FILES SUPERIORC0 1 OFGUAH 2 ZDIBFEB \5 PH Aar. 3 CLERK OF COURT 4 Bye 5
6 IN THE SUPERIOR COURT OF GUAM 7
THE PEOPLE OF GUAM, 8 cRuv11nAL CASE no. CF0010-17 9
10 DECISION AND ORDER vs. ll
12 STEVEN ANTHONY MCCOLLUM, JR.,
13 Defendant. 14 INTRODUCTION 15 This matter came before the Honorable Vernon P. Perez on October 5, 2017, for hearing 16 on Defendant Steven Anthony McCollum, Jr.'s ("Defendant") Motion to Suppress. Defendant 17 was present with counsel Public Defender Stephen P. Hattori, and Assistant Attorney General 18 MattheW A. Phelps was present on behalf of the People of Guam ("the Government"). Having 19 reviewed the pleadings, the arguments presented, and the record, the Court now issues the 20
following Decision and Order. 21 BACKGROUND 22 On January 13, 2017, Defendant was indicted with the following charges: (1) 23 Possession of a Schedule II Controlled Substance (As a Third Degree Felony); and (2) 24 Possession of Less than an Ounce of Marijuana (As a Violation). (Indictment, Jan. 13, 2017). 25 These charges stem from the discovery of drugs and drug paraphernalia in Defendant's vehicle 26 during the execution of a traffic stop on January 2, 2017. (Decl. of James C. Collins, 27
Magistrate's Con pl., Jan. 3, 2017). 28
People v, McCollum Case No.CF00010-17
< Decision and Order
Page 1 of 7 ORIGINAL l On August 15, 2017, Defendant filed a Motion to Suppress. On August 25, 2017, the
2 Government filed its Opposition. No Reply was filed.
3 On October 5, 2017, the Court held a Suppression Hearing and heard sworn testimony 4 from Guam Police Department ("GPD") Officers Justin Cruz and Benny T. Babita (hereinafter
5 "Officer Cruz" and "Officer Babita," respectively). At the conclusion of the hearing, the
6 Court gave the parties leave to file proposed findings of fact and conclusions of law based on
7 the evidence that came forward. On December 5, 2017, Defendant filed Proposed Findings of
8 Fact and Conclusions of Law. On January 9, 2017, the Government filed its Proposed Findings
9 of Fact and Conclusions of Law. On January 9, 2017, the Government also filed a Motion to
10 Strike in reference to a portion of Defendant's Proposed Findings of Fact and Conclusions of
11 Law. No response was tiled'
12 DISCUSSION
13 MOTION TO STRIKE 14 The Court will first address the Government's Motion to Strike. The Government
15 moves the Court to strike a portion of Defendant's Proposed Findings of Fact and Conclusions
16 of Law, paragraph 23, which refers to alleged coaching taddng place during the evidentiary
17 hearing The Government argues that it is improper for defense counsel to "impute any
18 reference of coaching against the undersigned in a public document, therefore any reference 19
20 l Any opposition or response to the Motion to Strike was due January 23, 2018, fourteen days after the tiling of 21 the Motion & Notice of Motion. See Notice of Motion, Ian. 9, 2018. 22 z The paragraph reads: 23 Moreover, there was conflicting testimony regarding the crutch. Officer Cruz initially stated the crutch was made of paper and there was nothing regular about the paper crutch. However, after 24 some coaching from Attorney Matthew Phelps, O j i e e r C r u z suddenly began to believe that 25 perhaps the crutch was made of zig zag paper. C ontra ry to this de scription, O ffice r Ba bita recalled that die crutch was made of cardboard and that it was partially burnt. The re i s no 26 evidence corroborating the existence of a crutch. In fact, both officers described the "crutch" differently. Yet both Officers concede that the crutch [gives] dlem probable cause to search die 27 car. 28 Def. FFCL at 3, I23 (emphasis added).
People v. McCollum Case No.CF00010-17 Decision and Order
Page 2 of 7 1 should be struck from the record," citing Model Rules of Professional Conduct 3.4(b). (Mot.
2 Strike at 2-3, Jan. 9, 2018).
3 At the Suppression Hearing, counsel for defense objected to Government counsel's form
4 of questioning to Officer Cruz based on coaching. The Court overruled defense counsel's
5 objections and permitted Government counsel to finish his questioning. The Court, having
6 already ruled on defense counsel's objection, is inclined to agree with the Government that any
7 reference to coaching should be struck from the record, and GRANTS the Government's
8 Motion to Strike.
9 MOTION TO SUPPRESS 10 Defendant moves the Court to suppress evidence seized from the traffic stop. Defendant
11 argues that the officers did not have reasonable suspicion to detain him, and that even if he was
12 properly detained, they did not have the authority to search his vehicle. See generally, Mot.
