UNITED STATES OF AMERICA, Plaintiff, vs. YARED RETTA, Defendant.
Case No. 2:15-cr-9-JAD-VCF
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
September 3, 2015
CAM FERENBACH UNITED STATES MAGISTRATE JUDGE
Document 45
MOTION TO SUPPRESS (#20)
Officers Doty and Salgado were randomly running license-plate numbers in a “high-crime neighborhood” when a maroon Saturn pulled into a Walgreens’ parking lot. A black male exited the car and entered the store. The officers ran the Saturn‘s license-plate number and discovered that the registered owner was Steven Ricks, a black male with outstanding misdemeanor traffic warrants.
The officers decided to wait for the person to return to the Saturn and confirm if he was Mr. Ricks. When the driver exited, he walked passed the Saturn and raised the officers’ suspicions. One officer commanded the person to stop; the other flashed the patrol car‘s lights and sirens; and the person fled and discarded the Saturn‘s keys. One minute later, the officers arrested him in a nearby home. They learned that he was Yared Retta, a parolee who may have violated his conditions of release by consuming alcohol, and that Mr. Retta had discarded the Saturn‘s keys.
A six-and-a-half-hour detention ensued. A team of police officers interviewed Mr. Retta without Mirandizing him and purportedly obtained his consent to search the car. A K-9 searched the exterior of the car and purportedly “alerted” to the presence of drugs. A tow truck driver opened the car and the officers conducted a warrantless search. A gun was discovered in the car and a detective was called to obtain a seizure warrant and impound the gun as evidence.
I. LEGAL STANDARD
The constitutional principles at play in Mr. Retta‘s motion are well established. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” and states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.”
First, a police officer must have probable cause or a warrant to effect an arrest. Gilker v. Baker, 576 F.2d 245, 246 (9th Cir. 2001). If a police officer has probable cause to arrest, the officer may automatically conduct a warrantless search of the person, conduct a warrantless search the person‘s vehicle, or impound the vehicle and conduct a warrantless inventory search. Thorton v. United States, 541 U.S. 615 (2004); Colorado v. Bertine 479 U.S. 367 (1987); United States v. Robinson, 414 U.S. 218 (1973).
Third, all searches and seizures must be a “proportional” or “balanced” response to the suspected offense. Atwater, 532 U.S. at 372; Hensley, 469 U.S. at 228. For instance, if a police officer suspects that a vehicle contains drugs, the officer must limit the search to containers in the vehicle that may contain drugs. United States v. Ross, 456 U.S. 789 (1982). Similarly, if a police officer stops a vehicle for a moving violation and issues a ticket, the police officer must limit the seizure to “the time reasonably required to complete the mission.” Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015).
Fourth, certain persons and objects have diminished protections under the Fourth Amendment. A police officer may conduct a warrantless search of a car if the officer has probable cause to believe that the car contains contraband or evidence of a crime. Carroll v. United States, 267 U.S. 132, 153 (1925). This exception to the warrant requirement exists because cars are mobile and may abscond before a warrant is obtained. Id. Similarly, a police officer may conduct a suspicionless search of a parolee and his or her home. Samson v. California, 547 U.S. 843, 853 (2006). This exception exists because parolees are less likely than the general population to be law abiding. Id.
II. DISCUSSION
There is no dispute that Officers Doty and Salgado had reasonable suspicion to stop Mr. Retta. Initially, the officers reasonably suspected that Mr. Retta may be Mr. Ricks, who had outstanding misdemeanor traffic warrants. Then, the officers reasonably suspected that Mr. Retta may have obstructed
The parties’ disagree on all subsequent events. The government contends that every action the officers took was reasonable under the totality of the circumstances. In contrast, Mr. Retta asserts that the officers’ conduct was unreasonable because a six-and-a-half-hour detention and a search involving a K-9 unit, a tow truck, and a firearms detective were disproportionate to the suspected offences. See Grigg, 498 F.3d at 1080-81; (Def.‘s Closing #41). The court agrees with Mr. Retta.
