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U.S. v. VANEENWYK

May 28, 2002

UNITED STATES OF AMERICA, PLAINTIFF,
V.
JOSHUA VANEENWYK, DEFENDANT.



The opinion of the court was delivered by: David G. Larimer, Chief United States District Judge.

DECISION AND ORDER

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.

FACTUAL BACKGROUND

The pertinent facts are largely undisputed. On August 9, 2001, Special Agent Jeffrey Gelina of the United States Drug Enforcement Administration, Officer Donald Kenny of the Town of Greece Police Department, and Officer Paul Adriaansen of the Town of Webster Police Department (collectively "the officers") were involved in the execution of an arrest warrant issued for defendant at defendant's residence in Sodus, New York. After placing defendant under arrest, the officers read him his rights and explained to defendant that they were interested in obtaining his cooperation. Defendant agreed to discuss the matter with them at a nearby police station. Suppression Hearing Transcript ("Tr.") at 7-10.

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.

DISCUSSION

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).

Since the search of defendant's truck was also contemporaneous with defendant's arrest pursuant to a warrant, I also believe that the seizure and subsequent examination of the day planner can be justified as part of a search incident to arrest. This exception to the search warrant requirement permits police to search "the area into which an arrestee might reach in order to grab a weapon or evidentiary items. . . ." Chimel v. California, 395 U.S. 752, 763 (1969). At the time of an arrest, then, the police may search "the arrestee's person and the area `within his immediate control' — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." Id.

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 searching ...


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