UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 16-cr-166-01-JD Opinion No. 2016 DNH 223 Joseph Davis
O R D E R
Joseph Davis is charged with possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Davis moves to suppress all evidence that was seized
as the result of a search after Davis was arrested for driving
under the influence of drugs or alcohol in the early morning of
July 2, 2016. The government opposes the motion.
The court held a hearing on the motion to suppress on
December 14 and 15, 2016. During the hearing, the defense
presented testimony from Davis, Davis’s wife, Tori Payne, and
Aaron Lee Bruton, who had been with Davis prior to the arrest.
The government presented testimony from Hampton police officers,
Matthew Robinson, Justin Hood, and Christopher Zigler, who
participated in the arrest, and from Jovan Townes, who had been
with Davis prior to the arrest. Standard of Review
The defendant bears a threshold burden to show a Fourth
Amendment violation to support a motion to suppress. United
States v. Young, 835 F.3d 13, 19 (1st Cir. 2016); see also
United States v. Battle, 637 F.3d 44, 48 (1st Cir.2011) (citing
Minnesota v. Olson, 495 U.S. 91, 95 (1990)). When, as here, a
warrantless search of a vehicle is at issue, the defendant has
the burden to show that he had a reasonable expectation of
privacy in the vehicle. United States v. Almeida, 784 F.3d 41,
48 (1st Cir. 2014). If the defendant shows a Fourth Amendment
violation, the government must show, by a preponderance of the
evidence, that an exception to the warrant requirement applies.
Nix v. Williams, 467 U.S. 431, 444 (1984); United States v.
Matlock, 415 U.S. 164, 178 & n.14 (1974).
Background
On the evening of July 1, 2016, Davis and his then fiancé,
Tori Payne, travelled to Hampton, New Hampshire, for Davis to
perform as a rap artist at the Cloud 9 Bar and Grille on Hampton
Beach with another rap artist, Aaron Bruton.1 Davis and Payne
drove in Payne’s car, a 2013 Ford Focus, with Payne driving.
Other people, including Aaron Bruton, Bruton’s two cousins who
1 Davis and Payne were married in September of 2016.
2 were visiting from New York, Davis’s brother, and Jovan Townes,
also went to the Cloud 9 bar but drove in separate cars.
Payne testified at some length that she did not allow
anyone else, including Davis, to drive her car because it was in
her name, it was new, and because her insurance covered only
her. Davis testified, however, that he drove the car almost
every day with her knowledge and according to their schedule for
picking up Payne’s daughter from school and to do errands.
Payne also acknowledged that Davis had driven her car.
Payne parked the car on the street near the club. Payne
and Davis got out of the car to talk with the other people who
came with them. Payne serves as Davis’s manager and promoter
for his performances. Bruton parked near Payne’s car. Payne
and the whole group, including Davis, went into the club to
prepare for the performance. Payne left the keys in her car so
that the people in their group could get equipment out of the
car for the show if it were needed.
Payne left her purse in the trunk of the car to avoid
taking it into the bar. She said that she had many things in
the trunk, in addition to her purse, including children’s
clothes, shoes, Davis’s hats, jumper cables, and a gun that had
been her grandfather’s which she kept in a black Dirt Devil bag.
Payne testified that she did not keep the gun in the interior of
3 the car because children rode in the car. She also testified
that she never told Davis that the gun was in the trunk because
it was none of his business.
Once Davis was checked in and ready to perform, Payne left
the club to walk up the strip at Hampton Beach to promote Davis
as a rap artist. She testified that Davis, his brother, and his
friends had gotten on her nerves that night so that she did not
want to be with them. She walked up the Hampton Beach strip
interacting with people, taking pictures, and handing out CDs.
Payne did not stay in the area of the Cloud 9 bar but instead
traveled a distance up the strip.
After the performance, in the early morning of July 2,
2016, Davis, Bruton, and others left the club and went to get
pizza. Davis needed to go to the bathroom, so he went back to
the club but was not allowed inside. He got the keys to Payne’s
car from his brother in order to drive north on Ocean Boulevard
to the public bath house on the beach to find a bathroom.
Bruton and his cousins got into their car and left at the same
time, following Davis.
