evidence seized from his car will not be suppressed. For the reasons which follow, Kikumura's motion to suppress is denied.

During the suppression hearing, Kikumura selectively invoked his fifth amendment privilege against self-incrimination and refused to answer those questions posed to him which, he argued, raised a well-founded fear of foreign prosecution. Contending that such selective invocation is improper, the Government moves to strike Kikumura's testimony. Although Kikumura has not sustained his burden of proof regarding the fear of foreign prosecution, the Government was not unduly prejudiced by Kikumura's assertion of fifth amendment privilege; its motion to strike is denied.

Facts

Of central importance in this case is the testimony of two individuals: Cieplensky and Kikumura. Their respective accounts of the April 12, 1988 meeting converge at many points and yet diverge sharply regarding the location of the bombs in Kikumura's car and Cieplensky's professional conduct.

I. The Morning of April 12, 1988, as Established by a Preponderance of the Credible Evidence

At approximately seven in the morning on Tuesday, April 12, 1988 Cieplensky entered the Vince Lombardi service area, located in his assigned territory, the western roadway of the New Jersey Turnpike. Transcript of Suppression Hearing at 11.¹ The Vince Lombardi service area consists of a large parking lot, a gas station, rest room facilities and a restaurant. During the week, the area is frequented by commuters,² although Cieplensky indicated a variety of individuals pass through on any given day. Cieplensky characterized the rest stop as a "high crime area."³ Tr. at 13. In addition to traffic violations, other crimes including robberies, assaults, and weapons, narcotics and sex offenses have occurred there.

As he entered the rest area, Cieplensky saw Kikumura walking toward the restaurant at the end of the parking lot. Kikumura looked disheveled. Cieplensky stated: "Basically, my best way to describe it would be dirty, unkept sic.... His hair was not combed. He had a growth of beard.... His pants appeared dirty. His shirt appeared wrinkled." Tr. at 21. After making eye contact with Cieplensky, Kikumura altered his course, and headed back toward the parking lanes. As Cieplensky proceeded in his troop car past the restaurant, Kikumura walked to his car parked in the second parking space in the fifth parking lane and momentarily leaned against its door.⁴ Kikumura then began, in Cieplensky's words, "milling around ... walking in circles at a very slow pace. He would ... walk around the garbage can" and look around and inside of it. Tr. at 17.

Cieplensky next observed Kikumura bend down on one knee, look underneath the car he was leaning against and resume his trip toward the restaurant. While Cieplensky continued driving in his troop car, Kikumura was within his direct line of vision. As Cieplensky drove, Kikumura looked over his left shoulder and once again made eye contact with Cieplensky. Kikumura then turned away from the restaurant and walked back toward his car. Kikumura quickened his pace as Cieplensky patrolled the area for the second time. When Cieplensky was half way down driving lane one, Kikumura entered his car, backed the car into driving lane three and abruptly maneuvered across parking lanes five and six at what Cieplensky believed to be "a high rate of speed and in close proximity of other parked vehicles." Tr. at 22.⁵

Considering this to be a motor vehicle violation,⁶ Cieplensky motioned Kikumura to pull over. Kikumura stopped his car, exited the vehicle and began walking towards the troop car. Cieplensky parked approximately fifteen feet behind him and met Kikumura at the left rear of his vehicle. After Cieplensky asked Kikumura for his driving credentials, Kikumura produced an international driver's license, a temporary registration certificate and a temporary insurance card, all issued in the name of Masatoshi Kishizono. As Kikumura searched through a carrying pouch for the documentation, Cieplensky noticed a bandage on his right wrist and index finger and fresh burn marks on the right side of his neck. Questioned by Cieplensky about his injuries, Kikumura explained that he had burned himself while cooking.⁷ Cieplensky then engaged Kikumura in conversation, asking him a series of questions. Although Kikumura's account of this exchange differs somewhat from Cieplensky's, in substance both confirm that Kikumura told the trooper he practiced accupuncture in Japan (Cieplensky: "He advised me that he was like a doctor in Japan." Tr. at 26) and that Kikumura was coming from Pennsylvania and was on his way to New York.

As they were talking and standing next to Kikumura's car, Cieplensky had the opportunity to see the interior of the car. Cieplensky observed some bandages and medical supplies in the front passenger area and a large black bag on the right rear seat. Visible within the bag were seven open cardboard containers with the words "gunpowder" and "Hercules" printed on them as well as a canvas pouch labelled "shot" with BBs pouring out of it.⁸ Cieplensky is familar with gunpowder and with the brand "Hercules" because he often watched his father and friends load their own shotgun shells with gunpowder, wadding and shot.

These observations aroused Cieplensky's suspicions. Fearful that because he had in his possession a quantity of gunpowder and shot inconsistent with personal use,⁹ Kikumura was likely to be armed, Cieplensky conducted a pat search of Kikumura's person. After satisfying himself that Kikumura was unarmed, Cieplensky continued talking with him. Again viewing the car's interior from the outside, Cieplensky spotted a large cardboard box standing up behind the right front passenger seat. In that box, he saw three red cylindrical objects, one of which had some black tape across its bottom and two wires protruding from the tape.¹⁰ Turning to Kikumura, Cieplensky asked what was in the cardboard box. Kikumura replied, "Souvenirs. Go ahead, check it out." Tr. at 34. Cieplensky moved to the passenger side, opened the door and removed the cardboard box. Pulling out one of the cylindrical objects, Cieplensky saw green tape covering one end.¹¹ The object weighed about five pounds and seemed to be fashioned from a fire extinguisher with its nozzle detached.

At this point, Cieplensky concluded that Kikumura was in possession of bombs.¹² Cieplensky arrested Kikumura, handcuffed him, placed him in the rear of the troop car and read him his Miranda¹³ warnings. Next he briefly searched the interior and trunk of the car for additional explosives. Finding nothing else of immediate consequence, Cieplensky again examined the bombs and placed them a distance away from the car. As he did this, Cieplensky observed Kikumura in the rear of the troop car making a harsh movement toward the right side of his body. Fearful that Kikumura might be reaching for a remote device to activate the bombs, Cieplensky pulled him from the troop car, placed him face down on the ground and conducted a more intensive search of his person.¹⁴ No remote device was discovered.

Shortly thereafter, State Police Trooper Dennis Donovan arrived at the scene; Cieplensky apprised him of what had transpired. Cieplensky then radioed his station in Newark and requested that a detective be called to the rest area. State Police Detective Patrick Higgins arrived and took charge of the evidence. State Police Detective Drew Lieb, assigned to the arson unit bomb squad, was summoned; he proceeded to x-ray the cylinders and, with the help of a mechanical device, rendered the bombs safe for transportation. In the meantime, Kikumura was taken inside a service station office at the rest stop and again received Miranda warnings. Refusing to sign a waiver form, Kikumura requested counsel. He was then strip searched and transported to the police station.

A Different Version of the Facts

Kikumura's version of what transpired on April 12, 1988 differs substantially from the above account. I do not find Kikumura's testimony credible. The major discrepancies between the testimony of Cieplensky and Kikumura are set forth in order to provide a complete record and to acknowledge Kikumura's testimony, but not to accept the validity of his account.

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