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United States v. Peery

United States District Court, D. New Mexico

May 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NEWMAN PEERY, and PATRICK EHLERS, Defendants.

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          M. CHRISTINA ARMIJO CHIEF UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on the United States' Objections to Proposed Findings and Recommended Disposition of Defendants' Joint Motion to Suppress Evidence [Doc. 49], Defendant Newman Peery's Objections to Magistrate Judge's Proposed Findings and Recommended Disposition of Defendants' Joint Motion to Suppress Evidence [Doc. 47], and Defendant Patrick Ehlers' Objection to the Proposed Findings and Recommended Disposition of Defendants' Joint Motion to Suppress Evidence [Doc. 48]. The Court has considered the written submissions of the parties, the record in this case, the applicable law, and is otherwise fully advised. With regard to the Proposed Findings and Recommended Disposition [Doc. 44] the Magistrate Judge entered, the Court has conducted a de novo review of those portions to which objections have been made, 18 U.S.C. § 636(b)(1), and finds itself in agreement with the Magistrate Judge, as set forth more fully below.

         I. The Court Overrules the United States' Objections

         The United States objects to the Magistrate Judge's determination that each Defendant has standing to challenge the search of the bag that Defendant possessed. Doc. 49 at 2-6. Although Defendants through their actions represented that they owned the bags they possessed at the time of the search, the United States argues that possession of a bag combined with a representation of ownership is insufficient to confer standing. The Court disagrees. Alternatively, the United States objects that the search of the bags was not related to any criminal investigatory purpose. Doc. 49 at 6-9. Again, the Court disagrees. The Court concludes that Deputy Lankasky violated Defendants' Fourth Amendment rights when he searched the bags they were carrying and that this violation requires that evidence found in each bag be suppressed as to the Defendant carrying that bag.

         A. Each Defendant Has Standing to Challenge the Search of the Bag That Defendant Possessed

         In determining that each Defendant has standing to challenge the search of his respective bag, the Magistrate Judge relied on United States v. Edwards, 632 F.3d 633 (10th Cir. 2001), where the Tenth Circuit determined that a defendant who did not have standing to challenge the search of a car nonetheless had standing to challenge the search of closed bags stored in the trunk of the car because “[the defendant] clearly manifested a subjective expectation of privacy in the bags and that his expectation was one that society has recognized as reasonable.” Doc. 44 at 4 (quoting Edwards, 632 F.3d at 643). The United States attempts to distinguish Edwards by arguing that “Defendants grabbed the bags not from a closed and locked trunk, as in Edwards, 632 F.3d at 642, but from the truck's main cabin.” Doc. 49 at 5. The location of the bags when they were searched in the present case, however, undermines rather than supports the United States' argument. Defendants claimed ownership in the respective bags by, at law enforcement's direction, taking their respective bags out of the truck and then, based on law enforcement's representations that they were free to leave, preparing to leave with a third party. As the Magistrate Judge pointed out, that the bags had once been in a stolen vehicle does not forever thereafter make them subject to searches without probable cause - for instance, if Defendants took their bags to a hotel later that night, law enforcement would not be able to search the bags in the hotel lobby without a warrant or probable cause. Doc. 44 at 5.

         The United States does not argue that law enforcement could conduct a warrantless search of the bags at a hotel later that night. Doc. 49 at 6. It does argue, however, that the circumstances under which law enforcement could search the bags without a warrant turns on the degree to which Defendants identified the bags as theirs. Specifically, the United States argues, “the more facts Defendants could show that established the bags as theirs, the more reasonable their expectation of privacy would be.” Doc. 49 at 6. Without citation to any authority, the United States then asserts that Defendants' act of grabbing their bags out of the truck (as Deputy Lankasky directed them to do) “is hardly sufficient” for them to establish standing in the bags. Doc. 49 at 6. The Court disagrees.

         In an effort to provide an example of what more Defendants could have done to demonstrate the bags they grabbed were theirs, the United States suggests if Defendants “demonstrated they had a change of clothing or other overnight essentials in the bags, the reasonableness of their expectations of privacy would be bolstered even further.” Doc. 49 at 6. There are at least two problems with this suggestion. First, Defendants did have a change of clothing in their respective bags - evidence tying Defendants to the bags that law enforcement felt significant enough to include in its arrest warrant affidavit. See Doc. 2 at 3. Second, the suggestion that a person should have to show the contents of a bag to law enforcement to demonstrate that the bag belongs to them, in an effort to prevent law enforcement from seeing what is inside the bag, is absurd. The practical equivalent of a search would occur if a person was required to show law enforcement the contents of a bag to demonstrate standing to challenge the search of the bag.

         Contrary to the United States' argument, the case for standing each Defendant here has with regard to the bag he possessed is stronger than the case the defendant who established standing in Edwards had. The present facts do not involve bags found in a car; they involve bags in Defendants' physical possession and over which Defendants expressed a possessory interest. The Court agrees with the Magistrate Judge that each Defendant has standing to challenge the search of the bag he carried, claimed to own, and evidence indicates did own.

         B. Deputy Lankasky's Search Was Investigative

         The United States next argues that, although Deputy Lankasky was looking in the bags to determine whether they contained stolen property, he was not doing so as part of a criminal investigation. Doc. 49 at 6-9. In his PFRD, the Magistrate Judge pointed out that under the United States' rationale, a “law enforcement officer[] could legally conduct warrantless searches into the bags of any person that officer thought might have been shoplifting.” Doc. 44 at 6. The United States asserts that the Magistrate Judge's hypothetical “overlooks the government's representation that the purpose was to ensure that no further crime of stolen property occurred.” Doc. 49 at 9 (internal quotation and citation omitted) (emphasis in original). “The PFRD's conclusion”, the United States argues, “conflates investigating a crime that took place with preventing a crime from taking place. Ensuring that no further crime of stolen property occurs is different from investigating whether Defendants did in fact steal any property.” Doc. 49 at 9. This distinction, the United States continues, “places Deputy Lankasky's actions much more in the realm of community caretaking, and not investigation.” Doc. 49 at 9. The Court rejects the United States' argument for two reasons.

         First, even accepting Deputy Lankasky's assertion that he was looking in the bags for stolen items rather than drugs, the existence of stolen items would reveal a present rather than (or perhaps, in addition to) a future crime. If the bags Defendants carried contained stolen items, the government easily could prosecute Defendants in connection with their possession of the stolen items. In such a situation, Defendants would be unlikely to prevail at trial by arguing that, even though they were caught red-handed trying to walk away with stolen items in their bags, they could not be convicted because they had not yet actually committed any crime. Further, even if Deputy Lankasky was motivated to look in the bags to make sure the theft of the bags did not continue, as opposed to looking in the bags for evidence of a theft that had already occurred, it is unrealistic to think that evidence obtained during the search would not be used in a prosecution initiated in connection with the theft that had already occurred.

         Second, even if Defendants did not complete the crime of theft or possession of stolen property, taking substantial steps toward the commission of these crimes would still constitute a crime - namely, attempted theft or attempted possession of stolen property. The Court agrees with the Magistrate Judge that law enforcement's act of searching the bags for evidence they were stolen constitutes a criminal investigative function.

         C. Suppression of Evidence Found in Each Defendant's Bag, As It Relates to the Defendant Who Possessed That Bag, Must Be Suppressed In ...


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