Hampton police officers, Detective Matthew Robinson and
Officer Justin Hood, were in a cruiser facing southbound on
Ocean Boulevard not far from the Cloud 9 bar. Officer
Christopher Zigler was in another cruiser also monitoring
4 traffic on Ocean Boulevard and was parked next to Robinson and
Hood. The officers saw a car back out of a space near the Cloud
9 bar and proceed north on Ocean Boulevard without its lights
on. The car drifted across the road, crossed the fog line, and
stopped just off the travel lane close to pylons at end of the
parking area. The car was not in a parking space but instead
was parallel to the traveled part of Ocean Boulevard, blocking
access to a handicap parking space. Robinson and Zigler came up
behind the car and activated their blue lights.
Robinson went to the driver’s side and Zigler went to the
passenger side of the car. Hood stood behind Zigler on the
passenger side. The officers had flashlights to look into the
car. Davis was the only person in the car.
Robinson noticed that the car smelled of alcohol and
marijuana and that there were blue transparent cups, known as
party cups, stacked on the console with liquid in them.
Robinson thought that Davis was driving under the influence.
Robinson saw that Davis was wearing a very large blue bandana
around his neck, which Robinson thought was odd in the heat of
the summer.
Robinson told Davis that he was stopped because he did not
have the car lights on and asked him what he had had to drink.
Davis apologized for his driving and explained that he had just
5 performed at the Cloud 9 bar, that he was looking for a
bathroom, and that he urgently needed to urinate. Davis then
urinated in his pants. Robinson noticed that Davis appeared to
be impaired.
While they were talking, Davis repeatedly put his hand down
in the area of his right pocket or the center console. That was
a safety concern for Robinson so he told Davis to keep his hands
where Robinson could see them. Although Davis complied, his
hand then drifted back down to his right side.
Robinson asked Davis for his license, which Davis produced.
At the same time, the car lurched forward because Davis had not
put the car into park. Robinson went back to his cruiser to
check Davis’s license on the computer, which took several
minutes because Robinson also called dispatch to check the
license.
While Robinson was back at his cruiser, Davis took off the
blue bandana and put it over the party cups on the center
console. Zigler also noticed that Davis repeatedly put his hand
down near his right side. Zigler asked Hood to watch Davis and
walked to the cruiser to talk to Robinson.
Zigler reported to Robinson that he was uneasy about the
situation because Davis kept reaching down to his right side and
because he had covered the cups with his bandana. Zigler
6 suspected that Davis was trying to conceal something, which was
probably an open container of alcohol. Robinson said there was
a strong odor of alcohol and marijuana in the car. While
Robinson was trying to contact dispatch, Zigler went back to
Davis’s car to talk with him. Zigler also noticed a strong
smell of alcohol and marijuana in the car.
Through the license check, Robinson learned that the car
was not registered to Davis and that Davis’s license was
suspended. Robinson returned to Davis’s car and asked Davis to
step out of the car. He saw the blue bandana on the center
console. Zigler was standing with Robinson when Davis opened
his door, and Zigler saw a bottle of alcohol, labeled Hennessey,
in Davis’s door pocket.
When Bruton saw the police cruisers pull up behind Davis,
Bruton pulled over and then drove back around, eventually
parking about three spaces from where Davis and the police
cruisers were located. Bruton got out of his car and walked
over to Davis and the officers.
The officers noted that Davis had difficulty walking and
that he leaned on the car for balance. Davis admitted that he
had had a couple of drinks at the Cloud 9 bar. Davis agreed to
do sobriety tests, and Robinson administered three tests. Davis
7 failed the tests, and Robinson arrested him for driving under
the influence.2
Once Davis was in handcuffs, Robinson began to search him.
Because Davis’s pants were wet with urine and Hood was wearing
gloves, Hood completed the search. Hood took car keys out of
Davis’s pocket. After the search, Davis was put in the cruiser.
A crowd had gathered around Davis’s car and the cruisers.
While Robinson did the field sobriety tests and placed Davis
under arrest, Zigler was monitoring the crowd and asking them to
move back to allow room for the tests. The officers testified
that two men came forward out of the crowd and identified
themselves as friends of Davis.3 Davis also said that he knew
the men. Robinson asked the men if they would take Davis’s car
so that it would not have to be towed but they refused. The
officers did not get the men’s names, and the men left.
Bruton testified that he was standing within handshake
distance of Davis and the officer at the end of the sobriety
testing and when the officer put Davis in handcuffs. Bruton
2 For purposes of the motion to suppress, Davis agrees that he was lawfully detained and arrested.
3 In the motion to suppress, the defense identified the two men as Aaron Bruton and Jovan Townes. Bruton testified that he did not recall that Townes was there. Townes testified that he was not there when Davis was arrested and that he did not want to get involved because he did not have a driver’s license.
