US v. McKneely

• Decision Date: 06 January 1993
• Docket Number: No. 92-CR-170A.,92-CR-170A.
• Citation: 810 F. Supp. 1537
• Parties: UNITED STATES of America, Plaintiffs, v. Dracy LaMont McKNEELY; Andrew Ellis; and Torjano Akines, a/k/a Alandis Bennett, Defendants.
• Court: U.S. District Court — District of Utah

810 F. Supp. 1537

UNITED STATES of America, Plaintiffs, v. Dracy LaMont McKNEELY; Andrew Ellis; and Torjano Akines, a/k/a Alandis Bennett, Defendants.

No. 92-CR-170A.

United States District Court, D. Utah, C.D.

January 6, 1993.

COPYRIGHT MATERIAL OMITTED

Bruce C. Lubeck, Asst. U.S. Atty. for Utah, Salt Lake City, UT, for plaintiff.

Robert L. Booker, Booker & Whatcott, Salt Lake City, UT, for defendant McKneely.

Ronald J. Yengich, Yengich, Rich & Xaiz, Salt Lake City, UT, for defendant Ellis.

Deirdre Gorman, Farr, Kaufman, Sullivan, Gorman & Perkins, Ogden, UT, for defendant Bennett.

ORDER GRANTING DEFENDANTS' MOTION TO SUPPRESS EVIDENCE AND DENYING DEFENDANTS' MOTION TO SUPPRESS STATEMENTS

ALDON J. ANDERSON, Senior District Judge.

This matter came before the court on Defendants' Motion to Suppress Evidence and Statements. The court heard oral argument on September 18, 1992. After reviewing the videotape of the police stop in question, the court heard further oral argument on October 15, 1992. At the second hearing, counsel for the United States requested leave to submit supplemental briefs. Given the subtleties of these matters, the court agreed that further briefing was appropriate. The court, having reviewed the record, including the supplemental briefs, and examined the applicable law, grants Defendants' Motion to Suppress Evidence, but denies Defendants' Motion to Suppress Statements.

I. BACKGROUND

Defendants are charged with possession of a mixture or substance containing cocaine base with intent to distribute, a violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) and 18 U.S.C. § 2. McKneely and Ellis are further charged with carrying a firearm during a drug trafficking crime, a violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. The charges stem from a vehicle stop in Sevier County in which Sevier County Deputies seized approximately one pound of crack cocaine and a loaded gun. Defendants Ellis, McKneely, and Bennett, bring Motions to Suppress Evidence and Statements.¹ Because the various motions to suppress arise from the same operative facts and implicate the same principles, the court will treat them together. The record reveals the following facts.

On the morning of June 15, 1992, Sevier County Sheriff's Deputy Phil H. Barney, a veteran of twenty-six years patrolling the highways of Utah and with extensive experience apprehending suspected drug traffickers,² was westbound on Interstate 70, when he clocked an eastbound vehicle going seventy-one miles per hour in a sixty-five mile per hour zone. He turned, followed the vehicle for a short distance, then turned on his emergency equipment to stop the vehicle. As he turned on his emergency lights, a video camera attached to the front inside roof of his patrol car automatically activated and videotaped the entire stop from that point. Deputy Barney also wore a body microphone that recorded all conversations within a certain distance. The court has reviewed the audio and video tapes in their entirety.

As Barney approached the vehicle, he found Defendant Ellis in the driver's seat, Defendant McKneely in the front passenger's seat, and Defendant Akines in the rear passenger's seat. Deputy Barney did not inform Defendants why he had stopped them, but asked Ellis for a driver's license. Ellis had no driver's license. Barney, however, ascertained that the vehicle was rented in McKneely's name and that McKneely, a licensed driver, had given Ellis permission to drive. Two points are significant about this portion of the stop: (1) Barney smelled a "chemical" odor, but could not identify it; (2) he found no cause for suspicion about either McKneely's driver's license or the rental agreement.³

Barney attempted to run a computer check on the vehicle and on the occupants, but was unable to complete the check because the computer system that holds the relevant records, Triple I, was not working. Therefore, after his abortive computer check, Barney issued a citation to Ellis and returned the rental contract to McKneely.⁴ Barney then inquired whether there were guns or drugs in the vehicle. After receiving a negative response, he asked if he could search the car. The parties dispute whether consent was given. Barney testified at the hearing that McKneely consented to the search. His contemporaneous police report indicates that it was Ellis who consented to the search. The tape does not reveal an audible consent. Barney did not advise Defendants that they did not have to consent to the search.

