original - Supreme Court

ORIGINAL
IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Case No. 2008-1781
Plaintiff-Appellee,
On Appeal from the Greene
County Court of Appeals
Second Appellate District
V.
ANTWAUN SMITH,
C.A. Case No. 07-CA-47
Defendant-Appellant.
REPLY BRIEF OF APPELLANT ANTWAUN SMITH
OFFICE OF THE OHIO PUBLIC DEFENDER
CRAIG M. JAQUITH 0052997
Assistant State Public Defender
250 East Broad Street - Suite 1400
Columbus, Ohio 43215
(614) 466-5394
(614) 752-5167 - fax
craig.jNuith@gpd.ohio.gov
STEPHEN K. HALLER 0009172
Greene County Prosecutor
ELIZABETH ELLIS 0074332
Greene County Assistant Prosecutor
(COUNSEL OF RECORD)
61 Greene Street, Second Floor
Xenia, Ohio 45385
(937) 562-5250
(937) 562-5107 - fax
COUNSEL FOR ANTWAUN SMITH
COUNSEL FOR THE STATE OF OHIO
^
^^^« ^ ^ ^^^^^
CLERK ^^ ^^URT
SUPREM^ GQUR"f 0^ OHIO
TABLE OF CONTENTS
Paee No.
TABLE OF AUTHORITIES ........................ .................................................................................. ii
STATEMENT OF THE CASE AND FACTS ................................................................................1
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ..........................................................1
Proposition of Law: When law enforcement personnel lawfully seize a
suspect's cellular telephone incident to arrest, the Fourth Amendment
prohibits warrantless search of the contents of the telephone ............................................1
CONCLUSION ................................................................................................................................6
CERTIFICATE OF SERVICE ........................................................................................................7
APPENDIX
United States v. De La Torre, N.D. Okla. Case No. 09-CR-0037-CVE,
2009 U.S. Dist. LEXIS 33437 .................................................................................... A-1
United States v. Rouse, S.D. Georgia Case No. CR-409-004, 2009 U.S.
Dist. LEXIS 45774 ..................................................................................................... A-9
United States v. Shigemura, W.D. Okla. Case No. CR-09-91-C, 2009 U.S.
Dist. LEXIS 44251 ................................................................................................... A-17
i
TABLE OF AUTHORITIES
Page No.
CASES:
Arizona v. Gant (2009), 556 U.S. _, 129 S. Ct. 1710 ..........................................:...........2
Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824 ..................................................5
Chimel v. California (1969), 395 U.S. 752, 89 S. Ct. 2034 .................................................4
City of Middletown v. Flinchum (2002), 95 Ohio St. 3d 43 .................................................4
Johnson v. United States (1948), 333 U.S. 10, 68 S. Ct. 367 ..............................................2
United States v. De La Torre, N.D. Okla. Case No. 09-CR-0037-CVE, 2009 U.S. Dist.
LEXIS 33437 ................................................................................................................. 5
United States v. Park (N.D. Cal. 2007), Case No. CR 05-375 SI, 2007 U.S. Dist. LEXIS
40596 ....................................... .... ................................................................................... 3
United States v. Rouse, S.D. Georgia Case No. CR-409-004, 2009 U.S.
Dist. LEXIS 45774 ..........................................................................................................5
United States v. Shigemura, W.D. Okla Case No. CR-09-91-C, 2009 U.S. Dist. LEXIS
44251 ..........................:....................................................................................................5
State v. Smith, Greene County App. No. 07-CA-47, 2008-Ohio-3717 ................................5
Welsh v. Wisconsin ( 1984), 466 U.S. at 749-750, 104 S. Ct. 2091 :.................................... 4
CONSTITUTIONAL PROVISION:
Fourth Amendment, United States Constitution ........................................................ passim
ii
STATEMENT OF THE CASE AND FACTS
Mr. Smith relies upon the Statement of the Case and Facts contained in his merit brief.
ARGUMENT IN SUPPORT OF PROPOSITION OF LAW
PROPOSITION OF LAW
When law enforcement personnel lawfully seize a suspect's
cellular telephone incident to arrest, the Fourth Amendment
prohibits warrantless search of the contents of the telephone.
A. Introduction
The State offers several unsatisfactory justifications regarding the constitutionality of the
warrantless search that occurred here. Those justifications include a flawed analogy (a modem
cellular telephone is compared to a simple closed container), an exigent-circumstances argument
that is not supported by the testimony of the investigating officers, and an implicit attempt to
expand both the substantive and temporal scopes of lawful searches made incident to arrest. In
addition to the specific reply arguments made below, Mr. Smith would offer as a more general
preface the following characterization of the Fourth Amendment:
The point of the Fourth Amendment, which often is not grasped by zealous
officers, is not that it denies law enforcement the support of the usual inferences
which reasonable men draw from evidence. Its protection consists in requiring
that those inferences be drawn by a neutral and detached magistrate instead of
being judged by the officer engaged in the often competitive enterprise of
ferreting out crime. Any assumption that evidence sufficient to support a
magistrate's disinterested determination to issue a search warrant will justify the
officers in making a search without a warrant would reduce the Amendment to a
nullity and leave the people's homes secure only in the discretion of police
officers. Crime, even in the privacy of one's own quarters, is, of course, of grave
concern to society, and the law allows such crime to be reached on proper
showing. The right of officers to thrust themselves into a home is also a grave
concem, not only to the individual but to a society which chooses to dwell in
reasonable security and freedom from surveillance. When the right of privacy
must reasonably yield to the right of search is, as a rule, to be decided by a
judicial officer, not by a policeman or government enforcement agent.
1
Johnson v. United States (1948), 333 U.S. 10, 13-14, 68 S. Ct. 367. These principles, applied in
Johnson to the warrantless search of a residence, are equally applicable here, as there has been
no dispute that Mr. Smith had a reasonable expectation of privacy with respect to the contents of
his cell phone.
The State's proposed approach to warrantless cell phone searches potentially impacts
virtually every adult resident of Ohio, and would effectively render the Fourth Amendment a
nullity with respect to any type of personal data storage device. Simply put, the State would
have this Court suspend the Fourth Amendment after any arrest that occurs when the arrestee is
in possession of such a device. A result that would have such incredibly wide-reaching
implications must have compelling justification, and Mr. Smith respectfully submits that the
reasons put forth by the State are far from compelling.
B. The closed-container analogy is inapt.
The State claims that Mr. Smith's cell phone is analogous to a "closed container," and
therefore the search that occurred here is indistinguishable from the constitutional wallet and
purse searches that may accompany any arrest. (State's Merit Brief, p. 8). This argument is,
quite simply, flawed on its face. It is illogical and disingenuous to blithely equate a digital
storage device with a physical object capable of holding other physical objects. Such a strained
comparison should not be the basis for justifying the practice of executing warrantless searches
of data storage devices used by over 90% of the state's populace, merely because an individual
has had the misfortune of being arrested for any reason.
But equally troubling, if not more troubling, are the ultimate implications of the State's
approach. If, as the State claims, there is no meaningful difference between searching the digital
storage device at issue here-which happens to be a cell phone-and searching a wallet or purse,
2
then there is no basis for preventing the same argument to be made about a laptop computer that
is in the possession of an arrestee. In terms of the type of information that can be stored on any
digital storage device, of most relevance to law enforcement would certainly be photographs and
written messages. And with respect to those types of files, the only difference between the type
of device searched here and a laptop computer is the sheer volume of such materials that may be
stored on each. If the State's position-that the device at issue here is merely a closed
container-is adopted with respect to warrantless cell phone searches, then wan-antless laptop
computer searches would not be prohibited subsequent to such a ruling. This is because there is
no meaningful dividing line between the types of information, of the type relevant to most
criminal cases, that can be stored on a modem cell phone and on a personal computer. But, to
state the obvious, no authority can be summoned for the proposition that warrantless computer
searches are or should be tolerated, absent the rare case where truly exigent circumstances can be
convincingly demonstrated by the government.
The State notes that the phone involved here was not as powerful as an iPhone or a
Blackberry. That is of no consequence, as it was sophisticated enough to store photographs and
written messages, in which a reasonable expectation of privacy existed. Because "modern
cellular phones have the capacity for storing immense amounts of private information," this
Court should follow the well-reasoned, conservative approach to Fourth-Amendment
interpretation taken under indistinguishable circumstances in United States v. Park (N.D. Cal.),
Case No. CR 05-375 SI, 2007 U.S. Dist. LEXIS 40596, *21, and adopted by the dissenting
opinion below.
3
C. No exigent circumstances existed.
The State further argues that the search had to proceed without a warrant because
evidence might have otherwise been lost. (State's Merit Brief, p. 11-14). This argument fails
factually and legally. Factually, there was no testimony at the suppression hearing that the
detectives who searched Mr. Smith's cell phone would have pursued a warrant but for a concem
about potentially lost evidence. The State must have a basis other than conjecture for arguing
exigent circumstances when conducting a warrantless search. See, e.g., City of Middletown v.
Flinchum (2002), 95 Ohio St. 3d 43, quoting Welsh v. Wisconsin (1984), 466 U.S. at 749-750,
104 S. Ct. 2091 ("exceptions to the warrant requirement are `few in number and carefully
delineated' * * * and [] police bear a heavy burden when attempting to demonstrate an urgent
need that might justify warrantless searches or arrests"). It seems likely that no such testimony
was offered because the detectives were well aware that call records could be obtained from the
service provider, if they could not be retrieved from the phone itself.
And from a more abstract legal perspective, relevant to possible future cases involving a
claim of exigency that is not purely speculative, the State's position fares no better. The United
States Supreme Court recently had occasion to revisit the proper scope of searches made incident
to arrest. In Arizona v. Gant-after noting Katz's holding that warrantless searches are per se
unreasonable, subject only to specifically established exceptions-the Court reiterated that
searches incident to arrest are reasonable "in order to remove any weapons [the
arrestee] might seek to use" and "in order to prevent [the] concealment or
destruction" of evidence (emphasis added)). If there is no possibility that an
arrestee could reach into the area that law enforcement officers seek to search,
both justifications for the search-incident-to-arrest exception are absent and the
rule does not apply.
Arizona v Gant (2009), 556 U.S. _, 129 S. Ct. 1710, 1716, quoting Chimel v. California
(1969), 395 U.S. 752, 763, 89 S. Ct. 2034. Mr. Smith does not contest the search of his person,
4
or the taking of his cell phone into inventory. But once a cell phone or other digital storage
device is in the possession of the government, a suspect has no ability to conceal or destroy
evidence contained therein. Thus, "both justifications for the search-incident-to-arrest exception
are absent and the rule does not apply." Id.
The police need only turn off the device, and obtain a search warrant to examine the files
or other information stored on the device that they have probable cause to believe may be
evidence of crimes committed by the person in possession of the device. Obtaining a warrant to
search the contents of a cell phone is no more burdensome than obtaining the same to search a
personal computer, as can be demonstrated by reference to any number of recent cases where
cell-phone warrants have been issued and executed. See, e.g., United States v. De La Torre,
N.D. Okla. Case No. 09-CR-0037-CVE, 2009 U.S. Dist. LEXIS 33437, at *12; United States v.
Rouse, S.D. Georgia Case No. CR-409-004, 2009 U.S. Dist. LEXIS 45774, at *24-25; United
States v. Shigemura, W.D. Okla. Case No. CR-09-91-C, 2009 U.S. Dist. LEXIS 44251, at *10.
D. The constitutional error was not harmless beyond a reasonable
doubt.
If a Fourth Amendment violation is found here, the judgment of conviction must be
reversed unless this Court "is able to declare a belief that the error was harmless beyond a
reasonable doubt." Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824. The State
contends that the evidence of Mr. Smith's guilt is "overwhelming," and even if there was
improper admission of evidence derived from the warrantless cell-phone search, no prejudice
resulted. (State's Merit Brief, p. 7). But the dissent below noted that the case against W. Smith
was "circumstantial," not overwhelming. State v. Smith, Greene County App. No. 07-CA-47,
2008-Ohio-3717, at ¶ 66. Further, the key State witness against Mr. Smith was drunk on the
night of the offense, and had consumed approximately $70,000 worth of crack in the year prior
5
thereto. (Trial Tr. 41, 67-68.) The cell phone records served as crucial corroboration of this
witness' testimony, thus the constitutional error that occurred here was not harmless beyond a
reasonable doubt.
