U.S. v. Broadway

580 F.Supp.2d 1179

UNITED STATES of America, Plaintiff, v. Jason Alexander BROADWAY, Defendant.

Criminal Case No. 07-cr-00517-LTB.

United States District Court, D. Colorado.

October 2, 2008.

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James R. Boma, U.S. Attorney's Office, Denver, CO, for Plaintiff.

MEMORANDUM OPINION AND ORDER

BABCOCK, District Judge.

This drug trafficking and weapons case is before me on Defendant, Jason Alexander Broadway's, Motions to Suppress Evidence and supplemental briefing [Docket ## 27, 28, 29, 46, 60], and the Government's responses [Docket ## 33, 34, 35, 48, 61, 62, 75]. A two-day evidentiary hearing on these motions was held on August 28 and September 11, 2008. After consideration of the motions, the papers, and the case file, as well as the arguments made and evidence presented at the hearing, I find and conclude as follows.

I. BACKGROUND FACTS

On October 8, 2007, Detective Gassman of the Denver Police Department was observing Defendant based upon information provided from a confidential source indicating a person fitting Defendant's description was selling narcotics. Detective Gassman—following Defendant's vehicle in plain clothes—observed Defendant engaging in what appeared to be a drug sale. Detective Gassman and other police officers followed Defendant's vehicle and observed Defendant driving erratically and making a turn without utilizing his turn signal. Two uniformed officers initiated a traffic stop. A search of the vehicle yielded a marijuana cigarette.

Defendant initially gave his name as "Jahon Bishop" and provided a false California driver's license to that effect. Defendant eventually gave his real name, and it was determined he had an active warrant for a felony parole violation out of California. Defendant was placed under arrest and taken to Denver Police headquarters. While in the back of the police vehicle and while at police headquarters, Defendant acted in a manner that suggested he was attempting to conceal narcotics in his buttocks. Detective Gassman obtained authorization to execute a strip search of Defendant. While executing the strip search, Detective Gassman observed a piece of plastic protruding from Defendant's anus. Another officer, Detective Bauer, then sought and received a warrant for a body cavity search, but it was never executed. No drugs were ever found on Defendant's person.

The following day, October 9, 2007, police officers—including Detectives Gassman and Bauer—went to Defendant's apartment building at 1355 York Street— also known as York Street Garden Apartments—in Denver. Detective Gassman noted that the mailboxes listed "J. Bishop"—the false name given by Defendant during his arrest—as living in unit four. The officers spoke with Mr. Gonzales, the resident of unit one—the doorway to which was located in the unsecured entryway to the building—and an employee of York Street Garden Apartments. Mr. Gonzales confirmed Defendant resided in unit four and gave the officers permission to enter the secure common area of the building. Once inside the building, Detective Gassman confirmed with another resident that Defendant lived in unit four. Detective Romero—a trained canine unit detective— was then summoned and arrived with "Wyatt," a drug-sniffing dog. Wyatt alerted in the hallway outside Defendant's apartment and also alerted on the walkway outside Defendant's partially open basement-level window.

Detective Gassman then sought and received a search warrant for Defendant's apartment, relying in part on the results of the dog sniff. When the officers entered the apartment, they smelled a strong odor of marijuana. The ensuing search turned up over one pound of cocaine and crack cocaine, a .38 revolver, a small amount of marijuana, baggies, and scales.

When germane, additional factual determinations will be set forth in this order.

II. PENDING MOTIONS

There are six motions pending in this case, four of which are ruled upon in this Order. I consider each in chronological order of the allegedly improper acts.

A. Motion to Suppress Evidence Obtained through the Illegal Stop and Search of Mr. Broadway [Docket # 28]

Defendant challenges the initial stop and search of his car on October 8, 2007. It is well-established that an automobile stop is subject to the Fourth Amendment imperative that guarantees the right to be free from unreasonable searches and seizures. See Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). "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." Id. at 810, 116 S.Ct. 1769. If a traffic violation is observed, the traffic violation forms a reasonable basis for the stop, even when the ultimate purpose of stopping the vehicle is to search for contraband. See id. at 812-13, 116 S.Ct. 1769.