In any event, Defendants exited and stepped to the rear of the vehicle. Barney then proceeded to search the interior of the car. When he could not open the glove compartment with the ignition key, he asked Defendants if they had the key. They responded that they did not. During his search, another officer arrived on the scene and stood watch over Defendants. When Barney pulled Defendants' luggage from the rear of the station wagon and began to open the bags and dump them, Defendants requested that Barney discontinue the search. Barney indicated that if they did not consent to a search of the bags, he would obtain a warrant.

Barney then began the one and one-half hour process of obtaining the warrant. Barney could not reach the county attorney on his mobile telephone; therefore, he gave information to the county dispatcher who relayed the information to the county attorney, Don Brown. Barney stated two bases for probable cause: (1) a strong, unidentifiable chemical smell allegedly originating in the vehicle; and (2) no key for the glove compartment. The actual warrant included three additional grounds: (1) that Deputy Barney had stopped the vehicle for a traffic violation; (2) that one of the individuals in the vehicle had a criminal record; and (3) that Barney had many years of experience investigating narcotics offenses, and based on his experience, he believed that Defendants were transporting drugs. A deputy who was present at the sherriff's office signed Barney's name to the affidavit supporting the warrant. Barney did not authorize Larsen to sign for him, but testified that this was usual county procedure.

The county attorney arrived with the warrant about an hour and a half later. During this time, Defendants sat on the tailgate of the rented station wagon. When the warrant arrived, Barney and other officers now assembled on the scene searched the vehicle and found approximately one pound of crack cocaine and a loaded firearm. Barney later smelled the cocaine in court and testified that it smelled the same as the odor emanating from the vehicle on the day of the search.

After the cocaine was discovered, Defendants were handcuffed and given their Miranda warnings. Barney then offered a deal to Defendants: if they would make a controlled delivery of the cocaine, the police would work with them to reduce the charge to a misdemeanor. Defendants were then transported to the Sevier County Jail in Richfield, Utah, and booked. During the booking process, Barney again offered a deal to Defendants. While at the jail, McKneely, despite a posted warning that all phone calls may be monitored or recorded, made a telephone call which was recorded.

During the course of June 15, Barney had several conversations with David A. Paull, agent for the Drug Enforcement Agency. Barney and Paull were attempting to coordinate prosecution efforts. Late in the afternoon of the fifteenth, Paull informed Barney that he would drive to Richfield the following day to transport Defendants to Salt Lake City for prosecution. For some unexplained reason, Barney, having full knowledge that Paull would be transporting Defendants to Salt Lake City, arrived at the jail the morning of the sixteenth at 6:00 A.M., loaded Defendants into his patrol car, and, ostensibly because the sheriff's department was shorthanded, began to transport Defendants to Salt Lake City. After having travelled a short distance, Barney again offered a deal to Defendants. This time, Akines and Ellis agreed. Barney then returned to Richfield, where Defendants were given Miranda warnings and interrogated by the county attorney. Later the same day, Paull arrived from Salt Lake. He also interrogated defendants after giving them Miranda warnings. Later that day, Paull transported Defendants to Salt Lake City, where they were indicted. They have been held in custody from that time until the present.

II. DISCUSSION

The court will first address Defendants' Motion to Suppress Evidence and will follow with a discussion of their Motion to Suppress Statements.

A. Motion to Suppress Evidence

Defendants seek to suppress evidence of the government's seizure of the cocaine and the handgun. In support of their motions, Defendants advance the following arguments: (1) that they have standing to contest the search of the vehicle; (2) that the traffic stop was pretextual in violation of their Fourth Amendment rights; (3) that Barney did not have reasonable suspicion to justify detaining them for two hours; (4) that they did not consent to the search; and (5) that the search warrant is not supported by probable cause. These arguments track the analysis the Tenth Circuit has set forth for determining the validity of a vehicle stop. See United States v. Werking, 915 F.2d 1404 (10th Cir.1990).

1. Standing — The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures. Evidence seized during an unreasonable search may be suppressed. While the government has the burden of proving the legality of the evidence obtained, Defendants are obliged to show that they have standing to challenge the search of a vehicle. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The government acknowledges that McKneely, the renter of the vehicle, and Ellis, the driver of the vehicle, have standing to challenge the search, but contends that Akines does not have standing.

Because Fourth...