CONCLUSION
For the reasons stated in his Merit Brief and in this Reply Brief, Mr. Smith asks this
Court to reverse the court of appeals' judgment affirming his convictions, and to remand his case
for a new trial.
Respectfully submitted,
OFFICE OF THE OHIO PUBLIC DEFENDER
CRAIG M. JAQUITH OO55'997
Assistant State Public Defender
250 East Broad Street - Suite 1400
Columbus, Ohio 43215
(614) 466-5394
(614) 752-5167 - fax
craig.jaquith@opd.ohio.gov
COUNSEL FOR ANTWAUN SMITH
6
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Reply Brief of Appellant Antwaun Smith has
been sent by regular U.S. mail, postage prepaid to Elizabeth Ellis, Assistant Greene County
Prosecutor, 61 Greene Street, Second Floor, Xenia, Ohio 45385, Counsel for Appellee; Kathleen
Tatarsky, Assistant Stark County Prosecutor, 110 Central Plaza, South - Suite 510, Canton, Ohio
44702, Counsel for Amicus Curiae OPAA; and Jeffrey Gamso, 4506 Chester Avenue, Cleveland,
Ohio 44103, Counsel for Amicus Curiae ACLU of Ohio, this 22d day of June, 2009.
CRAIG M. JAQOITH Of352997
Assistant State Public Defender
COUNSEL FOR ANTWAUN SMITH
302392
7
IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Case No. 2008-1781
Plaintiff-Appellee,
On Appeal from the Greene
County Court of Appeals
Second Appellate District
V.
ANTWAUN SMITH,
C.A. Case No. 07-CA-47
Defendant-Appellant.
APPENDIX TO
REPLY BRIEF OF APPELLANT ANTWAUN SMITH
Page 1
2009 U.S. Dist. LEXIS 33437, *
UNITED STATES OF AMERICA, Plaintiff, v. GUADALUPE BERNARDO DE LA
TORRE, a/k/a Gato, a/k/a Guadalupe Bernardo Delatora, Defendant.
Case No. 09-CR-0037-CVE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
OKLAHOMA
2009 U.S. Dist. LEXIS 33437
April 20, 2009, Decided
April 20, 2009, Filed
COUNSEL: [*1] For Guadalupe Bernardo De la Torre,
[Originally Indicted as Guadalupe Bernardo Delatora
then corrected by interlineation to reflect true name of
Guadalupe Bemardo De la Torre], also known as Guadalupe Bernardo De La Torre De La Torre, also known as
Gato - Guadalupe Bemardo Delatora, Defendant (1):
Stephen J Knorr, LEAD ATTORNEY, TULSA, OK.
For USA, Plaintiff: Janet Sue Reincke, LEAD ATTORNEY, United States Attorney's Office (Tulsa), TULSA,
OK.
JUDGES: CLAIRE V. EAGAN, UNITED STATES
DISTRICT COURT CHIEF JUDGE.
OPINION BY: CLAIRE V. EAGAN
OPINION
OPINION AND ORDER
Now before the Court is Defendant's Motion to Suppress Evidence (Dkt. # 14). Defendant asserts that he has
a limited understanding of the English language and,
while he understood simple questions asked by police
officers, he did not have a sufficient grasp of English to
voluntarily consent to a search of his bedroom or to
waive his Miranda rights.
1.
Tulsa Police Department (TPD) Officer Randy
Mackenzie works in the Special Investigation Unit, Narcotics Division (SID Narcotics Division), of TPD and, on
February 5, 2009, he received a tip from a confidential
informant that unknown Hispanic males were selling
cocaine from an apartment located at 7460 E. 49th [*2]
Street, Apartrnent # 4, Tulsa, Oklahoma. Mackenzie and
two other members of the SID Narcotics Division, TPD
Officers Jeff Eddings and David Brice, drove to the
apartment in Brice's undercover vehicle. Around 9:30
p.m, Mackenzie and Eddings approached the front door
of the apartment to initiate a consensual encounter, also
known as a quot;knock and talk,quot; and Brice waited
near the back door to prevent the occupants of the apartment from escaping or disposing of evidence. Each officer wore plain clothes and carried a concealed fsearm
Each officer testified that they understand a few simple
phrases in Spanish, but none of them speaks or understands Spanish well. As they approached the apartment,
Mackenzie and Eddings noticed that lights were on inside the apartment and they heard people talking.
Mackenzie knocked on the door and a male, later identified as Lorenzo Miranda-Villalobos,' answered the door.
Both officers showed Mirando-Villalobos their badges.
Mackenzie asked Miranda-Villalobos if he spoke good
English, and he replied that he did. Mackenzie asked
Miranda-Villalobos if the officers could enter the apartment and he replied quot;Yeah, come in.quot; He opened
the door further and allowed [*3] the officers to enter.
1 At the time, police found photo identification
identifying Miranda-Villalobos as Lorenzo
Chavez-Alonzo and, defendant referred to
Miranda-Villalobos as quot;Chavezquot;
throughout his motion to suppress and at the suppression hearing. In his own criminal case,
Miranda-Villalobos has informed the presiding
judge that his true and correct name is Lorenzo
Miranda-Villalobos, United States v. Lorenzo
Miranda- Villalobos, 09-CR-36-TCK, 2009 U.S.
Dist. LEXIS 3/814, Dkt. # 16, and the Court will
refer to him as quot;Miranda-Villalobosquot; in
this opinion and order.
When the officers entered the apartment, they observed three other Hispanic males in the living room.
The men were identified as Guadalupe Bernardo De La
Torre, Gilberto Jimenez, and Joel Deluna. Mackenzie
asked the men who lived in the apartment, and De La
Torre responded that quot;Me and Lorenzo do.quot;
Mackenzie asked the men if any of them spoke English,
and De La Toae stated that he and Miranda-Villalobos
spoke English. Mackenzie leamed that a woman named
Page 2
2009 U.S. Dist. LEXIS 33437, *
quot;Saigequot; was in a bedroom and he walked to the
northeast bedroom in the apartment to make contact with
her. The woman identified herself as Saige Bowman and
she left the bedroom to sit with the four [*4] men in the
living room. ' Due to the number of people in the apartment, Mackenzie asked Brice to enter the apartment for
officer safety.
2 Bowman initially gave police a false name,
because she had outstanding warrants and believed that she would be arrested if she gave her
correct name. She subsequently informed police
of her correct name.
Mackenzie asked Miranda-Villalobos if he would
speak with Mackenzie, and the two men stepped into the
kitchen. Mackenzie told Miranda-Villalobos that he had
received information that cocaine was being sold from
the apartment. Mackenzie asked Miranda-Villalobos
which bedroom was his, and Miranda-Villalobos pointed
to the northwest bedroom, although he claimed he slept
on the couch. Mackenzie requested permission to search
the apartment for cocaine, and Miranda-Villalobos said
quot;Yeah, we don't sell cocaine.quot; Mackenzie took
Miranda-Villalobos back to the living room and asked
De La Ton'e to go to the kitchen with him. Mackenzie
and De La Torre went to the kitchen and Mackenzie advised De La Torre that he had received a tip that cocaine
was being sold from the apartment. De La Torre said
quot;No,quot; iniplying that no one sold cocaine from the
apartment, and Mackenzie [*5] asked De La Tone if he
could search the apartment for cocaine. De La Torre said
quot;Sure, we don't do that.quot; Mackenzie asked De La
Torre which bedroom was his, and he pointed to the
northeast bedroom. Mackenzie escorted De La Torre
back to the living room. At the suppression hearing,
Mackenzie acknowledged that the did not use the word
quot;consentquot; when asking Miranda-Villalobos, or
De La Torre for permission to search, but he believed
that the responses to his questions indicated that both
men understood his questions and consented to a search
of the apartment.
Brice searched the northwest bedroom and
Mackenzie searched the northeast bedroom. While the
search was taking place, Eddings stayed with the four
men and Bowman in the living room. In the northeast
bedroom, police seized a shoe box containing $ 1,575 in
United States currency, eight baggies containing white
powder, a functional digital scale with white powder
residue, empty baggies, and a cell phone with the name
quot;Gatoquot; on it. In that bedroom, Mackenzie found
men's clothing and numerous pictures of De La Torre.
The white powder tested positive for cocaine. The total
weight of the cocaine seized from the northeast bedroom
was 1256.3 [*6] grams. In the northwest bedroom, po-
lice searched an unlocked safe, which contained: $ 2,400
in United States currency, three baggies containing white
powder, a magazine loaded semi-automatic pistol, multiple baggies, a functional digital scale, an enipty holster,
and a badge. Police also found a box of sandwich bags, a
key to the safe, and a speed loader with five rounds of
ammunition. The white powder tested positive for cocaine. The total weight of the cocaine seized from the
northwest bedroom was 64.41 grams.
Eddings testified that he engaged in casual conversation with De La Toae, in English, while the other officers were searching the bedrooms. Eddings asked De La
Torre if he lived in the apartment, and De La Torre stood
and pointed to the northeast bedroom. Eddings testified
that he attempted to speak to Deluna and Jimenez, but
they would not respond to his questions and he did not
believe they understood English. Eddings asked Bowman
if she spoke Spanish, and she indicated that she spoke
some Spanish. At the suppression hearing, Bowman confnmed that she speaks and understands a little Spanish,
but her knowledge of the Spanish language is quite limited and she is not fluent.
After [*7] completing the search, Mackenzie took
Miranda-Villalobos into the kitchen and read •MirandaVillalobos his Miranda rights in English from a card
issued by TPD. Miranda-Villalobos stated that he spoke
English and understood his rights, and he agreed to talk
to Mackenzie. Miranda-Villalobos informed Mackenzie
that he is from Mexico City, Mexico, and he confirmed
that he keeps his possessions in the northwest bedroonr.
He also told Mackenzie that De La Torre is his roommate and De La Torre goes by the nickname
quot;Gato.quot; When Mackenzie asked about the cocaine found in the northwest bedroom, MirandaVillalobos began speaking Spanish and acted as if he did
not understand English. Mackenzie took MirandaVillalobos back to the living room and asked De La
Torre to retum with him to the kitchen. Mackenzie read
De La Tone his Miranda rights from a card. De La Torre
stated that he spoke English and understood the rights
that Mackenzie read to him. De La Torre waived his
Miranda rights and answered Mackenzie's questions. De
La Torre stated that he is from Jalisco, Mexico, and he
occupies the northeast bedroom of the apartment. He
admitted that he uses the nickname quot;Gatoquot; and
the cell phone found [*8] in the northeast bedroom belongs to him. He claimed that he works in construction
and does not sell cocaine, and he was unaware that cocaine was located in the northeast bedroom. De La Torre
never said -- in English or Spanish -- that he didn't understand English. Mackenzie testified that he did not ask
Miranda-Villalobos or De La Toae to sign written
Miranda waivers, because the officers did not have
fonns on their persons or in Brice's vehicle. Each officer
Page 3
2009 U.S. Dist. LEXIS 33437, *
testified that they do not keep official forms in undercover vehicles, because they conduct controlled buys
from these vehicles and the presence of a written waiver
could alert a suspect that a transaction was an undercover
police operation.
