US v. Reeves

• Decision Date: 09 July 1992
• Docket Number: No. CR-92-124-JLQ.,CR-92-124-JLQ.
• Citation: 798 F. Supp. 1459
• Parties: UNITED STATES of America, Plaintiff, v. Yusuf D. REEVES, Defendant.
• Court: U.S. District Court — District of Washington

798 F. Supp. 1459

UNITED STATES of America, Plaintiff, v. Yusuf D. REEVES, Defendant.

No. CR-92-124-JLQ.

United States District Court, E.D. Washington.

July 9, 1992.

COPYRIGHT MATERIAL OMITTED

Ronald W. Skibbie, Asst. U.S. Atty., Spokane, Wash., for plaintiff.

Michael J. Kennedy, Asst. Federal Defender for Eastern Wash., Spokane, Wash., for defendant.

ORDER DENYING MOTION TO SUPPRESS

QUACKENBUSH, Chief Judge.

BEFORE THE COURT is Defendant's Motion to Suppress (Ct. Rec. 21), heard on June 12, 1992. Assistant United States Attorney Ronald W. Skibbie appeared on behalf of the Government; Defendant was represented by Michael J. Kennedy. Having reviewed the record, heard from counsel, and being fully advised in this matter, this order is intended to memorialize the court's oral ruling.

FACTUAL BACKGROUND

After reviewing the evidence and testimony presented during the June 12, 1992 suppression hearing, the court makes the following factual findings:

On or about November 11, 1991, United States Border Patrol Officer Paul K. Erni was driving east on I-90 just outside of Medical Lake, Washington. Officer Erni was in uniform and driving a marked United States Border Patrol unit. His vehicle did not have overhead lights, but did have large United States Border Patrol emblems on the side doors. Officer Erni was on duty and patrolling for illegal aliens along the I-90 corridor when he noticed a grey Chevrolet Citation being driven by the Defendant, Yusuf D. Reeves, a black male. Officer Erni testified that the Defendant was doing nothing illegal. However, as he was passing the Defendant, Officer Erni glanced sideways towards the Defendant's vehicle and noticed that he was wearing a shower cap and talking on a cellular phone. This grabbed the officer's attention. Consequently, Officer Erni pulled in behind the Defendant and began to follow him. Officer Erni stated that, in his experience, drug dealers often use beepers and/or cellular phones to conduct their business, and I-90 is a common drug courier route. Officer Erni also suspected that the Defendant had gang affiliations.

While he was trailing the Defendant, Officer Erni ran a license plate check on the Defendant's vehicle. This check revealed that the vehicle had not been reported stolen, nor were there any outstanding warrants issued for the registered owner. It is undisputed that Officer Erni did not have probable cause to stop the Defendant at this point, but the officer's suspicion persisted so he continued to follow the Defendant's vehicle. As he was observing the Defendant, Officer Erni noticed that the Defendant's speed was increasing to approximately 85 miles per hour. Officer Erni also noticed that the Defendant was glancing at him through his rear-view mirror.

Officer Erni testified that his speedometer maxed out at 85 miles per hour, but in his estimation the Defendant was traveling in excess of 90 miles per hour on the downgrade approaching downtown Spokane.¹ Because the Defendant was greatly exceeding the posted speed limit, he was rapidly approaching and passing other vehicles. According to Officer Erni, this was done by a series of quick, erratic lane changes executed, at times, without proper signalling, and while continuing to talk on a cellular phone with one hand on the wheel. In Officer Erni's opinion, the Defendant could not have had complete control of his vehicle because his speed was exceeding reasonable levels for that day.

As the Defendant reached the more congested areas of Spokane, his speeds decreased somewhat. However, he continued to make lane changes that Officer Erni considered to be evasive. It was not until the Defendant approached the Sprague exit, where I-90 converges from three to two lanes, that the Defendant finally reduced his speed below the posted limit.

While Officer Erni was following the Defendant, he made radio contact with the Washington State Patrol and informed them that he was behind a silver vehicle that had just been traveling at speeds in excess of 90 miles per hour. Officer Erni also described the vehicle and the vehicle's driver. However, Officer Erni did not convey his suspicion that the vehicle's driver might have gang affiliations.