13 Suppress, Aug. 15,2017. The Government argues that there was reasonable suspicion to
14 effectuate a traffic stop and that during the stop, the officer developed probable cause to search
15 Defendant's vehicle. See generally,Opp'n, Aug. 25, 2017.
16 At the Suppression Hearing, Officer Cruz and Officer Babita testified that the
17 following occurred on or about January 2, 2017:
18 Officers Babauta and Cruz testified that they were driving on Route 16 when they 19 observed a vehicle driving at a speed higher than the posted speed limit going in the opposite
20 direction. Officer Babauta testified that the vehicle was passing other vehicles to get ahead, and
21 the road was still wet from when it rained earlier. Officer Babauta made a u-tum to follow the 22 vehicle and effectuated a traffic stop. The vehicle pulled over.
23 Officer Cruz testified that as they approached the vehicle, Defendant had already opened 24 his door, and explained that his window was not working. Officer Cruz testified that Officer
25 Babauta approached Defendant on the driver's side of the vehicle, and he approached the
26 passenger side of the vehicle. Officer Cruz testified that he could lightly hear the discussion
27 between Officer Babauta and Defendant, and that he was there for safety reasons. Officer Cruz
28 testified that Defendant was the only person Io the vehicle. Officer Cruz testified that he
People v. McCallum Case Nn.CF00010-17 Decision and Order
Pages of 7 l u
1 confiscated a marijuana crutch from the vehicle after Officer Babauta observed it, and admitted
2 that it was not listed in the Guam Police Department Evidence Custody Receipt he filled out.
3 Officer Cruz, when asked to describe the crutch, did not initially recall specific details about the
4 crutch, but later testified that it may have been made of zig zag paper.
5 Officer Babauta also testified that as they approached the vehicle, the door to the
6 driver's side of the vehicle opened. Officer Babauta testified that he instructed Defendant to
7 close the door and for Defendant to roll down his window, and that Defendant responded that he
8 could not roll down the window. Officer Babauta testified that he spoke with Defendant, and
9 requested for his license and registration. Officer Babauta testified that Defendant reached over 10 to obtain his license and registration from a black pouch on the passenger seat. As Defendant ll was getting the documents, Officer Babauta looked around the vehicle and observed a pair of
12 scissors and a makeshift marijuana crutch in the door handle area. Officer Babauta testified that
13 the crutch was made out of cardboard, and that the combination of scissors and the crutch 14 indicated to him that there was drug paraphernalia. Officer Babauta testified that he obtained
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FILES SUPERIORC0 1 OFGUAH 2 ZDIBFEB \5 PH Aar. 3 CLERK OF COURT 4 Bye 5
6 IN THE SUPERIOR COURT OF GUAM 7
THE PEOPLE OF GUAM, 8 cRuv11nAL CASE no. CF0010-17 9
10 DECISION AND ORDER vs. ll
12 STEVEN ANTHONY MCCOLLUM, JR.,
13 Defendant. 14 INTRODUCTION 15 This matter came before the Honorable Vernon P. Perez on October 5, 2017, for hearing 16 on Defendant Steven Anthony McCollum, Jr.'s ("Defendant") Motion to Suppress. Defendant 17 was present with counsel Public Defender Stephen P. Hattori, and Assistant Attorney General 18 MattheW A. Phelps was present on behalf of the People of Guam ("the Government"). Having 19 reviewed the pleadings, the arguments presented, and the record, the Court now issues the 20
following Decision and Order. 21 BACKGROUND 22 On January 13, 2017, Defendant was indicted with the following charges: (1) 23 Possession of a Schedule II Controlled Substance (As a Third Degree Felony); and (2) 24 Possession of Less than an Ounce of Marijuana (As a Violation). (Indictment, Jan. 13, 2017). 25 These charges stem from the discovery of drugs and drug paraphernalia in Defendant's vehicle 26 during the execution of a traffic stop on January 2, 2017. (Decl. of James C. Collins, 27
Magistrate's Con pl., Jan. 3, 2017). 28
People v, McCollum Case No.CF00010-17
< Decision and Order
Page 1 of 7 ORIGINAL l On August 15, 2017, Defendant filed a Motion to Suppress. On August 25, 2017, the