Mackenzie escorted De La Torre back to the living
room for a short time and prepared to write an arrest and
booking report. Mackenzie testified he asked De La
Tone to return to the kitchen for a third time, and De La
Torre provided information to Mackenzie to complete
the form, which was introduced at the hearing as Government Exhibit 1. At the suppression hearing, the government introduced as Govemment Exhibit 3 a copy of a
Mexican photo identification for De La Torre, but
Mackenzie testified [*9] that he did not rely on the
photo identification to prepare the. arrest and booking
report. At some time after the search was completed but
before the arrest and booking report was prepared, Brice
claims that he had a conversation with De La Torre in
English. Brice testified that he was looking at a BlackBerry found in the living room and commented that he
could not use most of the functions. De La Torre laughed
and said that he felt the same way. Following completion
of the arrest and booking report, De La Torre was placed
in handcuffs and arrested on a felony charge of trafficking cocaine and a misdemeanor charge of possession of
drug-related paraphemalia.
Except for some limited factual issues that will be
addressed below, the events at the apartment that evening
are not significantly disputed. The key factual issue is De
La Torre's ability to speak and understand English, and
the parties have presented conflicting evidence on this
issue. The government called all three officers on the
scene to testify that De La Torre spoke and understood
English that evening. De La Torre called four witnesses,
and proffered testimony of a fifth witness, indicating that
defendant had a limited knowledge [* 10] of English and
he could understand and respond only to simple questions in English. Terry Lee Boone, Jr. testified that he
knew De La Torre as a helper on a carpet installation
crew for approximately three or four months between
late 2006 and early 2007, and he did not believe that De
La Tone spoke more than rudimentary English. When
Boone needed to conununicate with De La Torre, he
need someone to serve as an interpreter. However, he has
not spoken to De La Torre in two years. Bret Swab, a
criminal defense attomey, testified that he briefly represented De La Torre in state court based on charges
stenuning from the February 5, 2009 search. Swab was
retained by Juanita Alverez to represent De La Torre,
and she informed Swab that De La Torre did not speak
English. Based on Alvarez's statement, Swab did not
attempt to communicate with De La Torre directly in
English. Bowman testified that she has known De La
Torre for about a year and she was not able to speak to
him in English. Bowman stated that De La Torre had
some ability to speak simple phrases in English and he
would indicate by not responding or saying quot;no sequot; if he could not understand her. She claims that police attempted to (*11] speak with De La Torre in English before and during the search, and they became frustrated when De La Torre did not understand or would not
respond to their questions. She also claims that De La
Tone asked for an interpreter and attempted to communicate to police that he did not speak English. Alvarez
testified that De La Torre worked for her as a carpet installation subcontractor for about four months in 2006,
and De La Torre could not communicate with customers
or co-workers in English. She has known De La Torre
for about tbree years and he has often called her to translate or speak on his behalf with English speakers. De La
Torre proffered the testimony of Mark Ogle, a pretrial
services officer for the United States Probation Office.
Ogle would have testified that he was unable to conduct
a pretrial interview of De La Torre in English and he
used an interpreter for the interview.
The govemment relies on the testimony of
Mackenzie, Eddings, and Brice to establish that De La
Torre was able to conununicate in English and understood the questions asked of him. The government also
offered the testimony and written report (Govemment
Exhibit 2) of Special Agent Darrell Withem of the Bureau [*12] of Alcohol, Tobacco, Firearms and Explosives. Withem requested a search warrant for the cell
phone found in the northeast bedroom, and a search warrant was issued by a federal magistrate judge. Withem
found 70 inconilng and 34 outgoing text messages on the
cell phone. In his report, he noted that 14 of the incoming
messages and 10 of the outgoing messages were in English. However, all of the outgoing messages were sent
from 5:22 p.m. to 5:47 p.m. on January 24, 2009, and
each message was outgoing only to a person identified as
quot;Temo.quot; Bowman testified that Temo is a close
friend and she acknowledged that she used De La Torre's
cell phone on occasion.'
3 At the suppression hearing, the Court determined that Bowman used De La Torre's cell
phone to sent text messages to quot;Temoquot; in
English. Based on this fmding, the most reasonable conclusion is that Bowman sent the outgoing
messages in English and the existence of text
messages in English on De La Torres' cell phone
does not show that De La Torre sent or received
text messages in English. Therefore, Withem's
report is not probative of any issue before the
Court.
II.
A-3
Page 4
2009 U.S. Dist. LEXIS 33437, *
Defendant claims that his primary language is Spanish and he does not have [*13] a sufficient knowledge of
English to voluntarily consent to a search when the request for consent was made in English. Defendant may
also be challenging the adnussibility of statements he
ntade to Mackenzie following the search. ' The govemment responds that defendant conversed with police officers in English and affumatively represented that he
could speak English, and he freely and voluntarily consented to a search of his bedroom.
4 Defendant's motion to suppress evidence does
not expressly raise any issue conceming the admissibility of his statements to officers following
the search, although his argument that he did not
voluntarily consent to a search based on his inability to understand English reasonably suggests
that defendant may also intend to challenge the
validity of his Miranda waiver. Although defendant has not directly raised this issue, the voluntariness of defendant's consent and the voluntariness of his Miranda waiver are closely related
and the Court will consider both issues.
A.
The Fourth Amendment ordinarily prohibits the warrantless search of a person's home as per se unreasonable. Georgia v. Randoiph, 547 U.S. 103, 106, 126 S. Ct.
1515, 164 L. Ed. 2d 208 (2006); Schdeckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d
854 (1973). [*14] Police face a higher burden when entering a person's home, because quot;[f]reedom from
intrusion into the home or dwelling is the archetype of
the privacy protection secured by the Fourth Amendment.quot; Payton v. New York, 445 U.S. 573, 587, 100
S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Police can enter a
person's home with consent, even if probable cause does
not exist, provided that the consent is quot;freely and
voluntarilyquot; given. United States v. Cruz-Mendez,
467 F.3d 1260, 1265 (10th Cir. 2006). A court must review the totality of the circumstances to detemrine if
consent was voluntary. United States v. Santurio, 29
F.3d 550, 552 (10th Cir. 1994). The Tenth Circuit has
articulated a two-part test to determine if consent is voluntary:
First, the govemment must proffer
quot;clear and positive testimony that
consent was unequivocal and specific and
freely and intelligently given.quot; Furthermore, the government must prove that
this consent was given without implied or
express duress or coercion.
United States v. Angulo-Fernandez, 53 F.3d 1177, 1180
(10th Cir. 1995). The mere fact that police approached
defendant's apartment to initiate the encounter does not
create an inference that defendant's consent was obtained
through coercion. United States v. Spence, 397 F.3d
1280, 1283 (10th Cir. 2005). [*15] The Tenth Circuit
has identified a list of non-exclusive factors that are often
relevant to determine if consent was voluntary:
the location of the encounter, particularly whether the defendant is quot;in an
open public place wlrere he [is] within the
view of persons other than law enforcement officers;quot; whether the officers
quot;touch or physically restrainquot; the
defendant; whether the officers are uniformed or in plain clothes; whether their
weapons are displayed; the number, demeanor and tone of voice of the officers;
whether and for how long the officers retain the defendant's personal effects such
as tickets or identification; and whether or
not they have specifically quot;advised
defendant at any time that he had the right
to terminate the encounter or refuse consent.quot;
United States v. Zapata, 997 F.2d 751, 756-57 (10th Cir.
1993) (internal citations omitted).
In cases when a defendant claitns that he does not
speak or understand English, any consent given for a
search may be invalid if the language barrier rendered
the defendant's consent involuntary. United States v.
Corral, 899 F.2d 991, 995 (10th Cir. 1990). The Tenth
Circuit has not adopted a bright-line test to determine
when a defendant's [*16] language barrier renders consent involuntary, but simply treats a defendant's grasp of
English as a factor in the voluntariness analysis. United
States v. Zubia-Melendez, 263 F.3d 1155, 1163 (10th
Cir. 2001); United States v. Valdez, 899 F.2d 991, 99495 (10th Cir. 1990). The Fifth Circuit has stated that
quot;in regard to Spanish speaking defendants, where
there is sufficient conversation between the suspect and
law enforcement officers to demonstrate that the suspect
had an adequate understanding of English to fully comprehend the situation, a finding that consent was voluntary may be proper.quot; United States v. Alvarado, 898
F.2d 987, 991 (5th Cir. 1990). The Eleventh Circuit directs district courts to consider whether a defendant was
able to quot;interact intelligently with police.quot;
United States v. Zapata, 180 F.3d 1237, 1242 (11 th Cir.
1999).
The evidence offered by both sides at the suppression raises a credibility issue concerning defendant's abil-
Page 5
2009 U.S. Dist. LEXIS 33437, *
ity to understand Mackenzie's request for consent to
search the apartment. The testimony of the police officers conducting the search shows that defendant affirmatively represented that he and Miranda-Villalobos spoke
English and defendant answered [* 17] questions in English. However, Bowman testified that defendant requested an interpreter and police officers exhibited frustration over defendant's inability to speak English. Defendant has presented the testimony of five witnesses,
including Bowman, who consistently testified that defendant has a limited understanding of English and is not
able to conmtunicate effectively in English. Thus, the
issue before the Court is not whether defendant speaks or
understands any English. The Court is faced with the
issue of whether defendant understood sufficient English
to voluntarily consent to a search of the apartment.
Defendant does not claim that he spoke or understood no English; he claims he is not sufficiently fluent
to consent. Defendant has presented the testimony or
proffer of five witnesses supporting his assertion that he
was not a fluent English speaker, but the evidence is of
varying assistance to the Court in determining if defendant was able to understand Mackenzie's request for consent to search the apartment. The testimony of Boone
and Swab does not assist the Court. Boone testified that
he knew defendant in late 2006 and early 2007, but he
has not seen defendant for at least [*18] two years.
Therefore, Boone's testimony is of limited value in determining defendant's current ability to understand and
speak English. Swab testified that he relied on Alvarez's
statement that defendant did not speak English, and he
made no attempt to communicate with defendant in English. Swab has no personal knowledge of defendant's
ability or inability to speak English, and his testimony
simply serves as a recitation of Alvarez's statements concerning defendant's English skills. To be clear, the Court
is not finding that these witnesses are not credible, only
that their testimony is not helpful in determining defendant's ability to understand a request for consent in English. Defendant also proffered the testimony of Mark
Ogle, a United States Probation Officer, concerning his
inability to conduct a pretrial services interview of defendant in English. Ogle is an officer of the Court and he
is a reliable witness. However, his testimony is of limited
value. The fact that defendant could not or would not
conduct a pretrial interview in English is not probative of
defendant's ability to communicate in English, only that
he did not with Ogle.
The Court finds that Bowman was not a credible
[*19] witness. She admitted that she lied to police about
her name on February 5, 2009, and she has two prior
felony convictions for possessing a controlled substance
with intent to distribute. She testified that she met defendant through a man identified as quot;Temoquot;
Gutierrez, but she was extremely vague about the nature
of her relationship with Temo. Her claim that they were
simply close friends is contradicted by other evidence
presented at the hearing. See Government Exhibit 2,
Bowman's explanation for her presence at the apartment
during the evening of the search is vague, and her version of those events is wholly inconsistent with the testimony of all of the police officers. Bowinan claims that
defendant repeatedly indicated that he could not speak
English or understand the officers' questions, and the
officers became frustrated by defendant's inability to
communicate in English. During the search, Mackenzie,
Eddings, and Brice were separated during much of the
search and it is reasonable to assume that, if Bowman's
testimony were at all credible, some aspect of her testimony would be corroborated by the testimony of one of
the officers. As will be discussed below, the testimony of
the [*20] police officers is remarkably consistent and
each officer testified that an interpreter could have been
brought to the apartment if one were needed. In addition,
much of the information learned by police that evening
could be obtained only by communicating with defendant. Due to Bowman's general lack of credibility and
her completely unsubstantiated version of the search, the
Court does not rely on Bowman's testimony in determining if defendant voluntarily consented to a search.
Defendant also presented the testimony of Alvarez, a
fomier employer of defendant who has maintained a
friendship with defendant after their employment relationship ended. She testified that defendant worked for
her as a subcontractor for about four months over two
years ago, and he returned to Mexico to take care of his
parents when they became ill. When defendant retumed
to the United States, he stayed at her house for a couple
of days until he could fmd somewhere else to stay. Defendant is also the godfather of one of her children. Alvarez testified that defendant has a limited understanding of
English and he often calls her to translate written English
or speak directly to an English speaker on his behalf.
