Opinion
Cause No. IP03-0062-CR-01-B/F.
June 7, 2004
ENTRY DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
Defendant Jeffery Garrett ("Mr. Garrett") is charged with two offenses: (1) the knowing possession with intent to distribute 50 grams or more of a mixture or substance containing cocaine base, commonly known as "crack" in violation of 21 U.S.C. § 841 (a)(1) and 841(b)(1)(A)(iii); and (2) the possession of loaded Taurus .357 caliber handgun in relation to a drug trafficking crime in violation of 18 U.S.C. § 924 (c)(1).
The charges arise from evidence obtained as a result of the search of Mr. Garrett's vehicle after he was stopped for a traffic violation on March 26, 2003.
This matter comes before the Court on Defendant's Motion to Suppress the drugs, gun and statements obtained on that date. An evidentiary hearing was held on May 25, 2004 to address Defendant's challenge to the legality of the search, at the conclusion of which the Court announced orally on the record its findings of fact and conclusions of law and denied the motion to suppress. This entry sets forth in detail the factual and legal basis for the Court's ruling denying the defendant's Motion to Suppress.
Factual Background
On March 26, 2003, Indianapolis Police Department ("IPD") Sergeant Paul McDonald ("Sgt. McDonald") stopped the defendant for a traffic violation which ultimately ended in a search of his vehicle and his arrest, the details of which follow.Prior to the day of the traffic stop, Mr. Garrett had been the subject of an undercover narcotics investigation conducted by Detective Clifton Jones ("Det. Jones") of the South District Narcotics Unit. Based on information from a confidential informant, Det. Jones began investigating Mr. Garrett for dealing crack cocaine in November 2002. The investigation involved surveillance of Mr. Garrett, who regularly drove a 1992 green Mercury Cougar, and four controlled sales of crack cocaine to a confidential informant between November 2002 and January 2003.
Det. Jones gave extensive testimony about how a confidential informant is supervised during controlled purchases of narcotics.
By March 26, 2003, the day of the traffic stop, Det. Jones had enlisted the assistance of IPD Detective Richard "Danny" Wilkerson ("Det. Wilkerson") and Sgt. Paul McDonald. Despite having probable cause to arrest Mr. Garrett based on the four controlled purchases of crack cocaine, Det. Jones chose to delay an arrest in order "to protect the integrity of the criminal investigation and ensure the safety of the officers." Thus, on the morning of March 26th, Det. Jones renewed surveillance of the defendant's home and when Mr. Garrett left in the green Mercury Cougar, he contacted Det. Wilkerson and Sgt. McDonald to request they follow the defendant's vehicle in order to determine if Mr. Garrett could be legitimately stopped for committing a traffic violation. The purpose of the traffic stop, according to Det. Jones, would be to facilitate the defendant's apprehension for narcotics related offenses previously committed by him.
Det. Jones testified that he preferred a traffic stop, if possible, rather than an arrest on the warrant because of a variety of legitimate law enforcement interests: (1) to protect the ongoing undercover investigation; (2) to protect the identity of the confidential informant; (3) to provide the defendant with a "low-key" way to decide to cooperate; (4) to provide for the defendant's protection.
Detective Wilkerson and Sgt. McDonald both testified that on the day in question they had been informed by Det. Jones of the following: (1) Mr. Garrett had been involved in four controlled sales of crack cocaine to a confidential informant between November 2002 and January 2003; (2) he had a serious criminal history and "violent tendencies"; (3) there was a strong likelihood he was armed on this day; and (4) he was driving a 1992 green Mercury Cougar, which likely contained a hidden compartment.
The sales were made on November 6, 2002, November 8, 2002, January 3, 2003 and January 21, 2003.
On the early afternoon of March 26, 2003, Mr. Garrett was stopped for a traffic violation. He and a female passenger, Antoinette Williams, were in the green Mercury Cougar proceeding eastbound on Rockville Road in Indianapolis. In the vicinity of the Garden City Elementary School, Sgt. McDonald observed the Cougar traveling 35 m.p.h in a 25 m.p.h school zone. Sergeant McDonald continued to follow Mr. Garrett's car in his own unmarked police car as the Mercury Cougar traveled eastbound on Rockville Rd, to Washington Street on the west side of Indianapolis. Mr. Garrett unexpectedly turned into the parking lot of a Hardee's restaurant, causing Sgt. McDonald to have to make a U-turn in order to keep him under observation. Sergeant McDonald observed a white male exit a parked blue Cavalier also in the restaurant parking lot, walk over to the defendant's car and, from the driver's side, speak less than a minute to the occupants. Sergeant McDonald testified that, under those circumstances, based on his 18 years as a police officer and his work in the Dangerous Drugs Section, he suspected a drug transaction had just occurred.
