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U.S.A. v. Rodriguez

United States District Court, C.D. California

April 15, 2015

U.S.A.
v.
JOSE LUIS RODRIGUEZ, Defendants

Attorneys for Defendants: Not Present.

Present: The Honorable CHRISTINA A. SNYDER.

OPINION

CHRISTINA A. SNYDER, J.

CRIMINAL MINUTES - GENERAL 'O'

Proceedings: (In Chambers) DEFENDANT'S MOTION TO SUPPRESS (Dkt. No. 35, filed February 16, 2015)

I. INTRODUCTION

On October 7, 2014, defendant Jose Luis Rodriguez was charged with Theft or Receipt of Stolen Mail, in violation of 18 U.S.C. § 1708. Through this motion, the defense seeks to suppress evidence found during a November 30, 2012 search of a Cadillac Deville automobile, as well as post-arrest statements and evidence derived therefrom. Dkt. No. 35. The government filed an opposition on March 2, 2015, and defendant filed a reply on March 9, 2015. Dkt. Nos. 38, 39. On March 16 and 17, 2015, the Court conducted an evidentiary hearing and heard argument from counsel. See Dkt. Nos. 49, 50. The Court then requested that the parties file supplemental briefs, which each side did on March 27, 2015. Dkt. Nos. 46, 47. After considering the parties' arguments, the Court DENIES the motion to suppress for the reasons that follow.

II. FACTUAL BACKGROUND

The Court first sets forth relevant facts as represented in a police report written soon after the stop and search in question, and in declarations submitted by the involved officers. The Court then summarizes evidence adduced at the suppression hearing, at which defense counsel questioned the officers' account of events, and in post-hearing briefing.

A. The Police Report and Officers' Declarations

During the late evening and early morning hours of November 29 and November 30, 2012, Long Beach Police Department (" LBPD" ) Officers David Okerman and Jose Gonzalez were patrolling the area of Santa Fe Avenue and 23rd Street in Long Beach, California, in a marked patrol car. Okerman Decl. ¶ 3; Gonzalez Decl. ¶ 3. Okerman declares that it had been " raining off and on all night," and that few people were on the street at the time of the encounter. Okerman Decl. ¶ 4. At approximately 11:47 P.M. on November 29, 2012, while responding to an unrelated burglary report, Okerman observed a man, alleged to be defendant, standing in front of a United States Post Office collection box. Id. ¶ 6. The man was facing the street and looking inside the mailbox, and standing near a white vehicle later determined to be a 1994 Cadillac Deville. Id. That collection box and another located near it had doors facing the curb which can be opened to slide in mail, and one box had an open spout facing the street so that persons in vehicles can drop off mail without exiting the vehicle. Id. ¶ 7. Okerman declares that he " noted the man standing outside in the rain and wondered why he would not use the vehicle drop in light of the poor weather and late hour." Id. The officers, however, drove on respond to the burglary. Id. ¶ 8.

At approximately 12:45 A.M. on November 30, 2012, after responding to the burglary, Okerman and Gonzalez headed south on Santa Fe Avenue and, passing the mailboxes, saw what appeared to be the same person leaning against the same box. Id. Okerman declares that it appeared that the man " was looking inside or tampering with the mail box and not in the process of mailing a letter." Id. ¶ 9 (emphasis in original). Okerman also observed a woman, later identified as Malissa Faith Santory, sitting in the driver's seat of the Cadillac, and noticed that the vehicle did not have a front or back license plate. Id. ¶ 10; Mot. Ex. A (Police Report) at 4.[1] Okerman declares that, because of the lack of license plates, the officers made a U-turn on Santa Fe Avenue to return to the area of the collection boxes. As they did so, the Cadillac began to drive north on Santa Fe Avenue, and then turned east on 23rd Street. Id.

The officers pulled over the Cadillac on 23rd Street. Okerman declares that they did so pursuant to California Vehicle Code 5200(a), which prohibits driving a vehicle without valid license plates. Okerman Decl. ¶ 11; Police Report at 4; see also Gonzalez Decl. ¶ 4 (stating that the traffic stop was conducted " for no license plates" ). Gonzalez contacted the driver while Okerman approached the passenger side of the Cadillac. Okerman states that he noticed that the passenger was wearing a black hat and a black hooded sweatshirt, like the man observed at the collection box, and that Okerman therefore " concluded that this was the same individual standing beside the collection boxes previously." Okerman Decl. ¶ 11.

