UNITED STATES OF AMERICA v. RICKY NUCKLES
NO. 1:14-CR-218-ODE-AJB
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
Filed 02/18/15
CRIMINAL ACTION FILE
This case is pending before the undersigned Magistrate Judge on Defendant Ricky Nuckles’s motion to suppress evidence and statements. [Doc. 16]. The Court held two evidentiary hearings, [Doc. 22 (hereinafter “T1:__”); Doc. 26 (hereinafter “T2:__)], after which the parties filed briefs, [Docs. 27 (United States), 29 (Nuckles)].1 For the following reasons, the undersigned RECOMMENDS that the motion to suppress, [Doc. 16], be DENIED.
Introduction
Nuckles is charged in a two-count indictment with possession with intent to distribute more than five kilograms of cocaine and possession of a firearm in furtherance of that offense. [Doc. 1]. He moves to suppress the search of a vehicle and
Facts
As of the time of the initial evidentiary hearing on August 6, 2014, Michael Connolly had been a Drug Enforcement Administration (“DEA”) Special Agent for five years, and before becoming a DEA agent, he spent almost six years as a Massachusetts police officer. T1:5. During his law-enforcement career, he had been involved in approximately fifty drug investigations. Id. He testified that, based on his experience, he was able to recognize drug transactions, ranging from hand-to-hand exchanges of small quantities of drugs on the street to larger transactions commonly involving exchanges between separate vehicles in locations such as gas stations and big-box store parking lots. T1:6, 37. He usually investigated the larger transactions. T1:37.
On December 23, 2013, at about 10:00 a.m., Connolly was off duty and went to the Valero gas station on Cheshire Bridge Road in Atlanta to have his annual emissions
When he arrived at the emission-inspection station, there was another car ahead of his, so Connolly waited and cleaned out the trash from his car. T1:7-8. He noticed a black Ford Taurus with a red dealer tag parked at the gas pumps, but gasoline was not being pumped into it. T1:8, 10, 36.3 Connolly was unaware whether gasoline already had been pumped into the Taurus or the driver had gone inside the store to pay for gasoline. T37.4 Then, at approximately 10:05 a.m. (VSV 10:07:21), Connolly saw a
As Connolly walked towards the Taurus on his way to the trash bin next to the store, he saw the male from the second car open the Taurus’s driver’s side back door and place the suitcase inside the Taurus. T1:9, 44; VSV 10:08:02. As Connolly was disposing of the trash, he saw Defendant Nuckles standing inside the convenience store, looking out of the glass window. T1:9, 56. Connolly walked back to his vehicle from the trash bin and saw the male from the second vehicle close the door to the Taurus, re
Connolly called his partner and told him to send some people to his location because he thought “there’s something going on here.” T1:11. Connolly testified that his observations were “exactly consistent with the type of drug transactions that I see on a weekly basis.” T1:11.
While Connolly was on the phone with his partner, he saw Nuckles exit the convenience store and walk towards the driver’s door of the Taurus. T1:12, 44; VSV 10:09:37.6 Connolly approached him and took out his DEA badge and displayed
Connolly asked him if the Taurus was his and Nuckles replied that it was. T1:12. Connolly asked him about the dealer tag and Nuckles explained that he owned a dealership and told Connolly his name and the name of his dealership. T1:12, 59. When Connolly explained that he had just observed a random male put a suitcase in his car, Nuckles became “extremely nervous,” in that he looked “in all directions,” his hands were moving around, and “basically he couldn’t stand in place.” T1:12-13; VSV 10:10:08.
Connolly described Nuckles as about forty years old. He appeared to be educated in that he understood what questions he was asked and spoke “fine.” T1:13. He was wearing a big winter work jacket. T1:14. Nuckles began to walk away and Connolly asked him if he minded “just hanging out here for a little bit so we can talk,”
Connolly continued to watch Nuckles, who appeared to be buying lottery tickets inside the store. T1:14.8 When Nuckles exited the store a little over a minute later (VSV 10:11:43), Connolly re-engaged him by asking if he had any weapons on him, and Nuckles replied that he did not. T1:14. Connolly asked if he could do a quick pat down to make sure he was unarmed, and Nuckles responded that he could and raised his arms. T1:15; VSV 10:11:56-10:12:05. Connolly did not find any weapons during the pat-down. T1:15.