The Defendant exited I-90 on Argonne and proceeded south. Awaiting at the intersection of Argonne and I-90 were two Washington State Patrol units, one driven by Trooper Ladines and the other driven by Trooper Bambino. As the Defendant passed the marked Washington State Patrol units, Officer Erni, who was in direct radio contact with the units, identified the Defendant's vehicle. The troopers proceeded to fall in behind the Defendant, and shortly thereafter Trooper Bambino activated his overhead lights. The Defendant then pulled over and parked his vehicle in a convenience store parking lot. Officer Erni also arrived on the scene to observe and to brief the troopers on his earlier observations.

Trooper Bambino approached the Defendant's vehicle and asked him for his operator's license and vehicle registration. At no time during the events in question did any of the officers draw their weapons. After the Defendant failed to produce a valid driver's license and gave the officers several different derivatives of his name and dates of birth, Trooper Ladines placed him under arrest for reckless driving and for driving without a valid operator's license. The Defendant was then handcuffed, Mirandized, and placed in back of the trooper's patrol car.

The officers observed that the Defendant was wearing a shower cap and was dressed in black clothing, some of which bore the insignia of the Los Angeles Raiders football team. The officers believed that individuals associated with gangs often wore similar clothing.

Looking for weapons, Trooper Ladines and Officer Erni then conducted a visual search of the vehicle's passenger compartment from the exterior of the vehicle. Trooper Ladines then made a search of the front passenger area and the glove box, looking for weapons and identification. Officer Erni also used his canine to "sniff" the atmosphere around the exterior of the Defendant's vehicle. Nothing was discovered during any of these searches; however, the officers continued to feel that the Defendant was concealing something.

As a result, Trooper Ladines brought the Defendant out of his vehicle and unhand-cuffed him. The Defendant was then handed a consent to search form and asked if he would consent to a search of his vehicle. This particular consent form was normally used by Officer Erni for consensual searches of premises, so Officer Erni recorded the vehicle's license plate number in the upper left-hand corner in order to signify that consent was being given to search the Defendant's vehicle. The Defendant read the consent form and was also orally informed by Officer Erni that he had a right to refuse the request to search. The Defendant then signed the consent to search form.

After the consent form was signed, Officer Erni had his canine conduct an interior search of the passenger compartment of the Defendant's vehicle. Officer Erni noticed no change in the canine's behavior that would indicate the presence of secreted narcotics or contraband in the vehicle.

The Defendant was then asked if the officers could search the hatchback portion of his vehicle. The Defendant orally consented to a search of the hatchback. After the officers opened the hatchback, they discovered two sport bags and a black briefcase. These items were presented to Officer Erni's canine. When the canine approached the briefcase, he did scratch and nip at it, but Officer Erni interpreted it as a false alert. A subsequent search of the sports bags revealed no contraband. The briefcase was locked and when asked about it, the Defendant stated that it was not his, it was his cousin's. The officers then asked if they could search the briefcase. According to Officer Erni, the Defendant did not seem to mind if they searched the briefcase, but he acknowledged that the Defendant did not affirmatively consent to the search. Trooper Ladines initially testified that the Defendant refused the officers' request to search the briefcase; however, Trooper Ladines immediately retracted that answer and stated that the Defendant said "go ahead."

Apparently, Officer Erni had a briefcase similar to the one in the Defendant's vehicle. Officer Erni was able to open the locked briefcase by turning the combination on the lock to "000." There was no evidence presented that the Defendant provided Officer Erni with the "000" combination. When the briefcase was opened, the officers observed a loaded .38 Special, a razor blade, and two small white chunks of a substance that later field-tested positive as crack cocaine. The Defendant's driver's license was also in the briefcase.

The Defendant, a previously-convicted felon, was indicted on April 21, 1992 for being a felon in possession of a firearm. The Defendant now moves the court for an order suppressing the physical evidence seized and the oral statements given.

DISCUSSION

The Defendant argues that suppression is necessary because his arrest was pretextual and not based on probable cause and, therefore, unconstitutional, in violation of the Fourth Amendment. The Defendant also questions the propriety of the warrantless search of the locked briefcase.

I. The Arrest

It is settled that an arrest may not be used as a pretext to search for evidence. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932). Whether an arrest is a mere pretext to search turns on the motivation or primary purpose of the arresting officers. Williams v. United States, 418 F.2d 159, 161 (9th Cir.1969); United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986). "Courts have found improper motivation where the defendant is arrested for a minor offense so as to allow police to search for evidence for some other unrelated offense for which police lack probable cause...