[*21] Alvarez's testimony is not wholly unreliable and
the Court generally found her to be a credible witness.
Alvarez testified that defendant understands and speaks
simple English phrases. However, other evidence suggests that Alvarez may have overstated defendant's limitations with the English language and, given her relationship with defendant, it is reasonable to conclude that she
may have some bias as a witness on defendant's behalf.
The Court does not discount Alvarez's testimony in its
entirety, but will give this testimony limited weight in
determining the voluntariness of defendant's consent.
The Court finds that the testimony of Mackenzie,
Eddings, and Brice is consistent and credible, and there
is no reason to discount their version of the search on
February 5, 2009. Mackenzie and Eddings testified that
Page 6
2009 U.S. Dist. LEXIS 33437, *
Miranda-Villalobos voluntarily admitted them into the
apartnrent and stated that he spoke good English. Once
inside the apartment, defendant informed Mackenzie that
he lived in the apartment with Miranda-Villalobos. When
Mackenzie interviewed defendant in the kitchen for the
first time, defendant sufficiently understood the nature of
Mackenzie's questions and he denied any involvement
[*22] with cocaine trafficking. Defendant was also able
to identify his bedroom in response to Mackenzie's questions. This shows that defendant understood Mackenzie's
initial questions. When requesting consent, Mackenzie
asked a straightforward question without any complex
legal temrinology and defendant's response shows that he
understood what Mackenzie was asking. If Mackenzie
had phrased the question in terms of quot;consent,quot;
this may have been more confusing and created a greater
likelihood that defendant would not understand the question. Instead, Mackenzie simply asked if he could search
the apartment and defendant's response, quot;Sure, we
dont do that [sell cocaine],quot; clearly indicated that he
consented to the search. Mackenzie's second conversation with defendant occurred in the kitchen after the
search. Mackenzie testified that he read defendant a
Miranda warning in English from a card issued by TPD.
Defendant indicated that he understood his rights by stating quot;yes,quot; and agreed to speak with Mackenzie.
In response to questions from Mackenzie, defendant
stated that he was from Jalisco, Mexico and confumed
that he slept in the northeast bedroom. Defendant sufficiently understood Mackenzie's [*23] questions to grasp
that Mackenzie was asking about the cocaine found in
the northeast bedroom and denied that it belonged to
him. The fact that defendant made exculpatory statements in English shows that he understood the implication of Mackenzie's questions and was voluntarily proceeding with the interview in English. Eddings testified
that Jimenez and Deluna did not appear to understand
English and there was no attempt to question them. This
suggests that police would have complied with a request
for an interpreter or ceased any interrogation of defendant if he made any attempt to communicate that he did
not understand English. Aside from Bowman's discredited testimony, there is no evidence that defendant made
any attempt to request an interpreter or alert police officers to a potential language problem, and it was reasonable for police to believe that defendant understood the
questions asked of him.
Other evidence occurring after Mackenzie's initial
request to search confim-is that defendant understood
what was happening and could intelligently interact with
police officers. At the suppression hearing, the governnrent offered the arrest and booking report prepared by
Mackenzie following [*24] the search. Govemcnent Exhibit 1. Some of the information in the report, such as
defendant's eye and hair color and height and weight,
were estiinated by Mackenzie without defendant's assistance. However, the testimony at the suppression hearing
established that defendant did not present his Mexican
photo identification (Government Exhibit 3) to
Mackenzie and Mackenzie could not have filled in defendant's date of birth without assistance from defendant.
The date of birth listed in the arrest and booking report is
accurate and this supports Mackenzie's testimony that
defendant assisted him with the report. Even if defendant
did present the photo identification to Mackenzie, it is
not clear that Mackenzie would have understood the
birth date on the card because it is written in Spanish and
he had difficulty locating it at the suppression hearing.
Government Exhibit 3. In addition, the spelling of defendant's name in the arrest and booking report is different
from that on the photo identification, and this supports
Mackenzie's testimony that he relied on defendant's
statements to complete the report. If Mackenzie had seen
the photo identifrcation at the time he wrote the report, it
is [*25] reasonable to assume that he would have accurately copied the name from the card.
Brice testified that he talked to defendant in English
in the living room after the search was completed. Brice
was looking at a BlackBerry found in the living room,
not the cell phone taken from the northeast bedroom, and
commented that he did not know how to use most of the
functions on cell phones. Defendant laughed and said
that he has the same reaction to cell phones. Brice responded that he knows how to make calls and send text
messages, but he does not know how to do much else
with a cell phone. Defendant stated that he was
quot;pretty much the same way.quot; The Court finds
that Brice's testimony conceming this conversation is
credible, and defendant's conversation with Brice suggests that he had more than limited ability to understand
and converse in English.
Considering the totality of the circumstances, the
Court fmds that defendant understood Mackenzie's request for consent to search the apartment and he voluntarily consented to the search. There is sufficient evidence in the record demonstrating that defendant understood and spoke some English. Most importantly, defendant affirmatively represented [*26] to Mackenzie that
he spoke English and he made appropriate responses to
Mackenzie's questions throughout the encounter. Defendant's responses indicate that he knew a criminal investigation was occurring and he clearly attempted to deny
any knowledge of or responsibility for cocaine found in
the apartment. Defendant made no attempt to request an
interpreter, nor did he give any indication to police that
he did not understand English. The evidence also shows
that defendant assisted Mackenzie in preparing the arrest
and booking report by answering questions in English.
There is no evidence in the record suggesting that police
A-6
Page 7
2009 U.S. Dist. LEXIS 33437, *
officers threatened defendant or engaged in any coercive
behavior. The Court finds, based on the totality of the
circumstances, that defendant understood Mackenzie's
request for consent to search the apartment and defendant's motion to suppress evidence should be denied.
v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996). The
Tenth Circuit has identified five factors that should be
considered to determine whether a Miranda waiver was
voluntary:
(1) the age, intelligence, and education
of the defendant; (2) the length of [any]
detention; (3) the length and nature of the
questioning; (4) whether the defendant
was advised of [*29] [his or] her constitutional rights; and (5) whether the defendant was subjected to physical punishment.quot;
B.
Although defendant's motion to suppress evidence
does not specifically raise any issue concerning the admissibility of statements, this issue should be considered
due to the nature of defendant's argument and the evidence presented at the suppression hearing. At the suppression hearing, defense [*27] counsel asked witnesses
some questions going to defendant's ability to understand
a Miranda waming, and it is reasonable to assume that
defendant intends to challenge the admissibility of any
statements he made to Mackenzie in addition to the voluntariness of his consent. Therefore, the Court will consider the adn issibility of defendant's statements to
Mackenzie as an independent ground to suppress certain
evidence.
In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), the Supreme Court held that
quot;the prosecution may not use statements, whether
exculpatory or inculpatory, stenuning from custodial
interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-incrimination.quot; Id. at 444. Under
this rule, the court must suppress a statement, even if
voluntary, if a proper warning was not given before police initiated custodial interrogation of a suspect. United
States v. Patane, 542 U.S. 630, 124 S Ct. 2620, 159 L.
Ed. 2d 667 (2004); United States v. McCurdy, 40 F.3d
1111, 1117 (10th Cir. 1994). However, the fruit of the
poisonous tree rule does not apply even if defendant successfully proves that police obtained a statement through
custodial interrogation [*28] without giving a Miranda
warning. United States v. Pettigrew, 468 P.3d 626, 636
(10th Cir. 2006). The Miranda exclusionary rule requires
only that the court exclude any quot;unwamed statementquot; itself. Oregon v. Elstad, 470 U.S. 298, 307,
105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).
Defendant does not dispute that he received a
Miranda warning and he waived his Miranda rights.
However, he argues that his waiver was involuntary and
any statements he made following the search should be
suppressed, because he did not understand English sufficiently to waive his Miranda rights. The goverzunent
bears the burden to prove by a preponderance of the evidence that defendant voluntarily waived his Miranda
rights. Colorado v. Connelly, 479 U.S. 157, 168-69, 107
S. Ct. 515, 93 L. Ed. 2d 473 (1986). The Court must consider the totality of the circumstances to determine
whether defendant's waiver was voluntary. United States
United States v. Carrizales-Toledo, 454 F.3d 1142 (10th
Cir. 2006) (quoting United States v. Glover, 104 F.3d
1570, 1579 (10th Cir. 1997)). These factors are not exclusive and a court should consider any other evidence
showing that quot;the government obtained the statements by physical or psychological coercion such that
the defendant's will was overborne.quot; Id. (quoting
United States v. Rith, 164 F.3d 1323, 1333 (10th Cir.
1999)).
Although the factors are somewhat different than
those applicable to the consent analysis, the same evidence and credibility determinations compel the Court to
find that defendant voluntarily waived his Miranda rights
and his statements are adn issible at trial. The Miranda
warning, as read to defendant from a pre-printed card, is
not complex and a person with a limited understanding
of English may be expected to understand his Miranda
rights. Defendant's responses to Mackenzie's questions
about the presence of cocaine in the apartment clearly
indicate that defendant understood the nature of
Mackenzie's questions, and defendant did not give any
indication that [*30] he did not understand Mackenzie's
questions. Instead, defendant stated that he worked in
construction and denied that he sold cocaine. This
strongly suggests that defendant knew the consequences
of possessing cocaine and made exculpatory statements
in English in an attempt to avoid criminal charges.
Mackenzie did not threaten or coerce defendant during
the interrogation and, if defendant had not wanted to
respond to or did not understand Mackenzie's questions,
there is no evidence showing that Mackenzie elicited
involuntary responses from defendant. For the same reasons stated above, the Court finds that defendant understood a Miranda waiver read to him in English and voluntarily waived his Miranda rights.
IT IS THEREFORE ORDERED that Defendant's
Motion to Suppress Evidence (Dkt. # 14) is denied.
DATED this 20th day of April, 2009.
A-7
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2009 U.S. Dist. LEXIS 33437, *
/s/ Claire V Eagan
CLAIRE V. EAGAN, CHIEF JUDGE
UNITED STATES DISTRICT COURT
Page 1
2009 U.S. Dist. LEXIS 45774, *
UNITED STATES OF AMERICA, v. ANDRE JEROME ROUSE, Defendant.
Case No. CR409-004
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
GEORGIA, SAVANNAH DIVISION
2009 U.S. Dist. LEXIS 45774
June 1, 2009, Decided
June 1, 2009, Filed
COUNSEL: [*1] For Andre Jerome Rouse, Defendant:
William G. Bell, III, LEAD ATTORNEY, William G.
Bell, III, PC, Savannah, GA.
For USA, Plaintiff: Cameron Heaps Ippolito, Frederick
William Kramer, III, James D. Durham, LEAD ATTORNEYS, U.S. Attorney's Office - Savannah, Savannah, GA; Edmund A. Booth, Jr., U.S. Attorney's Office Augusta, Augusta, GA.
Apartment C-7. Det. Foster was familiar with this apartment, for three months earlier he had investigated two
other armed robberies occurring minutes apart at the
same apartment complex, had received information that
caused him to focus his attention on Apartment C-7, and
had detennined that the apartment was leased by Henry
Rouse (defendant Andre Rouse's older brother). Subsequent police surveillance confirmed that both Henry
Rouse and Andre Rouse frequented Ramsey Run Apartments.
JUDGES: G.R. SMITH, UNITED STATES MAGISTRATE JUDGE.
OPINION BY: G.R. SMITH
OPINION
REPORT AND RECOMMENDATION
Defendant Andre Jerome Rouse, who is charged
with possession of a firearm with an obliterated serial
number, has moved to suppress all evidence obtained as
a result of his seizure, arrest, and late questioning by
Savannah police offices. (Docs. 14 & 34.) For the reasons that follow, his motion should be DENIED.
