US v. Pitchford

• Decision Date: 14 October 1988
• Docket Number: No. CR88-034-K.,CR88-034-K.
• Citation: 699 F. Supp. 260
• Parties: UNITED STATES of America, Plaintiff, v. Barry Lee PITCHFORD and Charles Thomas Walraven, Defendants.
• Court: U.S. District Court — District of Wyoming

699 F. Supp. 260

UNITED STATES of America, Plaintiff, v. Barry Lee PITCHFORD and Charles Thomas Walraven, Defendants.

No. CR88-034-K.

United States District Court, D. Wyoming.

October 14, 1988.

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

George W. Borges, San Francisco, Cal., and Glenn A. Duncan, Laramie, Wyo., for defendant Pitchford.

Kenneth M. Mogill, Detroit, Mich. and Wallace Stock, Cheyenne, Wyo., for defendant Walraven.

ORDER DENYING DEFENDANTS' MOTION TO SUPPRESS (WITH FINDINGS)

KERR, District Judge.

The above-entitled matter having come on regularly for hearing before the Court on defendants' motion to suppress; plaintiff appearing by and through its attorney, Lisa E. Leschuck, Assistant United States Attorney for the District of Wyoming; defendant Pitchford appearing by and through his attorneys, George W. Borges and Glenn A. Duncan; and defendant Walraven appearing by and through his attorneys, Kenneth M. Mogill and Wallace L. Stock; and the Court having heard the arguments of counsel, the testimony of the witnesses, and having fully and carefully reviewed and considered the motion and all matters pertinent thereto, and being fully advised in the premises, FINDS:

The evidence which defendants seek to have suppressed, namely approximately two kilos of cocaine along with a roach clip and some marijuana, was seized following a traffic stop. According to the Government, the chain of events which led to the seizure at issue did not place in jeopardy defendants' Fourth Amendment protections. Defendants contend that the initial stop was unreasonable and unlawful, meriting suppression of all evidence seized as the fruits of the illegal detention. Not only, say defendants, were their Fourth Amendment rights violated but also their fundamental right to unfettered interstate travel guaranteed by the Privileges and Immunities Clause was needlessly interfered with through a policy of holding "out-of-staters under closer scrutiny," Tr. at 22, by calling in out-of-state plates for purposes of verification. Before addressing the merits of the various claims, the Court sets forth the pertinent facts.

While on patrol on the morning of March 26, 1988, Deputy Robert Debree of the Albany County Sheriff's Department observed two men in a 1983 brown Cadillac Fleetwood Sedan bearing Tennessee license plates pass his patrol car on Interstate 80 east (I-80) near the Grand Avenue entrance for the freeway, east of Laramie, Wyoming. Debree decided to run a license check through the FBI's National Crime Information Center (NCIC) computer network, a practice resorted to to determine if a vehicle might be wanted or stolen, and a registration check. The NCIC check came back negative.

A problem surfaced with the registration check however. The license plate number Debree transmitted to the dispatcher was CYR 490. When the dispatcher repeated the plate number back to Debree for confirmation, the number she relayed was CYR 409. According to his testimony at the suppression hearing, Debree did not recollect hearing the dispatcher because he was concentrating on the subject vehicle. Tr. at 48. As the transcript of the radio communications (R.Tr.) at the time shows, the dispatcher was to relay the incorrect plate number two more times over a three and a half minute period without correction from Debree. R.Tr. at 1, 2. See also Tr. at 48. Consequently, the plate number the dispatcher ran turned out to belong to a 1988 grey Toyota belonging to a woman in Tennessee.

At that time, Debree was approximately six car lengths ahead of the Cadillac and pulled off to the emergency lane, waiting for it to pass. When the Cadillac went by, DeBree activated his overhead emergency lights in pursuit. He called for backup, stating that the two men were acting "kinda' suspicious." R.Tr. at 1. Seeing that the car was not responding to his emergency lights, Debree gave two blasts of his siren. After traveling approximately a mile and a half to two miles from the point Debree's emergency lights were activated, the Cadillac finally came to a stop.