8 also testified that Davis and the officer with Davis asked him
if he could take Davis’s car. He said that that the officer
with Davis took the car keys out of his pocket and handed the
keys to Bruton. According to Bruton, he asked if he could leave
the car where it was, and the officer answered that he could not
do that because Davis was under arrest.
Bruton testified that he never refused to take Davis’s car
and that he continued to try to find someone to take the car.
Jovan Townes testified that Bruton called him when he was on the
way home to Manchester with Davis’s brother and wanted him to
come back to get Davis’s car. Bruton called and texted Payne to
let her know what was going on, and Payne told Bruton that she
was trying to get a ride to get back. Payne testified that she
was far away when she started getting texts and calls and that
she ignored them at first because she was irritated with Davis
and his brother. By the time Payne got back to where Davis and
the car had been, they were gone.
In their testimony, Robinson and Zigler explained that
police policy is to call a tow truck when someone is arrested
for driving under the influence. Sometimes, however, they will
let another person take the car if there is someone who is
authorized by the person under arrest, has a valid driver’s
license, and is not impaired. The officers said that they
9 considered doing that in this instance because Davis had been
polite and cooperative so they were inclined to save him the
towing fee. Furthermore, it would be quicker and simpler if
someone who was sober and with a valid license could take the
car.
Robinson and Hood drove Davis to the police station in the
cruiser. Zigler called a tow truck because no one was able to
take the car, it was illegally parked, and it was a hazard on
Ocean Boulevard at that hour. Zigler stayed with Davis’s car,
waiting for the tow truck to arrive. Bruton testified that he
also stayed and that he had the keys to the car.
The Hampton Police Department has a “Motor Vehicle
Inventory Search Policy.” Under the policy, a vehicle must be
towed if it is illegally parked and is a hazard to traffic.
Officers are required to conduct a “lawful inventory search of a
vehicle” if, among other circumstances, a “vehicle is being
towed under orders of a department member” and the owner or
custodian is under arrest or the driver is under arrest and the
owner or custodian is not present. Doc. 14-3. The inventory
search is made of all areas in the passenger compartment of the
vehicle and the trunk and should be conducted at the scene
before the vehicle is towed.
10 During the search, the officer is to complete an inventory
form. The purpose of the search and inventory “is to protect
the owner’s property . . .; to protect the department member and
department against false claims or disputes over lost, stolen,
or damaged property; to protect the members from potential
danger;” and to help determine if the vehicle is stolen or
abandoned. Id. Zigler understood that the policy required him
to record on the inventory form only the items of value that
were left in the car.
The policy provides that “any items discovered in plain
view, where the incriminating nature of the item/s are
immediately apparent, shall be seized as evidence of the crime.”
Id. The policy also instructs, however, that “[i]f probable
cause develops during an inventory search, the inventory search
shall cease and the officer shall apply for a search warrant.”
Id. In addition, “[t]he inventory search shall not be
undertaken merely as a subterfuge to facilitate a criminal
investigation.” Id.
Before the tow truck arrived, Zigler opened the car and
took the bottle of Hennessey he had seen in the driver’s door
pocket and the party cups as evidence related to the arrest for
driving under the influence. He also saw a small jar of what
11 appeared to be marijuana behind the cups and took that.4 Zigler
did not take a second jar with what appeared to be remnants of
marijuana. The blue bandana was on the passenger seat. Bruton
testified that he did not see Zigler go into the car.
Zigler got an inventory form and searched the in order to
note anything of value that would be left in the car. In the
trunk, Zigler found a purse and wallet, which belonged to the
registered owner of the car, Payne. Zigler noted those items on
the inventory and left them in the locked trunk. Nothing else
of value was left in the car.
In preparation for towing, Zigler reached across the
driver’s seat to put the keys into the ignition. As he was
doing that, Zigler saw a handgun located between the driver’s
seat and the center console. He thought it was not safe to
leave the gun in the car because it was being towed and would be
left in a parking lot. Zigler took the gun for safekeeping,
both because of the safety risk and to protect an item of value.
The gun was loaded with a bullet in the chamber and the
safety was off. Zigler unloaded the gun and locked it. To
protect the gun, he wrapped it in Davis’s blue bandana and took
it with him in the cruiser. Zigler then drove to the police
4 The government does not intend to introduce the marijuana as evidence in this case. For that reason, the jar of marijuana is not at issue for purposes of the motion to suppress.