I.FACTS'
1 The following facts are dawn from the suppression hearing testimony of several police officials (Detectives Yujean Foster and Joshua Hunt
and Offices Michael Rodgers, Jason Pagliaro, and
Tracy Walden) and defendant Andre Rouse. Except as otherwise noted, the facts are uncontested.
On the evening of November 7, 2008, Alvin Edwards notified the Savannah-Chatham Metro Police Department that he had been robbed at gunpoint by two
black males outside the Ramsey Run [*2] Apartments as
he attempted to sell them some marijuana.' He described
the weapons and indicated that the robbers had taken his
marijuana, cell phone, and gold necklace. Edwards also
informed Det. Yujean Foster that the robbers had come
out of an upstairs apartment, which he then identified as
2 Initially, Edwards neglected to mention that he
was trying to sell marijuana to the robbers.
After speaking with Edwards, Det. Foster knocked
on the door of Apartment C-7, announced "police" in a
loud voice, and asked for "Henry" to come to the door.
Although no one responded to this request, Officer Michael Rodgers (and later Det. Foster and other officers)
observed someone peeking through the apartment's window blinds. [*3] Suspecting that several armed men
were holed up in the aparnnent, Det. Foster left to secure
a warrant while Officer Rodgers remained outside the
apartment building to ensure that no one entered or left
Apartment C-7. Because Rodgers was unable to watch
both of the stairwells leading up to the second-story
apartment, he called upon Officer Jason Pagliaro for assistance. Rodgers changed into his SWAT team ' unifonn, switched from his handgun to his M4 rifle, and
remained in his vehicle while monitoring the apartment.
Upon his arrival, Officer Pagliaro amred himself with a
shotgun while he monitored the back stairwell.
3 Det. Foster had infotmed Rodgers that he intended to enlist the services of the SWAT team
because of the dangers inherent in a police standoff with men believed to be armed and dangerous.
A short time later, defendant Andre Rouse drove up,
parked his vehicle, went up the front stairwell, and immediately gained entry to Apartment C-7. Rodgers called
Det. Foster to verify his instructions. Foster told him to
A-9
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2009 U.S. Dist. LEXIS 45774, *
detain anyone leaving the apar[ment. Some five minutes
later, Andre Rouse exited the apartment carrying a laundry basket filled with clothes. A puppy followed at his
[*4] feet. As Rouse reached the bottom of the stairwell,
Rodgers approached with his pistol drawn in the "low
ready" position (i.e., pointed in Rouse's direction but
with the barrel aimed at the ground) and shouted out "police, get down!" Rouse froze but did not get on the
ground as ordered. Rodgers repeated his connnand in a
loud voice, but again Rouse did not comply. Rodgers,
who was only a few feet away by this point, then aimed
his pistol directly at Rouse and yelled for him to get
down. Rouse ignored this command as well. Not until
Officer Pagliaro appeared as backup and "racked" his
shotgun (by chambering a new round) did Rouse fmally
set the basket down and drop to his knees. Even then it
took further coaxing by the officers to get Rouse all the
way onto the ground. Rodgers kicked the basket aside as
he frisked and handcuffed Rouse. Once Rouse was secured and escorted to another officer some distance
away, Rodgers retrieved the laundry basket (which
seemed strangely heavy), placed the puppy in it, and put
this property in a police cruiser for safekeeping. As he
did so, Rodgers indicated to a nearby officer that the
basket had not been searched or checked for weapons. '
4 Later on, [*5] apparently through some oversight, an unidentified officer temporarily placed
Rouse in the same police cruiser that contained
the laundry basket and puppy. Thus, there was a
time after he was detained that Rouse had access
to the items in the laundry basket (which, as will
be seen, contained loaded firearms).
When Det. Foster returned with a search warrant for
Apartment C-7, a negotiation team was already in place
talking to the apartment's occupants and trying to defuse
the standoff. About this time, Rouse's mother and sister
arrived at the scene, advised Cpl. Tracy Walden that her
other son (Henry Rouse) had been calling her from inside
the apartment, and inquired about the puppy. As soon as
Walden leamed that Henry and the other suspects had
exited the apartment, she removed the puppy from the
patrol car and gave it to Rouse's mother. Cpl. Walden
was about to hand over the laundry basket as well, but
when she removed it from the patrol car she noticed that
it was "extremely, extremely" heavy and innnediately
suspected that there were weapons concealed under the
clothes. She set the basket on the ground, advised Mrs.
Rouse and her daughter to step back, and reached in the
basket, [*6] where she felt the butt of a handgun. Upon
further inspection of the basket, detectives found seven
pistols, six of them loaded, stuffed inside a pillowcase.
Andre Rouse was then placed under arrest.
During the execution of the search warrant for the
apartment, officers found several cell phones, including
Rouse's burgundy Motorola "Razr." An inspection of that
phone revealed numerous photographs of firearms, including some of the pistols found inside the laundry basket. Several of those photographs depicted the pistol with
an obliterated serial number that forms the basis of the
present indictment.
Later that night, at around 3:00 a.m. on November 8,
Det. Foster spoke with Rouse at police headquarters,
advised him of his Miranda rights, and asked if he would
submit to an interview. Rouse agreed and signed a
waiver-of-rights form. The ensuing hour-and-frfteenminute interview was audio and video recorded. Det.
Foster testified that Rouse was calm, cooperative, and
"seemed normal" throughout the interview. On this occasion, Rouse disclaimed any knowledge of the weapons
found in the laundry basket.
On Deceniber 12, 2008, Det. Joshua Hunt conducted
a second custodial interview of Rouse. After [*7] arresting Rouse at his residence (where he had just shared a
marijuana "joint" with two companions), Det. Hunt
transported him to the police department; placed him in
an interview room, and advised him of his Miranda
rights, which Rouse waived.' According to Hunt, Rouse
was "relaxed, cooperative, and friendly," "appeared to be
levelheaded," and did not display any of the typical signs
of someone profoundly under the influence of an intoxicant. During this interview, Rouse conceded that he
knew that the laundry basket contained fuearms but denied knowing which weapon was attributable to which
person in the apartment.
5 While Rouse testified that he was never advised of his Miranda rights before this second interview (a claim that he also made as to the earlier interview before the govemment furnished
defense counsel with a copy of the signed waiverof-rights form), the Court credits Det. Hunt's testimony on this point. There is no recording of this
interview. Hunt testified that the recording hardware malfunctioned and that Rouse's interview
(along with some others conducted during this
time) was lost.
II. ANALYSIS
Rouse seeks to suppress all physical evidence acquired as a result of [*8] his seizure outside the apartment building, ` as well as his later custodial statements
to the detectives. To analyze these claims, the Court must
address each phase of the seizure, search, and interrogation process.
A-10
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2009 U.S. Dist. LEXIS 45774, *
6 In addition to the firearms found in the laundry basket, Rouse seeks to suppress his "cell
phone . . . [and] any and all information, photographs, or other data accessed from the cell
phone." (Doc. 14 at 3-4.) As Rouse conceded at
the suppression hearing, however, his cell phone
was found inside the apartment during the execution of the search warrant, not on his person at the
time of his seizure. Although Rouse does not
challenge the validity of the state search warrant,
he does suggest that the seizure of his cell phone
(and the photographs stored on that phone) exceeded the scope of the search warrant.
A. Initial Detention
Rouse argues that at the moment he was first approached by the police, "a full scale arrest occurred" that
was unsupported by probable cause. (Doc. 14 at 4.) He
suggests that all subsequently acquired evidence was the
fiuit of that initial illegality. The government characterizes Rouse's initial seizure as an "investigative detention"
justified by [*9] the officers' reasonable suspicion that
he was aiding the perpetrators of an armed robbery in
removing evidence from the apartment where they were
hiding. (Doc. 40 at 1; doc. 27 at 3-4.) The Court agrees
witlr the government that under the unique circumstances
of this case, the officers were entirely justified in temporarily detaining Rouse for investigative purposes. Further, given the obvious safety concems at play, the officers acted appropriately in drawing their firearms in order to effectuate that detention, placing Rouse in handcuffs, and delivering him to the custody of other officers
while they turned their attention back to the highly volatile situation involving a police standoff with the occupants of Aparlment C-7.
When Rouse first arrived at Ramsey Run Apartments, Officers Rodgers and Pagliaro were engaged in
monitoring an apartment unit occupied by individuals
suspected of a recent anned robbery. These individuals
had ignored police requests to come to their door, and the
officers were under the reasonable impression that the
individuals inside the apartment were armed and dangerous. The officers were aware that Det. Foster was in the
process of seeking a search warrant [*10] for the apartment, and they also knew that the Savannah police
SWAT team had been alerted to prepare for a possible
forced entry into that apartment.
Into this tense situation walks Andre Rouse. He immediately gains entry to the apartment whose occupants
had just refused any entry by the police. A few minutes
later, he exited the apartment carrying a laundry basket.
Perhaps Mr. Rouse had chosen just this moment to do his
laundry. But under the unusual and rather dramatic circumstances of a police standoff with suspected armed
robbers, the officers tasked with guarding the premises
while a search warrant was obtained were not required to
infer the most innocent-seenvng explanation for Rouse's
conduct. Instead, it was perfectly reasonable for the officers to suspect Rouse of being in league with those inside the apartment and, more particularly, with aiding
and abetting their removal of incriminating evidence
( including firearms) or assisting them in their escape.
Officers engaged in the dangerous business of enforcing the criminal laws are entitled to make conunonsense judgments and inferences about human behavior.
Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673,
145 L. Ed. 2d 570 (2000); Ornelas v. United States, 517
U.S. 690, 695-96, 116 S. Ct. 1657, 134 L. Ed. 2d 911
(1996); [*11] United States v. Cartez, 449 U.S. 411,
418, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); United
States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004).
Such "an officer may, consistent with the Fourth
Amendment, conduct a brief investigatory stop when the
officer has a reasonable, articulable suspicion thafcrinunal activity is afoot." Wardlow, 528 U.S. at 124. "[A]
reviewing court must give due weight to the officer's
experience" when assessing the reasonableness of his
conclusions and actions in making an investigatory stop.
United States v. Briggman, 931 F. 2d 705, 709 (11 th Cir.
1991). Here, the undisputed facts establish the requisite
"reasonable suspicion" to warrant an investigatory stop
of defendant Rouse. These officers, even if they lacked
probable cause, certainly had far more than an "inchoate
and unparticularized hunch" of wrongdontg when they
seized Rouse. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968). At the suppression hearing, the officers articulated reasonable grounds for their
belief that, under the highly charged circumstances of
this case, Rouse was up to no good when he sauntered
out of the apartment carrying a laundry basket, and they
were eniinently reasonable in stopping him to investigate
their suspicions. [*12] See United States v. Nunez, 455
F.3d 1223, 1226 (11th Cir. 2006) (detective had reasonable suspicion to stop man leaving suspected marijuana
grow house when he was carrying a black trash bag capable of concealing ntarijuana and the residence was
under surveillance prior to its warrant-based search);
United States v. Cruz, 909 F.2d 422, 424 (11 th Cir.
1989) ( fmding reasonable suspicion to detain female who
was walking away from the scene of an arrest but had
earlier been seen with a known drug dealer); see also
United States v. Young, 909 F.2d 442, 446 (1990) (exigent circumstances permitted officers to search suspect's
bulging purse when she attempted to sneak away from
her house while officers were executing a search warrant). Since Rouse's actions were highly unusual and
quite suspect, his investigatory detention was reasonable
even though the officers lacked probable cause to arrest
him upon their initial approach.
A-11
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2009 U.S. Dist. LEXIS 45774, *
Nor did the manner of the seizure convert the investigatory stop into a full scale arrest, as Rouse argues.