Debree walked to the driver's side and informed the driver, defendant Pitchford, that he was pulled over due to the registration information he received showing the plate number as belonging to a Toyota. The officer determined that the vehicle's other occupant, defendant Walraven, was the actual owner of the Cadillac and asked to see their driver's licenses and car registration, whereupon they produced the same.

A subsequent NCIC check of the two individuals revealed that neither had out-standing arrest warrants. The piece of paper representing the registration puzzled Debree because the words "Application for Registration" appeared on it, and the type of vehicle and description were handwritten in the blanks rather than typewritten as the officer had been accustomed to. Debree proceeded to call in the license plate number one more time. Again the dispatcher repeated back CYR 409. This time, however, Debree corrected her with the end result being that the plate number correctly belonged to the subject Cadillac.

Within a few minutes after Debree's call for assistance, Sergeant Lance Robinson of the Sheriff's Department arrived. Before Robinson's arrival, Debree had communicated to him that the occupants of the car somewhat matched a "drug courier" profile and that it was his intention to wait for Robinson before asking the individuals for permission to search the trunk. R.Tr. at 3. With Robinson there, Debree reapproached the driver's side of the Cadillac to return the driver's licenses and registration. He asked the defendants if they were carrying any illegal narcotics or firearms to which both replied in the negative.

Debree then asked them if it was all right if he searched the vehicle. According to the officer's testimony, defendant Pitchford consented and almost immediately, in response to Debree's request to search the trunk first, defendant Walraven consented as well, reaching into the glove compartment to activate the trunk release. Tr. at 51. Pitchford got out of the car and raised the trunk lid the rest of the way, whereupon he stood by Robinson on the rear right-hand side of the vehicle while Debree commenced his search.

In addition to some suitcases, Debree spotted a blue nylon satchel in the upper left-hand corner of the trunk. After unzipping the satchel, he found several crumpled grocery sacks which he moved to the side, exposing two large packages wrapped with silver-colored duct tape. Based upon his drug training, Debree correctly concluded that each package contained a kilo of cocaine.

Debree radioed for more help after Pitchford denied knowledge of the contents of the packages. He drew his weapon and ordered Walraven out of the car. Both men were arrested on suspicion of narcotics trafficking and, with the arrival of more officers, were transported to the Albany County Sheriff's Office where they were Mirandized. A subsequent search of Walraven produced a small roach clip and smoke-colored glass vial containing a white powdery substance. A search of the car pursuant to a warrant was later conducted and a brown suitcase containing cocaine and marijuana was found.

Defendants contend that the initial stop was unlawful since they had committed no traffic offense to speak of and were not wanted for any crimes. Rather, they maintain, the law enforcement officer's decision to seek verification of their license plate solely because it was out-of-state as well as his subsequent stop of their vehicle based on a mistaken communication represented a constitutionally impermissible interference with their right to freely travel and be placed on an equal footing with Wyoming citizens.

If defendants are correct in their position on the initial stop, then the conclusion which would logically flow, and one which defendants espouse, is that any fruits of the search which followed this stop are inadmissible as evidence against them due to the initial taint. If, however, the initial stop is untainted and lawful, attention must then turn on whether, given the totality of the circumstances, one of the generally accepted exceptions to the warrant requirement is present to shelter the evidence from a suppression challenge.

The decision in Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 139, 1401, 59 L.Ed.2d 660 (1979), firmly entrenched in the law a standard which requires that before a law enforcement officer can stop an automobile and detain its driver in order to check a driver's license or verify the registration, the officer must have "articulable and reasonable suspicion" that the stop will reveal the existence of a license or registration problem or that the occupants and/or the car are wanted in connection with a crime. A stop and detention wherein this standard is lacking raises Fourth Amendment concerns. The Prouse standard, while somewhat elusive of definition, requires a review of what Chief Justice Burger termed as the "whole picture." United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). In the words of the Chief Justice:

Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity....

The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First the assessment must be based upon all of the circumstances. The analysis proceeds with various objective

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