US v. McKibben
| Citation | 928 F. Supp. 1479 |
| Decision Date | 21 May 1996 |
| Docket Number | No. CR 95-30093.,CR 95-30093. |
| Parties | UNITED STATES of America, Plaintiff, v. Daynetta McKIBBEN, a/k/a Daynetta Bald Eagle, and Phyllis Bald Eagle, Defendants. |
| Court | United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota |
Mikal G. Hanson, Assistant United States Attorney, Pierre, SD, for Plaintiff United States of America.
Jeremiah J. Davis, Dakota Legal Services, Pierre, SD, for Daynetta McKibben, a/k/a Daynetta Bald Eagle.
Jamie L. Damon, Pierre, SD, for Phyllis Bald Eagle.
Defendants filed a joint motion to suppress evidence, Doc 19. The motion was assigned to U.S. Magistrate Judge Mark Moreno pursuant to the scheduling order herein. The magistrate judge conducted an evidentiary hearing on the motion and submitted his Report and Recommendation For Disposition to the Court on March 29, 1996. A copy of such Report and Recommendation For Disposition was served upon the parties as required by 28 U.S.C. § 636 and the defendants filed written objections thereto.
The Court has made a de novo review of the record and transcripts herein. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981), makes it clear that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of the arrest, search the passenger compartment of that automobile." The United States Court of Appeals for the Eighth Circuit, following Belton, has held that "a police officer who has lawfully arrested the occupant of an automobile may, contemporaneously with that arrest, search the passenger compartment, even if the arrestee is no longer inside it." United States v. Morales, 923 F.2d 621, 626 (8th Cir.1991) (emphasis added). Here, Donald Pine, a mere occupant of the McKibben vehicle, was lawfully arrested. The tribal police officer could lawfully search the vehicle after placing Pine in the patrol car.
The Court questions the application of Belton to this case as the tribal police officer did not have the intention to search the McKibben vehicle as a lawful incident to Pine's arrest. However, the Court could find no authority and was cited to no authority distinguishing Belton under these circumstances.
If the officer did not intend to search the vehicle as a result of Pine's arrest, the officer must have been justified to search the vehicle under the "plain view doctrine". Magistrate Moreno discusses the application of this doctrine at footnote 12 of his Report and Recommendation. The Eighth Circuit, in United States v. Garner, 907 F.2d 60, 62 (8th Cir.1990), set forth the requirements of a warrantless search under the plain view doctrine: "(1) the initial intrusion must be lawful; (2) the discovery of the evidence must be inadvertent; and (3) the incriminating nature of the evidence must be immediately apparent." Further, "an automobile on a public street may be searched without a warrant as long as the searching agents have probable cause to believe evidence of a crime will be found in the vehicle." United States v. Horne, 4 F.3d 579, 585 (8th Cir.1993).
"All that is required under the first requirement is that at the time the officers observed the evidence in the car, they must have had a right to be in close proximity to the car at a point from which the observation occurred." United States v. Hatten, 68 F.3d 257, 260 (8th Cir.1995). The tribal police officer was lawfully standing outside the vehicle talking to Pine's girlfriend, at Pine's request, when he discovered the Zig-Zag paper. The first requirement has been met. Further, the discovery of the papers was inadvertent.
Does the presence of Zig-Zag paper make it immediately apparent that there is incriminating evidence in the vehicle or does it, at a minimum, amount to probable cause to believe marijuana will be found in the vehicle? While Zig-Zag paper is often used for rolling cigarettes, the Eighth Circuit has pointed out that it is commonly used to roll marijuana cigarettes. Crimm v. Missouri Pacific R. Co., 750 F.2d 703, 710 n. 4 (8th Cir.1984). The Ninth Circuit has held that the presence of Zig-Zag papers warrants the suspicion of marijuana. Maguire v. United States, 396 F.2d 327, 330 (9th Cir.1968). All that is required is "probable cause to associate the property with criminal activity." United States v. Garner, 907 F.2d at 62.
In the present case, it is not only the presence of the Zig-Zag paper but also the presence of the marijuana roaches in an ashtray which constitutes probable cause for the warrantless search. The vehicle was stopped on a public street. The officer's actions in looking through the vehicle's open window, even with the aid of a flashlight, did not constitute a "search" United States v. Hatten, 68 F.3d at 261. Thus, the discovery of the roaches in the ashtray justified a warrantless search under the plain view doctrine. It also justified a warrantless search of the vehicle under the probable cause standard set forth in Horne, supra.