Officers effectuating a Terry stop may draw their weapons and use reasonable force when legitimate safety concems call for such measures. In Terry itself, an officer
[*13] who suspected individuals of casing a store in
preparation for a robbery not only approached to investigate his suspicions but, because of his safety concerns,
forcefully spun one of the suspects around and patted
him down for weapons. Terry, 392 U.S. at 5-7. So, from
the moment that the reasonable suspicion standard was
first announced, the Supreme Court recognized that an
investigatory stop may involve the use of some degree of
force by the investigating officer. Subsequent courts
have upheld Terry stops involving far more coercive
measures than were employed in Terry itself. See, e.g.,
United States v. Blackman, 66 F.3d 1572, 1574, 1576-77
(11 th Cir. 1995) (initial detention was investigatory stop
rather than an arrest, even though agents used a loudspeaker to direct individuals suspected of armed robbery
to exit an apartment with their hands up, handcuffed
them, and then placed them on the ground); United
States v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 1995)
(turkey hunter and agents effected a seizure rather than
an arrest of suspects found near a marijuana cultivation
site even though the suspects were ordered to raise their
hands, told that their dog would be shot if not called
[* 141 off, and then were frisked). If such forceful measures are reasonable under the circun.stances, they "do not
transform an investigatory stop into an arrest." Blackman, 66 F.3d at 1576; United States v. Acosta, 363 F.3d
1141, 1147 (11th Cir. 2004) ("an investigatory stop does
not necessarily ripen into an arrest because an officer
draws his weapon, handcuffs a suspect, orders a suspect
to lie face down on the ground, or secures a suspect in
the back of a patrol car.") (citations ornitted).
Here, at the time Officer Rodgers approached Rouse
with his weapon drawn, he had a legitimate fear that
Rouse was not only assisting some desperate individuals
holed up in an apartment but might himself be armed and
dangerous. These fears were enhanced when Rouse refused to get on the ground despite repeated commands,
prompting Rodgers to point his firearm directly at Rouse.
Only when another officer appeared and racked his shotgun -- producing "a sound you won't forget," as Officer
Pagliaro put it -- did Rouse grudgingly comply. Even
then, he only partially complied, taking a knee rather
than going all the way to the ground as the officers were
loudly ordering him to do. The safety precautions employed [*15] by these officers in making the Terry stop
were an appropriate and measured response to a situation
they reasonably perceived to be fraught with danger.
Given the circumstances swirling around the officers at
this time, they were perfectly justified in handcuffing
Rouse and delivering him to the custody of another offi-
cer while they turned their attention back to the apartment where other suspected dangerous individuals were
known to be hiding. In short, the risks to law enforcement officers posed by this investigatory detention fully
warranted such intrusive measures.
B. The Laundry Basket Search
The search of the laundry basket that led to the discovery of the firearms presents a somewhat more troublesome issue -- not because the officers lacked authority
to do so immediately upon Rouse's seizure, for they certainly had such authority, ' but rather because the basket
was not inspected until at least an hour after its seizure.
7 Whether analyzed as a Terry stop or an arrest,
Rouse's seizure by the officers entitled them to
conduct a contemporaneous search of any area
from which he might produce a weapon or gain
access to destructible evidence. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L.
Ed. 2d 685 (1969) [* 16] (police may search incident to attest not only an arrestee's person but
also any area within his inunediate control from
"which he might gain possession of a weapon or
destractible evidence"); Michigan v. Long, 463
U S. 1032, 1049-50, 103 S. Ct. 3469, 77 L. Ed. 2d
1201 (1983) (during lawful investigatory stop,
police were entitled to conduct protective search
of vehicle passenger compartment when they reasonably believed suspect was dangerous and
might gain immediate control of weapon).
It is well settled, of course, that officers who temporarily seize a suspect for investigative purposes niay
conduct a frisk of that individual so long as "a reasonably
prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger."
Terry, 392 U.S. at 27; United States v. Bonds, 829 F.2d
1072, 1074 (11 th Cir. 1987) (distinguishing between the
"stop" and "frisk" elements of the Terry analysis, noting
that "a stop serves to investigate crime, while a frisk
serves to prevent injury."). Numerous courts have recognized that the Terry analysis allows not only a frisk of a
suspect believed to be armed and dangerous but also a
brief inspection of any items carried by that individual
that might [*17] pose a risk to the officer's safety. See
United States v. Rhind, 289 F.3d 690, 693-94 (11 th Cir.
2002) (police conducting Terry stop of defendant were
entitled to search a black bag he was carrying, as "the
officers had a reasonable articulable suspicion, based
upon objective facts, that the bag might contain a
weapon or other contraband."); United States v. Cruz,
909 F.2d 422, 424 (11th Cir. 1989) (because detective
had reasonable suspicion to stop person suspected of
being involved in narcotics trafficking, he had the right
A-12
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2009 U.S: Dist. LEXIS 45774, *
to make a limited protective search for concealed weapons, to include a search of the suspect's purse); see also
United States v. Quinn, 83 F.3d 917, 923 (7th Cir. )996)
("thud" sound produced when a suspect placed a rolledup jacket on hood of car justified pat-down of jacket);
United States v. Williams, 962 F.2d 1218, 1223-24 (6th
Cir. 1992) (officer entitled to open and search suspect's
purse "as a reasonable self-protective measure"); Owens
v. State, 497 N.E. 230 (Ind. 1986) (during a Terry stop
of an armed robbery suspect who was carrying a bag he
claimed contained laundry but which made a metallic
sound when put on squad car, proper for officer to feel
[*18] of bag and, when a long hard object was detected,
to open bag and remove a weapon concealed inside). 4
WAYNE R. LAFAVE, SEARCH AND SEIZURE §
9.6(e) (4th ed. 2004) (noting that most courts, unlike
most commentators, have recognized the right of law
enforcement officers to conduct a protective search of
items carried by suspect at the time of a Terry stop).
The government is correct in asserting that, under
the particular circumstances of this case, the officers who
seized Rouse for investigative purposes were entitled not
only to frisk him but to briefly inspect the basket he was
carrying for possible weapons. The officers were aware
that Rouse had briefly entered and then exited an apartment where suspected armed robbers were holed up, and
even when they appraoched with guns drawn, he ignored
their repeated commands to go to the ground. Rouse's
behavior created a heightened sense of danger that would
have justified an immediate inspection of the laundry
basket contemporaneous witlr his seizure. But the fact
remains that the officers did not conduct such an inspection as part of that initial seizure. Rather, Officer Rodgers kicked the basket aside and then secured it in the
back of a[*19] patrol car without inspecting it. So,
while the seizure of the basket was certainly justified, its
later search by Cpl. Tracy Walden cannot be explained
as a legitimate safety measure arising from the initial
stop itself -- for by then, Rouse was in handcuffs, under
the control of several officers, and separated by some
distance from the basket.
Nor can the inspection of the basket be justified as
incident to Rouse's arrest, for the testimony established
that he was not under arrest at the time Cpl. Walden ran
her hand under the clothing to determine why the basket
was so heavy. Rather, as Det. Foster testified, it was the
discovery of the guns in the basket that served as the
basis for Rouse's arrest. e Until then, as the officers consistently testified at the hearing, Rouse was being "detained" for "investigative purposes," just as Det. Foster
had instructed them to do. And as the Court has previously found, not only did the officers have sufficient
reasonable suspicion to conduct such a Terry stop, the
force they employed in making the stop was not so intru-
sive as to convert the investigatory seizure into a formal
arrest or its functional equivalent. So, no incident-toarrest theory [*20] is workable here.
8 The govemment argues that since the officers
had probable cause to believe that Rouse had violated the Georgia law prohibition against obstructing or hindering a law enforcement officer
in the lawful discharge of his duties, 0.C.G.A. §
16-10-24, they were entitled to search Rouse and
any container in his immediate possession incident to that arrest. But while they may have had
probable cause to arrest Rouse for obstruction,
they in fact never made such an arrest. Furthermore, in light of recent Supreme Court authority,
because the basket was not searched until at least
an hour afler Rouse had been seized, handcuffed,
and placed under the control of other officers, it
is highly questionable whether that search could
be upheld as incident to his arrest, even had he
been placed under arrest for obstruction. See Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485
(2009) (search of an arrestee's vehicle while he
was handcuffed and secured in the back of a patrol car could not be justified as a search incident
to his arrest for driving on a suspended license, as
there was no longer any possibility the arrestee
could access the interior of his vehicle (and no
reason to believe evidence of [*21] the offense
of arrest might be found in that vehicle)).
The Court nevertheless finds that the search of the
laundry basket was entirely reasonable and violated none
of Rouse's Fourth Amendment rights. When Rouse's
mother arrived at the scene, the police standoff with
those inside Apartment C-7 had not yet concluded. Cpl.
Walden (who, along with another officer, was standing
alongside the apartment building guarding Andre Rouse
at this time) intercepted Mrs. Rouse and her daughter as
they approached the building. Walden determined that
Mrs. Rouse was concerned about her sons as well as their
puppy. Upon leaming that Henry Rouse and the other
suspects had exited the apartment in compliance with
police demands, Cpl. Walden released the puppy to Mrs.
Rouse and, at the request of another officer, she was
about to hand over the laundry basket as well. But when
Walden lifted the basket from the patrol car, she noticed
that it was exceedingly heavy and immediately suspected
that it contained weapons. This suspicion was not an
unreasonable one given all the events that had occurred
that evening. Directing Rouse's mother and sister to step
back, Walden placed the basket on the ground and then
[*22] ran her hand undemeath the clothes, where she felt
the butt end of a handgun. This led to the discovery of
the pillowcase filled wiih firearms, which prompted
Rouse's arrest.
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2009 U.S. Dist. LEXIS 45774, *
As Professor LaFave has recognized, even where the
police can effectively protect themselves during a Teny
stop by putting the detainee's handbag (or other item that
nught contain a weapon) out of his reach, it must be
"recognized that there may exist circumstances in which
the officer might 'reasonably suspect the possibility of
harm if he retums such objects unexamined' and that in
such circumstances the officer must be allowed to 'inspect the interior of the item before returning it."' LAFAVE, § 9.6(e) at 673 ( quoting Model Rules for Law
Enforcement, Stop and Frisk, Rule 605 (1974)), This
case presents just such an exceptional circumstance.
Clearly, the "'police should not be exposed to unnecessary danger in the performance of their duties."' Id. at
678 (quoting Michigan v. Long, 463 U.S. 1032, 1064,
103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983) (Brennan, J.,
dissenting)). Relinquishing control of a basket reasonably believed to contain firearms would have created precisely such a danger. True, the basket was about to be
delivered to Rouse's niother [*23] and sister, not to
Rouse himself. But an officer is not required to take the
risk that a relative or friend of a person who has been
taken into police custody poses no risk whatsoever if
handed a pistol or other dangerous weapon. If, when
Mrs. Rouse first appeared at the scene of the police
standoff, an officer had reasonably believed her to be
armed, he would have been entitled to frisk her and confiscate any weapon even without a suspicion of criminal
wrongdoing on her part. United States v. Bonds, 829
F.2d 1072, 1073-74 (11 th Cir. 1987) ("when an officer
legitimately encounters an individual, whether he is investigating that individual or not, the officer may reasonably believe himself to be in danger and may wish to
deternune quickly whether that person is armed."). Simply turning over the suspicious laundry basket without
first checking it for weapons was simply not an option
under these circumstances. Had Officer Walden felt a
large bottle of detergent under the clothing rather than a
handgun, all safety concerns would have ended and the
basket, like the puppy, would have been released. But
releasing the basket without first confnming that it posed
no safety risk to the officers [*24] would have been poor
police work indeed. Officer Walden's protective measure
did not constitute an "mueasonable" search within the
meaning of the Fourth Arnendment. ' Thus, Rouse has
demonstrated no basis for the suppression of the firearms
discovered in that basket.
9 As this analysis furnishes sufficient grounds
for upholding the search, the Court will not address the govemment's argument that the warrant
for Apartment C-7 authorized a search of the
laundry basket (as it contained items removed
from the apartment while the warrant was being
sought) or that the basket would have inevitably
been searched as part of an inventory.
C. The Cell Phone Search
Rouse's cell phone was found in his apartment during the execution of the search warrant. Rouse contends
that the search warrant "did not give the police authority
to seize or search [his] phone." (Doc. 37 at 2.) In this he
is mistaken.