2 Government filed its Opposition. No Reply was filed.
3 On October 5, 2017, the Court held a Suppression Hearing and heard sworn testimony 4 from Guam Police Department ("GPD") Officers Justin Cruz and Benny T. Babita (hereinafter
5 "Officer Cruz" and "Officer Babita," respectively). At the conclusion of the hearing, the
6 Court gave the parties leave to file proposed findings of fact and conclusions of law based on
7 the evidence that came forward. On December 5, 2017, Defendant filed Proposed Findings of
8 Fact and Conclusions of Law. On January 9, 2017, the Government filed its Proposed Findings
9 of Fact and Conclusions of Law. On January 9, 2017, the Government also filed a Motion to
10 Strike in reference to a portion of Defendant's Proposed Findings of Fact and Conclusions of
11 Law. No response was tiled'
12 DISCUSSION
13 MOTION TO STRIKE 14 The Court will first address the Government's Motion to Strike. The Government
15 moves the Court to strike a portion of Defendant's Proposed Findings of Fact and Conclusions
16 of Law, paragraph 23, which refers to alleged coaching taddng place during the evidentiary
17 hearing The Government argues that it is improper for defense counsel to "impute any
18 reference of coaching against the undersigned in a public document, therefore any reference 19
20 l Any opposition or response to the Motion to Strike was due January 23, 2018, fourteen days after the tiling of 21 the Motion & Notice of Motion. See Notice of Motion, Ian. 9, 2018. 22 z The paragraph reads: 23 Moreover, there was conflicting testimony regarding the crutch. Officer Cruz initially stated the crutch was made of paper and there was nothing regular about the paper crutch. However, after 24 some coaching from Attorney Matthew Phelps, O j i e e r C r u z suddenly began to believe that 25 perhaps the crutch was made of zig zag paper. C ontra ry to this de scription, O ffice r Ba bita recalled that die crutch was made of cardboard and that it was partially burnt. The re i s no 26 evidence corroborating the existence of a crutch. In fact, both officers described the "crutch" differently. Yet both Officers concede that the crutch [gives] dlem probable cause to search die 27 car. 28 Def. FFCL at 3, I23 (emphasis added).
People v. McCollum Case No.CF00010-17 Decision and Order
Page 2 of 7 1 should be struck from the record," citing Model Rules of Professional Conduct 3.4(b). (Mot.
2 Strike at 2-3, Jan. 9, 2018).
3 At the Suppression Hearing, counsel for defense objected to Government counsel's form
4 of questioning to Officer Cruz based on coaching. The Court overruled defense counsel's
5 objections and permitted Government counsel to finish his questioning. The Court, having
6 already ruled on defense counsel's objection, is inclined to agree with the Government that any
7 reference to coaching should be struck from the record, and GRANTS the Government's
8 Motion to Strike.
9 MOTION TO SUPPRESS 10 Defendant moves the Court to suppress evidence seized from the traffic stop. Defendant
11 argues that the officers did not have reasonable suspicion to detain him, and that even if he was
12 properly detained, they did not have the authority to search his vehicle. See generally, Mot.
13 Suppress, Aug. 15,2017. The Government argues that there was reasonable suspicion to
14 effectuate a traffic stop and that during the stop, the officer developed probable cause to search
15 Defendant's vehicle. See generally,Opp'n, Aug. 25, 2017.
16 At the Suppression Hearing, Officer Cruz and Officer Babita testified that the
17 following occurred on or about January 2, 2017:
18 Officers Babauta and Cruz testified that they were driving on Route 16 when they 19 observed a vehicle driving at a speed higher than the posted speed limit going in the opposite
20 direction. Officer Babauta testified that the vehicle was passing other vehicles to get ahead, and
21 the road was still wet from when it rained earlier. Officer Babauta made a u-tum to follow the 22 vehicle and effectuated a traffic stop. The vehicle pulled over.
23 Officer Cruz testified that as they approached the vehicle, Defendant had already opened 24 his door, and explained that his window was not working. Officer Cruz testified that Officer
25 Babauta approached Defendant on the driver's side of the vehicle, and he approached the
26 passenger side of the vehicle. Officer Cruz testified that he could lightly hear the discussion
27 between Officer Babauta and Defendant, and that he was there for safety reasons. Officer Cruz
28 testified that Defendant was the only person Io the vehicle. Officer Cruz testified that he
People v. McCallum Case Nn.CF00010-17 Decision and Order
Pages of 7 l u
1 confiscated a marijuana crutch from the vehicle after Officer Babauta observed it, and admitted
2 that it was not listed in the Guam Police Department Evidence Custody Receipt he filled out.