Described alternately as his fiancé or ex-fiance.
Shortly thereafter, Mr. Garrett pulled his car back onto Washington Street and Sgt. McDonald moved in behind him and pulled him over, effecting the traffic stop for the earlier speeding violation. Almost immediately, Det. Wilkerson also arrived on the scene to provide back-up. Both officers testified that, upon Sgt. McDonald's request, Mr. Garrett and his companion, Ms. Williams, exited the front seats of the car after having been informed that they were being pulled over for speeding in a school zone. Mr. Garrett was responsive to the officer's questions and, though somewhat resistive, was generally cooperative, offering information that he had recently been released from prison. Initially, the defendant consented to a search of the car but later withdrew permission when he was asked if they could search for weapons. Given Mr. Garrett's withdrawn consent, Det. Wilkerson called for the assistance of IPD Officer Matthew Mielke of the Canine Unit. Sergeant McDonald added that, in his judgment, the involvement of a canine unit on a traffic stop was also warranted given the defendant's nervous demeanor when asked for permission to search for contraband, together with the sergeant's observation of the Hardee's parking lot encounter and the information he had been given about the defendant's prior criminal activity. The traffic violation ticketing process, during which the defendant, Ms. Williams and Sgt. McDonald remained outside the car, took approximately twenty (20) minutes from start to finish.
Officer Mielke and his certified drug detection dog, Cade, arrived within two minutes of having been summoned and walked around the outside of the car to conduct an "air sniff." At no point did Cade or Officer Mielke enter the vehicle. Cade alerted to the presence of a narcotic at the passenger side front wheel well as signaled by his lying down passively and staring. Once Cade gave the alert, Officer Mielke promptly returned Cade to his kennel and reported his findings to Sgt. McDonald and the other officers.
We heard extensive and credible testimony from Officer Mielke regarding Cade's testing and training in the olfactory detection of crack cocaine, cocaine, methamphetamine, heroin and marijuana. Cade reliably sniffs the presence of those narcotics without assistance by giving what is known as a "passive alert," that is, he lies down if he detects the odor of one of the drugs he has been trained to detect.
Detective Wilkerson undertook a search inside the vehicle and was drawn to the rear arm rest area on the driver's side in a space usually containing an audio speaker; he testified that his focus on this particular location reflected his successful completion of four (4) special training courses in the detection of automobile hidden compartments. He spotted a hinged cover which indicated to him the area might have been modified, and upon opening it discovered an otherwise hollow compartment containing two black travel bags. He removed the bags and found that one contained 270 gr. of cocaine base ("crack") and a small amount of marijuana, and the other, a fully loaded .357 Taurus revolver. A defense witness, private investigator and former IPD officer, Robert Fisher, testified that when he inspected Mr. Garrett's vehicle a year later at an abandoned car lot, in contrast to Det. Wilkerson's testimony, there was nothing readily visible, such as the hinge in the rear arm rest area, to warrant further exploration.
Detective Jones arrived at the scene of the traffic stop after the contraband had been found. He testified that he read both the defendant and Ms. Williams their Miranda warnings and asked them if they understood their rights, which question both answered in the affirmative. The defendant declined to speak to the police at this time and no further conversation ensued. Mr. Garrett and Ms. Williams were arrested and taken to the IPD South District Headquarters. At the police station, according to Det. Jones, Mr. Garrett indicated he wished to speak to him, prompting Det. Jones to administer Miranda warnings for a second time. It is the detective's testimony that this time Mr. Garrett verbally waived his rights.
In response to questions about the contraband found in his car by Det. Jones and DEA Special Agent Gerald Dooley ("Agent Dooley"), who had been called in to assist the police officers, Mr. Garrett admitted that the drugs and gun and ammunition belonged to him and made clear that Ms. Williams had no knowledge of the presence of these items in the car. According to Agent Dooley, the defendant also admitted having dealt cocaine for the past year and disclosed his source (a man named "Bono") for the cocaine.
Discussion
A defendant who moves to suppress evidence under the Fourth Amendment bears the burden of establishing that the search was illegal. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); U.S. v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985). Defendant Garrett contends in his motion to suppress that the traffic stop of his vehicle was unlawful because it was patently pretexutal and thus the subsequent search of the car and seizure of contraband was unreasonable under the Fourth Amendment for lack of probable cause. As a result of this constitutional violation, he argues, the drugs, gun and his statements subsequent to the unlawful search must be suppressed.
