United States v. Wood

238 F.Supp.3d 1307

UNITED STATES of America, Plaintiff,

v.Charles Jason WOOD, Defendant.

Criminal Action No. 16–cr–00281–CMA

United States District Court, D. Colorado.

Signed February 25, 2017

Rebecca Susan Weber, U.S. Attorney's Office–Denver, Denver, CO, for Plaintiff.

ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

CHRISTINE M. ARGUELLO, United States District Judge

This matter is before the Court on Defendant Charles Jason Wood's Motion to Suppress. (Doc. # 26.) The Court held a half-day evidentiary hearing on the Motion on February 23, 2017. For the reasons described herein, Defendant's Motion to Suppress is granted.

I. BACKGROUND

Defendant Wood has been charged by Indictment in this case for his alleged possession with the intent to distribute certain controlled substances, possession of a firearm in furtherance of a controlled substance crime, and for felon in possession of a firearm. (Doc. # 1.) In brief, Mr. Wood was arrested after police officers observed him cutting narcotics for distribution in his parked car. As recounted in greater detail below, officers were present to observe Mr. Wood only because they were tracking the vehicle he was driving, a 2001 White BMW ("2001 White BMW), with an electronic tracking device that had been affixed pursuant to a search warrant that was tied to the previous driver of the vehicle, an individual named S.B. Mr. Wood challenges that search warrant as violative of his Fourth Amendment rights, and seeks to suppress the evidence gleaned from the search and seizure.

Detective Michael Garnett, a law enforcement officer with the Colorado Springs Police Department, testified during the suppression hearing that, as part of a drug investigation wholly unrelated to Mr. Wood, he sought and obtained a search warrant to track a 2001 White BMW, known to be driven by an individual named S.B. The probable cause statement underlying the warrant set forth information concerning S.B.'s distribution of drugs in the Colorado Springs area, and his use of the 2001 White BMW in connection with that activity. The warrant, obtained on May 27, 2016, authorized officers to attach an electronic tracking device to the 2001 White BMW and to monitor the vehicle via the electronic tracking device for a period of 60 days.

Detective Garnett further testified that, prior to affixing the tracking device to the 2001 White BMW, on June 1, June 2, and June 3, law enforcement officers conducted surveillance on S.B. and his residence, located at 1428 N. El Paso Street in Colorado Springs. On all three days, the 2001 White BMW was observed parked in the driveway. On all three days, S.B. was observed leaving his residence and driving away in the White BMW.

On June 7, 2016, at 10:30 p.m., an electronic tracking device was placed on the 2001 White BMW. At that time, the 2001 White BMW was parked in the driveway of S.B.'s residence. Because the tracking device was affixed to the 2001 White BMW on June 7, the warrant authorized electronic tracking of the 2001 White BMW through August 6.

Detective Garnett testified that on June 28, 2016, in connection with their ongoing surveillance of the 2001 White BMW, officers observed that the chrome rims on the 2001 White BMW had been removes and a "For Sale" sign affixed to the passenger side window of the 2001 White BMW.

From the time the tracking device was affixed on June 7 until July 2, the data reveals that the 2001 White BMW was parked at 1428 N. El Paso St.—S.B.'s residence—on 23 out of 25 days. From July 3 on, the tracking data shows that the 2001 White BMW was parked at 210 N. Murray Boulevard in Colorado Springs, an address with no known connection to S.B., and the location we now know to be Mr. Wood's residence.

Detective Garnett's report indicates that on July 8, 2016, he sought to surveil the 2001 White BMW to "see if [his] previous suspect [i.e. S.B.] was still driving the vehicle or if it still had the same plate number." Using the data provided by the electronic tracking device, Detective Garnett located the 2001 White BMW, which was in transit from the apartment parking lot at 210 N. Murray to the parking lot of a nearby high school. Detective Garnett located the 2001 Whtie BMW in the parking lot of the high school and drove by it. He testified that he noticed that there was no license plate attached to the 2001 White BMW and that a white male was sitting in driver's seat; however, he was unable to determine whether the driver was S.B. or a different white male.

At that point, Detective Harris, a colleague accompanying Detective Garnett, exited their vehicle and walked past the parked BMW. Because the windows of the BMW were tinted, Detective Harris reported that he was also unable to identify the driver. He did, however, observe the driver cutting a large amount of narcotics for apparent distribution.¹

Shortly thereafter, Detective Garnett observed the driver of the 2001 White BMW engage in what he believed to be a narcotics transaction with a person in a second car in the parking lot. A third officer, Officer Zahrobsky, was radioed, arrived at the scene, and approached the 2001 White BMW to make contact with the driver. After a brief scuffle and an attempt to flee, Mr. Wood was subdued and handcuffed. Near the 2001 White BMW, officers discovered a brown satchel containing cash and Ziploc bags. Inside the car, officers found controlled substances, firearms, and ammunition.

