The opinion of the court was delivered by: David G. Larimer, Chief United States District Judge.
Magistrate Judge William G. Bauer issued a Report and Recommendation on
March 28, 2002 (Dkt. #19), recommending, inter alia, that the Court grant
the motion by defendant, Joshua Vaneenwyk, to suppress a cellular
telephone and day planner book, as well as the telephone numbers and
other information obtained from them. The Government has timely filed an
objection to a portion of the Report and Recommendation (Dkt. #21). The
Government states that it objects only to that part of the Report and
Recommendation recommending suppression of the day planner, and is not
objecting with respect to suppression of the cellular telephone.
Such an appeal requires the Court to examine the matter, de novo, and
make a separate determination of the Fourth Amendment issues involved.
Based on the evidence submitted at the suppression hearing, I believe
that the motion to suppress should be denied.
The officers decided that they would let defendant drive his own
vehicle, a pickup truck, to the police station. Agent Gelina and Officer
Adriaansen performed a protective sweep of the truck before allowing
defendant to get inside. Officer Adriaansen testified that before
conducting the sweep search, he asked defendant if it was okay if
Adriaansen looked in the truck, and defendant gave an affirmative
response. Tr. at 65.
When the officers looked inside defendant's truck, they found a day
planner or address book. Agent Gelina asked defendant if he could "hold on
to it," and defendant indicated that he could. Tr. 20, 43, 66.
The officers and defendant then proceeded to the police station, where
Officer Adriaansen, apparently at Agent Gelina's direction or with his
approval or agreement, made a photocopy of the contents of the day
planner. Tr. at 22, 69-70. There is no evidence, and the Government does
not assert, that defendant expressly consented to the officers examining
the contents of the day planner or copying it.
In his Report and Recommendation, Magistrate Judge Bauer found that
defendant gave the officers permission to hold onto the day planner, but
that "this limited consent did not authorize Adriaansen to photocopy the
day planner. . . ." Report and Recommendation at 13. In my view,
however, defendant's general, unqualified consent to a search of his
vehicle necessarily extended to a search of the day planner which was
found inside that vehicle. I also believe that by consenting to the
officers "holding on" to the day planner, defendant implicitly consented
to the officers examining the day planner as well. In addition, since the
officers could lawfully examine the contents of the day planner, they
were also entitled to make a photocopy of those contents.
In United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995), the Court of
Appeals for the Second Circuit held that "an individual who consents to a
search of his car should reasonably expect that readily-opened, closed
containers discovered inside the car will be opened and examined." In
reaching that conclusion, the court reasoned that "[i]f the consent to
search is entirely open-ended, a reasonable person would have no cause to
believe that the search will be limited in some way." Id.
Based on this same reasoning, I conclude that since defendant gave the
officers a general consent to search his vehicle, he should reasonably
have expected that they might look inside the day planner book, which is
analogous to a closed container, that they found in the vehicle. Cf.
United States v. Galante, No. 94 Cr. 633, 1995 WL 507249, *3 (S.D.N.Y.
Aug. 25, 1999) (consent of car owner to search of car included consent to
search information stored in cellular telephone and beeper found in car,
to the extent that they could be considered "closed containers" within
the car) (citing Snow, 44 F.3d at 135).
In the case at bar, defendant, who had just been arrested, was going to
be allowed to enter his truck to drive it to the police station. Under
these circumstances, then, the officers were certainly justified in