in the presence of Agent Dickey, that "This is all a misunderstanding, I treated her good." Later that day, the defendant was taken to the Williamson County Jail in Franklin, Tennessee.
The next day, the FBI obtained a search warrant for the room rented at the Fairview Motel by the defendant and recovered numerous items.
Searches of the Car
Moore moves for an order suppressing evidence found in connection with the two searches of the victim's car. The first search, which took place in the motel parking lot shortly after the defendant left the car voluntarily but prior to his being taken into custody, was limited to the front seat. A butcher's knife matching a description given by the victim was found under the driver's seat. The second search, this time of the entire car, was conducted later that day by the FBI, after the car had been moved by the local authorities to the back of the local police station; the items seized included a roll of duct tape and a duffle bag and the registration of the vehicle in the name of Mary Cacciatore.
The defendant asserts that both searches were performed without his consent, in the absence of arrest or search warrants, and without reasonable suspicion or probable cause, and thereby evidence was obtained in violation of his rights under the Fourth Amendment of the United States Constitution.
Police Chief Harris testified as to the circumstances leading to the first search in the motel parking lot. At approximately 10:30 a.m., the Police Chief, alone in an unmarked police car, heard a dispatcher's advice to be on the lookout for a white Toyota, New York license plate number Y2W811, because a woman with a black eye covered by sunglasses had left a note in a store in the local vicinity indicating that she was in trouble. The Police Chief spotted the Toyota some 15-20 minutes later parked in a lot belonging to the Dickson Motel.
The Police Chief learned from a person repairing the parking lot pavement of the motel ("the worker") that the car belonged to a man and woman in Room 27. The Police Chief testified and I find that he wanted initially to separate Moore from Ms. Cacciatore because she was supposedly in trouble. See Tr. at 22, 47. Thus, after identifying himself, he obtained the cooperation of the worker to go to Room 27 and ask the man to move the car because the paving work needed to be done in that area. Before the worker could get to the room, a man and woman came up the walkway near the parking lot. The worker spoke with them and, complying with his request to move the car, they got into the front seat, with the man in the driver's seat.
Once they entered the car, one of the police officers asked the defendant to get out, which he did voluntarily, and moved him away from the Toyota to the outside of the police car. The Police Chief testified that Moore was neither frisked, patted down, restrained nor taken into custody at this point, and no weapons were displayed or used. The Police Chief then approached the passenger side, where the window was partially open, and found a woman with a black eye wearing sunglasses and otherwise matching the store clerk's description as provided by the police dispatcher. See photographs, Gov't Exh. 1(a)-(d). After the victim was reassured that he was a police officer, she revealed to him that Kevin Moore had kidnapped her at knifepoint in White Plains, New York, that he had told her that her family would be killed if she sought help, and that he wouldn't be taken alive. When asked if Moore had any weapons, she stated that he had a knife that she thought was either in the motel room or under the front seat of her car. Chief Harris testified and I find that she told him to go look in her car, up under the seat, and that he took those words as consent. See Tr. at 4-5.
Based on this statement, and Police Chief Harris's prior check of the license plate through motor vehicle records which confirmed that Mary Cacciatore was the owner of the car, one of the officers checked the front seat of the car and found the butcher knife.
The Police Chief testified and I find that no other search of the interior of the car or of the trunk was conducted then or at any subsequent time by the local authorities. The car was left locked at the motel parking lot and Chief Harris had possession of the keys except for the period of time later in the day when he asked a police officer to bring the car to the police station. Ultimately Police Chief Harris gave the keys was FBI agent Dickey.
A second search of the car was conducted by FBI agent Dickey, who testified that he first saw the vehicle in the Fairview Police Department parking lot with its doors locked. Agent Dickey had arrived at the police department around noon. He interviewed the Police Chief and the victim, who told him, "You can search anything you want to." Tr. at 69.
A single roll of duct tape lodged in part under the front seat on the floor board of the back passenger side and a partially opened duffel bag, which Agent Dickey briefly checked for weapons, were in plain view in the back of the car, see photographs marked as Gov't Exh. 1 - (e)-(i),
and other items including the registration of the car to Ms. Cacciatore were found.
To challenge the search of a car, a defendant must first show a legitimate basis for being in the car, such as permission from the owner. United States v. Ponce, 947 F.2d 646, 649 (2d Cir.1991), cert. denied, 112 S. Ct. 1492, 117 L. Ed. 2d 633 (1992). The test for Fourth Amendment standing is whether governmental officials violated any legitimate expectation of privacy held by the person seeking to exclude the evidence obtained through the challenged search. Rawlings v. Kentucky, 448 U.S. 98, 106, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980); Rakas v. Illinois, 439 U.S. 128, 139, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978). The defendant has the burden to prove the extent to which any of the defendant's Fourth Amendment rights have been violated. Rakas, 439 U.S. at 131, n. 1, 133; United States v. Pena, 961 F.2d 333, 336 (2d Cir. 1992).