Connolly and Nuckles walked toward the Taurus, with about three to four feet between them. Id.; VSV 10:12:07. There were other gas-station patrons pumping gas. Id.; see also VSV 10:13:32 (showing vehicles at all gas pumps and other patrons inside and outside of their vehicles). Connolly again explained what he had seen, and Nuckles stated that he was inside the gas station, stated that the bag was not his, and repeated that he was in the gas station. Connolly acknowledged that Nuckles had been inside
Connolly asked Nuckles, “Would you mind if I searched your car to see what’s in the suitcase?” and Nuckles replied, “No, I don’t care. Go ahead. I told you it’s not mine.” T1:16; see also T1:34.9 At this point, Connolly received a telephone call from one of his DEA group members, who advised that additional officers were on their way. Id.
After Connolly ended the phone call, Nuckles asked him if he could retrieve something from his vehicle. Connolly asked him if he had any weapons in the vehicle, and Nuckles stated that he did. Connolly asked him if he minded waiting until Connolly’s assistance arrived, and Connolly described Nuckles as being “fine with that.” Id. Connolly then called 911 because he did not know when members of his group would arrive. He told the 911 dispatcher who and where he was, and explained that he was with a person with a firearm in his vehicle. T1:18. The 911 dispatcher asked Connolly for a description of the armed man. Id. While Connolly was on the phone, Nuckles put his hands in his pockets, and when Connolly finished the call, he
Three to four minutes after the 911 call ended, Sandy Springs Police Department Detectives Jeff Byrd and Lerod Freeman—both of whom were DEA Task Force members—arrived at the Valero in a police car that was unmarked but that was flashing
Connolly asked Nuckles for the keys to the Taurus because it still was locked. T1:18, 60. Nuckles removed the keys from his pocket and gave them to Connolly, who again asked if he had an issue with searching the car to see what was in the suitcase. T1:18-19.11 Nuckles again stated that he did not mind and that it was not his suitcase. T1:19, 66.12 Freeman frisked Nuckles again. Id.; VSV 10:19:02.
Connolly advised Nuckles that he was under arrest and handcuffed him, and Nuckles immediately asked to speak with a lawyer. T1:23, 69; T2:9; VSV 10:20:58. Nuckles was not questioned. T1:23.
Byrd entered and seized a FN Five-seveN handgun and an ammunition clip from the Taurus’s driver’s side door pocket and two cell phones from the center console. T1:46, 61, 68.1314
The wholesale value of the cocaine in the suitcase is approximately $750,000. T1:6-7.
Contentions of the Parties
The government argues that Connolly’s observations gave him reasonable suspicion to perform a brief investigatory detention of Nuckles pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and the totality of the circumstances gave Connolly the authority to detain him only long enough as necessary to confirm (or dispel) his1516 reasonable suspicions. [Doc. 27 at 8-9]. It argues that Connolly suspected that Nuckles
The government also argues that the scope and intrusiveness of the detention were reasonable and did not transform the limited detention into an arrest. It points out that Nuckles was in a very public area, no officer drew a weapon, he was not threatened, ordered to the ground or placed in a police vehicle, nor was he restrained, handcuffed, or presented with a show of force. [Id. at 10]. It notes that he was free to wander in and out of the store (which had another exit) and that there was no mention of an arrest before the cocaine was found. [Id.]. It also notes that the entire encounter was brief, a total of eighteen minutes. [Id.].
The government next argues that Nuckles voluntarily consented to the search of the Taurus as well as the suitcase. [Id. at 14-16].
The government also contends that Nuckles did not have standing to challenge the search of the suitcase, and that even if he did, he abandoned it by claiming that the suitcase was not his and that he had no knowledge of it. [Id. at 16]. In any event, it argues that he gave a general consent to search and that breaking the lock on the suitcase was therefore within the scope of the consent given. [Id. at 18-19]. Finally, the government argues that even if Nuckles did not consent to the search of the vehicle, the search subsequent to his arrest was valid. [Id. at 20-23].