The search and seizure were disproportionate responses to offenses the officers purported to investigate (viz., operating a vehicle with outstanding misdemeanor traffic warrants, obstructing justice by flight, and consuming alcohol in violation of the conditions of release). Nonetheless, regardless of the officers’ stated reasons for their conduct, there was an objective basis to search the Saturn. Mr. Retta is a parolee who fled from the police and discarded the Saturn‘s keys. These objective facts created a “fair probability that contraband or evidence of a crime will be found in” the Saturn. Gates, 462 U.S. at 238-39; Carroll, 267 U.S. at 153. Therefore, evidence of the gun should not be suppressed. Each step of the investigation is examined below.
A.
The court‘s analysis begins with the initial stop. The testimony presented established that Mr. Retta is a black male who lawfully parked a maroon Saturn in the Walgreens parking lot; he exited the car and entered the store. Meanwhile, Officers Doty and Salgado ran the Saturn‘s license-plate number and discovered that its registered owner was Steven Ricks, a black male with outstanding misdemeanor traffic warrants. When Mr. Retta exited Walgreens and Officers Doty and Salgado attempted to talk to him, Mr. Retta ran and discarded the keys. One minute later, Mr. Retta was detained within the curtilage of a home.
Although there is no bright-line rule distinguishing a limited detention from a formal arrest, see Pennsylvania v. Bruder, 488 U.S. 9, 12 (1988); Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002), these facts demonstrate that Mr. Retta‘s freedom of movement was restrained to the same degree associated with a formal arrest. Additionally, these facts constitute an arrest as a matter of law in Nevada. See
Because the evidence shows that Mr. Retta was arrested, a second question arises: was it reasonable for the officers to arrest Mr. Retta under the totality of the circumstances? The court finds that it was not. A police officer must have probable cause or a warrant to effect an arrest. Gilker, 576 F.2d at 246. A warrantless arrest inside the home is presumptively unreasonable. Hopkins v. Bonvicino, 573 F.3d 752, 773 (9th Cir. 2009) (citing Payton v. New York, 445 U.S. 573, 587 (1980)).
When Mr. Retta was arrested, the officers had reasonable suspicion to believe that he obstructed justice or that he may have violated his conditions of release by consuming alcohol. Reasonable suspicion does not justify an arrest as a matter of law. See Gilker, 576 F.2d at 246; see also United States v. Williams, — F. Supp. — 3d No. 2:14-cr-334-RFB, 2015 WL 56049, at *5 (D. Nev. Jan. 4, 2015) (Boulware, J.) (holding that flight under Nevada‘s obstruction of justice statute merely creates reasonable suspicion).
B.
This does not end the court‘s inquiry. The Fourth Amendment also protects persons from unreasonable searches.
In Rodriguez v. United States, the Supreme Court held that it was unreasonable for a police officer to extend the duration of a lawful traffic stop in order to conduct a suspicionless dog sniff of a vehicle. 135 S. Ct. at 1615. Similarly, in United States v. Evans, the Ninth Circuit held that it was unreasonable for a police officer to prolong a lawful traffic stop to conduct a ex-felon registration check and a dog sniff of the vehicle, which were unrelated to the basis for the initial stop. 786 F.3d 779, 781 (9th Cir. 2015).
Rodriguez and Evans are instructive here. Both stand for the proposition that a police officer may not conduct a search that is unrelated to the basis for a stop or prolong the stop beyond “the time reasonably required to complete the mission.” Rodriguez, 135 S. Ct. at 1615; Evans, 786 F.3d at 786. If a detention is prolonged, the police officer must have reasonable suspicion—(i.e., he or she must be “aware of specific, articulable facts“)—to extend the detention beyond the scope of the original “mission.” Evans, 786 F.3d at 785-86.
After the officers learned that Mr. Retta was not Mr. Ricks, they predicated their search and seizure on Mr. Retta‘s flight and their suspicion that he may have violated his parole conditions by drinking.
