United States v. Harris

636 F.Supp.3d 319

UNITED STATES of America v. Dennis HARRIS, Defendant.

21-CR-376(EK)

United States District Court, E.D. New York

Signed October 21, 2022

Patrick J. Campbell, Chand Warren Edwards-Balfour, Government Attorneys, United States Attorney's Office, Brooklyn, NY, for United States of America.

James Darrow, Public Defender, Federal Defenders of New York, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

ERIC KOMITEE, United States District Judge:

Defendant Dennis Harris is charged with violating the felon-in-possession statute, 18 U.S.C. § 922(g). He argues that the search that led to the discovery of the gun at issue violated the Fourth Amendment. Harris now moves to suppress the gun as well as other evidence resulting from that search. The Court held a suppression hearing on August 2, 2022. See Tr. of August 2, 2022 Suppression Hr'g ("Tr."), ECF No. 48. For the reasons set forth below, Harris's motion is denied.

I. Background

The government called one witness at the hearing: Officer Benjamin Rodriguez of the New York City Police Department. Rodriguez's testimony and the government's physical evidence established the following. On the afternoon of March 14, 2021, NYPD officers responded to reports that a blue sedan was at a standstill on Fulton Street in Brooklyn. Tr. 9:17-10:21. Because Fulton Street has only one lane of traffic in each direction at that location, vehicles approaching behind the sedan had to maneuver into the lane of oncoming traffic to get around the sedan. Tr. 85:16-86:14.

As Officer Rodriguez approached the sedan with two other officers, he saw Harris "sleeping" behind the wheel. Tr. 11:16-18. The officers gave verbal commands, such as "Sir, are you okay?" and "What's going on?"; Harris did not respond. Tr. 11:22-12:1. Noting that the sedan's engine was running and the transmission was in the "drive" position, Rodriguez reached through the open driver's side window and across Harris to the center console, put the vehicle into park, and removed the keys from the ignition. Tr. 12:2-13, 13:10-13. These maneuvers did not wake Harris. Tr. 12:14-15.

Rodriguez then opened the driver's side door and shook Harris. Tr. 13:3-5. When this did not work, he "applied four knuckles onto [Harris's] chest and began to rub it," upon which Harris gained consciousness. Tr. 13:4-7. Rodriguez's supervisor asked Harris to exit the vehicle, which he did without assistance. Tr. 13:17-23. Rodriguez observed Harris to be "tired" and "slurring his speech," with "watery" and "red" eyes. Tr. 13:24-14:5.

After Harris exited the sedan, but before he closed the door, Rodriguez saw (from about three feet away) "a plastic bag containing marijuana on the door panel, the driver's side," "in the center of the door" where the door handle and electronic window controls are located. Tr. 15:2-11, 16:10-12, 26:22-27:20. Rodriguez testified that the bag could be seen in footage from Sergeant Lopez's body-worn camera. On video, the bag appears as a white, opaque object in the door panel. Tr. 45:7-47:20, 68:9-70:16; Gov't Ex. 2, at 0:00 to 0:02. In reality, it is a clear plastic bag containing marijuana, tied into a knot at the top. Tr. 44:23-45:2, 72:2-73:2.

Harris then closed the car door. Gov't Ex. 2, at 0:02 to 0:04. Rodriguez saw through the still-open window "a marijuana oil pen on the floor mat of the driver's side of the vehicle." Tr. 15:12-21, 27:21-28:5. The pen was located on the floor, on top of a brown napkin, near the center tunnel; its location is shown in a still image from Rodriguez's body camera footage. See Gov't Ex. 1-A; Tr. 18:2-10, 23:11-25, 50:5-13. (As discussed below, Harris argues that Rodriguez's testimony as to when he first saw these marijuana-related items contradicted his grand jury testimony.)

Accompanied by multiple officers, Harris then walked to a nearby ambulance that had arrived. Tr. 16:13-20. Meanwhile, Rodriguez searched Harris's sedan; while searching in the driver's area, he opened a fuse compartment located near the steering wheel and saw a silver firearm. Tr. 28:21-29:1. Photographs of the driver's side dashboard, with the exterior and interior of the fuse compartment visible, were admitted into evidence. See Gov't Exs. 3, 4; Tr. 29:4-20, 30:14-31:3.

Rodriguez then signaled for other officers to arrest Harris. Tr. 29:1-3. After Harris's arrest, the NYPD towed his sedan to the precinct, where Rodriguez and other officers inventoried it later that day. Tr. 39:4-17. During the inventory search, Rodriguez recovered the bag of marijuana and vape pen that he previously saw in the sedan. Tr. 40:17-41:11.