In response, Nuckles argues that he has standing to challenge the search of the vehicle and its contents. [Doc. 29 at 2]. He contends that he exercised ownership and control over the vehicle when he confirmed to Connolly that the vehicle was his and remotely locked the vehicle. [Id.]. He also contends that the only fact in support of abandonment cited by the government was “a few words” he allegedly stated when
Nuckles next argues that he was subjected to an unreasonable and prolonged detention. He contends that Connolly seeing a person put a suitcase in another person’s car in broad daylight is insufficient to justify a Terry detention. [Id.]. Even if there was justification for the stop, Nuckles argues that the scope and duration of the detention exceeded Terry’s permissible limits. In support, he argues that Connolly prevented him from re-entering his vehicle and acted as a barrier to prevent him from leaving the gas station. Nuckles argues that he was cooperative and answered all of Connolly’s questions, and thus the detention should have terminated and he should have been allowed to leave. [Id. at 4]. He further submits that his statements disavowing knowledge of the suitcase should dispel rather than add to any level of suspicion. [Id.]. Nuckles also disputes the government’s argument that he was allowed to freely wander the gas-station premises; instead, he argues, Connolly followed him towards the gas station and “threateningly stood right outside the of the door, at one point gesturing for him to come back outside when he thought the defendant had been in the store for too long.” [Id.]. He also alleges that he tried to break off the encounter but was further detained, and he argues that he was not free to leave, nor would a reasonable person in
As to consent, he argues that even if he initially consented (which he does not concede), the second time he was asked, he was surrounded by armed police officers, one of whom had just frisked him. [Id. at 5-6]. He also points out that he was not told he had a right to refuse to consent, and he argues that he did not reasonably believe he could refuse because he had previously attempted to enter his vehicle and leave but was stopped and because he had asked to enter his vehicle and was refused. [Id. at 6].
Finally, he argues that even if he voluntarily consented, the search exceeded the scope of that consent. He acknowledges that consent freely given can include locked containers, [id. at 7 (citing United States v. Martinez, 949 F.2d 1117 (11th Cir. 1992)], but he argues that it was unreasonable to break the lock and rip open the suitcase without asking him, [id.].
The parties’ filings raise the following issues: (1) whether Connolly had reasonable suspicion to detain Nuckles and, if so, did the encounter ripen into a de facto arrest which required probable cause; (2) whether Nuckles’s statements were voluntary and in compliance with Miranda; (3) whether Nuckles abandoned the suitcase and thus had no “standing” to challenge its search; (4) whether Nuckles voluntarily consented to a search of the vehicle and suitcase, and whether the scope of the consent included breaking the lock on the suitcase; and (5) whether the firearm and magazine were properly seized from the vehicle. The Court addresses each in turn.
1. The Connolly-Nuckles encounter initially was consensual but became a seizure supported by reasonable suspicion, and the detention did not ripen into a de facto arrest requiring probable cause until Nuckles was formally arrested
a. Applicable law
There are three categories of police-citizen encounters contemplated within the Fourth Amendment: (1) police-citizen exchanges involving no coercion or detention; (2) brief seizures or investigatory detentions; and (3) full-scale arrests. United States v. Cusick, 559 Fed. Appx. 790, 791 (11th Cir. Feb. 24, 2014) (citing United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir. 1989)). Interactions falling within the first
As to the second category, law-enforcement officers may briefly detain a person for an investigatory stop if they have a reasonable, articulable suspicion based on objective facts that the person has engaged, or is about to engage, in criminal activity. See Terry v. Ohio, 392 U.S. 1, 30 (1968); United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000). Reasonable suspicion requires “more than a hunch”; it requires that the totality of the circumstances create, at least, “some minimal level of objective justification” for the belief that the person engaged in unlawful conduct. United States v. Diaz-Lizaraza, 981 F.2d 1216, 1220-21 (11th Cir. 1993) (citation omitted). A determination of reasonable suspicion based on the totality of the circumstances may be formed even if the conduct is ambiguous or can be given an innocent explanation. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000); Powell, 222 F.3d at 917-18. “ ‘The reasonableness of the officers’ conduct must be judged against an objective standard:
With regard to Terry detentions, “a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553 (1980). The Supreme Court has indicated that the proper inquiry is whether, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Id. at 554; United States v. House, 684 F.3d 1173, 1199 (11th Cir. 2012). The Court has further explained that “the reasonable person standard presupposes an innocent person.” Bostick, 501 U.S. at 438 (emphasis in original).