The Ninth Circuit‘s decision in United States v. Grigg provides additional support for this finding. In Grigg, the Ninth Circuit examined the Supreme Court‘s decision in Hensley, and stated that Hensley permits a court to “consider the gravity of the [suspected] offense in balancing the interest of crime prevention and investigation against the interest of privacy and person security when a court assess the reasonableness of a Terry stop.” 498 F.3d at 1077. Here, the officers should have limited their detention of Mr. Retta to a Terry stop in order to determine Mr. Retta‘s identity and whether he had violated his parole conditions. They did not. Instead, they effected an unlawful arrest. See infra § A.
Even if the officers had limited Mr. Retta‘s detention to a Terry stop, the court finds that the gravity of the suspected offences was disproportionate to the scope of duration of the search that followed. The officers repeatedly stated that they suspected Mr. Retta obstructed justice by flight or that he may have unlawfully consumed alcohol. In response, they detained Mr. Retta for six-and-a-half hours, conducted a dog sniff of the exterior of the car, and called a tow truck to conduct a warrantless search of the interior of the car. This was a disproportionate response to the suspected offenses. See Grigg, 498 F.3d at 1077.
C.
In opposition, the government argues that every aspect of the search was reasonable because Mr. Retta consented to the search, the dog-sniff provided the officers with probable cause to search the vehicle, and the officers obtained a warrant to seize the firearm. The court does not find these arguments—or the
First, the government failed to satisfy its “heavy burden” that Mr. Retta‘s consent was “freely and voluntarily given.” United States v. Chan-Jimenez, 125 F.3d 1324, 1327 (9th Cir. 1997). In evaluating whether consent to a search is voluntary, the court considers: (1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the individual was told he had the right not to consent; and (5) whether the individual was told that a search warrant could be obtained. United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir. 2000).
Evidence presented during the court‘s evidentiary hearings show that Mr. Retta was in custody, not Mirandized, and not told that a search warrant could be obtained. These three facts militate in favor of finding that his consent was invalid. See id. Additional facts supports this finding. Mr. Retta allegedly signed the consent form after dark while his hands were cuffed behind his back. It is unclear whether he read the form or if the form was read to him. And neither Mr. Retta nor the police officers completed the consent form by entering Mr. Retta‘s name on it. See (Gov‘t Ex. 3 (#42) at 6) (“I _________ having been informed of my right not to have as search made . . . .“).
Second, the dog sniff did not provide the officers with probable cause to search the vehicle because the officers’ purported basis for the dog sniff was insufficient. See Rodriguez, 135 S. Ct. at 1615; Evans, 786 F.3d at 786. As stated above, the officers predicated their conduct on suspicions that Mr. Retta may have obstructed justice by running or that he may have consumed alcohol in violation of his conditions of release. Conducting a dog-sniff search of the exterior of Mr. Retta‘s car is unrelated to these suspicions.
Even if the officers’ purported basis to conduct a dog sniff were valid, the court finds that the government failed to “produce[] proof from controlled settings that [the] dog perform[ed] reliably in detecting drugs.” Florida v. Harris, 133 S. Ct. 1050, 1058 (2013). Evidence presented during the court‘s
Third, the firearm warrant did not provide the officers with probable cause to search the car because the warrant was invalid. In Franks v. Delaware, the Supreme Court held that a warrant is invalid if the affidavit contains intentionally or recklessly false statements or misleading omissions and the affidavit cannot support a finding of probable cause without the false information or with the misleading omissions. 438 U.S. 154, 155-56 (1978). Here, the telephonic warrant application predicated probable cause on the dog sniff and the officers’ suspicion that Mr. Retta may have violated his parole conditions by drinking. See (Gov‘t Ex. 3 (#42) at 9). These allegations were material to the judge‘s probable-cause finding. And, as discussed above, these statements were unreasonable and unreliable. Therefore, the warrant was invalid. See Franks, 438 U.S. at 155-56.