The warrant which authorized a search of Apartment
C-7 permitted agents to seize "photos of subjects with
weapons [and] digital cameras." 10 (Doc. 41-2 at 3.)
Rouse's cell phone, a burgundy Motorola "Razr," had a
digital camera feature and thus fell within the warrant's
scope. United States v. D'Andrea, 497 F. Supp. 2d 117,
118 n.4 (D. Mass. 2007) [*25] ("There is no merit in
defendants' argument that the seizure of the camera
phone was unauthorized. The warrant permitted the seizure of 'cameras"' and "[t]he modem cellular telephone
fits easily into [that] categor[y].").
10 The warrant specifically referenced a "black
Nokia cell phone," as the armed robbery victim
had informed the police that the robbers had
taken such a phone from him. (Doc. 37-2 (search
warrant and affidavit).) But the warrant also authorized the seizure of "digital cameras," and a
camera phone such as Rouse's "Razr" certainly
qualifies as a digital camera. Moreover, the warrant permitted the seizure of "photos of subjects
with weapons" and thus authorized the opening
of any container where such photos might be
found.
Moreover, a warrant need not specifically anticipate
the type of container that may conceal the object of a
search. United States v. Ross, 456 U.S. 798, 820-21, 102
S. Ct. 2157, 72 L. Ed. 2d 572 (1982) ("[A] warrant that
authorizes an officer to search a home for illegal weapons also provides the authority to open closets, chests,
drawers, and containers in which the weapon may be
found. . .."); United States v. Gomez-Soto, 723 F.2d 649,
655 (9th Cir. 1984) ("[T]he failure of the warrant [*26]
to anticipate the precise container in which the material
sought nught be found is not fatal."). A modem cell
phone is a sophisticated device used for many purposes
other than making simple phone calls. Most such phones,
like Rouse's "Razr," are equipped with a digital camera
feature designed to both make and store images. It was
reasonable for the agents to conclude, therefore, that
Rouse's phone could contain the images sought under the
warrant, for "photos of subjects with weapons" were certainly the type of images capable of being stored on his
phone. Cf. United States v. Gamboa, 439 F.3d 796, 807
(8th Cir. 2006) (perniltting seizure of cell phone under
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2009 U.S. Dist. LEXIS 45774, *
warrant that authorized seizure of "records of the use and
purchase of controlled substances" since cell phones can
contain such records); United States v. Tho npson, 2009
U.S. Dist. LEXIS 13153, 2004 WL 302037 at * 2 n.1
(S.D. Fla. Feb. 6, 2009) ("The court construes the term
'records' to include the information contained on cell
phones ...."). Thus, the agents did not exceed the scope
of the warrant when they seized the phone or accessed its
camera feature to see what images it contained. " Consequently, the seizure of Rouse's cell phone and its subsequent [*27] search were proper under the warrant.
11 It matters not whether the agents searched
the phone at the apartment or conducted that
search at some later time. See United States v.
Hernandez, 2007 U.S. Dist. LEXIS 74375, 2007
WL 2915856 at *17(S.D. Fla. Oct. 4, 2007) (unpublished) ( "the seizure of computers, and subsequent analysis away from the search premises,"
has uniforrnly been held to be proper when the
executing agents were authorized to search for
records likely to be stored on a computer); United
States v. Sissler, 1991 U.S. Dist. LEXIS 16465,
1991 WL 239000 at *4 (WD. Mich. Aug. 30,
1991).
D. Statements
Finally, Rouse seeks to suppress his custodial statements to Det. Foster and, later on, to Det. Hunt, contesting their voluntariness under Jackson v. Denno, 378 U.S.
368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1984). °(Doc. 14
at 4; doc. 17 at 1-2.) While Rouse also contends that Det.
Hunt failed to advise him of his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966), the Court has credited Det. Hunt's testimony that
he did administer the standard Miranda warnings prior to
his interview. The Court rejects Rouse's contrary testimony as simply not believable. (Doc. 34.)
12 Rouse also seeks to suppress all of his statements as fruit of the "illegal" arrest. (Doc. 14 at
5.) [*28] Because his detention was reasonable,
his later statements were not the tainted fruit of
his initial seizure.
A statement is considered to be voluntarily made
only if it is "the product of an essentially free and unconstrained choice by its maker." Culombe v. Connecticut,
367 U.S. 568, 602, 81 S. Ct. 1860, 6 L. Ed. 2d 1037
(1961). Statements that result from "intin idation, coercion, or deception" by law enforcement officers are not
voluntary and must be suppressed. Colorado v. Connelly,
479 U.S. 157, 163, 107 S. Ct. 515, 93 L. Ed. 2d 473
(1986). Some form of government coercion is essential
to a fmding of involuntariness. Id. at 167. In determining
voluntariness, the Court must assess "the totality of the
circumstances - - both the characteristics of tlie accused
and the details of the interrogation." Schneckloth v.
Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 36 L. Ed.
2d 854 (1973). Coercive conduct normally involves an
exhaustively long interrogation, the use of physical force,
or the making of a promise to induce a confession. Connelly, 479 U.S. at 163 n.l; United States v. MendozaCecelia, 963 F.2d 1467, 1475 (Ilth Cir. 1992). Ultimately, the Court must detem ine whether a statement
was made freely or whether the defendant's 'will has
been overbome and his capacity for self-determination
[*29] has been critically impaired."' Devier v. Zant, 3
F.3d 1445, 1455-56 (11 th Cir. 1993) (quoting Culombe,
367 U.S. at 602)).
The first interview, which was videotaped, occurred
at around 3:00 a.m. in the morning after Rouse's arrest
and after he was advised of his rights. " Rouse, who has
completed his junior year in high school, was calm aud
cooperative for the hour-and-fifteen minute long interview and did not appear to be intoxicated. He did have
one arm shackled to the chair and was tired after a full
day of work, but he never asked for a break or indicated
that he wished to ternrinate the interview. Det. Foster
allowed him to smoke a cigarette and offered him a beverage at one point. At no time did the detectives threaten
Rouse or use any force against him.
13 Although Rouse initially claimed that he had
not been advised of his Miranda rights, he later
withdrew this argument after the govemment
produced a waiver of rights form bearing his signature. (Doc. 34.)
The second interview presents certain complicating
factors. Conducted by Det. Hunt on December 12, 2008,
it was not recorded because of an equipment malfunction. And though Hunt testified that he administered the
standard Miranda [*30] wamings, he did not have
Rouse sign an advice-of-rights form. Det. Hunt explained
that he uses a "relaxed" interview style, which he finds
leads to "more honest and open communication" with the
person being questioned. Consistent with his more casual
interview technique, Hunt did not handcuff Rouse during
the interview and allowed him to sit next to him rather
than across the table. He also gave Rouse a beverage and
allowed him to smoke in the interview room.
Rouse nevertheless contends that his statements
were not voluntary because he was mentally impaired as
a result of having consumed marijuana prior to the interview. The credible testimony at the suppression hearing
does not support this contention.
It is undisputed that Rouse had been smoking marijuana when he was arrested at his apartment. But by the
A-15
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2009 U.S. Dist. LEXIS 45774, *
time of his interview at police headquarters an hour and a
half later, Det. Hunt testified that Rouse "appeared to be
levelheaded [and] didn't display any signs or characteristics of any person under the influence of drugs and/or
alcohol." Further, during his cross-exatnination by govemment counsel, Rouse not only exhibited a marvelous
memory of the facts leading up to the interview [*31]
but conceded that he had only shared a single marijuana
joint with two other people prior to the interview. After
considering the conflict in the testiinony, the Court finds
that the govemment has demonstrated by a preponderance of the evidence that Rouse's statements were entirely voluntary and were not the product of any coercive
conduct by the detectives. Lego v. Twomey, 404 U.S.
477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972) (applying preponderance of the evidence test in voluntariness
inquiries); Jackson, 378 US. at 391. Nor did the detectives take advantage of a person who was laboring under
a significant mental impairment resulting from the consumption of marijuana. The Court credits Det. Hunt's
testimony that Rouse had his wits about him and freely
consented to the interview.
III. CONCLUSION
For all of the reasons explained above, Rouse's motion to suppress should be DENIED.
SO REPORTED AND RECOMMENDED this 1st
day of June, 2009.
/s/ G.R SMITH
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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2009 U.S. Dist. LEXIS 44251, *
UNITED STATES OF AMERICA, Plaintiff, v. (1) EDWARD KATSUAKI SHIGEMURA; (2) JOHN E. KITCHELL; and (3) JOHN HARVEY SPROUS, Defendants.
Case No. CR-09-91-C
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
OKLAHOMA
2009 U.S. Dist. LEXIS 44251
May 26, 2009, Decided
May 26, 2009, Filed
COUNSEL: [*1] For Edward Katsuaki Shigemura, Defendant (1): Christine M Cave, Oklahoma City, OK.
For United States of America, Plaintiff: Andre B Caldwell, Chris M Stephens, US Attorney's Office-OKC,
Oklahonta City, OK.
JUDGES: ROBIN J. CAUTHRON, United States District Judge.
OPINION BY: ROBIN J. CAUTHRON
OPINION
MEMORANDUM OPINION AND ORDER
Defendants were charged with being felons in possession of a fu'earm, in violation of 18 US.C. §
922(g)(1). The Court recently heard testimony at a suppression hearing regarding a number of different motions
filed by Defendants. '
1 Defendant Sprous filed two motions to adopt,
as well as a motion to suppress the video and audio recording of a conversation between coDefendants Kitchell and Shigemura while seated
inside Trooper Hyde's patrol vehicle. Defendant
Sprous has pleaded guilty; accordingly, his motions are now moot and will not be considered.
BACKGROUND
On February 24, 2009, Defendants were stopped
while driving on the Tumer Turnpike just beyond the toll
booth east of Stroud, Oklahoma, by Oklahoma Highway
Patrol Trooper Cody Hyde. In order to pay their toll,
Defendants had to exit the main lanes of traffic along the
Tumpike and pass through the adjacent Toll Booth Plaza,
and in doing [*2] so the driver failed to display a tum
signal. Once the vehicle exited the Turnpike, it passed
through numerous lanes of traffic without signaling in
order to reach the only open toll booth located in the far
right lane. Trooper Hyde stopped the vehicle immediately after Defendants paid the toll. Mr. Shigemura, the
driver, was removed from the vehicle and placed in the
patrol car. While Trooper Hyde wrote out the ticket, he
asked Mr. Shigemura where they were headed, noting
that he appeared nervous, answered questions hesitantly,
raised his voice, and fumbled when he responded. A
video and audio recording of all the conversations taking
place within the patrol vehicle were subnritted to the
Court.
According to Trooper Hyde, when he returned to the
vehicle to verify the identifications of the two passengers, they also appeared netvous. They gave Trooper
Hyde a different story regarding the purpose of their trip
and where they were headed than had Mr. Slugemura.
Trooper Hyde noted that Mr. Kitchell was hesitant in
providing answers and was sweating profusely. Mr.
Sprous could not provide detailed answers regarding
their trip and he refused to make eye contact. According
to Defendants, [*3] this questioning lasted for more than
twenty nunutes.
After checking the three men for warrants and writing out the ticket, Trooper Hyde informed Mr. Shigemura that he was free to go. As Mr. Shigemura opened
the door, Trooper Hyde asked if he could ask a few more
questions, and Mr. Shigemura said yes. The trooper
asked if there were any weapons, narcotics, or large
amounts of cash in the vehicle, to which Mr. Shigemura
said no. Although Defendants refused to penmiit Trooper
Hyde to search the vehicle, he obtained his canine,
Meco, from his patrol car and walked the dog around the
outside of the vehicle. The dog circled the vehicle twice
before alerting on both the driver's side and the passenger
side of the vehicle, as well as on the trunk. The officer
then removed Mr. Sprous and Mr. Kitchell from the car,
searched both men for weapons, and located a large
amount of cash on Mr. Kitchell's person. Mr. Kitchell
was placed in the patrol car with Mr. Shigemura; Mr.