A seizure by means of a show of authority requires both a show of authority and submission to that authority. California v. Hodari D., 499 U.S. 621, 628-29 (1991). That is, a government officer effects a seizure by means of a show of authority where ” ‘the officer‘s words and actions would have conveyed . . . to a reasonable person’ ” that “he was being ordered to restrict his movement,” and those words and actions actually “produce his stop.” Id. Certain “circumstances . . . might indicate a seizure, even where the person did not attempt to leave,” including “the display of a weapon by
“In Terry, the Supreme Court adopted a dual inquiry for evaluating the reasonableness of an investigative stop.” United States v. Acosta, 363 F.3d 1141, 1144 (11th Cir. 2004) (internal quotation marks omitted). First, the courts examine whether the police action was justified at its inception. Id. Second, the courts consider whether the stop was “reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 1145 (internal quotation marks omitted). To determine whether the manner and length of an investigatory detention during a Terry stop was reasonable under the second prong, four non-exclusive factors are weighed. Id. at 1146. The factors are: (1) the purpose of the detention; (2) the diligence of the police in conducting the investigation, i.e., “whether the police diligently pursued a means of investigation likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant,” id. at 1147; (3) the scope and intrusiveness of the detention; and (4) the duration of the detention. Id. at 1146. “There is no rigid time limitation or bright line rule regarding the permissible duration of a Terry stop,” id. at 1147, but detentions of less than one hour have been repeatedly upheld as reasonable. See, e.g., United States v. Sharpe, 470 U.S. 675, 688 (1985)
As to the third category, “when the totality of circumstances indicate that an encounter has become too intrusive to be classified as a brief seizure, the encounter is an arrest and probable cause is required.” Perez, 443 F.3d at 777 (quoting United States v. Espinosa-Guerra, 805 F.2d 1502, 1506 (11th Cir. 1986) (citation omitted)). ” ‘Whether or not an arrest has occurred depends on the particular facts involved in an incident. No formal words are required stating that an individual is under arrest and it is not necessary that a formal arrest record be filed.’ ” United States v. Vasquez-Ortiz, 344 Fed. Appx. 551, 553 (11th Cir. Sept. 16, 2009) (quoting United States v. Ashcroft, 607 F.2d 1167, 1170 (5th Cir. 1979) (citation omitted)). The Eleventh Circuit has recognized a non-exclusive list of factors that may indicate an arrest: “the blocking of an individual‘s path or the impeding of his progress; the display of weapons; the number of officers present and their demeanor; the length of the
b. Analysis
Applying these principles, the Court concludes that up until Connolly initially frisked Nuckles, the encounter was consensual and no level of suspicion was required. See United States v. Davis, 202 F.3d 1060, 1062 (8th Cir. 2000) (”Terry leaves no doubt that a pat-down search is a seizure.“); cf. Florida v. J.L., 529 U.S. 266, 272-73 (2000) (officers must have reasonable suspicion before conducting a Terry stop and frisk even when an officer has a hunch that a person may be armed). Up until the initial frisk, all Connolly did was approach Nuckles and ask him questions, which does not constitute a seizure. Bostick, 501 U.S. at 434. After this initial encounter/questioning, Nuckles began to walk away, and although Connolly asked him to stay, Nuckles continued to walk toward and enter the convenience store. Because Nuckles did not acquiesce to Connolly‘s request, Nuckles was not seized at that time. Hodari D., 499 U.S. at 626 (holding that a defendant who does not comply with officer‘s direction to halt is not seized); United States v. McClendon, 713 F.3d 1211, 1216 (9th Cir. 2013) (no seizure where defendant did not comply with police order to stop and instead walked away). Cf. Troupe v. Sarasota Cnty., Fla., 419 F.3d 1160, 1167 (11th Cir. 2005) (noting that
The Court disagrees with Nuckles‘s argument that he was seized because Connolly prevented him from entering his vehicle initially and then ordered him out of the convenience store and held the door open. First, the undisputed evidence is that Connolly merely approached Nuckles, identified himself as a DEA agent and asked to speak with him. In approaching Nuckles, Connolly did not physically block Nuckles‘s entry into the Taurus, but rather asked to speak from him from a distance and without placing himself between Nuckles and the Taurus. VSV 10:09:47. Further, there is no evidence that Connolly ordered Nuckles not not enter the Taurus. Second, there is simply no evidence that Connolly did anything more than watch Nuckles while he was in the convenience store and wait until Nuckles began to come out of the store. That he opened the door for Nuckles as Nuckles exited the store is not a seizure.
