United States v. Gould

1

UNITED STATES OF AMERICA, Plaintiff, v. DEREK GOULD, Defendant.

No. 21-cr-00475-JSW-1

United States District Court, N.D. California

August 10, 2022

ORDER GRANTING, IN PART, AND DENYING, IN PART, MOTION TO SUPPRESS AND SETTING STATUS CONFERENC Re: Dkt. No 75

JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

Now before the Court for consideration is the motion to suppress filed by Derek Gould (“Mr. Gould”). The Court has considered the parties' papers, relevant legal authority the record in this case, and the parties' arguments at the hearing held on July 26, 2022. The parties do not believe an evidentiary hearing is required to resolve the motion, and the Court concurs. For the reasons set forth in the remainder of this Order, the Court GRANTS, IN PART, AND DENIES, IN PART Mr. Gould's motion to suppress.^[1]

BACKGROUND

On August 9, 2021, the Government charged Mr. Gould by complaint with a violation 18 U.S.C. section 922(g) (“Section 922(g)”), felon in possession of a firearm. (Dkt. No 1.) On December 9, 2021, the Government charged Mr. Gould by information with one count of violating Section 922(g), and Mr. Gould subsequently waived proceeding by indictment. (Dkt. Nos. 43, 50.)

These charges arise out of Mr. Gould's arrest on February 14, 2021, by Richmond Police Department (“RPD”) Officer Alayna Woody (“Officer Woody”). On that day, Officer Woody was driving westbound on Macdonald Avenue from 23^rd Street in Richmond, when she observed a black Mercedes-Benz (the “vehicle”). The vehicle, which was travelling eastbound on Macdonald Avenue, did not have a front license plate and had tinted windows. (Dkt. No. 76, Declaration of Elisse Larouche (“Larouche Decl.”), ¶ 1; Dkt. No. 76-1, Ex. A (Police Report at ¶ 000119); see also Dkt. No. 80-1, Declaration of Officer Alayna Woody (“Woody Decl.”), ¶¶ 5.)

Officer Woody made a U-turn to position her car behind the vehicle, but the driver, later discovered to be Mr. Gould, continued eastbound through the intersection of Macdonald Avenue and 23^rd Street and made a left turn into a McDonald's parking lot at 2301 Macdonald Avenue. (Woody Decl., ¶ 6.) Officer Woody was unable to make turn into the parking lot because of oncoming traffic, so she proceeded eastbound on Macdonald Avenue and turned northbound onto 24^th Street. The parking lot had another exit on Nevin Avenue, and Officer Woody turned west on Nevin Avenue from 24^th Street. Officer Woody observed Mr. Gould begin to exit the lot. According to Officer Woody, Mr. Gould “abruptly stopped” and reversed back into the lot. At that point, Officer Woody turned her emergency lights on and initiated a traffic stop. (Id., ¶ 6-7; see also Police Report at ¶ 000119.)

Officer Woody activated her body-worn camera (“BWC”) and approached Mr. Gould's car from the passenger side. (Larouche Decl., ¶ 3, Ex. B (Woody BWC-1).)^[2] As she approached, the BWC footage shows that the passenger side window has been lowered, and when she reached the passenger side, Mr. Gould shows Officer Woody his passport. Officer Woody attests that his hands and legs were shaking when he handed her the passport and that he began to speak rapidly.

To her, Mr. Gould appeared nervous. The Court did not observe Mr. Gould's hands or legs shaking, but when the audio begins, he does speak rapidly. Although it is not captured on the audio, Officer Woody attests Mr. Gould also told her that his daughter was in the car. (Woody BWC-1 at 0:19-39); see also Woody Decl., ¶¶ 9-10, 12.)

Officer Woody asked Mr. Gould why he had not “pulled out,” he stated he had not seen her because he was looking at his GPS and showed her his phone. (Id. at 0:29-39.) Officer Woody asked Mr. Gould if he had another form of identification, and Mr. Gould told her he had just returned from Miami, where he lost his identification. When asked, Mr. Gould advised Officer Woody that he has a valid driver's license. (Id. at 0:41-1:15) Mr. Gould continued to talk to Officer Woody about the vehicle registration and ownership information, and Officer Woody asked if he was on probation or parole. Mr. Gould responded he was not but that “ESRP” might come up. (Id. at 1:15-1:35.) At that point Officer Sequeira arrived on scene and approached Mr. Gould's side of the vehicle. (See, e.g., id. at 1:17-1:18, 1:57-2:08; Larouche Decl., ¶ 5, Ex. D (Sequeira BWC at 0:00-0:13).)