At the August 28, 2008, hearing, Detective Gassman testified he was following Defendant on October 8, 2007, and observed Defendant pick up a white male near the intersection of Jewell Avenue and Clermont Street. Detective Gassman then observed Defendant and the white male drive around the block before the white male exited the vehicle. Believing this activity to be a drug transaction, Detective Gassman—as well as six or seven other officers in separate cars—began to follow Defendant. Detective Gassman observed Defendant engage in numerous traffic violations—including speeding, failure to stop at a stop sign, and failure to use a turn signal—but did not include all of these observations in his report. Detective Gassman testified he lost sight of Defendant for approximately ten to fifteen minutes, during which time the traffic stop was initiated.

Detective Bauer testified he too was following Defendant. Although he also lost sight of Defendant at one point, Detective Bauer testified he located Defendant's vehicle going eastbound on 21 st Avenue and then observed Defendant turning southbound onto High Street without signaling. Detective Bauer notified uniformed officers Luke and Miner, who initiated the stop.

Defendant argues Detective Gassman could not have observed Defendant making an illegal turn because he was not in eye sight of Defendant's vehicle. Defendant also notes the conflicting report of Officer Luke, who stated Defendant was stopped because Defendant had a tree air freshener hanging from his rear view mirror that obstructed Defendant's view. Defendant's argument on these points is irrelevant to the question of reasonableness, however, because the testimony presented showed it was Detective Bauer who observed Defendant make an illegal turn. As Detective Bauer's testimony in this regard was both credible and uncontradicted, I accept it as fact and find and conclude the stop of Defendant's vehicle was reasonable. Accordingly, Defendant's Motion to Suppress Evidence Obtained through the Illegal Stop and Search of Mr. Broadway [Docket # 28] is denied.

B. Motion to Suppress Evidence, Observations, and Statements Obtained from the Illegal Strip Search of Mr. Broadway [Docket # 29]

When Defendant's vehicle was stopped, Defendant initially gave police a fake driver's license. After Defendant's true identity was discovered following additional questioning, police determined he had an outstanding warrant and took him into custody. Once at Denver Police headquarters, Detective Gassman obtained written authorization for a strip search. Defendant alleges Detective Gassman also searched his anal cavity. No physical evidence was obtained during the strip search.

Defendant does not raise a Fifth Amendment argument in this motion, and I do not consider it here. Instead, Defendant argues any statements he made during the search should be suppressed under the Fourth Amendment because the strip search was executed in violation of Colorado's strip search statute, COLO. REV. STAT. § 16-3-405. Whether the strip search violated Colorado state law, however, is not the relevant inquiry. See Sandin v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir.2002). "The only issue is whether the strip search in the case at bar violated [Defendant's] constitutional right against unreasonable searches and seizures, as guaranteed by the Fourth and Fourteenth Amendments." See Allen v. Bd. of Comm'rs of County of Wyandotte, 773 F.Supp. 1442, 1447 n. 6 (D.Kan.1991). Although Defendant claims he was subject to a body cavity search—a claim which is not borne out by a review of the videotape of his search—this does not change the general inquiry of reasonableness under the circumstances. See Bell v. Wolfish, 441 U.S. 520, 558-59, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (holding body cavity searches do not violate the Fourth Amendment so long as they are reasonable under the circumstances); Massey v. Wilson, 484 F.Supp. 1332, 1333 (D.Colo.1980).

Whether a strip search or body cavity search is "reasonable" under the Fourth Amendment "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell, supra, 441 U.S. at 559, 99 S.Ct. 1861.

The alleged body cavity search in this case—if it occurred at all—could only have been fleeting and superficial. A review of the videotape shows a combative Defendant. The video shows Detective Gassman attempted a visual inspection of Defendant's buttocks area, but does not at any time reveal any actual touching, penetration, attempted touching, or attempted penetration of Defendant's anus or anal cavity. Accordingly, the scope of the search and the manner in which the search was conducted was reasonable.

The search was also justified. Under federal constitutional law, it is ...