US v. Lynch

• Decision Date: 01 December 1995
• Docket Number: Crim. No. 95-73.
• Citation: 908 F. Supp. 284
• Parties: UNITED STATES of America, Plaintiff, v. Jennifer LYNCH, Allan Petersen & Melvin Marvin Thomas, Defendants.
• Court: U.S. District Court — Virgin Islands

908 F. Supp. 284

UNITED STATES of America, Plaintiff, v. Jennifer LYNCH, Allan Petersen & Melvin Marvin Thomas, Defendants.

Crim. No. 95-73.

District Court, Virgin Islands, D. St. Thomas.

December 1, 1995.

Dwight Thomas, Atlanta, Georgia.

Alan Smith, Chrlte Amalie, VI.

MEMORANDUM

MOORE, Chief Judge.

This matter is before the court on the motion of defendant Melvin Marvin Thomas to dismiss count IV of the indictment as well as his motion to suppress use by the government in its case-in-chief of 1) telephone numbers retrieved from Thomas' pager device, and 2) defendant's refusal to cooperate with law enforcement officers by making a telephone call to co-defendant Allan Petersen. A hearing was held on September 14, 1995. For the following reasons, defendant's motions are denied.

I. Factual and Procedural Background

Melvin Marvin Thomas "Defendant" or "Thomas" is charged with possession with intent to distribute cocaine, attempted importation of cocaine, aiding and abetting, and possession of a firearm during a drug trafficking crime. Thomas was arrested by Drug Enforcement agents "agents" while leaving a hotel room in Atlanta, Georgia where a suitcase containing cocaine had been dropped off earlier by co-defendant Jennifer Lynch. Upon his arrest, the agents seized a firearm and a paging device. Soon thereafter the agents obtained the numbers contained in the paging device by pressing a button on the pager.

After his arrest, Thomas was given his Miranda rights and questioned by the agents in one of the hotel rooms for about an hour. The defendant initially agreed to talk to them and did answer some of the agents' questions. At one point during the questioning, the defendant was asked whether he would cooperate in the investigation by making a telephone call to co-defendant Alan Peterson while the agents listened in. One of the questioning agents, Rodman Bergstrom "Bergstrom", testified at the hearing that Thomas did not exactly refuse to cooperate, but rather did not make a decision at that time whether or not he was going to assist the agents.¹ Later at the customs office while he was being placed in a cell, Thomas was again requested to place a call to Peterson, and at that time he unambiguously refused.

II. Discussion

Thomas' suppression motion is addressed first followed by a discussion on the constitutionality of the criminal statute upon which count IV of the indictment is based.

A. Search of Paging Device

The purpose of the Fourth Amendment is to protect individuals from unreasonable searches and seizures.² A search can only be unreasonable if a person has a reasonable expectation of privacy in what is being searched; without an expectation of privacy the Fourth Amendment is not implicated. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967). Requiring law enforcement officers to obtain a warrant from a neutral magistrate or judge based on probable cause is the primary method of protecting persons from unreasonable searches and seizures. Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948). Searches conducted without obtaining a warrant are presumptively unreasonable unless they fall within an acknowledged exception. Katz, 389 U.S. at 357. Judicially approved exceptions include searches conducted incident to a valid arrest, e.g. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and searches conducted under exigent circumstances, e.g., Ker v. California, 374 U.S. 23, 41-42, 83 S.Ct. 1623, 1634-35, 10 L.Ed.2d 726 (1963). Thus the retrieval of telephone numbers from Thomas' pager is a violation of the Fourth Amendment only if Thomas had a reasonable expectation of privacy in the pager, and the search falls within no acknowledged exception. We hold that the search and retrieval of the telephone numbers from his pager was justified as being incident to a valid arrest, even though Thomas had a reasonable expectation of privacy in the contents of his pager.

1. Expectation of Privacy in Pager

The testimony at the hearing indicated that something had to be done to the pager in order to retrieve numbers stored in it. The stored telephone numbers were not in plain sight of an agent just looking at the pager.³ Moreover, the pager was being carried on Thomas' person. It was thus reasonable for the defendant to consider the telephone numbers stored in the pager to be personal and private, and to expect them generally to be free from governmental invasion. Thomas therefore had a reasonable expectation of privacy in the contents of the pager's memory.

