The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court is defendant's motion to suppress evidence seized from his vehicle, and statements made by him, during an investigatory stop and search of his vehicle. (Dkt. No. 7.) Defendant seeks to suppress evidence of marijuana and an open container of alcohol found in his vehicle. Defendant also seeks to suppress his potentially incriminating statements that could be construed as an admission regarding ownership of the marijuana and alcohol at issue. On November 1, 2010, the court held an evidentiary hearing regarding defendant's motion, at which the following witnesses testified: Officer Robert Staton, Officer Jeremiah Baculpo, and defendant. (Dkt. No. 15.)
For the reasons that follow, the undersigned will grant defendant's motion to suppress in part, and deny it in part. Specifically, the undersigned will not suppress evidence of the marijuana and open container of alcohol found in defendant's vehicle because the investigatory stop and search of the vehicle did not violate the Fourth Amendment of the United States Constitution. However, the undersigned will suppress defendant's statements related to the marijuana and the open container of alcohol because those statements were obtained from defendant during a custodial interrogation and in the absence of constitutionally required Miranda warnings.
A. Observation of the Suspicious Vehicle and the Initial Questioning On April 17, 2010, at approximately 6:45 p.m., Officer Robert Staton and Officer Enrique Badoy, who are law enforcement officers at the Tracy Defense Depot, observed a white sedan making a "u-turn" at the truck gate entrance to the Tracy Defense Depot.*fn1 The Tracy Defense Depot is a military or Department of Defense installation. After the vehicle executed the u-turn at the truck gate entrance, it pulled into the outer parking lot of the depot, which is adjacent to the outer chain-linked fence that runs the length of the depot. The outer parking lot is on depot property. There are limited entry points into the outer parking lot from the public street, and the remainder of the parking lot is lined by a three-cable fence that is approximately three to four feet high. After the vehicle entered the outer parking lot, it stopped, and a passenger quickly exited the vehicle. The individual ran to the outer fence line of the depot, bent over, quickly returned to the vehicle, and then the vehicle departed. This same maneuver was observed a total of three times in a 15-to-20 minute period.
After the second such occurrence, Officer Staton and Officer Jeremiah Baculpo, a patrol officer, were dispatched to the outer parking lot and fence line to investigate the suspicious activity. The officers checked up and down both sides of the fence line to, among other things, verify whether anything had been left at or thrown over the outer fence. They did not find anything unusual or suspicious, such as items that were left behind or evidence of tampering with the fence.
When the white sedan approached the outer parking lot for a third
time, five or so minutes after the second such occurrence,*fn2
Officers Staton and Baculpo responded to the scene in their
respective law enforcement sport utility vehicles ("SUVs"). Officer
Staton arrived at the scene slightly before Officer Baculpo, and
Officer Staton activated his overhead lights. Officer Staton parked
his SUV behind the white sedan so that the sedan could not back up,
and Officer Baculpo parked his SUV along the driver's side of the
Officer Staton testified that when he approached the scene, he observed that there were three occupants in the vehicle and that one of the three occupants, Nihad Nizar, had already exited the vehicle and was retrieving a soccer ball from the fence line. As Mr. Nizar returned to the vehicle, Officer Staton ordered Mr. Nizar to stop, to not re-enter the vehicle, and to put the soccer ball down. Officer Staton then ordered Mr. Nizar to move away from the vehicle and return to the fence line area and face the fence. Officer Staton testified that he had to repeat his commands to Mr. Nizar that Mr. Nizar stop what he was doing and not return to the vehicle. Officer Staton testified that he thought Mr. Nizar "was not really sure" about what was happening at that point.
As Officer Staton was providing commands to Mr. Nizar, Officer Baculpo arrived at the scene. Officer Baculpo did not immediately observe the soccer ball on the ground, but saw Mr. Nizar moving quickly toward the fence line. Officer Baculpo ordered Mr. Nizar to stop what he was doing, but Mr. Nizar did not immediately comply with the order. This failure to comply, and the fact that Officer Baculpo could not see the front of Mr. Nizar's waistband where a weapon could be concealed, raised Officer Baculpo's security concerns and caused Officer Baculpo to draw his 9mm handgun and carry it "in the alternative position," i.e., pointed to the ground. Officer Baculpo ordered Mr. Nizar to place his hands over his head and walk backwards toward Officer Baculpo, and Mr. Nizar complied. Officer Baculpo then holstered his weapon, handcuffed Mr. Nizar, and performed a frisk of Mr. Nizar's outer clothing. Officer Baculpo found no weapons or contraband.
Meanwhile, Officer Staton secured the driver of the vehicle, Deepak Kalshan, and the defendant, who were still inside the vehicle.*fn3 Officer Staton ordered defendant and Mr. Kalshan to show their hands and then ordered defendant to exit the vehicle. He subsequently ordered Mr. Kalshan out of the vehicle and separated the men by approximately eight feet. Both men exited the vehicle with their hands raised, which resulted in the driver's side door being left open. Officer Staton frisked defendant and Mr. Kalshan for weapons, handcuffed both men, and ordered them to sit next to Mr. Nizar, who was already seated on the ground. Officer Staton did not find any weapons on the person of either defendant or Mr. Kalshan, and both men complied with Officer Staton's commands. Ultimately, the three men were seated in a row on the ground, still in handcuffs.