A. The Lawfulness of a Pretextual Traffic Stop.
The defendant contends that the traffic stop was unlawful because it was pretextual, making the fruits from the stop inadmissible. We do not disagree with the defendant that the traffic stop was clearly pretextual. However, according to the holding in Whren v. United States, the Supreme Court has found that the actual motivations of the officer do not dictate the constitutional reasonableness of the traffic stop; a pretextual stop may be lawful if it is "reasonable." Moreover, in Whren, a decision to stop an automobile was reasonable "where the police have probable cause to believe that a traffic violation has occurred." Whren v. U.S., 517 U.S. 806, 810, 813 (1996). We heard credible testimony from Sgt. McDonald, a seasoned police officer, that he was able to determine that Mr. Garrett was driving in excess of the posted speed limit by following him and keeping pace with his car. This reasonable belief that Mr. Garret committed a traffic offense, albeit a minor one, ultimately warranting only a warning citation, provided probable cause for the traffic stop and established its "reasonableness" underWhren.
Nor was the roughly two (2) minute delay while awaiting the arrival of Officer Mielke and Cade unreasonable. In United States v. Finke, the Seventh Circuit found a four (4) minute detention of a suspect in a traffic stop while a canine unit arrived on the scene to be lawful, based on a number of factors: (1) the officer got a positive response from a criminal history check; (2) he was aware the suspect had prior drug convictions; and (3) the suspect was behaving suspiciously. United States v. Finke, 85 F.3d 1275 (7th Cir. 1996). In the case at bar, it took only two (2) minutes for Officer Mielke and Cade to arrive on the scene. Sergeant McDonald testified that when he stopped Mr. Garrett for the traffic violation he had a number of reasons to be wary: (1) he was aware of Mr. Garrett's criminal history; (2) he had been informed about the four recent controlled drug sales; (3) he was alert to the possibility that the defendant would be transporting drugs and carrying a weapon; and (4) he had recently observed the suspicious encounter in the Hardee's parking lot. In addition, (5) Mr. Garrett appeared nervous and (6) had withdrawn his consent to search his car within moments of having given it. A two-minute detention for the arrival of the canine unit, in light of these circumstances, is not unreasonable under Finke. Moreover, once Sgt. McDonald's reasonable suspicion was corroborated by the dog's positive alert to narcotics in the "air sniff" of the car, continued detention of the defendant was reasonable and creates no constitutional concerns for the Court.
The defendant further contends that the government failed to provide evidence that the dog used to sniff Mr. Garrett's car was "certified to detect narcotics." We find the government has carried its burden of proof on this issue by offering the testimony of the dog's handler, Officer Mielke, as to Cade's having been enlisted to perform a task well within the scope of his training and capabilities. Under Klein, the reliability of a drug detection dog may be established at a suppression hearing by submitting an affidavit stating the dog had graduated from a training class in drug detection. United States v. Klein, 626 F.2d 22,27 (7th Cir. 1980). Officer Mielke's testimony regarding Cade's and his training, experience and success in achieving 100% scores on a recently-administered proficiency test more than satisfies this standard. Thus, we find Cade's reliability to have been firmly established and his utilization for this investigative purpose altogether appropriate.
B. The Lawfulness of the Vehicle Search.
Once Cade, the drug detection dog, indicated the presence of drugs inside Mr. Garrett's vehicle, reasonable suspicion to stop the car ripened into probable cause to search it. In United States v. Patterson, the search of the compartments and containers within a vehicle which was stopped for a minor traffic violation was upheld based on the stopping officer's reasonable suspicion that drugs would be found therein. United States v. Patterson, 65 F.3d 68 (7th Cir. 1995), cert. denied, 516 U.S. 1061 (1996). Probable cause to search Mr. Garrett's vehicle evolved as the officer's prior reasonable suspicions were augmented by the defendant's nervous behavior, withdrawn consent to search and the positive dog sniff.
See U.S. v. Lievertz, 247 F. Supp.2d 1052, 1060 (S.D.Ind. 2002) (Barker, J.) "Probable cause to search exists if, given the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place." (citing U.S. v. Young, 38 F.3d 338, 340 (7th Cir. 1994)).
In Patterson, the defendant was stopped for a traffic infraction and the officer became suspicious he was a drug courier because Patterson was nervous, gave false answers and had a messy car that stank of air freshener. He called in a drug detection canine unit, and the trained dog alerted to the tailgate panel. This formed the probable cause to search the panel. See also, United States v. Seals, 987 F.2d 1102, 1107 (5th Cir.) (canine alert to cocaine-residue, "in conjunction with the defendant's nervousness and false answers, coupled with the modification of the rear seat, provided the officers with probable cause to believe that additional drugs were contained within the vehicle."), cert. denied, 510 U.S. 853 (1993).
