People v. Neth

• Court: Superior Court of Guam
• Decided: February 15, 2013
• Docket: CM1289-11
• Status: Unknown

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 THE PEOPLE OF GUAM, ) ) CRIMINAL CASE NO. CM1289-ll' 4 VS. ) 5 ) DECISION AND ORDER ISAIKY NETH, ) 6 ) Defendant. ) 7 ____________________________) 8 INTRODUCTION 9 This matter came before the Honorable James L. Canto II on Defendant's motion to 10 suppress, filed September 24, 2012. Oral arguments were heard on November 9 and 30, 2012. 11 Assistant Attorney General Gabrielle L. Rossi, Esq. appeared on behalf of the Government and 12 Assistant Public Defender Suresh Sampath, Esq. represented Defendant. Having considered the 13 parties' briefs, oral arguments, and the applicable law, the Court now issues the following 14 Decision and Order. 15 BACKGROUND 16 Defendant is charged with driving under the influence of alcohol and driving without a 17 license based upon the following events. On December 26, 2011 at 6:25 a.m., Port Authority 18 Police Officers Jonathan J. Quenga and J.R. Quichocho responded to a phone call that a drunk 19 driver was heading toward Asan in a green Mitsubishi Lancer with license plate number 20 ASA3296. (Testimony of Jonathan J. Quenga, Record Log at 11:34, Nov. 9, 2012.) At 7:00 21 a.m., the Port Officers found the green Mitsubishi Lancer parked in Asan with a passenger 22 asleep inside. !d. The Port Officers woke the passenger and were informed that Defendant was 23 the driver and that he was inside the adjacent house. !d. The Port Officers knocked on the 24 house door and were greeted by a man who identified Defendant as the person sleeping on the 25 floor inside the open door. !d. 26 While the Port Officers were at the door, a Mr. Yen Neth (Defendant's uncle) 27 approached and identified himself as the owner of the home before he went outside to check on 28 the green Mitsubishi Lancer. (Testimony of Yen Neth, Record Log at 10:48, Nov. 30, 2012.)

Page I of9 Mr. Yen Neth did not wake Defendant when the Port Officers asked him to do so and the 2 Officers called out Defendant's name in an attempt to wake him. !d. Port Officer Quenga 3 estimated that it took about fifteen (15) minutes for the Officers to obtain permission to enter 4 the home from a male and female who also identified themselves as owners of the home. 5 (Testimony of Jonathan J. Quenga, Record Log at 11:34, Nov. 9, 2012.) The Port Officers then 6 woke Defendant and observed he had bloodshot eyes, slurred speech and could not maintain his 7 balance. (Testimony ofEric J. Salas, Record Log at 11:45, Nov. 9, 2012.) 8 During the next five (5) minutes, the Port Officers brought Defendant outside and placed 9 him in handcuffs while they contacted the Guam Police Department. (Testimony of Jonathan J. 10 Quenga, Record Log at 11:34, Nov. 9, 2012.) At 7:27 a.m., Guam Police Officer L.C. 11 Villagomez arrived and saw Defendant lying prone in handcuffs. (Testimony of L.C. 12 Villagomez, Record Log at 11:52, Nov. 9, 2012.) Officer Villagomez observed that Defendant 13 had bloodshot, watery eyes, slurred his speech and smelled of alcohol. !d. When Defendant 14 refused to participate in a standardized field sobriety test, Officer Villagomez transported him to 15 the police station where he signed a written waiver of his rights before he performed a breath 16 test and made statements about drinking and driving. !d. 17 On September 24, 2012 Defendant moved to suppress all evidence on the following 18 grounds: 1) the anonymous tip was not reliable and did not give the Port Officers reasonable 19 suspicion to detain Defendant; 2) the Port Officers entered the home where Defendant slept 20 without a warrant or valid warrant exception; and 3) the investigative detention lasted longer 21 than fifteen (15) minutes in violation of 8 GCA § 30.30. 22 The Government opposes suppression on the bases that: 1) the anonymous tip was 23 corroborated with reliable evidence; 2) the Port Officers obtained consent to enter the home 24 where Defendant slept; 3) Defendant was arrested before 15 minutes of detention; 4) probable 25 cause to arrest appeared before 15 minutes of alleged detention; 5) suppression should be 26 limited to evidence obtained after 15 minutes of detention and before arrest; and 6) evidence 27 obtained after the voluntary waiver of rights under Miranda v. Arizona, 384 U.S. 436 (1966) is 28 attenuated from an unreasonable detention and thus admissible.