II. Discussion

The search of Harris's sedan was permitted under the Fourth Amendment, despite the officers' not having obtained a warrant, on two separate bases: the automobile exception to the warrant requirement, and the inevitable discovery doctrine.

A. Automobile Exception

The automobile exception to the warrant requirement permits officers to "conduct a warrantless search of a vehicle if they have probable cause to believe it contains contraband or other evidence of a crime." United States v. Wilson, 699 F.3d 235, 245 (2d Cir. 2012).¹ Probable cause requires only a "fair probability" that evidence of a relevant violation will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). When the exception applies, officers may search any area of the vehicle in which they have "probable cause to believe contraband or evidence is contained." California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991); see also United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ("If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.").

1. The Officers Had Probable Cause to Arrest Harris

Officer Rodriguez testified that, prior to searching the fuse box that contained the gun, he had observed the following: Harris sleeping (or passed out) in a car, with the engine running, in the midst of an active roadway. Moreover, as he reached across Harris's chest to secure the transmission in "Park" and remove the keys from the ignition, Rodriguez smelled alcohol on Harris's breath.² Despite this action, Harris remained non-responsive. As discussed below, I credit Rodriguez's testimony regarding these events. And these observations amounted to probable cause even before Rodriguez observed the loose marijuana in the door panel and the vape pen on the driver-side floor. Rodriguez's observation of those items — in plain view, through the open car door and window, respectively — only buttressed that cause. Accordingly, Rodriguez was justified in his belief that the fuse box drawer might contain additional evidence of criminality — specifically, driving under the influence.

The Seventh Circuit addressed a similar situation in United States v. Paige, 870 F.3d 693 (7th Cir. 2017). In Paige, the defendant had fallen asleep in the driver's seat of his vehicle, which had been parked in the drive-through lane of an open McDonald's restaurant for an hour and which prompted an employee to call 911. Id. at 696. After a responding fire captain roused the defendant, a police officer detected a "strong odor of fresh marijuana" when she approached him. Id. at 697. She also "observ[ed] a bottle of alcohol on the driver's seat" of the defendant's car. Id. The officer testified that the defendant "appeared sleepy, keeping his eyes low and walking slowly." Id. The Seventh Circuit held that the officer's subsequent search of the vehicle was justified under the automobile exception because she "certainly had a reasonable basis for believing that the vehicle contained evidence of the offenses of arrest" — namely, "marijuana possession and impaired driving." Id. at 702.

The same is true here. The facts show that there was at least a fair probability that the officers would find evidence that Harris was driving under the influence of alcohol or drugs or was in unlawful possession of marijuana. It is undisputed that Harris was sleeping (or unconscious) behind the wheel of a vehicle stopped in the middle of an active roadway, that a baggie of marijuana and a marijuana vape pen were in plain view in the car, and that Harris did not respond to the officers' questions or even rouse when Rodriguez "shook" him. Tr. 11:16-12:18; 15:2-16:12, 26:12-28:5. While reaching into the sedan to turn it off, Rodriguez also smelled the odor of an alcoholic beverage coming from Harris. Tr. 76:17-18. That observation was later corroborated by a breath analysis test, which indicated a BAC of 0.166. Gov't Ex. 5; Tr. 33:1-34:19.³

The Second Circuit has, not surprisingly, held a similar state of affairs to suggest probable cause to believe a person has been driving under the influence. See Oquendo v. City of New York, 774 F. App'x 703, 705 (2d Cir. 2019) (probable cause existed to support arrest for driving while intoxicated where driver "had fallen asleep while his vehicle remained in drive in a traffic lane after attending a party in the early morning hours," his eyes were watery, and "there was an open, half-full bottle of beer in the car's center console"); United States v. Guy, 1 F. App'x 410, 411, 413 (6th Cir. 2001) (warrantless search justified under the automobile exception where officers "found [the defendant] asleep with a crank pipe in his hands" in a " 'pull-off' area on the side of the road" because "the officers had probable cause to believe that contraband would be found in [the defendant's] car").⁴

In this case, there was more: When Harris exited the vehicle, his speech was slurred, and he had bloodshot, watery eyes. Both a vape pen and a bag of marijuana were in plain view in the vicinity of the driver's seat. Taken together, these facts easily establish probable cause to believe that additional "evidence of criminal activity,"...