3 Officer Cruz, when asked to describe the crutch, did not initially recall specific details about the
4 crutch, but later testified that it may have been made of zig zag paper.
5 Officer Babauta also testified that as they approached the vehicle, the door to the
6 driver's side of the vehicle opened. Officer Babauta testified that he instructed Defendant to
7 close the door and for Defendant to roll down his window, and that Defendant responded that he
8 could not roll down the window. Officer Babauta testified that he spoke with Defendant, and
9 requested for his license and registration. Officer Babauta testified that Defendant reached over 10 to obtain his license and registration from a black pouch on the passenger seat. As Defendant ll was getting the documents, Officer Babauta looked around the vehicle and observed a pair of
12 scissors and a makeshift marijuana crutch in the door handle area. Officer Babauta testified that
13 the crutch was made out of cardboard, and that the combination of scissors and the crutch 14 indicated to him that there was drug paraphernalia. Officer Babauta testified that he obtained
15 Defendant's license and registration and directed Defendant out of the car. Officer Babauta
16 testified that he wanted Defendant to exit the vehicle because he was concerned that Defendant
17 might try to discard evidence. Officer Babauta testified that Defendant was compliant.
18 After Defendant exited the vehicle, Officer Babita showed Defendant the crutch he 19 observed, and asked him if he had any other items in the car, to which Defendant responded he
20 had marijuana. Officer Babauta then asked Defendant for consent to search the vehicle.
21 Defendant refused. Officer Babauta testified that he told Defendant he was going to search the 22 vehicle anyways, based on Defendant's admission that he had marijuana in the car. Officer
23 Babauta testified that Officer Cruz was standing with Defendant while he searched the vehicle.
24 Officer Babauta testified that he started the search by examining the black pouch that Defendant
25 obtained his license and registration from. Officer Babauta testified he found two pipes, one
26 with suspected methamphetamine residue, and the other with suspected methamphetamine still
27 inside. Officer Babauta testified he then started heading towards the trunk of the vehicle, and
People v. McCallum Case n0.cF0001a17 Decision and Order
Pages of 7 _I
1 heard Defendant state he had a bong inside a case in the trunk. Officer Babauta testified that
2 Defendant then gave consent to search.
3 Officer Babauta testified that Defendant did not reduce any of his admissions made at
4 the scene to writing later at the police station. Officer Babauta testified that Defendant was not
5 read his Miranda rights at the scene.
6 The Fourth Amendment to the U.S. Constitution "protects against unreasonable searches
7 and seizures and is made applicable to Guam via section 1421(b)(c) of the Organic Act of 8 Guam." People v. Chargualaf, 2001 Gua.m 1 *I 14 (internal citations omitted). Brief
9 investigative detentions are permitted under the Fourth Amendment "when a police officer has 10 reasonable suspicion that an individual was engaged in or is about to be engaged in illegal
conduct." People v. Johnson, 1997 Guam 9 '[4 (citing Terry v. Ohio, 392 U.S. 1 (l968)). "As a
12 general matter, the decision to stop an automobile without a warrant is reasonable where the
13 police have probable cause to believe that a traffic violation has occurred. Further, it is 14 reasonable to stop a car where the police merely have a reasonable suspicion to believe the 15 driver has committed a traffic violation." Chargulaf, 2001 Guam 1117 (citations omitted). "In 16 order to determine whether an officer had reasonable suspicion sufficient to warrant a traffic 17 stop, the court must look at the totality of the circumstances, taldng into account the facts
18 known to the officers from personal observation." Johnson, 1997 Guam 9 'I 6 (citation and 19 quotation marks omitted). Furthermore, the reasonable suspicion must exist at the time the stop
20 was initiated. Id. (citation omitted). 21 Under Guam law, "[a]ll motor vehicles traveling upon the public highway shall be 22 driven at a careful, prudent rate of speed not greater than nor less than is reasonable and proper,
23 having due regard to the surface of the highway, the width of the highway and the condition of 24 the traffic upon the highway and all other restrictions and conditions then and there existing." 8
25 G.C.A. § 330l(a). It is a traffic offense for a vehicle to operate in excess of maximum speeds 26 posted. See 8 G.C.A. § 3301(f). In this case, both Officers Babauta and Cruz testified that they 27 observed Defendant was driving at a speed higher than the posted speed limit on Route 16.