Sprous was placed in a separate vehicle.
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2009 U.S. Dist. LEXIS 44251, *
Troopers then searched Defendants' car. They found
five loaded handguns, one loaded rifle, and additional
ammunition, as well as a large amount of cash in a bag in
the trunk. They also found [*4] handcuffs, flex cuffs,
heavy-duty zip ties, duct tape, gloves, a black hat with
the letters "FBI" on it, a black hat with the letters
"NARC" on it, a police scanner, and a map of the Dallas/Fort Worth area with the DFW Airport circled in
black ink. As vauous items were removed from the vehicle, the camera located within Trooper Hyde's patrol
vehicle recorded comments made by Mr. Shigemura and
Mr. Kitchell. Because all three men had previously been
convicted of felonies, they were charged with being felons in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1).
In determining whether a traffic stop is too long to
be justified as an investigative Terry stop, courts are to
consider "wlrether the police diligently pursued a means
of investigation that was likely to confirm or dispel their
suspicions quickly, during which time it was necessary to
detain the defendant." United States v. Sharpe, 470 U.S.
675, 686 (1985). Courts should be cognizant that often
"police are acting in a swiftly developing situation, and
in such cases the court should not indulge in unrealistic
second-guessing." Id. The length of the stop must simply
be "reasonable under the circumstances." United States v.
Gonzalez, 763 F.2d 1127, 1131 (10th Cir. 1985). However, when a citizen voluntarily answers an officer's noncoercive questions, there are no Fourth Amendment implications. United States v. Cooper, 733 F.2d 1360, 1363
(10th Cir. 1984).
DISCUSSION
The Court finds that, based on the testimony at the
suppression hearing, this was a reasonable investigative
stop. Trooper Hyde diligently obtained the information
he needed in order to accomplish the lawful purpose for
which he stopped Defendants, which was issuing a waming for a traffic violation. He did not unnecessarily [*7]
prolong the detention, but rather any delay that occurred
was due to the Trooper's need to move back and forth
between his patrol car and Defendants' vehicle in order to
question all three men. He obtained their information,
verified their criminal history and the fact that none had
outstanding warrants, and shortly thereafter finished
writing the waming ticket for Mr. Shigernura and informed him that he was free to go. At that point, Trooper
Hyde asked Mr. Shigemura if he could ask him further
questions, and Mr. Shigemura consented. It took less
than ten niinutes for Trooper Hyde to complete the remainder of his questioning and run his drug dog, Meco,
around Defendants' vehicle. The Court finds nothing
unreasonable about the duration of this stop.
1. Defendants' Joint Motion to Suppress
Defendants contend that: (1) Trooper Hyde lacked
probable cause to stop their vehicle; (2) Mr. Shigemura
was subject to custodial interrogation when he was
placed in the trooper's vehicle and was not advised of his
Miranda rights; (3) Defendants' detention exceeded that
pemnitted by Terry v. Ohio; and (4) there was no probable cause to search their vehicle.
a. Probable Cause to Conduct Traffic Stop
Traffic stops are analyzed under the principles set
forth in Terry v. Ohio, 392 U.S. 1 (1968). See United
States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.
1995) (quoting [*5] Terry, 392 U.S. at 20). Therefore,
"[t]o determine the reasonableness of an investigative
detention, we make a dual inquiry, asking fust'whether
the officer's action was justified at its inception,' and
second 'whether it was reasonably related in scope to the
circumstances which justified the interference in the first
place."' Id. In conducting the first inquiry, the Tenth Circuit has held that "a traffic stop is valid under the Fourth
Amendment if the stop is based on an observed traffic
violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has
occurred or is occurring." Id. at 787.
Trooper Hyde contends that he initially stopped Defendants' vehicle because it failed to signal when exiting
the highway to pay the toll and when crossing numerous
lanes of traffic to reach the open toll booth. Although this
portion of the traffic stop is not depicted on the recording
made from Trooper Hyde's patrol vehicle, during the
subsequent conversation between Mr. Shigeniura and
Trooper Hyde, Mr. Shigemura adnuts that he failed to
signal. Accordingly, the Court finds that Trooper Hyde
had probable cause to make the initial traffic stop.
b. [*6] Length of Traffic Stop
c. Miranda Warnings
Miranda warnings must be given whenever an individual is subject to custodial interrogation. Wilson v.
Sirmons, 536 F.3d 1064, 1110 (10th Cir. 2008). "Because of the 'nonthreatening character' of traffic stop detentions, 'persons temporarily detained pursuant to such
stops are not 'in custody' for the purposes of Miranda."'
Id. (quoting Berkemer v. McCarty, 468 U.S. 420, 440
(1984)). If at some point between the initial [*8] stop
and the arrest, Defendants were subjected to restraints
comparable to those associated with a formal arrest,
Miranda warnings would be required. Id.
The Court finds that Defendants were not subject to
custodial interrogation until the point at which they were
formally placed under arrest, and therefore Miranda
warnings were not required. Although Trooper Hyde
testified at the suppression hearing that, in his nilnd, De-
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2009 U.S. Dist. LEXIS 44251, *
fendants were not free to leave when he finished writing
the ticket, his subjective belief is not dispositive. Stansbury v. Cal., 511 U.S. 318, 325 (1994). Such beliefs "are
relevant only to the extent they would affect how a reasonable person in the position of the individual being
questioned would gauge the breadth of his or her 'freedom of action."' Id. (quoting Berkemer, 468 U.S. at 440).
Mr. Shigemura clearly felt free to leave since the video
shows him exiting the patrol car while Trooper Hyde was
busy with the other two Defendants. Accordingly, the
Court fmds that Defendants were not subject to custodial
interrogation until such time as they were fonnally
placed under arrest, at which point they were given the
required wamings.
2. Motion to Suppress Information Obtained from
Search of Cell Phone
Defendant Kitchell contends that the Court should
suppress any evidence retrieved during a search of his
Samsung T-Mobile cell phone. ' Officers confiscated
Defendant Kitclrell's cell phone when the tluee men were
arrested and, on March 11, 2009, the officers applied for
and received a search warrant authorizing them to search
his cell phone. Defendant Kitchell contends that the affidavit submitted by the [*11] officers failed to demonstrate probable cause to search his cell phone.
2 Defendant Sprous also joined this niotion, asking the Court to suppress any evidence seized
during a search of his Motorola GSM, Motorola
V3 RAZR. Because Defendant Sprous changed
his plea to guilty, the Court declines to consider
his arguments.
d. [*9] Probable Cause to Search Vehicle
When an officer uses a drug dog to sniff a lawfully
seized vehicle, it is not considered "a 'search' within the
meaning of the fourth amendment and therefore an individualized reasonable suspicion of drug-related criminal
activity is not required." United States v. MoralesZamora, 914 F.2d 200, 203 (10th Cir. 1990). When a
drug dog alerts an officer to the presence of narcotics in a
vehicle, it gives the officer probable cause to search the
vehicle. United States v. Raynor, 108 F. App'x. 609, 614
(10th Cir. 2004) (unpublished). "'Once probable cause to
search is establislred, the officer may search the entire
vehicle, including the trunk and all containers therein
that might contain contraband."' Id.
The Court finds that the dog sniff of Defendants' vehicle did not constitute a Fourth Amendment violation.
Based on the different stories recounted by Defendants
and their visible nervousness, Trooper Hyde had articulable and reasonable suspicion to detain Defendants in
order to determine whether the vehicle might contain
contraband. See United States v. Garcia, 167 Fed. App'x.
737, 741 (10th Cir. 2006) (unpublished). Accordingly,
there was no need for Defendants [*10] to consent to the
drug dog sniff.
While sniffing the car, Meco alerted in at least two
places to the smell of contraband. Once this occurred,
Trooper Hyde had probable cause to search the vehicle.
Defendants, however, dispute that probable cause arose,
contending that Meco may not have the necessary success rate and that his alert in this instance may have been
a false positive. Based on the evidence and testimony
presented during the suppression hearing, the Court finds
that Meco has been properly certified as a narcotics detection dog and that Defendants have not met their burden of demonstrating that he is unqualified or in any
other way unreliable. Accordingly, Defendants' Joint
Motion to Suppress will be denied.
According to the Supreme Court:
There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an
evidentiary hearing, the challenger's attack must be more than conclusory and
must be supported by more than a mere
desire to cross-examine. There must be allegations of deliberate falsehood or of
reckless disregard for the truth, and those
allegations must be accompanied by an
offer of proof.
Franks v. Delaware, 438 U.S. 154, 171 (1978). Because
Defendant Kitchell failed to provide the necessary allegations, the Court determined that an evidentiary hearing
was not necessary on this motion. Defendant Kitchell has
not demonstrated any deliberate falsehood or reckless
disregard for the truth on the part of the offrcers requesting the search warrant, and accordingly the Court finds
that the warrant was valid, thereby rendering [*12] the
search proper. Defendant Kitchell's motion to suppress
will therefore be denied.
3. Motion to Suppress Telephone Calls Taped at the
Grady County Detention Center
While at the Grady County Detention Center, calls
made by all thxee Defendants were recorded, and Defendant Kitchell contends that such recordings should be
suppressed because they violate Title III of the Wiretap
Act. ' The government contends that such recordings are
permissible because Defendants consented to being recorded.
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2009 U.S. Dist. LEXIS 44251, *
3 Defendant Sprous joined Defendant Kitchell's
motion, but his argunents are moot due to his decision to enter a guilty plea in this case. Defendant Shigemura also adopted Defendant Kitchell's
motion.
The "prior consent" exception to the Wiretap Act
provides: "It shall not be unlawful under this chapter for
a person acting under color of law to intercept a wire,
oral, or electronic communication, where such person is
a pafty to the communication or one of the parties to the
communication has given prior consent to such interception." 18 U.S. C. § 2511(2)(c). The Tenth Circuit has held
that a defendant's express consent is not required, but
rather implied consent is sufficient to satisfy the statute.
United States v. Verdin-Garcia, 516 F.3d 884, 894 (10th
U.S. , 129 SCt. 161
Cir.), [*13] cert. denied,
(2008). "Use of the prison telephone is a privilege, not a
right, and ... where the warnings given and other circumstances establislr the prisoner's awareness of the possibility of monitoring or recording, his decision to take
advantage of that privilege implies consent to the conditions placed upon it." Id. at 895.
The evidence at the suppression hearing indicates
that inmates at the Grady County Detention Center are
watned in three different ways that their phone calls may
be recorded. First, when they are booked into the facility,
all inmates are required to sign a copy of the facility's
rules and regulations, and are also given a copy of the
rules to keep with them. These mles clearly indicate that
phone calls may be recorded. Second, there is a notice
posted next to all phones located within the facility warning inmates that their phone calls may be recorded.
Third, when inmates place a telephone call, before they
are able to speak with whomever they are calling, a
warning is played over the phone telling them that their
call will be recorded. All of these warnings are sufficient
to establish that all three Defendants were aware of the
[*14] possibility that their telephone calls may be recorded. Accordingly, they have not demonstrated a violation of the Wiretap Act and the motions to suppress will
be denied.
CONCLUSION
As set forth more fully herein, Defendants' Joint
Motion to Suppress (Dkt. No. 61) is DENIED. Defendant
Kitchell's Motion to Suppress Information Obtained from
Search of Cell Phone (Dkt. No. 65) and his Motion to
Suppress Telephone Calls Taped at the Grady County
Detention Center (Dkt. No. 66) are DENIED. Defendant
Shigemura's Motion to Suppress Jail House Calls (Dkt.
No. 73) is DENIED. Both Defendant Sprous's Motions to
Adopt (Dkt. No. 69; Dkt. No. 70) are MOOT.
IT IS SO ORDERED this 26th day of May, 2009.
/s/ Robin J. Cauthron
ROBIN J. CAUTHRON
Utiited States District Judge
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