This conclusion is supported by what appear to be the only federal cases dealing with the question of privacy expectations in a pager. United States v. Chan, 830 F.Supp. 531 (N.D.Cal.1993); United States v. Nelson Blas, 1990 WL 265179, 1990 U.S.Dist. LEXIS 19961 (E.D.Wis.1990). In Chan, the court held that the "expectation of privacy in an electronic repository for personal data is ... analogous to that in a personal address book or other repository of such information." Chan, 830 F.Supp. at 534. In Nelson Blas, the defendant argued that his consent to the police officer's request to "look at" his pager was not consent to activate the pager and retrieve stored telephone numbers. The court agreed that the defendant had a different expectation of privacy in the contents of the pager distinct from the outside appearance of the pager, and therefore had not consented to a search of the pager's contents. Nelson Blas, at *21.

2. Search incident to arrest

As a general rule, a search conducted incident to a lawful arrest is valid under the Fourth Amendment. The justification for such warrantless searches is the need to secure any weapons and to prevent the concealment or destruction of evidence. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). The scope of the permissible search incident to an arrest has been explored in subsequent cases. See, e.g., United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484-85, 53 L.Ed.2d 538 (1977) (search of footlocker not valid incident to arrest); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (search of crumpled cigarette package valid incident to arrest).

The retrieval of the telephone numbers from Thomas' pager falls either under Chadwick and its progeny, requiring a warrant for the searches of containers within the arrestee's immediate control, or under Robinson and its progeny, allowing warrantless searches of any effects found upon the arrestee's person. We find that the search of the defendant's pager falls more appropriately under the analysis of the Robinson line of cases, and therefore hold that the search of the pager was valid as incidental to Thomas' valid arrest.

In Robinson, the officer found a crumbled package of cigarettes on the defendant's person which contained heroin. The Court stated that

a custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest required no additional justification....

... Having in the course of a lawful arrest come upon the crumpled package of cigarettes, the officer was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them....

Robinson, 414 U.S. at 235-36, 94 S.Ct. at 476-77.

Relying upon the reasoning of Robinson, courts have held that searches of the contents of wallets and address books are also valid when incident to an arrest. See United States v. Rodriguez, 995 F.2d 776 (7th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 648, 126 L.Ed.2d 605 (1993) (search of address book was valid search incident to arrest); United States v. Holzman, 871 F.2d 1496 (9th Cir. 1989) overruled on other grounds, Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (same); United States v. Molinaro, 877 F.2d 1341, 1346 (7th Cir.1989) (search of wallet valid incident to arrest); United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir.), cert. denied, Crespo-Diaz v. United States, 474 U.S. 952, 106 S.Ct. 320, 88 L.Ed.2d 303 (1985) (same); United States v. McEachern, 675 F.2d 618, 622 (4th Cir.1982) (same); United States v. Passaro, 624 F.2d 938, 943 (9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 842 (1981) (same); United States v. Gay, 623 F.2d 673, 675 (10th Cir.), cert. denied, 449 U.S. 957, 101 S.Ct. 366, 66 L.Ed.2d 222 (1980) (same); United States v. Castro, 596 F.2d 674, 677 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 448, 62 L.Ed.2d 375 (1979) (same).

The justification for allowing such searches is not that a person does not have an expectation of privacy in such personal effects such as a wallet or address book, but that once an arrest has been made, the privacy interests of the arrestee no longer take precedence over police interest in finding a weapon or obtaining evidence.

While the legal arrest of a person should not destroy the privacy of his premises, it does—for at least a reasonable time and to a reasonable extent—take his own privacy out of the realm of protection from police interest in weapons, means of escape and evidence.

United States v. Edwards, 415 U.S. 800, 808, 809, 94 S.Ct. 1234, 1239, 1240, 39 L.Ed.2d 771 (1974) (quotations omitted). Hence, the search of a wallet or address book does not have to take place immediately upon the arrest of the defendant. See, e.g., id. at 805, 94 S.Ct. at 1238 (warrantless search of suspect's clothes 10 hours after arrest valid.) The fact that the object is no longer at risk of being accessed by the defendant, because it is in the exclusive control of the arresting officers, is immaterial. See, e.g., New York v. Belton, 453 U.S. 454, 462, 101 S.Ct. 2860, 2865, 69 L.Ed.2d 768 (1981) (search of zippered pocket of jacket on floor of car while suspect held on...