United States v. Uter

746 F. Supp. 298, 1990 U.S. Dist. LEXIS 10003, 1990 WL 146753
CourtDistrict Court, S.D. New York
DecidedAugust 2, 1990
DocketNo. 90 Cr. 278 (RWS)
StatusPublished

This text of 746 F. Supp. 298 (United States v. Uter) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Uter, 746 F. Supp. 298, 1990 U.S. Dist. LEXIS 10003, 1990 WL 146753 (S.D.N.Y. 1990).

Opinion

OPINION

SWEET, District Judge.

Pursuant to an amended motion filed June 29, 1990 in United States v. Patrick Uter, 90 Cr. 278, defendant Patrick Uter (“Uter”) has moved for a determination of whether the search of his person and knapsack was lawful and the subsequent search of his car trunk and seizure of the sum of $22,500.00 was in violation of the Fourth Amendment. On the basis of facts established at a hearing and for the reasons set forth below the motion to suppress is denied.

Prior Proceedings

By request of the parties the motion was adjourned until July 27, 1990 and a hearing was set for July 31. The hearing was postponed to 9:30 on August 1, 1990 to determine both the audibility of the government’s tape allegedly between Uter and a confidential informant and to establish the facts surrounding the arrest and search of Uter’s car. Both Special Agent Robert Barber (“Barber”) and Uter testified at the hearing.

Findings of Fact

On May 3, 1990, Barber observed Uter enter a bar accompanied by a confidential informant (“Cl”) who had represented previously that Uter was interested in purchasing a substantial quantity of cocaine. After engaging in a narcotics transactions conversation with agents in the bar, Uter left the bar and walked to his automobile parked across the street from the entrance of the bar. Barber observed Uter from the moment he left the bar. As Uter left the bar the Cl gave the Special Agents a prearranged signal which indicated that Uter had agreed to purchase narcotics during the conversation in the bar.

To enter the car Uter unlocked the driver’s seat, entered the car, withdrew the duffle bag, popped the trunk open and emerged from the driver’s seat side of the car. The agents converged on the car, yelled “freeze,” and Uter was searched and forced against the trunk thus closing the trunk. The search of the duffle bag revealed it to be empty, and the frisk of Uter produced nothing.

One of the agents, realizing that the trunk had been shut, entered the car from the passenger side and triggered the latch to reopen the trunk. In the trunk was a bag containing a large amount of United States currency of mixed denominations, later determined to total 22,500.

A special agent advised Uter of his rights at the time of his arrest. Uter made no statements to the agents between the time he was place under arrest and the time that he was advised of his constitutional rights.

Probable Cause to Arrest

The agents had probable cause to arrest Uter and Uter does not contest that probable cause existed. The DEA Agents had cause to believe that Uter agreed to a narcotics transaction just before his arrest based upon the information provided by the Cl which led to the May 3, 1990 meeting, the DEA surveillance of the discussion in the bar, and the Cl’s use of the pre-ar-ranged arrest signal in conjunction with Uter’s approach of his vehicle. The totality of circumstances was sufficient to support [300]*300probable cause to arrest. See United States v. Cruz, 834 F.2d 47, 51 (2d Cir.1987), cert. denied, 484 U.S. 1077, 108 S.Ct. 1056, 98 L.Ed.2d 1018 (1988).

Because the arrest was lawful, the DEA agents had a right to conduct a thorough search incident to that arrest to ensure their safety and to secure all evidence in the immediate vicinity. See Michigan v. Long, 463 U.S. 1032, 1049 n. 14, 103 S.Ct. 3469, 3481 n. 14, 77 L.Ed.2d 1201 (1983); California v. Carney, 471 U.S. 386, 395, 105 S.Ct. 2066, 2071, 85 L.Ed.2d 406 (1985). The search of both Uter and his duffle bag was lawful and also provided additional probable cause to believe that evidence of the alleged reverse narcotics transaction, in this case a substantial sum of money, would be in the car.

Probable Cause to Search the Car

The search of Uter’s car trunk was without warrant and without consent. Nonetheless, under the “automobile exception” to the Fourth Amendment, when “supported by probable cause ... a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.” United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 2164-65, 72 L.Ed.2d 572 (1982). Furthermore, “if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Id. at 825, 102 S.Ct. at 2173.

This automobile exception has been applied flexibly, even when the vehicle is not immediately mobile. See California v. Carney, 471 U.S. at 391, 105 S.Ct. at 2069 (“lesser expectation of privacy warrants application for exception”). For example, the exception has been applied to locked car trunks, sealed packages within car trunks, closed compartments under the dashboard, the interior of a vehicle’s upholstery, to sealed packages inside a trunk, and to parked motor homes. Id. at 391-93, 105 S.Ct. at 2069-70. In addition to the ready mobility of automobiles, the exception has been justified on the rationale that there is a lesser expectation of privacy for an automobile subject to “pervasive schemes” of regulation on the roads.

This automobile exception to the Fourth Amendment is well-established in this circuit. “When police officers have probable cause to search an entire vehicle, they may conduct a warrantless search of every part of the vehicle and its contents, including all containers and packages in the vehicle.” United States v. Cruz, 834 F.2d at 51. See also United States v. Paulino, 850 F.2d 93, 95 (2d Cir.1988) (recognizing automobile exception); cert. denied, — U.S. -, 109 S.Ct. 1967, 104 L.Ed.2d 435 (1989); United States v. Vassiliou, 820 F.2d 28, 30 (2d Cir.1987) (“law enforcement officials may conduct a warrantless search of a movable vehicle when they have probable cause to believe it contains contraband or evidence of a crime”); United States v. Benevento, 836 F.2d 60, 67 (2d Cir.1987) (even where no formal arrest, if officer could have arrested and probable cause existed to search the automobile, search was valid); United States v. Monsalve, 728 F.Supp. 212, 218 (S.D.N.Y.1990) (recognizing automobile exception).

Uter contends that the automobile exception is not triggered here because the car was already stopped. Nonetheless, the car may already be parked and need not be “stopped” in travel to trigger the automobile exception. See Carney, 471 U.S. at 392, 105 S.Ct. at 2069-70 (exception applies to parked mobile home).

Furthermore, Uter’s reliance on United States v. Fafowora, 865 F.2d 360, 362 (D.C.Cir.), cert. denied,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Ross
456 U.S. 798 (Supreme Court, 1982)
Michigan v. Long
463 U.S. 1032 (Supreme Court, 1983)
California v. Carney
471 U.S. 386 (Supreme Court, 1985)
United States v. Alexandros Vassiliou
820 F.2d 28 (Second Circuit, 1987)
United States v. Oliverio Cruz
834 F.2d 47 (Second Circuit, 1987)
United States v. Francisco Paulino
850 F.2d 93 (Second Circuit, 1988)
United States v. Kevin Allen Walker
900 F.2d 1201 (Eighth Circuit, 1990)
United States v. Monsalve
728 F. Supp. 212 (S.D. New York, 1990)
United States v. Fafowora
865 F.2d 360 (D.C. Circuit, 1989)
Aceves-Rosales v. United States
484 U.S. 1077 (Supreme Court, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
746 F. Supp. 298, 1990 U.S. Dist. LEXIS 10003, 1990 WL 146753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-uter-nysd-1990.