Thus, no seizure under the Fourth Amendment occurred until after Connolly asked Nuckles upon his exit from the convenience store if he could pat him down, after
Nor was the detention transformed into a de facto arrest before Nuckles was formally arrested. First, the purpose of the detention was lawful. Connolly reasonably suspected that Nuckles was involved in narcotics trafficking. Second, Connolly diligently performed his investigation in order to either confirm or dispel his suspicions. Even before Connolly initially confronted Nuckles, he called for backup. Upon approaching Nuckles, he told him the basis for his suspicions based on his observations. This encounter was very brief, amounting to less than one minute before Nuckles began to walk away. VSV 10:09:47-10:10:13. Any delay in conducting the investigation before Connolly asked for consent was caused, first, by Nuckles‘s walking away, and second, by awaiting the arrival of backup. Any delay caused by Nuckles‘s walking away cannot be attributed to Connolly‘s lack of diligence. Also, any delay that may have been caused by waiting for backup, particularly after Connolly discovered that
Third, the detention was not intrusive nor was its scope unreasonable for the purpose of the investigation. Even assuming that Nuckles was seized at the time Connolly initially approached him, as noted, Connolly did not physically interfere with Nuckles‘s entry into his vehicle at the time. In fact, in this first phase of the investigation, Nuckles was able to re-enter the convenience store. In addition,
Similarly, the detention was not rendered intrusive by Connolly‘s asking for consent to search because an officer may ask for consent to search during a Terry stop. Acosta, 363 F.3d at 1346. Cf. United States v. Harris, 928 F.2d 1113, 1117 (11th Cir. 1991) (holding that an officer may briefly detain a suspect based upon reasonable suspicion, after giving him a warning ticket, to ask for consent to search his car). Further, the detention was not rendered intrusive or beyond its reasonable scope when Connolly asked Nuckles not to re-enter his vehicle once Nuckles admitted it contained a firearm, particularly in light of Connolly being alone. If, consistent with a Terry stop, Connolly was authorized to frisk Nuckles to determine whether he was armed, he certainly did not run afoul of a Terry stop‘s limitations by not allowing Nuckles to gain access to the firearm in the Taurus. Moreover, even if Connolly directed Nuckles to walk away from the Taurus and sit on the curb while waiting for
Finally, the duration of the detention strongly points to a conclusion that the detention was reasonable and not transformed into a de facto arrest. The entire encounter between the time Connolly first approached Nuckles and the suitcase was opened was less than twelve minutes. VSV 10:09:47-10:20-52. The Eleventh Circuit has held that a “detention of fourteen minutes is certainly not unreasonable on its face.” United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). A detention of twelve minutes, therefore, does not transform a valid Terry detention into a custodial arrest.
Thus, the Court concludes that at the time Connolly asked for and received consent to search the suitcase in the Taurus, Nuckles was validly detained pursuant to Terry and was not in custody.
Nuckles does not argue in his post-evidentiary hearing brief that his statements were not voluntary, [see generally Doc. 6], and therefore has abandoned the argument that the statements were involuntary. United States v. Carter, --- F.3d ----, ----, 2015 WL 331088, at *13 (11th Cir. Jan. 27, 2015) (argument not raised in brief is deemed abandoned); Sepulveda v. U.S. Att‘y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (holding that a party abandons claims that he does not argue in his brief). Cf. Thomas v. Bed Bath & Beyond, Inc., 508 F. Supp. 2d 1264, 1285 (N.D. Ga. 2007) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (explaining that when a party fails to address a claim in a responsive brief, the claim has been abandoned)).