Page 2 of9 DISCUSSION 2 1. Anonymous Tip of Drunk Driving 3 The Fourth Amendment permits brief investigative detentions that are based upon a 4 reasonable suspicion of illegal conduct. People v. Johnson, 1997 Guam 9 ~ 4 (citing Teny v. 5 Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968)). A reasonable suspicion is dependent upon the totality 6 of the circumstances, including the quantity and quality of facts observed by police or reported 7 to police. !d. at~ 6 (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 8 L.Ed.2d 301 (1990)). "[A] person has been seized under the Fourth Amendment only if, in 9 view of all the circumstances surrounding the incident, a reasonable person would have believed 10 that he was not free to leave." People v. Cundiff, 2006 Guam 12 ~ 21 (quoting United States v. 11 Mendenhall, 446 U.S. 544,554, 100 S.Ct. 1870, 1877 (1980)). 12 In this case, Port Officers woke Defendant in his horne to question him about alleged 13 drunk driving. Under these circumstances, a reasonable person would not feel that he is free to 14 leave and Defendant was seized under the Fourth Amendment. For this reason, the seizure was 15 lawful only if the totality of the circumstances furnished the Officers with a reasonable 16 suspicion that Defendant drove while under the influence of alcohol. 17 An anonymous report of illegal activity seldom demonstrates an informant's basis of 18 knowledge or veracity and it may have a relatively low degree of reliability. While, 496 U.S. at 19 329-330. For this reason, an unreliable anonymous tip must be corroborated by independent 20 police investigation that exhibits sufficient indicia of reliability to provide reasonable suspicion 21 to justify an investigatory detention under the Fourth Amendment. !d. at 326-331. 22 In this case, Port Officers responded to a phone call that a drunk driver was heading 23 toward Asan in a green Mitsubishi Lancer with license plate number ASA3296. This 24 anonymous tip has a relatively low degree of reliability because it does not demonstrate how the 25 caller witnessed the alleged drunk driving; what specific driving behavior or observations of the 26 drive led the tipster to the conclusion of "drunk driving"; and it does not demonstrate how the 27 caller may be trusted or held accountable. The Port Officers did corroborate certain details of 28 the tip when they found a green Mitsubishi Lancer with license plate number ASA3296 parked

Page 3 of9 in Asan and discovered that its driver was sleeping inside the adjacent house. Yet the Officers 2 failed to corroborate any erratic driving, intoxication or other criminal activity related to the tip 3 of drunk driving before they detained Defendant in his home. For this reason, the Port Officers 4 may not have sufficiently corroborated the unreliable tip in order to justify the detention. 5 However, the U.S. Supreme Court recognizes circumstances where, "the danger alleged 6 m an anonymous tip might be so great as to justify a search even without a showing of 7 reliability .... [F]or example, ... a report of a person carrying a bomb." Florida v. JL., 529 8 U.S. 266, 273, 120 S.Ct. 1375, 1380, 146 L.Ed.2d 254 (2000). Guam law does not detail when 9 the danger alleged in an anonymous tip is so great as to justify a search without a showing of 10 reliability, but some jurisdictions compare the example of a bomb report in JL., 529 U.S. 266, ll to the anonymous report of erratic or drunk driving. 1 The exigent nature of erratic driving may 12 be compared to a bomb because, "with drunk driving, ... a wait-and-see approach may prove 13 fatal. Drunk driving is always dangerous, as it is occurring." Virginia v. Harris, 130 S.Ct. 10, 14 11, 175 L.Ed.2d 322 (2009) (Roberts, J., dissenting from denial of certiorari). For this reason, a 15 majority of courts allow the police to pull over and investigate an alleged drunk driver on the 16 basis of an anonymous tip without further corroboration of erratic driving. Id. at 11-12. 17 In US. v. Wheat, 278 F.3d 722 (8th Cir. 2001), the Eighth Circuit surveyed state and 18 federal authorities and held that an anonymous tip of drunk driving is reliable enough to permit 19 a traffic stop without police corroboration of erratic or illegal driving under the following 20 totality of circumstances? First, the tip must include sufficient innocent details to correctly 21 identify the alleged vehicle. ld. at 731-732. Second, the tip is more reliable the faster an officer 22 discovers and identifies the alleged vehicle. Jd. Third, the tip must support an inference that the 23 tipster witnessed an actual traffic violation that compels an immediate stop. ld. at 732. See also 24

25 1 See State v. Boyea, 765 A.2d 862, 867 (Vt. 2000) ("Indeed, a drunk driver is not at all unlike a 'bomb', and 26 mobile one at that."). 2 Many courts have adopted the seminal Wheat analysis on drunk driver tips without police observation of illega 27 driving, and this Court finds the analysis persuasive and applicable to the facts at bar. See e.g. People v. Wells, 13 P.3d 810, 814-816 (CaL 2006); State v. Prendergast, 83 P.3d 714, 722-723 (Hawai'i 2004); Bloomingdale v. State 28 842 A.2d 1212, 1219-1222 (DeL 2004); State v. Golotta, 837 A.2d 364-369 (N.J. 2003).