Once there was probable cause to search the vehicle, it was lawful to search the entire car and open any packages, luggage or closed containers that might reasonably contain the items for which the police have probable cause to search. United States v. Ross, 456 U.S. 798, 820 (1982); United States v. Shelby, 121 F.3d 1118, 1121 (7th Cir. 1997) (probable cause to believe drugs were hidden in arm rests); United States v. Molina, 102 F.3d 928 (7th Cir. 1996) (lawful search of secret compartment behind the speaker grille in the wall next to the rear seat on the driver's side of the car). Here, probable cause to search for drugs and a gun had been fully established and that probable cause extended to the hidden compartment as well.
C. Probable Cause for an Arrest and a Search Incident to Arrest.
The government offered sufficient evidence on its alternate theory to sustain a finding that the search of Mr. Garrett's vehicle was lawful. Under the inevitable discovery exception to the exclusionary rule, the government is required to demonstrate by a preponderance of the evidence that the seized objects which are the subject of the suppression hearing would have been discovered by lawful means. Nix v. Williams, 467 U.S. 431, 448 (1984); United States v. Langford, 314 F.3d 892, 895 (7th Cir. 2002). Detective Jones testified that he intended to arrest the defendant that day, regardless of what resulted from any traffic stop, for the four previous controlled buys of cocaine by the confidential informant. That being the case, the officers would have been constitutionally empowered to conduct a search incident to arrest, which would have yielded the cocaine and the gun, given the confidential informant's information that the car contained a secret compartment.
See Chimel v. California, 395 U.S. 752 (1969) (holding that a full search of the arrested person and the area within the person's immediate reach is lawful); New York v. Belton, 453 U.S. 454 (1981) (holding that the police may search the entire passenger compartment of a vehicle upon arresting the occupants, even if the arrestee can no longer reach into the interior compartment of the car when the search is undertaken).
The government also has argued persuasively that the stopping officer, Sgt. McDonald, was lawfully entitled to rely on Det. Wilkerson's and Det. Jones' reasonable suspicions, so long as he had no reason to believe their suspicions were not well-founded. This is known as the "collective knowledge" theory for establishing probable cause. US v. Rodriguez, 831 F.2d 162, 166 (7th Cir. 1987); see also, Tangwall v. Stuckey, 135 F.3d 510, 517 (7th Cir. 1998). In Tangwall, the Seventh Circuit determined that "[t]he police who actually make the arrest need not personally know all the facts that constitute probable cause if they reasonably are acting at the direction of another officer or police agency. In that case, the arrest is proper so long as the knowledge of the officer directing the arrest, or the collective knowledge of the agency he works for, is sufficient to constitute probable cause." (citing United States v. Valencia, 913 F.2d 378, 383 (7th Cir. 1990); 2 Wayne R. LaFave, Search Seizure § 3.5(b) (2d ed. 1987)).
We conclude under the factual circumstances of this case, the collective knowledge of all the officers working on this arrest was sufficient to establish probable cause to effect a lawful arrest of the defendant. Accordingly, there is no basis upon which to exclude the crack cocaine and loaded revolver found in the search of Mr. Garrett's vehicle.
D. The Admissibility of the Defendant's Post-Arrest Statements.
As for the statements Mr. Garrett made to Det. Jones and Agent Cooley after his arrest while he was in custody at the police station, we find no basis for their exclusion either. Mr. Garrett was given his Miranda warnings, not once but twice. Moreover, he unequivocally waived those rights after he initiated the discussions by requesting to speak to Det. Jones. We find that the ensuing inculpatory statements with regard to his possession of the crack cocaine and loaded revolver were both voluntary and properly forewarned, based on the totality of circumstances which show that they were the product of rational intellect and free will rather than physical abuse, psychological intimidation or deceptive interrogation tactics that overcame the suspect's free will. United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001). There was no evidence to suggest he was coerced into making the inculpatory statements. Generally, confessions and admissions are admissible if made voluntarily. United States v. Williams, 128 F.3d 1128, 1131 (7th Cir. 1997). Therefore, Mr. Garrett's voluntary and forewarned statements are admissible at trial. Oregon v. Elstad 470 U.S. 298, 307 (1985).
Conclusion
For the reasons discussed above, we find no basis for the suppression of either the physical evidence (firearm, ammunition, cocaine) obtained as a result of the vehicle search or the inculpatory statements the defendant made to law enforcement officers subsequent to his arrest. Defendant's Motion to Suppress Evidence is therefore DENIED.
It is so ORDERED.