Even if he did not intend to abandon the contentions made in his opening motion, [see Doc. 16 at 6-7], the Court rejects them. In that motion, he contended that he was in custody and thus was entitled to Miranda warnings and that his statements were not voluntary. As for the first argument, Nuckles bore the burden of establishing that he was subjected to custodial interrogation, United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1978) (holding that “if a defendant shows that a confession was obtained
Even if the burden on this issue was the government‘s, the record establishes that Nuckles was not in custody and therefore not entitled to Miranda warnings. Notwithstanding the absence of a formal arrest, advice of Miranda rights is required if there is a restraint on freedom of movement “of the degree associated with a formal arrest.” Minnesota v. Murphy, 465 U.S. 420, 430 (1984); United States v. Muegge, 225 F.3d 1267, 1270 (11th Cir. 2000). The test is objective; “[t]he only relevant inquiry is how a reasonable man in the suspect‘s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442 (1984). This test “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323 (1994); see also United States v. Phillips, 812 F.2d 1355, 1360 (11th Cir. 1987) (holding that courts are to consider the totality of the circumstances). The fact that an investigation has focused on a suspect does not necessarily trigger the
In the present case, Connolly did not subject Nuckles to a restraint on his freedom of movement to a degree associated with a formal arrest such that a reasonable innocent person would feel he was not free to leave. Although during the course of the encounter before the suitcase was opened Nuckles was frisked twice, asked not to re-enter his vehicle, told to remove his hands from his pockets, told to stand away from the Taurus, and apparently told to sit on the curb, these actions do not amount to a restraint on his freedom of movement to a degree associated with a formal arrest. He was not subjected to an invasive search of his person. Until moments before the suitcase was opened, he retained possession of his car keys. His path was not physically blocked. He was not handcuffed or forced to the ground. No weapons were
Moreover, his statements were voluntary. The focus of the voluntariness inquiry is on whether the defendant was coerced by the government into making the statement: “The relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception.” Colorado v. Connelly, 479 U.S. 157, 170 (1986) (citation omitted). The Court must consider the totality of the circumstances in assessing whether police conduct was “causally related” to the confession. Miller v. Dugger, 838 F.2d 1530, 1536 (11th Cir. 1988). This totality-of-the-circumstances test directs the Court ultimately to determine whether a defendant‘s statement was the product of “an essentially free and
Here, the record shows that Nuckles was intelligent, since he understood Connolly‘s questions and owned his own car dealership. His detention was very brief, as was the non-custodial questioning. Other than being patted down, no physical force was employed against him. Even when the additional officers came on the scene and he was again frisked, the officers did not accost him, brandish weapons, or subject him
3. Nuckles abandoned his interest in the search of the suitcase
Before turning to the circumstances surrounding the search of the suitcase, the Court must decide whether the government‘s argument is correct that Nuckles abandoned any interest in the suitcase by stating that it was not his. Generally, an individual enjoys a reasonable expectation of privacy in personal luggage. See United States v. McKennon, 814 F.2d 1539, 1544 (11th Cir. 1987) (citing United States v. Place, 462 U.S. 696, 707 (1983)). However, an individual who abandons or denies ownership of personal property may not contest the constitutionality of its subsequent acquisition by the police. United States v. Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001); United States v. Ramos, 12 F.3d 1019, 1023 (11th Cir. 1994); United States v. Hawkins, 681 F.2d 1343, 1345 (11th Cir. 1982). In determining whether there has been abandonment, the ” ‘critical inquiry is whether the person prejudiced by the search . . . voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.’ ” Ramos, 12 F.3d at 1022 (quoting United States v. Winchester, 916 F.2d 601, 603 (11th Cir. 1990)). Whether
Here, on three occasions (T1:15-16, 16, 19), Nuckles denied ownership or knowledge of the suitcase that the unidentified male had placed in the back seat of his vehicle. The government adequately placed Nuckles on notice that it challenged his standing19 by raising the issue in an opening statement before the Court began to receive evidence. T1:3. While Nuckles took efforts earlier to secure the suitcase by remotely locking the vehicle once the suitcase was placed inside, that is not sufficient to establish that he did not abandon his interest in the suitcase as opposed to the vehicle.
As a result, the Court concludes that Nuckles abandoned any interest in the suitcase by repeatedly stating it was not his.
Even if Nuckles did not abandon a Fourth Amendment interest in the suitcase, he voluntarily consented to its search. “In order for consent to a search to be deemed voluntary, it must be the product of an essentially free and unconstrained choice.” United States v. Garcia, 890 F.2d 355, 360 (11th Cir. 1989). In considering whether a consent to search was voluntary, the Court must examine the totality of the circumstances. United States v. Tovar-Rico, 61 F.3d 1529, 1535 (11th Cir. 1995); see also United States v. Gonzalez, 71 F.3d 819, 828-32 (11th Cir. 1996) (illustrating factors properly to be considered in a totality-of-the-circumstances inquiry). Further, ” ‘[t]he government bears the burden of proving . . . that the consent was not a function of acquiescence to a claim of lawful authority but rather was given freely and voluntarily.’ ” United States v. Hidalgo, 7 F.3d 1566, 1571 (11th Cir. 1993) (quoting United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989)). The absence of official coercion is a sine qua non of effective consent, as it is axiomatic that “[w]here there is coercion, there cannot be consent.” Gonzalez, 71 F.3d at 828 (quoting Bumper v. North Carolina, 391 U.S. 543, 550 (1968)); see also Bostick, 501 U.S. at 438 (” ‘Consent’ that is the product of official intimidation . . . is not consent at all.“).
