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United States v. Elliot

May 8, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSEPH FRANCIS ELLIOT, DEFENDANT.



The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER DENYING MOTION TO SUPPRESS EVIDENCE

Defendant Joseph Francis Elliot moves to suppress evidence on grounds that (1) the officer lacked probable cause or reasonable suspicion to stop the vehicle driven by Defendant and (2) the officer unlawfully searched the vehicle. The Government opposes the motion. Having carefully considered the moving papers, two rounds of supplemental briefing, the evidence presented at the time of the evidentiary hearing, applicable authorities, and the court record, the court denies the motion to suppress evidence.

BACKGROUND

The following background statement is derived from the evidence presented at the time of the evidentiary hearing conducted on April 27, 2009. At around 9:00 a.m. on December 8, 2008 Carlsbad Police Officer Severy observed a black Silverado pickup truck with Maryland plates and noticed dark tinting on the side windows and a cracked windshield. Each observed defect is an infraction of Cal. Vehicle Code §§ 26708 and 26710, respectively. The officer initiated a traffic stop. The driver, Defendant Elliot, did not have his driver's license with him but provided the officer with his California driver's license number and the vehicle's Maryland registration, showing Defendant as the registered owner.

Officer Severy conducted a records check which revealed (1) the driver's license of Defendant had been and still was suspended and (2) Defendant's criminal history. Officer Severy then requested Defendant to exit the vehicle and to sit on the curb. Officer Severy sought to remove and store the vehicle pursuant to Vehicle Code §22651(p) - unlicensed driver.*fn1 Officer Severy asked Defendant for consent to search the vehicle, which was the officer's standard operating procedure even in those circumstances where he believed consent was unnecessary. Defendant declined to give his consent to search the vehicle.

Officer Severy testified that he then conducted an inventory search pursuant to Carlsbad Police Department Policy Manual Section 510.4 and discovered a semi-automatic handgun and four ammunition clips in a non-factory compartment located in the truck's center console. Officer Severy testified that he lifted-up a loose cup holder from the center console of the truck. He further testified that although the cup holder is normally fastened to the console, his experience was that individuals can place items, including contraband, in the space underneath the cup holder. Following discovery of the weapon, Defendant was arrested, handcuffed, and transported to the Carlsbad Police Station.*fn2

A criminal records check revealed that Defendant, on April 28, 1997, was convicted of possession and sale of a controlled substance in violation of H & S §11378. On January 8, 2009 Defendant was charged in a two count federal indictment with being a felon in possession and possession of a firearm with an obliterated serial number. By means of the present motion, Defendant moves to suppress evidence of the handgun.

DISCUSSION

Lack of Probable Cause to Stop the Vehicle

Defendant first contends that the Government will not be able to establish that the tinting on the windows or the alleged crack in the windshield violated the vehicle codes. (Motion at p.3:8-9). This argument is not persuasive. "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United states, 517 U.S. 806 (1996). An investigatory stop; is also justified where the officer has reasonable suspicion of wrongdoing. United States v. King, 244 F.3d 736, 738 (9th 2001). Here, Officer Severy had both probable cause and reasonable suspicion to stop the vehicle. He testified that the tinting on the side windows and the cracked windshield violated Cal. Vehicle Code §§ 26708 and 26710, respectively. The Government also produced photographs of the vehicle demonstrating that the side windows were "tinted" darker than permitted by law, and that the windshield had extensive cracks. (Gov't Exhs. 4, 6 - 14).

In sum, the court denies the motion to suppress based upon lack of probable cause or reasonable suspicion to stop the vehicle.

Unlawful Search of the Vehicle

Defendant argues that the search of the vehicle was an unlawful search incident to arrest under Arizona v. Gant, --U.S. --, 2009 WL 1045962 (April 21, 2009) and, alternatively, an unlawful inventory search. As the search of the vehicle was conducted pursuant to established inventory procedures adopted by the Carlsbad Police Department, the court does not reach the search incident to arrest issue.

An inventory search is an incidental administrative step following a decision to remove a vehicle for either storage or impound.*fn3 Illinois v. LaFayette 462 U.S. 640, 643-644 (1983). An inventory search of an impounded or stored vehicle is reasonable under the Fourth Amendment provided law enforcement has a standardized policy regarding the ...


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