12 station and turned over the Hennessey bottle, cups, and gun to
Robinson.
Discussion
Davis moves to suppress all of the evidence that Zigler
took from Payne’s car. In support, he contends that Zigler
conducted a warrantless search of the car in violation of the
Fourth Amendment. The government objects, arguing that Davis
had no reasonable expectation of privacy in Payne’s car, that
the cups, Hennessey bottle, and bandana were lawfully seized
under the plain view exception to the warrant requirement, and
that the gun was lawfully seized under the community caretaking
exception.
A. Reasonable Expectation of Privacy
It is the defendant’s burden to make a threshold showing
that he had “‘a reasonable expectation of privacy in the area
searched and in relation to the items seized.’” United States
v. Stokes, 829 F.3d 47, 51 (1st Cir. 2016) (quoting Rakas v.
Illinois, 439 U.S. 128, 143 (1978)). “This burden must be
carried at the time of the pretrial hearing and on the record
compiled at the hearing.” Id. (internal quotation marks
omitted). When the place searched is a car, the defendant must
show “a property interest or a possessory interest in the
automobile.” United States v. Symonevich, 688 F.3d 12, 19 (1st
13 Cir. 2012). When the defendant has borrowed someone else’s car,
with permission, the court considers the following factors to
determine whether the defendant had a reasonable expectation of
privacy in the car:
ownership, possession, and/or control; historical use of the property searched or the thing seized; ability to regulate access; the totality of the surrounding circumstances; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of such an expectancy under the facts of a given case. We look, in short, to whether or not the individual thought of the place (or the article) as a private one, and treated it as such.
Almeida, 784 F.3d at 47.
In this case, there is conflicting testimony about whether
Davis borrowed Payne’s car with her permission and the frequency
of his use of the car. Although Payne testified that Davis was
never allowed to drive her car, Davis testified that he drove
the car with her knowledge and permission almost every day. On
the night of the arrest, he had been a passenger in the car on
the way to the Cloud 9 bar. Davis did not have the keys to the
car, which he obtained from his brother. He drove the car for
only seconds before the stop occurred.
Davis testified that he kept personal belongings in the
car, and Payne testified that Davis’s hats were in the trunk.
Payne also testified that she did not lock the car when she
parked and left the keys in it so that others could get the
14 equipment out as might be necessary. When Davis was stopped and
got out of the car, he left the driver’s door open.
Based on those circumstances, it is far from clear that
Davis had a reasonable expectation of privacy in the car. It is
not necessary, however, to resolve this close question because
even if the Fourth Amendment protected the interior of the car,
the items were seized lawfully.
B. Plain View
The government contends that the cups, bandana, and bottle
of Hennessey were lawfully seized because they were in plain
view. Under the plain view exception to the warrant
requirement, “a warrantless seizure is nevertheless lawful if
(1) the seizing police officer lawfully reached the position
from which he could see the item in plain view; (2) the seizure
satisfied the probable cause standard; and (3) the seizing
officer had a lawful right of access to the object itself.”
United States v. Allen, 573 F.3d 42, 51 (1st Cir. 2009).
“[P]robable cause exists when the incriminating character of an
object is immediately apparent to the police.” United States v.
Sanchez, 612 F.3d 1, 5 (1st Cir. 2010).
In support, the government asserts that Zigler saw the cups
and bandana through the windows of the car and saw the bottle of
Hennessey in the car door when Davis opened the door. Based on
15 Zigler’s observations, the government argues that those items
were properly seized under the plain view doctrine. The defense
does not appear to challenge Zigler’s seizure of the bottle of
Hennessey under the plain view doctrine, but did press Zigler
during the hearing about whether he could see liquid in the cups
and whether he had probable cause to believe there was liquor in
the cups. Zigler testified that he did not see any liquid in
the cups and, therefore, did not have probable cause to seize
the cups.
The court need not decide whether the plain view doctrine
applies in these circumstances, because the cups, the Hennessey
bottle, and the bandana would have been discovered and seized
during the inventory search.
C. Inventory Search
The defense argues that the inventory search was illegal
because there was no reason to tow the car, making the inventory
unnecessary. The defense also contends that Zigler did not
conduct a valid inventory search. The evidence does not support
the defense’s theory.
