This matter was on calendar on February 4, 2010, for argument on defendant's motion to suppress. Defendant, who was present in court, was represented by Erin J. Radekin, Attorney at Law; plaintiff was represented by Matthew P. De Moura, Certified Law Student.
I. Background; Preliminary Matters
Defendant is charged in an information with one count of possession of marijuana on May 30, 2009, in violation of 21 U.S.C. § 844(a), in the El Dorado National Forest.
The interaction giving rise to the charge was recorded by a camera mounted in the vehicle of the ticketing officer, Officer Ken Marcus. A DVD of that interaction has been lodged as defendant's Exhibit C. The parties submitted this motion without an evidentiary hearing, relying on the account as shown on the DVD.
In the factual recitation in support of his motion to suppress, defendant also relies on the Statement of Probable Cause submitted to the Central Violations Bureau (CVB) in support of the ticket the officer prepared on May 30, 2009, and attaches that statement as Exhibit A to his motion. At hearing, however, counsel for defendant objected to any reliance on the Statement Of Probable Cause because she had never received a signed copy of the statement. Counsel for the government contended that the signed original was in the custody of CVB. Having submitted a copy of the probable cause statement in connection with his motion, defendant's objection is misplaced. The court will rely on it to the extent it does not conflict with the event as shown on the DVD.
In his reply to the government's opposition to the motion, defendant has submitted copies of probable cause statements, also unsigned, prepared by Officer Marcus in other marijuana possession cases, along with a portion of a motion to suppress filed in another case. Reply, Docket No. 19-2 at 1-6.*fn1 Counsel notes that the government dismissed several of these cases and argues that the statements show Officer Marcus's modus operandi of "accosting and coercing citizens into turning over evidence" and show his pattern of using "an investigatory stop as a pretext for developing additional evidence." Reply (Docket No. 19) at 5. Counsel cites nothing suggesting this evidence would be admissible or that it could properly be considered without an evaluation of the legality of Officer Marcus's actions in those other cases, an inquiry the court declines to undertake. Fed. R. Evid. 404(b), 403. Counsel also argues the other actions render Officer Marcus's credibility suspect. Id. The court declines to consider Officer Marcus's actions in other situations to judge his credibility in this situation, or otherwise as evidence. Fed. R. Evid. 609(b). Defendant has not borne his burden of showing this evidence is admissible substantively or for impeachment. See United States v. Youts, 229 F.3d 1312 (10th Cir. 2000) (proponent of 404(b) evidence bears burden of showing it is relevant to issue other than character).
On May 30, 2009, Officer Ken Marcus was on duty in the El Dorado National Forest. At about 16:15:30*fn2 , he found defendant and his wife, Mary Louise Manning, sitting on camp chairs by their car, which was parked off a road Officer Marcus characterized as not open for civilian vehicle traffic. At about 16:16:10, Officer Marcus asked for the car owner's driver's license, registration and proof of insurance and directed defendant to take his hands out of his pockets. Officer Marcus informed defendant he was going to write an incident report, but not issue a ticket. Defendant walked to the car, a Subaru. Manning asked Officer Marcus how to identify the designated roads and at about 16:16:40, Officer Marcus directed her not to stand so close to him.
Officer Marcus then walked toward the car and camp chairs. At 16:17:04, he can be heard commenting on some incense burning by the chairs. Defendant handed Officer Marcus some documents, observing that he did not know which was the valid registration. Officer Marcus identified the current registration and added that he needed defendant's license and proof of insurance; defendant handed something else to Officer Marcus. By 16:17:25, Officer Marcus turned away from the Subaru. At 16:17:30 and 16:17:34, as Officer Marcus returned to his car, Manning bent down briefly by the chairs and did something. Officer Marcus's back was turned at first, but he did look over his shoulder at one point as he walked back to his car. The DVD does not show what Manning was doing.
Apparently sitting in his car, between 16:17:43 and 16:18:10, Officer Marcus asked dispatch to check the validity of defendant's license and registration. At about 16:18, Officer Marcus says something about his laptop computer and, based on the sounds audible on the tape, appears to begin doing something with the computer. By 16:19:26, he had received the report that both the license and registration were valid and current. At 16:19:33, Officer Marcus said something that sounds like he was "just going to watch" and see if "they do anything funny."
At 16:22:31, Officer Marcus emerged from his vehicle and returned to the couple, both of whom had been sitting in their camp chairs since he returned to his patrol car. At about 16:22:42, Officer Marcus told them he "need[ed] them to be honest" and then asked if there was any marijuana present, based on what Officer Marcus described as defendant's red, watery eyes and the incense burning. Both Manning and defendant said no, and Manning at one point said they had had a beer. Between 16:22:50 and 16:22:57, Officer Marcus asked them several times about their marijuana usage, but they continued to deny having smoked marijuana.
At 16:22:58, Officer Marcus said he had probable cause to believe they had been smoking marijuana, based on the incense and the red, watery eyes. At 16:23:08, Manning said that they had smoked earlier, when they had been hiking. Between 16:23:16 and 16:23:19, Officer Marcus asked for the pipe, papers or paraphernalia; at this point, defendant looked at his backpack. At 16:23:29, Manning handed Officer Marcus an Altoids tin containing some marijuana cigarettes. Beginning at 16:23:40, Officer Marcus told defendant that it was "time to be honest" because "I'm going to search you," and said again that he had probable cause to search, but it would be "easier" if defendant gave Officer Marcus any drugs he had because he would prefer not to search defendant or "rummage through" his car. Defendant then retrieved marijuana from his back pack and admitted to having smoked marijuana.
Officer Marcus did not return defendant's license and registration to him until the end of the encounter, at about 16:37:32.
In his probable cause statement, Officer Marcus claimed that defendant was "extremely lethargic" and Manning was "extremely nervous." The court does not credit these characterizations: neither are supported by the DVD. Officer Marcus also maintained that defendant appeared confused about which of the vehicle registrations in his glove box was valid, despite clear labeling on the forms themselves. Once again, this is not supported by the DVD: defendant had some papers in his hand and was narrating what he was doing as he searched for the current registration. Officer Marcus took the papers and selected the valid document. In addition, Officer Marcus said that "defendant had to be asked a second time for his driver's license and proof of insurance." What the DVD shows is that defendant handed Officer Marcus the registration papers first and just after Officer Marcus had confirmed which registration was valid and before defendant could hand over any other material, Officer Marcus said again he wanted the license and registration. The court does not find this suggestive of confusion or reluctance or impairment. Finally, Officer Marcus asserts that Manning was hiding something as he returned to his vehicle with defendant's license and registration. It does appear that Manning was doing something, but Officer Marcus's back was turned as she began to act. He did glance over his shoulder, but it is not clear what he could see ...