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UNITED STATES v. WALKER

April 10, 1996

UNITED STATES OF AMERICA,
v.
TOMMY WALKER, GARY MILLER, RAYMOND COBB, CYNTHIA CHANEY, PRENTIS LINDSEY, KEVIN WATSON aka "ARCHIE HOOKS", HENRY O. FELTON aka "GUESS", ANDRE GALLOWAY aka "GAP", LORRAINE HOWARD, MELVINA BENNETT, GEORGE BELGROVE, GREGORY LEON WHITEHURST, DAVID KYLES, and JORGE PASQUAL, Defendants.



The opinion of the court was delivered by: MUNSON

 In January 1995, defendant George Belgrove was stopped for speeding by New York State Trooper ("Tpr.") Thomas Rodriquez. It is alleged that with defendant's consent, the officer searched the vehicle and found narcotics. Defendant was subsequently charged with criminal possession of a controlled substance, in violation of the New York Penal Law. A state court judge, relying in part on the New York Court of Appeals' decision in People v. Banks, 85 N.Y.2d 558, 626 N.Y.S.2d 986, 650 N.E.2d 833 (1995), ordered the evidence suppressed. Def. Belgrove's Notice of Motion, Document ("Doc.") 194, at 5-6; Government's ("Govt.") Response, Doc. 218, at 36-38.

 Defendant was subsequently charged in a federal indictment with conspiracy to possess with intent to distribute cocaine, and to distribute cocaine, cocaine base, marijuana, and methamphetamine, in violation of 21 U.S.C. ยงยง 841(a)(1) and 846. Oct. 19, 1995 Second Superseding indictment, Document ("Doc.") 218, at 8-9. Presently before the court is defendant's motion to suppress evidence seized from the trunk of his vehicle during the traffic stop. Def. Belgrove's Notice of Motion, Doc. 194, at 5-6. The court held a suppression hearing on March 27, 1996, Syracuse, New York, at which the evidence consisted solely of New York State Trooper Thomas Rodriquez's testimony. Pursuant to Rule 12(e) of the Federal Rules of Criminal Procedure, the following constitutes the court's findings of fact and conclusions of law.

 FINDINGS OF FACT

 During the late afternoon on January 6, 1995, defendant Belgrove was stopped by Tpr. Rodriquez for allegedly speeding. Defendant was accompanied by a passenger, David Cupid. When Tpr. Rodriquez asked to see defendant's license and vehicle registration, he noticed an odor of alcohol emanating from the vehicle. In order to conduct a field sobriety test, the trooper told defendant to exit the vehicle. As part of the procedure he follows in similar circumstances, the trooper asked defendant if he was carrying anything that might harm the trooper. Defendant replied in the negative, raised his hands over his head and said "you can check me," and while pointing at his vehicle with both hands said "you can check the car." Defendant's spontaneous, unsolicited consent to search the vehicle struck Tpr. Rodriquez as unusual behavior under the circumstances. The trooper then conducted a "pat-down" search of defendant and asked him to identify the origin and destination of his trip. Defendant said that he was coming from the state prison in Ossining, New York, and that he was travelling to Utica, New York. The trooper, noting that defendant did not appear intoxicated, decided to question the passenger to determine whether the odor of alcohol was coming from him and not from the driver. Before questioning the passenger, the trooper told defendant to sit in front of the patrol vehicle as a precaution for the trooper's safety.

 Tpr. Rodriquez approached the open driver's side window to speak with the passenger. At that point, defendant stood up, walked to the passenger side of the vehicle and leaned over as if to speak to the passenger. When Tpr. Rodriquez ordered defendant to return to the area where he had been seated, defendant complied but appeared agitated. The trooper then questioned the passenger, who said that he was coming from Brooklyn, New York. Given the inconsistent answers from defendant and the passenger, defendant's nervousness and agitated state, his unsolicited offer to search the vehicle, and his apparent attempt to communicate with the passenger, Tpr. Rodriquez became suspicious that some other crime was afoot. In order to verify that defendant consented to a search of the vehicle, Tpr. Rodriquez asked for defendant's permission to conduct a search of the vehicle. Defendant Belgrove replied, "Yes, you can search the vehicle, I just came from [the prison] and it would be stupid for me to have something illegal."