Officer Baculpo conducted interviews of the three men to ascertain who the men were and why they were engaged in the observed, suspicious behavior. The men reported that they were attending a family gathering or barbeque at a home in a residential neighborhood that was west of, and across a busy street from, the depot. Defendant was not from the immediate geographic area; he was visiting from the San Francisco Bay Area. The men informed Officer Baculpo that they had been playing soccer in the backyard of a residence where the gathering was being held and had repeatedly kicked a soccer ball over a 12-foot-high retaining wall or sound wall, across the busy road, and onto depot property. The ball reportedly rolled to approximately the same point along the outer fence line each time it cleared the wall. During the investigatory stop, Officers Staton and Baculpo observed a soccer ball near the fence line, which was consistent with the story provided by the three men.
The officers attempted to verify the identities of the three men during the stop. The officers confirmed that defendant had a valid driver's license and had no outstanding warrants and no recorded violations. Officer Baculpo also learned that defendant was the son of the registered owner of the vehicle; defendant testified that he is the primary operator of the vehicle. Officer Baculpo also ascertained that defendant was a flight instructor at the Bel-Air International flight school in Belmont, California, in the San Francisco Bay Area. Mr. Kalshan and Mr. Nizar were defendant's students at the school.
Mr. Nizar was identified verbally and had no identification on his person. The officers determined that the driver, Mr. Kalshan, did not have a valid California driver's license; he only had a New Delhi, India driver's license. During the interviews, Captain Randal Beck arrived on the scene and suggested that the California Highway Patrol ("CHP") might be able to run Mr. Kalshan's driver's license. CHP Officer Plante arrived at the scene. Officer Plante was not able to run Mr. Kalshan's license. Mr. Kalshan was later cited for violation of California Vehicle Code §12500(a) for driving with an invalid license.
B. The Vehicle Search and Subsequent Questioning Officer Staton testified that while Officer Baculpo was conducting the interviews of defendant, Mr. Kalshan, and Mr. Nizar described above, Officer Staton conducted a "plain view search" of the white sedan, the door of which remained open after defendant and Mr. Kalshan exited the vehicle.*fn4 Officer Staton testified that he conducted this search of the interior of the vehicle to check whether there were weapons or anything else in the vehicle, such as explosives or suspicious packages, which were easily accessible and would pose a danger to the officers. Officer Staton conducted this search after the three men had been frisked and after hearing the story about kicking the soccer ball over the retaining wall or sound wall.
In conducting the "plain view search," Officer Staton positioned himself in the space between the open driver's side door and the body of the car. He used a flashlight to look into the interior of the vehicle. As Officer Staton leaned over and looked in the door pocket of the driver's side door*fn5 with the flashlight, he observed a brown, translucent prescription pill bottle with an opaque, white lid.*fn6 Officer Staton testified that the bottle had no labels affixed to it and was standing upright in the door pocket, with no objects immediately adjacent to it that would obstruct the view of the bottle. He also testified that he could see into the bottle well enough to see that the bottle contained something other than medication. Without touching the bottle, Officer Staton observed a "bulky" or "lumpy" substance or a "shadowy clump" in the bottle. This observation, along with the fact that there was no label on bottle and that in Officer Staton's training and experience these types of bottles are used to transport substances like marijuana, raised his suspicions that the substance was marijuana or some other controlled substance. Officer Staton testified that he did not immediately know the exact nature of the substance. Based on his suspicions, however, Officer Staton picked the prescription pill bottle up, shook the bottle, opened the bottle, and smelled its contents. Officer Staton testified that, based on his experience and training, the substance smelled like marijuana. Officer Staton concluded that the bottle contained marijuana in its compressed, "bud" form. After discovering what he believed to be marijuana in the prescription pill bottle, Officer Staton showed the substance to CHP Officer Plante, who agreed that the substance was marijuana.
Officer Staton testified that he then "used" the discovery of marijuana as probable cause to search the passenger compartment of the vehicle. He discovered the following inside the vehicle: (1) a white, plastic "Airborne" brand medication tube or vile with trace amounts of marijuana in it; (2) rolling papers, which were found in the center console of the vehicle; (3) "a roller"; and (4) an open, partially consumed bottle of scotch, which was wrapped in a brown paper bag and found in the seat pocket behind the front passenger's seat. Officer Staton and Officer Baculpo testified that they did not smell marijuana or alcohol at all prior to searching the vehicle.
After finding the items described above, Officer Staton further
interviewed the men without providing any Miranda warnings.*fn7
Officer Staton testified that because he assumed that the
drugs belonged to the driver, he approached the driver first. Officer
Staton further testified that as he asked the driver, Mr. Kalshan,
about the marijuana, he viewed defendant out of the corner of his eye
"drop his head and shake it," in effect indicating resignation about
the drugs. Thus, before obtaining a response from Mr. Kalshan, Officer
Staton approached defendant and inquired whether defendant would like
to tell him to whom the drugs belonged. Officer Staton and defendant
testified that defendant responded that the marijuana "was kind of
everybody's marijuana," which had been purchased to be used later at a
party. Officer Staton testified that he informed defendant of his
assumption that the ...