“Under the community caretaking exception to the Fourth
Amendment warrant requirement, police may impound a vehicle for
noninvestigatory purposes when it is reasonable to do so,” such
as when the driver has been arrested, no one is immediately
16 available to take possession of the car, and the car is not
parked legally or may be an impediment to traffic. Jaynes v.
Mitchell, 824 F.3d 187, 197 (1st Cir. 2016) (internal quotation
marks omitted). “Once a car is impounded, an inventory search
follows as a matter of course in prudent law enforcement
practice.” Id. “[I]nventories pursuant to standard police
procedures are reasonable.” South Dakota v. Opperman, 428 U.S.
364, 372 (1976); United States v. Jeffreys, 111 F. Supp. 3d 70,
78 (D. Mass. 2015).
The Hampton police policy is to tow a car when the driver
is arrested for driving under the influence and the car is
parked illegally or is a traffic hazard. There is no dispute
that Davis was arrested. Robinson and Zigler testified that the
car was parked illegally and was also a traffic hazard.
Robinson and Zigler also testified that sometimes, instead
of towing and as a courtesy, they will allow another person to
take a car if that person has a valid driver’s license and is
not impaired. They were willing to do that in this case because
Davis had been polite and cooperative. The two men, who Davis
knew and who came forward after he was arrested, refused to take
the car when asked by an officer if they would do so. As a
result, towing the car was the only option.
17 Bruton testified that he was willing to take Davis’s car
and that the officers gave him the keys to the car. Robinson
said he would not have given Bruton the keys to the car without
first ascertaining whether he had a valid driver’s license and
was sober. The court does not find Bruton’s testimony credible.
Under the Hampton police policy, the car had to be
inventoried before it was towed. Zigler testified about his
inventory search which included the interior of the car and the
trunk. He also completed an inventory form listing the purse
and wallet he found in the trunk.
Bruton testified that he never saw Zigler go into Payne’s
car or open the trunk. Bruton’s version of events, however,
does not undermine Zigler’s testimony that he conducted the
inventory search because Bruton was not necessarily watching
Zigler during the entire encounter. Bruton stated that he was
busy on his phone trying to contact Payne and Townes and trying
to find someone to take the car. The court credits Zigler’s
account of the inventory search and concludes that it was
properly conducted and valid.
Even if the bottle, the cups, and the bandana were not
properly seized as evidence in plain view, the inevitable
discovery exception applies:
The application of the inevitable discovery exception involves three questions: first, whether the legal
18 means by which the evidence would have been discovered was truly independent; second, whether the use of the legal means would have inevitably led to the discovery of the evidence; and third, whether applying the inevitable discovery rule would either provide an incentive for police misconduct or significantly weaken constitutional protections.
United States v. Almeida, 748 F.3d 41, 49 (1st Cir. 2014)
(internal quotation marks omitted). The bottle of Hennessey was
in the door pocket, the cups were on the center console, and the
bandana was on the car seat. Zigler would have found those
items in the course of his inventory search and application of
the exception here is appropriate.
D. The Gun
Zigler did not find the gun during the initial inventory
search. Instead, he saw the gun tucked next to the driver’s
seat when leaned across the driver’s seat to put the keys into
the car ignition for the tow truck operator. The gun was
loaded, had a bullet in the chamber, and the safety was off.
Zigler took the gun both as valuable property that should not be
left in the car and for safety reasons.5 The court finds that
Zigler’s testimony is credible about the circumstances of
finding and taking the gun.
The gun was not seized as evidence of a crime. At the time 5
of the impoundment, Davis was charged with driving under the influence, which did not involve the gun. The gun itself did not appear to be evidence of a crime.
19 The impoundment of the car was reasonable and made an
inventory search necessary and appropriate. Zigler legally had
access to the car for the purpose of the impoundment, which
included taking the inventory and putting the keys in the
ignition before the car was towed. Zigler’s explanation that it
would not have been safe or prudent to leave a loaded gun in the
car during the towing process and while the car was stored in a
parking area is consonant with the community care taking
exception. Therefore, seizure of the gun as part of the
inventory process and for the additional purpose of community
safety did not violate the Fourth Amendment.
Conclusion
For the foregoing reasons, the defendant’s motion to
suppress (document no. 11) is denied.
SO ORDERED.
__________________________ Joseph DiClerico, Jr. United States District Judge
December 20, 2016
cc: Bruce E. Kenna, Esq. Robert M. Kinsella, Esq. United States Marshal United States Probation