 Tpr. Rodriquez called for a backup before searching the vehicle because he was concerned for his own safety. The trooper noted that defendant was agitated and that both defendant and the passenger were larger than the trooper. Before the backup arrived, the trooper searched the passenger compartment of defendant's vehicle, but was unable to locate any weapons or other contraband. While searching the passenger compartment, Tpr. Rodriquez noticed that defendant, who still appeared nervous and agitated, was pacing behind the vehicle. After completing a cursory search, the trooper placed defendant in the locked, rear passenger compartment of the patrol vehicle. He then asked for permission to search the trunk of defendant's vehicle. Defendant replied affirmatively and did not express any limitations on the area that could be searched.

 Believing that he had valid consent to conduct the search, the trooper opened the trunk of defendant's vehicle and observed two jackets, one of which contained a bulge in a front, zippered pocket. He unzipped the pocket and found a clear plastic bag containing what appeared to be cocaine. Tpr. Rodriquez left the contraband in the jacket and returned to his patrol vehicle, where he again radioed for assistance. The trooper waited in his vehicle, without further speaking with defendant, until assistance arrived. Defendant was subsequently charged with possession of narcotics.

 DISCUSSION

 Defendant Belgrove, who does not contest the validity of the initial traffic stop, argues that the seizure of the contraband was illegal because the consent to search the trunk was not valid. Furthermore, defendant argues that Tpr. Rodriquez's alleged fear for his own safety did not justify a search of the trunk. Defendant's objections to the validity of the search require the court to determine whether the consent was voluntarily given by defendant during the permissible scope of an investigatory detention. If the consent was valid, the court must also address whether the places searched fell within the scope of the authorized search. The court discusses these issues below.

 I. Validity of Consent

 A. Consent Was Voluntary

 It is well established that a warrantless search is "'per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.'" Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043, 36 L. Ed. 2d 854 (1973) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967)). Under one such exception, a search is reasonable if a person voluntarily consents to it. Schneckloth, 412 U.S. at 222, 93 S. Ct. at 2045; United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995) (citations omitted); United States v. Elliott, 50 F.3d 180, 185 (2d Cir. 1995) (citations omitted). If the government seeks to rely upon consent to justify a warrantless search, it must show that the consent was given voluntarily. Schneckloth, 412 U.S. at 222, 93 S. Ct. at 2045; United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993) (citations omitted). To establish that consent was voluntary, "courts must examine the totality of the circumstances to determine whether the consent was a product of that individual's free and unconstrained choice, rather than a mere acquiescence in a show of authority." Garcia, 56 F.3d at 422 (internal quotations omitted) (quoting United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993)). If consent is not obtained by coercion, a search conducted pursuant to that consent is not unreasonable. Garcia, 56 F.3d at 422 (citation omitted). The test for determining the validity of the consent, furthermore, is an objective one inasmuch as "only unreasonable searches are proscribed by the Fourth Amendment, and that the issue of reasonableness is to be measured by an objective standard." Garcia, 56 F.3d at 423. Lastly, consent may be inferred "from an individual's words, acts or conduct." Garcia, 56 F.3d at 424 (internal quotations omitted) (citing Deutsch, 987 F.2d at 883, and Schneckloth, 412 U.S. at 243, 93 S. Ct. at 2056).

 Applying the above principles, the court concludes that the consent given by defendant Belgrove to search his vehicle was voluntary, and that Tpr. Rodriquez had a reasonable belief that the consent was voluntary. Defendant Belgrove's original consent to search the vehicle was spontaneous, unsolicited, and without any indication that it was produced by coercion. It came within several minutes after defendant was stopped for speeding and when the trooper was about to commence a field sobriety test. It was in response to a legitimate inquiry that was intended to help secure the trooper's safety. Nor is there evidence of coercion in either the conduct or words subsequently used by the trooper to verify that he had defendant's permission to search the vehicle and its trunk. Defendant consented to a search on a second occasion shortly after he provided the original consent, and during the trooper's investigation of the potential alcohol-related offense. Furthermore, that defendant was detained inside the patrol vehicle when he expressly provided consent to search the trunk does not as a matter of law require a finding of coercion. See e.g., United States v. Valencia, 645 F.2d 1158, 1165 (2d Cir. 1980) (coercion not inherent in fact of arrest) (citing United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 828, 46 L. Ed. 2d 598 (1976)); United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983) (coercion not inherent in representation that warrant will be obtained if consent withheld); United States v. Crespo, 834 F.2d 267, 271 (2d Cir. 1987) (that defendant was under arrest, in custody, or even handcuffed, does not require finding of ...


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