The government has the burden of showing, by a preponderance of the evidence, both that there was consent to search and that the consent was voluntary. Pineiro, 389 F.3d at 1366. Although the preponderance standard is not as difficult to meet as the reasonable-doubt or clear-and-convincing standard, it “is not toothless,” and the government must meet its burden with “reliable and specific evidence.” Cusick, 559 Fed. Appx. at 792 (quoting United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995)).
Here, the consent was voluntary. As noted, when he was asked to consent, Nuckles was legitimately detained but not in custody. The request for consent came within four to five minutes of Connolly first encountering Nuckles and within a minutes after Nuckles exited the convenience store a second time. Although he was frisked just before he was asked to consent, the frisk was brief, and was preceded both by Connolly asking to frisk him and Nuckles appearing to voluntarily raise his hands to facilitate the frisk. Connolly employed no coercive procedures to get Nuckles to consent. Nuckles also was cooperative in that he walked over to Connolly when Connolly first approached him, and stated on three occasions that the vehicle and the suitcase could be searched because he did not own the suitcase. The conditions of his detention were not made more coercive by the appearance of additional officers, even if some were uniformed and the first two task-force officers arrived with their police lights flashing. None of them brandished weapons, handcuffed Nuckles, or physically detained him. He was briefly re-frisked. Although Connolly did not need again to seek his consent to search the suitcase, the circumstances of Nuckles‘s detention did not materially
Further, although Nuckles was not advised of his right to refuse consent, that failure is just one factor for the Court to consider. The Court affords this factor less weight due to Nuckles‘s repeated denials of ownership of the suitcase, since one is less likely to be concerned about a search of property in which he claims he has no ownership interest. Further, as previously noted, although there is no evidence as to Nuckles‘s educational level, the record supports a finding that he was intelligent based on his employment and the manner in which he interacted with the agents.
Finally, the last factor—whether Nuckles thought anything incriminating would be found—cuts both ways under the facts of this case, and it is therefore a neutral factor. On the one hand, if Nuckles was complicit in the transfer of the cocaine-laden suitcase, then he clearly would have expected incriminating evidence to be located inside if he allowed it to be searched. On the other hand, if, as he claimed, he did not own the suitcase and had no knowledge of it or its contents, then he more likely voluntarily consented because he believed he had nothing to hide. United States v. Hall, 565 F.2d 917, 920 (5th Cir. 1978).
5. The scope of Nuckles‘s consent was not exceeded by breaking the lock on the suitcase
A search is impermissible when an officer does not conform to the limitations imposed by the person giving consent. United States v. Zapata, 180 F.3d 1237, 1242 (11th Cir. 1999); United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990); see also United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir. 1992) (holding that consensual search is confined to the terms of actual consent given). When an individual provides a general consent to search, without expressly limiting the terms of his consent, the search “is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass.” Strickland, 902 F.2d at 941; see also Florida v. Jimeno, 500 U.S. 248, 251 (1991) (“The standard for measuring the scope of a suspect‘s consent . . . is that of ‘objective’ reasonableness - - what would the typical reasonable person have understood by the exchange between the officer and the suspect?“). To ascertain what conduct is within the “bounds of reasonableness,” the Court must consider what the parties knew to be the object (or
The instant case is controlled by Martinez. In that case, Martinez signed a written consent authorizing the agents to search a mini-warehouse unit. The officers went to the mini-warehouse unit and cut off the lock. Inside, they found a 1949 Dodge coupe surrounded by cardboard boxes. After a search of the boxes revealed no contraband, the officers began searching the passenger compartment of the automobile. Tilting the seat forward, the officers removed a board separating the passenger compartment from the trunk. A perforated metal plate continued to separate the passenger compartment from the trunk. A detective peered through the plate and into the trunk with the aid of a flashlight. He identified a cardboard box and a case for a triple-beam scale. Using a piece of wire, he overturned the box, finding that it contained brick-sized packages. The officers then pried open the trunk. Inside they found four individually wrapped kilograms of cocaine and a triple-beam scale. 949 F.2d at 1118.
In this case, Martinez understood that the officers wanted to search the mini-warehouse unit for narcotics. Under the reasonableness inquiry, her permission to search the mini-warehouse could be construed as permission to search any compartment or container therein that might reasonably contain narcotics, including the 1949 Dodge. The difficulty in this case arises because the trunk of the car was locked. To positively identify and remove the items in the trunk, the police had to pry it open. Martinez argues that breaking the trunk lock exceeded the scope of her consent to the search, just as slashing the spare tire in Strickland was held to exceed the scope of the consent in that case.