Page 4 of9 Wheat, 278 F.3d at 732 n. 8 ("[T]he moving violation or violations alleged must suggest real 2 exigency. An allegation of erratic driving will generally pass this test."). Fourth, and most 3 important, an anonymous tip of drunk driving is most reliable when the criminal activity is 4 contemporaneously described as it is witnessed. !d. at 733-735. 5 When these circumstances are present, the Wheat Court reasoned that the police may 6 stop the alleged vehicle without further corroboration because the substantial government 7 interest in stopping an extremely mobile and potentially highly dangerous suspect outweighs the 8 liberty interest in proceeding unmolested along public highways. !d. at 736-737 (quoting Terry, 9 392 U.S. at 20-21). The Wheat Court also distinguished cases where police corroboration of 10 erratic driving was required because the particular emergency ended or the police discovered II and stopped a suspect after he pulled into his private driveway. !d. at 730-731 (citing 12 Commonwealth v. Lubiejnvski, 729 N.E.2d 288, 292 (Mass. App. Ct. 2000); State v. Boyle, 793 13 So.2d 1281, 1284-85 (La. Ct. App. 2001)). 14 In this case, the anonymous tip included sufficient innocent details to correctly identify 15 the alleged vehicle, but the Port Officers discovered the vehicle parked in Asan more than thirty 16 (30) minutes after the call and with the alleged driver asleep in his home. The alleged 17 emergency was over, and the Officers needed to conduct more independent police work in order 3 18 to justify an investigatory detention in the privacy of Defendant's home. Most importantly, the 19 anonymous tip did not include any description of an actual traffic violation to support an 20 inference that the caller witnessed drunk or erratic driving. The tip did not even allege erratic 21 driving, a low burden established in Wheat, 278 F.3d at 732 n.8. The caller merely asserted the 4 22 bare allegation that a drunk driver was headed toward As an in a particular vehicle. Indeed, the 23 Government failed to offer any evidence about the caller or call itself. The only evidence the 24 Government put before this Court was Officer Quenga's testimony that he was directed by the 25

26 3 See Wheat, 278 F.3d at 736-737 (a traffic stop is considerably less invasive than a public hands-on frisk and mor

27 easily outweighed by the substantial government interest in stopping a potential emergency). 4 See J.L. 529 U.S. at 272 ("The reasonable suspicion [to conduct a stop and frisk] ... requires that a tip be reliable i

28 its assertion of illegality, not just in its tendency to identify a determinate person.").

Page 5 of9 dispatcher to respond to a call about a "reported drunk driver." (Testimony of Jonathan .T. 2 Quenga, Record Log at 11:34, Nov. 9, 2012.). The Government put forth no evidence at all 3 regarding the details of the anonymous tip, such as some observation of erratic driving, which 4 might support a reasonable and articulable suspicion legally justifying detention. Instead, the 5 only evidence made available for the Court to consider was Officer Quenga's testimony that he 6 was directed to respond to a complaint which he characterized by a single conclusory statement 7 of a "reported drunk driving," which is ultimately insufficient to support reasonable suspicion 8 attained via an anonymous tip. See Wheat, 278 F.3d at 726-737 (8th Cir. 2001) ([at 732 & n.8:] 9 "The tip must also contain a sufficient quantity of information to support an inference that the 10 tipster has witnessed an actual traffic violation that compels and immediate stop ... An allegation

11 of erratic driving will generally pass this test"). 12 This is significant because without any reliable description of criminal activity or any 13 police observation of criminal activity, an objective officer cannot form the reasonable 14 suspicion necessary to justify an investigatory traffic stop. Stated another way, the Port Officers 15 in this case detained Defendant in his home merely on the basis of an unsupported conclusion 16 that he is a "drunk driver," accompanied by innocent details that identified his car outside and 17 himself as the driver who parked it there, but with no information from the tip regarding his 18 actual demeanor or driving behavior. Under the totality of these circumstances, the Port 19 Officers did not possess a reasonable suspicion of drunk driving and they impermissibly 20 detained Defendant when they woke him up in his home to ask him about drunk driving. For 21 this reason, the investigatory detention violated Defendant's Fourth Amendment freedom

22 against unreasonable searches and seizures. 23

24 2. The Exclusionary Remedy 25 When the Fourth Amendment IS violated by an unlawful seizure or investigative 26 detention, evidence obtained during the detention must be suppressed pursuant to the 27 exclusionary rule. See e.g. Cund?IJ, 2006 Guam 12 at~ 51; Terry, 392 U.S. at 13-15. Evidence 28 that is obtained during or derived from an unlawful detention must be suppressed pursuant to