Of significance to the defendant's motion is that Detective Garnett, on cross examination, testified that he had doubts on July 8 that S.B. was still driving the vehicle, and it was because of those doubts that he decided to pull the tracking data and intercept the vehicle for visual surveillance.

S.B. was subpoenaed by the Defendant and testified that, at the request of his sister, L.B., who was the record title holder to the 2001 White BMW, he sold the 2001 White BMW to Mr. Wood on either July 2 or July 3, 2016, for $4000. On the day of the sale, he gave possession of the 2001 White BMW, including the title and keys, to Mr. Wood. He also testified that he removed the license plates and other personal items from the 2001 White BMW before he gave possession to Mr. Wood. Mr. Wood took the stand and confirmed that he paid S.B. $4,000 for the 2001 White BMW and took possession of the vehicle on July 2, 2016. He further testified that although the title to the 2001 White BMW was in the name of his ex-wife, she authorized him to drive it and he felt like it was his own vehicle when he was driving it.

II. DISCUSSION

A. Standing

"A district court cannot suppress evidence unless the movant proves that a search implicates Fourth Amendment interests." United States v. Jones , 44 F.3d 860, 871 (10th Cir. 1995). To this end, "a defendant raising a Fourth Amendment challenge must first demonstrate that he has standing to object to the search." United States v. Poe , 556 F.3d 1113, 1121 (10th Cir. 2009) (citing United States v. Rubio–Rivera , 917 F.2d 1271, 1274 (10th Cir. 1990) ); see also United States v. Arango , 912 F.2d 441, 445 (10th Cir. 1990) (quoting Rakas v. Illinois , 439 U.S. 128, 139–40, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ) (internal quotation marks omitted) (noting that "Fourth Amendment rights are personal and cannot be asserted vicariously" and that a non-owner driver did not have standing to challenge the search of a car). In determining whether Mr. Wood has standing to challenge the search warrant, this Court must examine two factors: "[1] whether the defendant manifested a subjective expectation of privacy in the area searched and [2] whether society would recognize that expectation as objectively reasonable." Arango , 912 F.2d at 445 (citation omitted). "The burden of showing standing to challenge a search and seizure rests with the defendant." United States v. Martinez , 983 F.2d 968, 972 (10th Cir. 1992) (citing Rakas, 439 U.S. at 130, 99 S.Ct. 421 ).

In deciding whether society would recognize an expectation of privacy as objectively reasonable, "we consider concepts of real or personal property law ...." Arango , 912 F.2d at 445. "[O]ne who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude." Id. (quoting Rakas , 439 U.S. at 143 n. 12, 99 S.Ct. 421 ). Notably, however, mere physical possession of a vehicle and that vehicle's key, and the mere presence in a vehicle, is insufficient to establish a reasonable expectation of privacy. See United States v. Obregon , 748 F.2d 1371, 1374–75 (10th Cir. 1984) (holding that a driver's physical possession of keys and vehicle were insufficient to confer standing where the driver was not party to the rental car agreement); United States v. Erwin , 875 F.2d 268 (10th Cir. 1989) (defendant's mere possession of a vehicle's rear door key was insufficient to establish an objectively reasonable expectation of privacy in the vehicle); United States v. Allen , 235 F.3d 482, 489 (10th Cir. 2000) ("the mere fact of presence in the car" is insufficient to meet the defendant's burden to prove standing). Though the movant "need not always come forward with legal documentation establishing that he lawfully possessed the area searched ... [he] must at least state that he gained possession from the owner or someone with the authority to grant possession." Arango , 912 F.2d at 445 (citing United States v. Miller , 821 F.2d 546, 548 & n. 2 (11th Cir. 1987) ) (emphasis added). The Tenth Circuit has held the following criteria "important [ ] though not determinative" in determining whether a defendant has standing to assert a violation of his Fourth Amendment rights based on the search on objects inside a vehicle: "(1) whether the defendant asserted ownership over the items seized from the vehicle; (2) whether the defendant testified to his expectation of privacy at the suppression hearing; and (3) whether the defendant presented any testimony at the suppression hearing that he...