UNITED STATES of AMERICA,
Plaintiff.
v.
MICHAEL D. SANDERS,
Defendant.
[1998 DSD 19]
United States District Court
District of South Dakota
Western Division
CR 98-50022-01
MEMORANDUM OPINION AND
ORDER DENYING MOTION TO SUPPRESS
Filed Jul 23, 1998
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] On February 12, 1997, Michael D. Sanders (Sanders) was indicted for violating 18 USC §§ 922(g) and 924(a)(2), felon in possession of a firearm and knowingly transporting firearms in interstate commerce. Sanders was charged in state court for various drug related crimes stemming from the same incident.
[¶2] On June 11, 1998, Sanders filed a motion to suppress several items seized by law enforcement officers. Relying upon Federal Rule of Evidence 403, Sanders also moves to suppress any mention of his possession of drugs at trial. On June 24, 1998, Sanders filed a supplemental motion to suppress in which he alternatively moved for dismissal of the indictment.
[¶3] On June 25, 1998, Magistrate Judge Marshall P. Young held a hearing on defendant's motion to suppress. Special Agents John Buszko (Agent Buszko) and Bob Beyer (Agent Beyer) from the Department of Criminal Investigations (DCI) testified at the suppression hearing. On July 1, 1998, Magistrate Judge Young submitted his findings and recommendations to the Court. Magistrate Judge Young recommended that the evidence not be suppressed as no statutory or constitutional rights were violated.
II. FACTS
[¶4] In the early morning hours of August 6, 1997, Sanders was the passenger in a pickup truck driven by Ricky Standon. The pickup had a motorcycle in the bed and was towing a trailer. The vehicle was pulled over by Of ficer Keith Jorgenson of the South Dakota Highway Patrol because one of the taillights on the trailer was missing a red lens and was emitting white light from the exposed bulb. Transcript of Suppression Hearing (Tr.) at 6-7.
[¶5] Shortly after the stop, agents Buszko and Beyer arrived. Agent Buszko approached the passenger's side of the vehicle while Of ficer Jorgenson conversed with the driver, Standon, outside the vehicle. Tr. 8. Agent Buszko testified that he saw a knife on the dashboard in front of the passenger, Sanders. Tr. 9, 22, 32-35. Agent Beyer also testified that he saw the knife on the dashboard. Tr. 44. However, the knife did not appear on the inventory list of items later taken from the pickup. Agent Buszko then asked the passenger if he possessed any guns or knives, to which Sanders responded in the negative. Tr. 9. Agent Buszko then asked Sanders to step out of the vehicle in order to conduct a pat-down search for weapons. Tr. 9-10. Several unhealed sores and cuts were observed on Sanders' body by Agent Buszko. Tr. 10. As Sanders got out of the vehicle Agent Buszko noticed a ball of electrical tape where Sanders had been sitting. Tr. 13. Agent Buszko grabbed the ball as it was in plain view. Sanders denied any knowledge of the ball or where it came from. Tr. 14-15. The ball was later revealed to contain methamphetamine. Throughout this time period Sanders was very compliant and made no effort to resist. Tr. 16.
[¶6] At approximately the same time that Agent Buszko was questioning Sanders, Agent Beyer noticed a maroon bag in the bed of the pickup truck. Tr. 40. According to his testimony, Agent Beyer noticed a Baggie protruding *om a pocket of the maroon bag. Tr. 41. The contents of the Baggie were not discernable. Both Agent Beyer and Agent Buszko inquired of defendant and Standon whether the maroon bag was theirs or if they had any knowledge of it. Tr. 43. Both individuals repeatedly denied any knowledge of the bag and disclaimed ownership of it. Tr. 43-44, 51. Subsequently, the bag was searched revealing a .22 caliber Ruger handgun. Tr. 20. Sanders was immediately arrested and taken into custody. Tr. 20. Upon further investigation $3100 dollars was found on Sanders. Tr. 21. A weighing scale and syringes were also found in the pickup. Tr. 21.
III. STANDARD OF REVIEW
[¶7] The Eighth Circuit Court of Appeals has set forth the following procedure for a district court to undertake when reviewing a magistrate judge's findings and recommendations.
Once a proper objection is made to a magistrate judge's finding, the district court must review that finding de novo. See Taylor v. Farrier, 910 F2d 518, 521 (8th Cir. 1990); 28 USC § 636(b)(1). "In conducting [de novo] review, the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing." Branch v. Martin, 886 F2d 1043, 1046 (8th Cir. 1989).
Jones v. Pillow, 47 F3d 251, 252 (8th Cir. 1995). Upon such de novo review ofthe suppression hearing transcript and exhibits, the Court concludes that the stop of the vehicle was valid and the subsequent search was not improper. The suppression motion is denied.