Santory, who was driving, said that she did not have a California driver's license. Police Report at 4. Gonzalez declares that " as a matter of routine traffic stop questioning," he then asked Santory and defendant if either was on probation or parole. Defendant responded that he was on parole for robbery. Gonzalez Decl. ¶ 6. Gonzalez checked Santory's information for wants and warrants, finding two warrants and a want. Police Report at 4. Defendant gave Okerman his identification, and Gonzalez checked defendant's information for wants and warrants as well. This search returned an indication of parole for robbery. Police Report at 4; Okerman Decl. ¶ 11; Gonzalez Decl. ¶ 7. At around this time, LBPD Officers Kong and Tith, who were also patrolling the area, arrived on the scene and began to assist Okerman and Gonzalez. Okerman Decl. ¶ 12.; Tith Decl. ¶ 4.

Okerman asked defendant to exit the vehicle for a patdown search. Police Report at 4; Okerman Decl. ¶ 13. Okerman declares that he did so because of safety concerns based on (1) defendant's parole status for robbery, (2) defendant's " suspicious behavior in front of the collection boxes," and (3) the fact that defendant was riding in a car lacking license plates late at night. Okerman Decl. ¶ 13. Okerman walked defendant to the front of a police vehicle. Okerman Decl. ¶ 14. The report states that as defendant exited the vehicle, his hands were " down by his front waistband," and that Officer Tith observed him " drop a wrinkled tissue paper out of his hands onto the ground." Police Report at 4; see also Tith Decl. ¶ 7.[2] Okerman declares that he " searched [defendant] for weapons and contraband," and that he observed defendant drop, from his left hand onto the ground, a " glass round pipe, containing an off-white crystal-like substance, commonly used to smoke crystal meth." Police Report at 4; see Okerman Decl. ¶ 14. Tith picked up the tissue paper defendant had dropped, unwrapped it, and found " two small plastic bindles containing an off-white crystal-like substance, appearing to be crystal meth." Police Report at 4; Tith Decl. ¶ 7. Okerman declared: " After finding the glass pipe and observing the small plastic bindles with what appeared to be methamphetamine, I determined that there was probable cause to arrest the defendant" for possession of a controlled substance, possession of drug paraphernalia, and violation of parole. Okerman Decl. ¶ 15.

Okerman and Kong handcuffed defendant " pending further investigation." Police Report at 4; Okerman Decl. ¶ 15. Tith picked up the pipe and held onto the purported drugs, and then gave them to Okerman. Okerman maintained possession of the pipe and drugs until he later placed them into an evidence locker. Defendant and Santory were arrested at approximately 2:00 A.M. Id. at 3.

Okerman then searched the car " for further evidence of narcotics use and/or trafficking." Okerman Decl. ¶ 16. Okerman found in the vehicle mail and checks from Los Angeles and surrounding areas, some of which Okerman believed to be from the mailbox near which he had seen defendant because of the " close proximity of the addresses written on the envelopes." The allegedly stolen mail was found under the front passenger seats, and the checks were found in the rear seat. Id.; Okerman Decl. Ex. B (Property Report). Okerman also declares that he found in the Cadillac " sticky mouse traps and scrappers with glue on them," which he avers are " commonly used for creating fishing devices" for extracting mail. Okerman Decl. ¶ 16. In the trunk of the car, Okerman found a backpack containing " a fully assembled fishing device." Id. Okerman took photos and collected the items found in the vehicle, maintaining possession of them and then placing them into an evidence locker. Police Report at 4.

Okerman avers that while defendant was in the back seat of Gonzalez and Okerman's patrol vehicle, Okerman read defendant his Miranda rights " verbatim" from LBPD Form 1000.008. Okerman Decl. ¶ 17 & Ex. C. Okerman declares that he asked defendant, " do you understand each of these rights I have explained to you?" and that defendant responded, in clear English, " Yes, sir." Id. ¶ 17; Police Report at 5. Okerman asserts that he " observed the defendant to be alert, coherent, and able to understand English based on earlier responses to routine questions," and that defendant did not appear to be under the influence of drugs at the time of the Miranda exchange. Okerman denies exerting pressure or making comments about defendant's " ability or decision to provide a statement." Okerman Decl. ¶ 17.