Officer Woody then walked to the rear of Mr. Gould's vehicle, provided his license plate number to dispatch, and then proceeded to her vehicle to run a records check.^[3] Officer Woody muted her BWC, pursuant to RPD policy, and ran Mr. Gould's name through the CLETS and Aries databases and communicated with dispatch.^[4] (Woody BWC-1 at 1:57-5:56; Woody Decl., ¶¶ 16, 18.) Officers Farr and Hodges also arrived on scene.^[5] Officer Farr asked Officer Woody “whatcha got,” and Officer Woody responded, “we'll see” and “he's a weirdo, though” and told Officer Farr Mr. Gould tried to ditch her when she flipped around on him by pulling immediately into McDonalds and, when she approached from the Nevin Avenue side of the lot and waited for him, he crept out and then tried to reverse back in. (Farr BWC at 0:34-0:41, 2:46-2:54; see also Woody BWC-1 at 5:50-5:54 (Woody motioning).) The dispatch officer eventually responded that something unintelligible was “valid” and provided Officer Woody with Mr. Gould's address. Officer Woody then asked dispatch if Mr. Gould was “clear Aries,” and the dispatch officer asked her to define “clear.” Officers Woody laughed and then stated, “you know what I mean” and lowers her voice to say “probation, parole.” The dispatch officer advised her that Mr. Gould is “negative to both.” (Farr BWC at 2:08-2:36.) The record searches did show that the vehicle's registration had expired in July 2020. (Woody Decl., ¶ 19.)

After Officer Woody completed the records check, she returned to the driver's side of Mr. Gould's vehicle and asked Mr. Gould whether he had anything illegal in the car. Mr. Gould responded “no”, and Officer Woody asked if she could check. Mr. Gould did not consent to the search, and Officer Woody then stated, “I can smell the weed and I see you that could have been smoking. So, I'm going to do a quick check.” (Woody BWC-1 at 6:04-6:24.) Mr. Gould stated his daughter was in the car, and Officer Woody stated that it would be real quick and that his daughter would be okay. Officer Woody told Mr. Gould to put his hands on top of his head, asked “nothing illegal, no weapons,” and told Mr. Gould to exit the vehicle. After he was out of the vehicle, Officer Woody conducted a pat-down search and said he could sit on the bumper of her car. (Id. At 6:25-7:11.)

Officer Woody reported and attests that, as she was approaching the vehicle, she “smelled an overwhelming odor of burnt marijuana coming from inside the vehicle” and could smell “burnt marijuana as [she] was arriving at the front passenger door before [she] asked the driver any questions.” (Woody Decl., ¶ 9; see also Police Report at ¶ 000119.) Mr. Gould attests that he had not smoked marijuana in the vehicle that day and attests the vehicle did not smell like marijuana when he was stopped and questioned by the RPD. (Dkt. No. 86, Declaration of Derek Gould, ¶ 3.) Although there is no evidence that marijuana was found in the vehicle, there was a box of cigars and two burnt cigars in the ashtray. (Dkt. No. 87, Declaration of Kalei Aichu (“Aichu Decl.”), ¶¶ 2, 4, Ex. 2.) Officer Woody submitted a supplemental declaration in which she attests that in her experience, people add marijuana to these cigars, which are known as “blunts.” (Dkt. No. 96-1, Sur-Reply Declaration of Alayna Woody, ¶¶ 4-5)

After Officer Woody directed Mr. Gould to her patrol car, she began to search the driver's side of the vehicle and a jacket on the driver's seat, and spoke with Mr. Gould's daughter. (Woody BWC-1 at 7:12-7:18.) Other video footage shows that as Mr. Gould approaches Officer Woody's car, he looks back and runs from the scene. (Sequeira BWC at 6:00-6:03; Farr BWC at 4:11-4:14.) Although Officer Woody started to chase Mr. Gould with the other officers, she returned and searched the passenger side of the vehicle. She then returned to the driver's side and repeatedly told Mr. Gould's daughter that everything was okay. Approximately 8 minutes into the video footage, Officer Woody reported she discovered a gun, which was in the right pocket of Mr. Gould's jacket. (Woody BWC-1 at 7:19-8:21; Woody Sur-Reply Decl. ¶ 3.)

The Court will address additional facts as necessary in the analysis.

ANALYSIS

“The right of the people to be secure in their persons, houses papers, and effects, against unreasonable searches and seizures shall not be violated....” U.S. Const. amend IV. Warrantless searches are per se unreasonable. United States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2012). Accordingly, the Government bears the burden to show an exception applies by a preponderance of the evidence. See United States v. Vasey, 834 F.2d 782, 785 (9th Cir. 1987).

The Government relies on the automobile exception, which permits a “warrantless search of a vehicle if there is probable cause to believe that the vehicle contains evidence of a crime.” United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010). The Government offers two alternative arguments in opposition to Mr. Gould's motion: (1) Mr. Gould abandoned the vehicle and its contents when he ran from the scene; (2) the officers inevitably would have discovered the firearm as part of an inventory search.

A. The Initial Stop Was Valid.

The initial seizure in this case took place when Officer Woody initiated the traffic stop. The Fourth Amendment's “protections extend to brief investigatory stops of persons or vehicles that fall short...