IV. DISCUSSION
[¶8] Sanders moved the Court to suppress the gun, scale, syringes, drugs, and money and to dismiss the indictment. Sanders' arguments for suppression are a follows: (1) that the stop of the vehicle was illegal and pretextual since the trailer was not in violation of SDCL 32-17-8 or 32-17-8.1; (2) that the subsequent search of the vehicle and the pat-down search of defendant were in violation of his constitutional rights. Motion to Suppress at 1-2. Sanders also argues that no mention should be made of Sanders' possession of drugs under Federal Rule of Evidence § 403. Motion to Suppress at 1.
[¶9] The Court reserves ruling on the Rule 403 motion until objections to such evidence are made at trial.
[¶10] A. The Stop
[¶11] Sanders argues that the stop in this instance was not valid
since there was no violation of the law. He contends that SDCL §§ 32-17-8{fn1} and
32-17-8.1{fn2} were not violated since the trailer in question was built prior to July 1,
1973, and meets the statutory requirement for such models. Since the stop was not valid,
he argues, all the evidence should be suppressed. Objections to Findings and
Recommendations (Objections) at 2. Defendant misinterprets both the statute and the
pertinent case law in reaching this conclusion.
[¶12] Sanders acknowledges that a traffic violation provides an officer
with probable cause to stop a vehicle. Id. (citing United States v. Chatman, 119
F3d 1335, 1339 (8th Cir. 1997)). No less an authority than the United States Supreme Court
has indicated that "the decision to stop an automobile is reasonable where the police
have probable cause to believe that a traffic violation has occurred." (emphasis
added) Whren v. United States, _US_,116 SCt 1769, _ LEd2d _ (1996) (citing Delaware
v. Prouse, 440 US 648, 659, 99 SCt 1391, 1399, 59 LEd2d 660 (1979); Pennsylvania
v. Mimms, 434 US 106, 109, 98 SCt 330, 332, 54 LEd2d 331 (1997))
[¶13] The issue then becomes whether there was probable cause to stop the vehicle or whether Officer Jorgenson reasonably believed he had probable cause to stop the vehicle. The Court finds that probable cause did exist. Close scrutiny of the statutes involved indicates that Officer Jorgenson had probable cause to stop the vehicle. SDCL 32-27-8, addressing trailers built prior to July 1, 1973, indicates that even trailers built prior to July 1, 1973, "shall have at least one tail lamp, which when lighted ... shall emit a red light." In the instant case there is no argument that there was a red lens missing from the light on the trailer. Defendant contends that the stop was illegal since the trailer by law only needed one light. This argument would have merit if the only basis for stopping the vehicle was because the trailer only had one light. However, it is evident that the stop was precipitated by the lack of a red lens on one of the lights.{fn3} Probable cause to believe that the vehicle was in violation of the statute was present.
[¶14] While Officer Jorgenson did not testify at the suppression hearing, the evidence bolsters the propriety of the stop. Exhibit #1 is a picture of the pickup and trailer as it appeared on the evening of August 6, 1997. It reveals two tail lights, one much higher and to the right of the other. The higher tail light is without a red lense as required by § 32-17-8 and 32-17-8.1. Also, Sanders concedes that Officer Jorgenson issued a warning ticket for violation of § 32-17-8. Brief in Support of Motion to Dismiss (Defendant's Brief) at 2. The stop itself, the issuance ofthe ticket, and the photograph of the trailer demonstrate not only that Of ficer Jorgenson believed the trailer was not in compliance with the law but also that this belief was reasonable.
[¶15] B. The Search
[¶16] Sanders next contends that the pat-down search to which he was subjected was in violation of the Fourth Amendment as was the search of the maroon bag in the bed of the pickup. Sanders argues that since the stop was illegal the subsequent search was tainted. The Court having determined that the stop was valid need not address this argument. Sanders alternatively claims that the pat-down search of his person was invalid as there was no reasonable suspicion to warrant such a search. Objections at 3-4. In support of this contention, Sanders emphasizes that the knife which Agents Buszko and Beyer allegedly saw was not recovered in the inventory search and therefore cannot be the basis for the search. Sanders does not argue that the seizure of the electrical tape ball was itself illegal but rather that it would not have been in plain view had he not been ordered from the vehicle. Since there was no reasonable basis to remove him from the pickup, the ball of electrical tape should be suppressed.
[¶17] The knife failed to turn up in the inventory search. This omission, however, is not enough to meet defendant's burden of showing the search was unreasonable. The Supreme Court has recognized the inherently dangerous situation that is present for law enforcement officials when conducting a traffic stop. See Pennsvlvania v. Mimms, 434 US 106, 110, 98 SCt 330, 333 54 LEd2d 331 (1977) (noting that there is an "inordinate risk confronting an officer as he approaches a person seated in an automobile.") Accordingly, greater flexibility is granted to officers to search the area in which individuals may have a weapon. The Court has indicated that to warrant such an intrusion, the of ficer must have "a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Michigan v. Long, 463 US 1047, 1050, 103 SCt 3469, 3481, 77 LEd2d 1201 (1983) (quoting Terry v. Ohio, 392 US 1, 21, 88 SCt 1868, 1880, 20 LEd2d 889 (1968)).