According to Okerman's declaration and the Police Report, defendant " freely offered" the following statements in response to " waiver question number two, 'do you want to talk'" : (1) that " [a]ll the mail and stuff in the car belongs to me" and that the police " do not have me for nothing other than receiving stolen property" ; (2) that defendant was mailing a letter to a friend incarcerated in county jail; (3) that the drugs in the tissue did not belong to him, but that the pipe did belong to him; (4) that he was given the mail by an unknown friend; (5) that the backpack found in the Cadillac belonged to him; (6) that he had bought the vehicle a few days prior to the incident from a friend, whose name he did not know; and (7) that defendant was " not worried about this case. You guys [the officers] did not actually see me fish out mail from the mail." Okerman Decl. ¶ 18; Police Report at 5. The officers transported defendant for booking at an LBPD station. Police Report at 5.

The Cadillac was towed to PD Tow in Long Beach. Id. at 4. Okerman asserts that when the Cadillac was stored, it was discovered that " Hector Gomez was, and had been, the registered owner of the Cadillac since 1994." Okerman Decl. ¶ 20 & Ex. E. Okerman states that " there was no evidence at the time of storage that the car had been transferred to the defendant." Id. P 20.

B. The Suppression Hearing

At a suppression hearing on March 16 and 17, 2015, the defense attempted to cast doubt on the above version of events, and the officers testified to details of the incident not set forth in the police report or declarations. Relevant portions of the hearing are summarized below.

1. Okerman's Observations of Defendant

Defense counsel attempted to impeach Okerman's declaration testimony that he first saw defendant acting suspiciously by the mailbox while he and Gonzalez were driving to the unrelated burglary. Okerman testified that when he saw the individual wearing a black hat and black sweatshirt near the mailbox, the officers were not stopped at a red light, and that although the street corner is lit, it was raining and dark outside. Hr'g Tr. Mar. 16, 2015 at 39:20-40:22. Okerman stated that although the officers were responding to the burglary call with some sense of " urgency," they were not " speeding." Id. at 42:8-15.

On redirect examination, Okerman repeated essentially the same details about his initial observation as set forth in his declaration. He stated that the scene caught his attention because the subject was standing in front of a mailbox with a drive-up mail slot late at night in a " fairly dangerous area." Hr'g Tr. Mar. 16, 2015 at 54:3-12.

The officers did not stop or flash their spotlight at this time, nor did they record the observation on their in-car police radio or computer or alert other officers in the area. Id. at 41:13-42:9. Okerman did not mention this suspicious observation to Gonzalez as the two officers responded to the burglary, or before Gonzalez wrote the police report. Hr'g Tr. Mar. 17, 2015 at 20:8-16. Okerman testified that he does not mention every suspicious sight to his partner, or otherwise make a record of every observation. Hr'g Tr. Mar. 16, 2015 at 54:16-55:5. Okerman testified that he did, however, mention to Gonzalez the person near the mailbox the second time he saw him, just before the officers stopped the Cadillac. Id. at 55:25-56:5. Okerman never observed the man reaching inside of or entering the car. Id. at 43:22-44:19. However, after the officers made a U-turn, Okerman inferred from the facts that the subject had disappeared and that the Cadillac was pulling away that the subject had gotten into the Cadillac, and was attempting to flee. Id. at 56:10-13.

At the hearing, defense counsel called an investigator from the Federal Public Defender's Office, who testified that she drove the same route as Gonzalez and Okerman drove when responding to the burglary, and that--driving the speed limit--it took her approximately eight minutes (as opposed to the four-and-a-half minutes that dispatch notes indicate it took Okerman and Gonzalez). Hr'g Tr. Mar. 17, 2015 at 42:3-43:14. Based on this, defense counsel argued that Okerman and Gonzalez must have been speeding when they responded to the call, and that this ...


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