Based on the testimony of Police Chief Harris and FBI agent Dickey, which I find to be truthful, the two separate searches of the automobile did not violate the defendant's constitutional rights under the Fourth Amendment. The car was registered in the name of the victim, giving her the apparent authority to consent to the search. She did not gave her voluntary consent to Moore to drive or be in the car. The verbal inducement by the police to get Moore into the car was not impermissibly coercive; it served the legitimate goal of protecting a woman the police had reasonable grounds to believe was the victim of on-going criminal conduct of a very serious nature. A person who secured control of a vehicle by threats of violence can hardly have a legitimate expectation of privacy with regard to its contents. See Rakas, 439 U.S. at 143 n. 12 ("Obviously . . . a 'legitimate' expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified expectation of privacy, but it is not one which the law recognizes as 'legitimate.'").
Search of the motel room
On August 26, 1993, the day after the victim was interviewed and Moore arrested, Agent Dickey executed a federal search warrant at Room 27 of the Dickson Motel. The defendant claims that the property seized there should be suppressed because the warrant was deficient as to probable cause to the such an extent that it is invalid and that the search cannot be saved by the "good faith" exception under United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984) and Massachusetts v. Sheppard, 468 U.S. 981, 82 L. Ed. 2d 737, 104 S. Ct. 3424 (1984).
The federal search warrant was issued earlier the same day by United States Magistrate Judge William J. Haynes, Jr. (the "Magistrate Judge") on the basis of an affidavit signed by Agent Dickey and attached to the warrant. See Gov't Exh. 8. Prior to preparing the affidavit, Agent Dickey reviewed motel records and the registration form for Room 27 for two persons in the name of Kevin Moore. See Gov't Exh. 5. The affidavit states, and Agent Dickey so testified, that he interviewed "approximately five witnesses with knowledge," refers to Mary Cacciatore and to the clerk in the Dollar General Store in Dickson who called the police, and sets forth the alleged factual circumstances of the kidnapping essentially as detailed herein. Agent Dickey also testified that one of those witnesses was the victim.
Under the Fourth Amendment, the requirement that a neutral magistrate determine whether to issue a warrant is an important safeguard against unreasonable searches and seizures. Where that precaution is observed, as it was here, substantial weight must be given to the commonsense judgment exercised by the judicial officer. United States v. Ventresca, 380 U.S. 102, 109, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); Aguilar v. Texas, 378 U.S. 108, 111, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964); United States v. Smith, 9 F.3d 1007, 1012 (2d Cir. 1993); United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983).
Although Agent Dickey's affidavit set forth what he learned rather than naming the witnesses or attaching either affidavits or a summary of their individual statements, the narrative provides sufficient information about alleged criminal conduct and is not so conclusory as to impair its reliability and trustworthiness. There is no suggestion that the witnesses were unavailable to the Magistrate Judge and there is no basis by which their reliability and credibility might be questioned. Paragraph 4 and the warrant itself clearly identify both the premises to be searched and the types of evidence expected to be found.
Even if probable cause were not spelled out in the affidavit as I find it was, the "good faith exception" to the exclusionary rule would apply here where a warrant not appearing to be deficient on its face was issued by a Magistrate Judge. There has been no showing of a lack of objective good faith by Agent Dickey or any other law enforcement officer involved, such that a "well-trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. 897, 920, 922 n. 23, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984); United States v. Smith, 9 F.3d 1007, 1015 (2d Cir. 1993). Nor is the warrant "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable," Leon, 468 U.S. at 923.
The validity of the search of the motel room is further supported by the consent given by the victim, an inhabitant of the room with authority from the motel owner to be there, even if involuntarily. The day before, she told Agent Dickey, "You can search anything you want to." Tr. at 69.
Someone other than a suspect "may give effective consent [to a search] if she has a sufficient relationship to the property searched." United States v. McAlpine, 919 F.2d 1461 (10th Cir. 1990) (citing Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990)). McAlpine held that a kidnapping victim meets this test as
a member of that class of victims who actually cohabitate with their abusers and who are not free to leave for fear of their physical or psychological well-being. Because these crime victims both sleep and carry out daily activities in the same residence with the perpetrator, they are entitled to give consent to a search of the residence in their own right. See United States v. Matlock, 415 U.S. 164, 171 n. 7, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974). And, conversely, by virtue of this mutual access, the perpetrator cannot maintain a reasonable expectation of privacy in the shared property. See id. (other citation omitted).