[¶18] Having reviewed the transcript of the suppression hearing, especially the testimony of Agents Buszko and Beyer pertaining to the observation of the knife, the Court concludes that there was reasonable grounds for the officers to believe that Sanders posed a danger to them. Both agents testified that they saw the knife on the dashboard. The Magistrate Judge had the opportunity to observe both of them testify and concluded that they were credible. The presence of the knife and Sanders' denial of the presence of weapons warranted the removal of Sanders from the pickup and the pat-down search.
[¶19] Aside from the presence of the knife and the agents' fear for their safety, another basis for ordering Sanders from the vehicle exists. The United States Supreme Court recently recognized the ability of law enforcement officials during routine traffic violation stops to order the passenger out of the vehicle as well as the driver. Maryland v. Wilson, 519 US 408, 117 SCt 882, LEd2d 41 (1997). The Court in Wilson mentioned the inherent danger to police officers when making such stops and noted that having passenger and driver exit the vehicle is a de minimis intrusion of their rights. Id. 117 SCt at 885. Therefore, it would have been proper for the officers to order Sanders from the car even absent Agent Buszko's observation of the knife on the dashboard.
[¶20] As for the maroon bag which contained the gun, the government correctly notes that once an article has been abandoned the expectation of privacy has been removed and a search is therefore not a Fourth Amendment violation. United States v. Sanders, 130 F3d 1316, 1317-18 (8th Cir. 1997); United States v. Porter, 107 F3d 582, 583-84 (8th Cir. 1997). In Sanders, the court found that repeated denials of ownership of the item in question constituted abandonment so that any expectation of privacy was surrendered. Sanders, 130 F3d at 1318. Accordingly, when both Sanders and Standon repeatedly denied any knowledge of the maroon bag found in the bed of the pickup{fn4} the subsequent search was valid. Sanders' belated acknowledgment of ownership back at the police station has no bearing on what happened at the scene of the stop.
V. CONCLUSION
[¶21] Based upon a de novo review of the facts and the applicable law, the Court finds the stop of the vehicle and the subsequent search were permissible. The Court finds that Officer Jorgenson had probable cause or a reasonable suspicion for stopping the vehicle and that the subsequent searches were not improper given the articulable beliefs of the agents involved. Moreover, neither Standon nor Sanders had a reasonable expectation of privacy in relation to the maroon bag found in the bed of the pickup. Once they denied ownership or knowledge of its existence it was deemed abandoned and subject to a valid search.
[¶22] Accordingly, it is hereby
[¶23] ORDERED that Sanders' motion to suppress (Docket #18) is denied.
[¶24] IT IS FURTHER ORDERED that Sanders' motion to dismiss is denied.
Footnotes
1. SDCL 32-17-8 provides in relevant part:
Every motor vehicle, trailer, semitrailer, and pole trailer, except as otherwise provided in this section, and any other vehicle which is being drawn at the end of a combination of vehicles shall be equipped with at least two tail lamps mounted on the rear, which when lighted as required in § 32-17-4 shall emit a red light plainly visible from a distance of one thousand feet to the rear. However, motor vehicles, trailers, semitrailers and pole trailers manufactured and assembled prior to July 1, 1973, shall have one tail lamp mounted on the left side of the rear which when lighted as required in § 32-17-4 shall emit a red light plainly visible from a distance of five hundred feet to the rear.
2. SDCL 32-17-8.1 provides in relevant part:
Except for vehicles equipped with slow-moving vehicle emblems in compliance with §§ 32-15-20 and 32-15-21 every motor vehicle, trailer, semitrailer and pole trailer shall be equipped with two or more stop lamps, except that motor vehicles, trailers, semitrailers and pole trailers manufactured and assembled prior to July 1, 1973, and motorcycles and motor driven cycles shall be equipped with at least one stop lamp. The stop lamp shall be mounted on the rear of the vehicle s a height of no more than seventy inches nor less than fifteen inches. The stop lamp shall display a red light visible from a distance of not less than three hundred feet to the rear in normal sunlight, except for a moped, which distance shall be not less than one hundred fifty feet. The stop lamp shall be actuated upon application of the service (foot) brake which may be incorporated with on or more rear lamps. A violation of this section is a petty offense.
3. In fact, according to a photograph taken at the scene it appears as though there were two lights on the trailer. Exhibit #1, Transcript of Suppression Hearing.
4. Law enforcement officials are allowed to look into the interior of a vehicle if the of ficer is "lawfully located in a position from which he or she can plainly see the item and have lawful access to it." United States v. Bradshaw, 102 F3d 204, 211 (8th Cir. 1996) (citing Horton v. California, 496 US 128, 136-37, 110 SCt 2301, 2307-08, 110 LEd2d 112 (1990)).