28 Officer Babauta testified that the vehicle was passing other vehicles to get ahead, and the road
People v. McCallum Case N0.CF00010-17 Decision and Order
Page 5 of 7 1 was still wet from when it rained earlier. Defendant takes issue with the fact that the officers
2 did not use a radar gun to assess the speed of his vehicle, but does not provide any legal
3 authority to support an assertion that a radar or tracing device is required to prove that a traffic
4 violation occurred. See Def. FFCL at 6, 14 ("In the present case, the officers testified that they
5 did not use a radar gun to judge Defendant's speed. Therefore, the officers could not accurately
6 calculate whether Defendant was in fact driving over the speed limit."). Therefore, the Court
7 finds that based on the officers' observations, it was reasonable for them to stop the vehicle
8 because they had reasonable suspicion to believe that the driver of the vehicle, Defendant,
9 committed a traffic violation. See Chargualaf, 2001 Guam 1 iI 17.
10 The next issue before the Court is whether Defendant was impennissibly seized under 11 the Fourth Amendment when Officer Babauta asked him to step out of the vehicle. "[T]he
12 tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's
13 'mission' - to address the traffic violation that warranted the stop, and attend to related safety
14 concerns," Rodriguez v. United States, 135 S.ct. 1609, 1614 (2015). "An officer ... may
15 conduct unrelated.checks during an otherwise lawful traffic stop ... [but] may not do so in a
16 way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify 17 detaining an individual." Id. See also United States v. Eranch, 537 F.3d 328, 336 (4th Cir.
is 2008) (citing Florida v. Royer, 406 U.S. 491, 500 (1983)) ("If a police officer wants to detain a 19 driver beyond the scope of a routine traffic stop, however, he must possess a justification for
20 doing so other than the initial traffic violation that prompted the stop in the first place."); United
21 States v. Given, 320 F.3d 452, 458 (ad Cir. 2003) ("After a traffic stop that was justified at its 22 inception, an officer who develops a reasonable, articulable suspicion of criminal activity may
23 expand the scope of an inquiry beyond the reason for the stop and detain the vehicle and its 24 occupants for further investigation."). Thus, the Court must determine if reasonable suspicion
25 existed for Officer Babauta to continue the traffic stop, detain Defendant, and conduct a search 26 of Defendant's vehicle. The Government argues that "Officer Babauta had probable cause to
27 believe that Defendant may have committed Possession of a Schedule I Controlled Substance
28 ("PCS"), Driving while Under the Influence of a Controlled Substance ("DUl"), and any other
People v. McCollum Case N0.CF00010-17 Decision andOrder
Page 6 of 7 1 related crimes. PCS and DUI are illegal on Guam. Based on the facts in our case, the officers
2 had already observed marijuana in the vehicle; therefore, it was reasonable for the officers to
3 believe that additional evidence relevant to the crime of arrest might be found in the vehicle."
4 (Gov 't FFCL at 4)-
5 "kt order to demonstrate reasonable suspicion, a police officer must offer specific and
6 articulable facts that demonstrate at least a minimal level of objective justification for the belief
7 that criminal activity is afoot." Branch, 537 F.3d at 337 (citing Illinois v. Wardlow, 528 U.S.
8 119, 123 (2000), Terry, 392 U.S. at 21). Here, Officer Babauta testified that he observed
9 scissors and a makeshift mMjuana crutch in the side of Defendant's door. The observation of
10 these two items is the only articulable fact that is presented. No testimony was given indicating
that officers smelled marijuana in the vehicle. No testimony was given indicating that
12 Defendant had any appearance or characteristics of being under the influence of a controlled
13 substance. Further, the officers had contradicting descriptions of what the alleged marijuana 14 crutch looked like, the marijuana crutch was not listed on the custody receipt, and is allegedly 15 therefore not in GPD custody either. Based on these facts or lack thereof, the Court does not
16 find that reasonable suspicion existed for the officers to continue the stop and search the
17 vehicle, and any statements or items seized from this point forward must be suppressed. 18 CONCLUSION 19 For the foregoing reasons, the Court hereby GRANTS Defendant's Motion to Suppress.
20 A Further Proceedings is set for February 26, 2018 at 10:00 a.m.
22 IT IS S0 ORDERED this M" day of February, 2018.
SERVl¢E vIA COURT BOX 23 1 acknovAsdge flt | copy of the 24
25 original hero was placed in the coul¢.bu of: ../ /A >-, / I' _ - W .|
26 FEB 1 e: HONORABLE VERNON p. PEREZ ) Judge, Superior Court of Guam 27 Dem iior Coull of Guam
Page7 of 7