As noted above, the limits of a consensual search are defined by the terms of the consent in the same way that the scope of a warrant search is
defined by the specifications of the warrant. Strickland, 902 F.2d at 941; Blake, 888 F.2d at 798. Where a warrant has been issued, “a lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.” United States v. Ross, 456 U.S. 798, 820-21[ ] (1982) (footnote omitted). This court has held that a warrant to search a specific area for a certain class of things authorizes government agents to break open locked containers which may contain the objects of the search. See United States v. Gonzalez, 940 F.2d 1413, 1420 (11th Cir. 1991) (valid warrant to search defendant‘s house for documents and currency authorized police to search locked briefcase found in house); United States v. Morris, 647 F.2d 568, 572-73 (5th Cir. Unit B 1981) (valid warrant to search defendant‘s home for proceeds of bank robbery authorized search of locked jewelry box). These cases interpreting search warrants apply with equal force to the interpretation of general consents to search. Thus, we hold that a general consent to search a specific area for specific things includes consent to open locked containers that may contain the objects of the search, in the same manner that such locked containers would be subject to search pursuant to a valid warrant. In this case, the locked trunk was within the scope of Martinez‘s consent because it was within the area authorized to be searched, and it was reasonably capable of containing the object of the search.
Martinez, 949 F.2d at 1120 (footnote omitted). The court concluded that forcing open locked compartments or containers has been held to be within the scope of general warrant searches and consent searches. Id. at 1121 (citing Gonzalez, 940 F.2d at 1420; United States v. Milian-Rodriguez, 759 F.2d 1558, 1563-64 (11th Cir. 1985); Morris, 647 F.2d at 572-73). It recognized that none of those cases appeared to have turned on the damage, or lack of it, inflicted in opening the locked container or compartment. Id.
In the present case, Nuckles consented to the search of the suitcase. That consent necessarily included breaking the lock on the suitcase so that its contents could be examined. The actions of the agents was made ever more reasonable because they first attempted to determine if Nuckles (who disclaimed ownership of the suitcase) had a key that unlocked the suitcase lock.
As a result, the Court concludes that breaking the lock on the suitcase to expose its contents was within the scope of the search of the suitcase to which Nuckles twice consented.
6. The Taurus could be searched for the firearm and magazine
Finally, the Taurus was permissibly searched, and the firearm and magazine were lawfully seized. Initially, however, the Court concludes that a search of the Taurus was not necessarily within the scope of the consent given, because, as noted, the consent was to “search[] your car to see what‘s in the suitcase.” T1:16. A general search of the Taurus then is outside the scope of the consent.
On the other hand, the vehicle was validly searched because there was probable cause to believe it contained contraband and evidence of a crime. In Carroll v. United States, 267 U.S. 132, 153 (1925), the Supreme Court established an exception to the warrant requirement for searches of automobiles and other moving vehicles. Under the “automobile exception,”20 “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). No separate exigent circumstances need to be shown. See Maryland v. Dyson, 527 U.S. 465, 466 (1999). The validity of the search turns on whether there was probable cause to believe the vehicle contained contraband or evidence of a crime. Id.
Probable cause for a search exists when under the totality of the circumstances “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983); United States v. Goddard, 312 F.3d 1360, 1363 (11th Cir. 2002).
Moreover, to the extent that the vehicle was searched beyond locating the firearm and magazine, the vehicle search was incident to Nuckles‘s lawful arrest. In Arizona v. Gant, 556 U.S. 332, 351 (2009), the Supreme Court held that “[p]olice may search a vehicle incident to a recent occupant‘s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Here, having arrested Nuckles for having received a large quantity of cocaine and based on his statement that there was a firearm inside the vehicle, the officer had reason to believe (or probable cause to believe, if “reason to believe” is not synonymous with “probable cause) that the Taurus contained evidence of the offense of arrest—that is, drug trafficking.
For all of the foregoing reasons, the undersigned RECOMMENDS that Nuckles‘s motion to suppress evidence and statements, [Doc. 16], be DENIED. The Court has now ruled on all matters referred to it and has not been advised of any impediment to the setting of a trial date. Accordingly, this matter is CERTIFIED READY FOR TRIAL.
IT IS SO RECOMMENDED and CERTIFIED, this 18th day of February, 2015.
ALAN J. BAVERMAN
UNITED STATES MAGISTRATE JUDGE