While the Court is very uncomfortable with the facts of this case, this Court is nonetheless bound by the principles set forth by the United States Court of Appeals for the Eighth Circuit. The application of these principles applied to the facts of this case suggests the search was valid and the evidence should not be suppressed. The ruling would be otherwise in the absence of binding precedents. The Court determines that the defendants' objections should be overruled and the findings and recommendations of the magistrate judge should be accepted and the motion to suppress denied.
(1) The U.S. Magistrate Judge's Report and Recommendation for Disposition of the Defendants' Joint Motion to Suppress Evidence as filed March 29, 1996, is hereby adopted as the Findings of Fact and Conclusions of Law herein.
(2) The defendants' motion to suppress evidence, Doc. 19, is denied.
Defendants filed separate motions for a voluntariness hearing, Docs. 26, 34. The motions were assigned to U.S. Magistrate Judge Mark Moreno pursuant to the scheduling order herein. The magistrate judge conducted an evidentiary hearing on the motions and submitted his Report and Recommendation For Disposition to the Court on March 29, 1996. A copy of such Report and Recommendation For Disposition was served upon the parties as required by 28 U.S.C. § 636 and the defendants have filed written objections thereto.
The Court has made a de novo review of the record and transcripts herein. The Court determines that the defendants' objections should be overruled and the findings and recommendations of the magistrate judge should be accepted and the motions for voluntariness hearing denied.
(1) The Report and Recommendation for Disposition of the Defendants' Motions for Voluntariness Hearing filed by the Magistrate Judge March 29, 1996, is hereby adopted as the Findings of Fact and Conclusions of Law herein.
(2) The defendants' motions for voluntariness hearing, Docs. 26 and 34, are denied.
Defendant, Daynetta McKibben, a/k/a Daynetta Bald Eagle, (McKibben) and Phyllis Bald Eagle, (Bald Eagle)1 have filed a Joint Motion to Suppress Evidence, Docket No. 19. This Court held a hearing on the Motion on February 21, 1996 in accordance with the District Court's2 Order Fixing Dates, Docket No. 14 and Order Granting Continuance, Docket No. 23. Because McKibben and Bald Eagle's Motion is a dispositive one, the Court is only authorized to determine the Motion on a report and recommendation basis. Pursuant to 28 U.S.C. § 636(b)(1), the Court does now make and propose the following report and recommendations for disposition of McKibben and Bald Eagle's Motion.
McKibben and Bald Eagle were charged jointly by indictment filed on December 7, 1995, with the offense of Possession With Intent to Distribute Marijuana, in violation of 21 U.S.C. § 841. The indictment alleges that on or about July 18, 1995, in the District of South Dakota, they knowingly and intentionally possessed with intent to distribute marijuana, a Schedule I controlled substance. McKibben and Bald Eagle were arrested on December 15, 1995. That same day, they appeared before this Court for an initial appearance and were detained. Three days later, both were arraigned and released on a third-party custody basis subject to various conditions.
On January 19, 1996, McKibben and Bald Eagle filed a Motion to Suppress Evidence. In their Motion, they seek "to suppress evidence seized by the Cheyenne River Police Department on July 18, 1995, including, but not limited to, green leafy substances identified as marijuana, sandwich bags, marijuana cigarettes and rolling papers," on the basis that the arresting officer "had no reasonable suspicion of criminal activity at the time of the search", that they were subject to "an unreasonable search and seizure in violation of the Fourth Amendment to the U.S. Constitution", and that they had "a heightened expectation of privacy" as to the contents of certain enclosed containers within the vehicle that was searched, including their purses.
Upon review of the Motion and consultation with counsel, this Court scheduled a hearing on the Motion for February 21, 1996. At the hearing, plaintiff, United States of America, ("Government") offered evidence and testimony through Leslie Shooter, a police officer for the City of Eagle Butte, Mark Woods, an adult detention sergeant for the Cheyenne River Sioux Tribe (CRST), and James Pearman, a patrol officer for CRST. McKibben and Bald Eagle offered no testimony in support of their Motion but did offer one exhibit.
On July 18, 1995, Shooter received information that Donald Pine, who had a warrant out for his arrest, was in a vehicle seen at the Super Pumper, a...
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...v. Gomez, 16 F.3d 254, 256 (8th Cir. 1994) (citing United States v. Sanchez, 943 F.2d 110, 113 (1st Cir. 1991)); United States v. McKibben, 928 F. Supp. 1479, 1484 (D.S.D. 1996)). At the hearing on the defendants' motions, the court held Bustos had standing to contest the search. To explica......