Page 6 of9 the fruit of the poisonous tree doctrine. Cundiff, 2006 Guam 12 at ~ 41 (citing Wong Sun v. 2 United States, 371 U.S. 471 (1963); People v. Santos, 2003 Guam 1 ~ 64). 5 3 In order to suppress evidence under the fruit of the poisonous tree doctrine, the Court 4 must determine, "whether the challenged evidence was come at by exploitation of the initial 5 illegality or instead by means sufficiently distinguishable to be purged of the primary taint." 6 Cundiff, 2006 Guam 12 at ~ 41; Santos, 2003 Guam 1 at ~ 65 (quoting Segura v. United States, 7 468 U.S. 796, 805-805, 104 S.Ct. 3380, 3385 (1984)). See also Segura, 468 U.S. at 815 8 ("[E]vidence will not be excluded as 'fruit' unless the illegality is at least the 'but for' cause of 9 the discovery of the evidence."). The coercive effect of an illegal seizure may attenuate and 10 dissipate with the passage of time. Santos, 2003 Guam 1 at~ 65 (quoting Oregon v. Elstad, 470 11 U.S. 298,311-312, 105 S.Ct 1285, 1294 (1985)). 12 In this case, Defendant was unlawfully seized and placed in handcuffs by the Port Police 13 Officers. Defendant was thereafter transported to the police station where he waived his rights 14 under Miranda v. Arizona, 384 U.S. 436 (1966), performed a breath test, and made statements 15 about drinking and driving. The short passage of time between the illegal seizure and the 16 custodial statements by itself does not likely dissipate and purge the taint of the illegality. See 17 Brown v. Illinois, 422 U.S. 590, 604-605, 95 S.Ct. 2254, 2262 (1975) (statement separated from 18 illegal arrest by less than two hours does not purge the taint of illegal arrest). Furthermore, the 19 Miranda warning alone does not purge the taint of the illegal seizure. !d. at 601-603. In order 20 to determine whether Defendant's statements are purged of the taint of the illegal seizure, the 21 Court should consider the totality of the circumstances, including: 1) the temporal proximity 22 between the illegal detention and the statements; 2) the presence of intervening circumstances; 23

24 5 25 See also Nix v. Williams, 467 U.S. 431, 442-443, 104 S.Ct. 2501, 2508 (1984) ("The core rationale consistent] advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduc 26 has been that this admittedly drastic and socially costly course is needed to deter police from violations o constitutional and statutory protections. This Court has accepted the argument that the way to ensure sue 27 protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of lettin persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a bette 28 position than it would have been in if no illegality had transpired.").

Page 7 of9 and 3) particularly, the purpose and flagrance of the illegal conduct. People v. Chargualaf, 2 2001 Guam 1 '1!53 (citing Brown, 422 U.S. at 603-604). 3 As discussed above, the temporal proximity between the illegal detention and custodial 4 statements does not purge the taint of illegality. Furthermore, there are no intervening 5 circumstances to purge the taint of the illegal detention. See Johnson v. Louisiana, 406 U.S. 6 356, 365, 92 S.Ct. 1620, 1626 (1972) (lineup identification is purged of illegal arrest when 7 conducted with counsel and after magistrate hearing to advise rights and commit under bail). 8 Finally, it is particularly important here that the illegal seizure had no basis in reasonable 9 suspicion and may have been conducted with an illegal purpose or as flagrant illegal conduct. 10 See discussion, supra, at 3-6. The Port Police Officers seized Defendant before they could form 11 a reasonable suspicion of illegal activity. The Defendant exhibited signs of intoxication after he 12 was illegally seized. The police could not confirm the suspicion that Defendant was intoxicated 13 while driving until he was arrested and made custodial statements that he drank and then drove. 14 In sum, Defendant was detained without reasonable suspicion and confessed without any 15 intervening event of significance. To admit Defendant's confession in this case, "would allow 16 law enforcement officers to violate the Fourth Amendment with impunity, safe in the 17 knowledge that they could wash their hands in the procedural safeguards of the Fifth." 18 Dunaway v. New York, 442 U.S. 200, 219, 99 S.Ct. 2248, 2260 (1979) (internal quotations 19 omitted). For all of these reasons, the custodial statements are not purged of the primary taint of 20 the illegal seizure and they shall be excluded under the fruit of the poisonous tree doctrine. See 21 Cundiff, 2006 Guam 12 at '1!41. 22 Ill 23 Ill 24 Ill 25

Page 8 of9 2 CONCLUSION 3

4 Based upon the foregoing, Defendant's motion to suppress is hereby GRANTED and all 5 evidence obtained as a result of the unlawful seizure, including the evidence obtained while

6 Defendant was in custody, shall not be admissible. 7

8 SO ORDERED this (f571( day of February, 2013. 9

II

12 ~~ HON. JAMES L. CANTO II 13 Judge, Superior Court of Guam

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