D.
This brings the court to the final question: should the court apply the exclusionary rule and suppress evidence of the gun? The court finds that the exclusionary rule should not be applied. The exclusionary rule is not a “necessary corollary of the Fourth Amendment.” United States v. Leon, 468 U.S. 897, 905-06 (1984). It is a judge-made rule that penalizes police misconduct. Coolidge v. New Hampshire, 403 U.S. 443, 499 (1971); Spano v. New York, 360 U.S. 315, 320-21 (1959) (“[T]he police must obey the law while
The Supreme Court has cautioned lower courts to limit its application of the exclusionary rule to circumstances that serve the rule‘s purpose and cases in which there is a casual connection between the misconduct and the apprehension of evidence of a crime. See United States v. Leon, 468 U.S. 897, 911 (1984) (citation omitted) (“Whether the exclusionary sanction is appropriately imposed in a particular case . . . is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.‘“); United States v. Crawford, 372 F.3d 1048, 1054 (9th Cir. 2004) (application of the rule “depends largely on the facts of each case.“).
The circumstances of Mr. Retta‘s case do not warrant exclusion because the officers had probable cause to conduct a warrantless search of the Saturn and discover the gun. A police officer may conduct a warrantless search of a car if the officer has probable cause to believe that the car contains contraband or evidence of a crime. Ross, 456 U.S. at 809. Probable cause is a “fluid concept;” it permits a police officer to conduct a search if “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, 238-39 (1983).
Probable cause existed here. Shortly after Officers Doty and Salgado detained Mr. Retta, they learned that he had discarded the keys to the Saturn when he fled from them. They also learned that Mr. Retta had three prior convictions for burglary and was a parolee—a person who is “more likely to commit future criminal offenses than [an] average citizen.” Samson, 547 U.S. 843, 844 (2006) (citing Penn. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365 (1998)). Although the court disapproves of the extent of the officers’ intrusion, the court finds that Officers Doty and Salgado had a legal basis to conduct a warrantless search of the car.
The fact that the officers predicated their search on Mr. Retta‘s alleged parole violation is also immaterial. The court‘s job is not to determine whether the police officers’ subjective intentions were reasonable under the Fourth Amendment. See Whren v. United States, 517 U.S. 806, 814 (1996). “[P]olice officers are not lawyers, and must often make hurried judgments.” United States v. Underwood, No. CR 10-863-SVW, 2011 WL 2415544, at *11 (C.D. Cal. June 16, 2011) aff‘d, 725 F.3d 1076 (9th Cir. 2013) (citing United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006)). When ruling on a motion to suppress, the court‘s job is to determine whether, from an objective point of view, a police officer‘s conduct was reasonable under the totality of the circumstances. See Whren, 517 U.S. at 814; United States v. Cortez, 449 U.S. 411, 417 (1981). A warrantless search of the Saturn was objectively reasonable here.
III. CONCLUSION
Mr. Retta‘s Fourth Amendment right to be free from an unreasonable seizure was violated when he was arrested. And, his Fourth Amendment right to be free from unreasonable searches was violated when viewed in light of the offenses the police intended to investigate. However, these constitutional violations do not warrant the exclusion of evidence.
When Officers Doty and Salgado arrested Mr. Retta, they learned that he was a parolee and discovered that he discarded the Saturn‘s key when he fled from them. These objective facts created a “fair probability that contraband or evidence of a crime will be found in” the Saturn. Gates, 462 U.S. at 238-39. Therefore, a warrantless search of the Saturn was reasonable, see Carroll, 267 U.S. at 153, and Mr. Retta‘s motion to suppress should be denied.
ACCORDINGLY, and for good cause shown,
IT IS RECOMMENDED that Yared Retta‘s Motion to Suppress (#20) be DENIED.
IT IS SO RECOMMENDED.
DATED this 3rd day of September, 2015.
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE