USA v. Doward CR-93-19-B 05/25/93
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 93-19-01-B
John R. Doward
O R D E R
This matter is before the court on the motions of the
defendant, John R. Doward, filed on April 19, 1993, to suppress
evidence seized, and statements made, at the time of his arrest
on October 18, 1992. Doward was charged with being a felon in
possession of a firearm in violation of 18 U.S.C. § 922 (g) (1) . A
hearing was held on his motions to suppress on May 4, 1993, at
which testimony was given by Officer Robert Oxley, Detective
Clark Karolian, and Michelle Vanagel. For the reasons stated
below, the court denies both motions (document nos. 22-23) .
I. FACTS
The facts relevant to the disposition of these motions are
largely uncontested. On October 18, 1993, at approximately 7:00 p.m., two Manchester Police Officers, James Tareco and Robert
Oxley, were on a routine foot patrol in a high-crime area when
they observed a 1987 two-door Ford Mustang hatchback turn left at
an intersection through a red traffic light. The officers
ordered the vehicle to stop and asked the driver for his license.
The driver, in response, produced a Florida operator's license
and identified himself as John Doward.
While Officer Tareco was writing out a traffic citation.
Officer Oxely called police headguarters to determine if any
outstanding warrants existed for Doward's arrest. Doward and a
passenger remained in the car. While waiting for the results of
the warrant check, Doward stated that he might be the subject of
an invalid warrant from Ohio. Moments later, at approximately
7:10 p.m.. Officer Oxely received word from headguarters that
Doward was wanted on a valid Ohio warrant. Doward was removed
from the car, handcuffed, and placed under arrest. The passenger
was also removed from the Mustang, but he was not arrested and
was allowed to remain on the sidewalk next to the vehicle.
Seconds after the arrest, a police cruiser arrived on the
scene, parking approximately seven feet from Doward's automobile.
As Officer Oxely placed Doward in the cruiser. Officer Tareco
began a warrantless search of Mustang. After a brief search of
2 the vehicle's front interior. Officer Tareco began searching the
hatchback area. Moments later, a prison van arrived and
transported Doward to the police station.
After Doward was removed from the scene. Officer Tareco told
Officer Oxely that he had discovered a gun cleaning kit and
several boxes of ammunition in one of two suitcases located in
the hatchback area. At this point, Doward's adult daughter,
Michelle Vanagel, stepped forward from the crowd and asked one of
the police officers what they were doing with her car. Vanagel
had been looking for her father and had arrived after Doward had
been taken to the police station. When Vanagel was guestioned by
the police, she admitted that she owned the car, but she stated
that her father owned the suitcases. Officer Oxely then searched
the second suitcase and found a weapon and holster. These items
were discovered some thirty seconds after Doward was transported
to the station. The entire search, which began immediately after
Doward was arrested, lasted approximately three minutes.
Doward was taken to the Detective Division of the Manchester
Police Department for an interview with Detective Clark Karolian.
After obtaining his history. Detective Karolian read Doward his
Miranda rights. As he read each right. Detective Karolian asked
Doward if he understood the significance of the right. Doward
3 verbally acknowledged that he did and executed a waiver of rights
form. Doward then admitted that he kept the gun with him for
protection.
At the conclusion of the oral interrogation. Detective
Karolian gave Doward the option of drafting a written statement
so that there would be no misunderstanding as to what transpired.
Doward wrote the following:
I John Doward had a .38 caliber revolver in my [possession] for personal protection. I had no [intention] of committing any type of crime. . . . The hand gun is not stolen and all I have it for is for my own safety. . . . I kept the hand gun in my suitcase in the back of the car . . . . For me to get the weapon I had to get out of the car. The weapon was not reachable at any time from the driver['s] seat.
As Doward was writing this statement. Detective Karolian
decided to run a criminal history check on Doward. As he left
the interview room. Detective Karolian was approached by Officer
Tareco, who stated that Doward's daughter had also been arrested
because there were two outstanding warrants on her from Derry
District Court. Doward's criminal history check revealed that he
had a lengthy record of arrests and convictions.
The entire interrogation of Doward lasted approximately
thirty minutes. Detective Karolian testified that Doward was
coherent, cooperative, talkative, and at ease, and did not appear
4 to be under the influence of drugs or alcohol.
II. DISCUSSION
Doward seeks suppression of the evidence seized from the
hatchback area of the car because the search was not
contemporaneous with the arrest and was not within the "narrow
compass" of the passenger compartment. Doward also seeks to
suppress the statements made to Detective Karolian because,
according to Doward, the Detective stated that if he did not
confess to owning the gun, the police would bring a weapon charge
against his daughter, Michelle Vanagel. The court does not find
these arguments persuasive.
A. Automobile Search
Under New York v. Belton, when an officer "has made a lawful
custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger
compartment of that automobile" and examine "the contents of any
containers found within the passenger compartment." 453 U.S.
454, 460 (1981); accord United States v. Roio-Alvarez, 944 F.2d
959, 970 (1st Cir. 1991). Doward does not contest that he was
subject to a lawful custodial arrest. Instead, he argues that
the hatchback area is not a "passenger compartment" for purposes
5 of Belton. Next, he claims that because he was outside the
vehicle, handcuffed, and taken from the scene, the weapon was no
longer in an area within his immediate control and therefore was
not properly seized incident to arrest. The court addresses each
argument in turn.
1. Passenger compartment
"Passenger compartment" has been defined broadly by most
courts since the Belton decision to include whatever area was
within the passenger's reach. See, e.g.. United States v. Pino,
855 F.2d 357, 364 (6th Cir. 1988) (rear section of mid-sized
station wagon), cert, denied, 493 U.S. 1090 (1990); United States
v. Garcia, 785 F.2d 214, 225 (8th Cir.) (referring generally to
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USA v. Doward CR-93-19-B 05/25/93
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 93-19-01-B
John R. Doward
O R D E R
This matter is before the court on the motions of the
defendant, John R. Doward, filed on April 19, 1993, to suppress
evidence seized, and statements made, at the time of his arrest
on October 18, 1992. Doward was charged with being a felon in
possession of a firearm in violation of 18 U.S.C. § 922 (g) (1) . A
hearing was held on his motions to suppress on May 4, 1993, at
which testimony was given by Officer Robert Oxley, Detective
Clark Karolian, and Michelle Vanagel. For the reasons stated
below, the court denies both motions (document nos. 22-23) .
I. FACTS
The facts relevant to the disposition of these motions are
largely uncontested. On October 18, 1993, at approximately 7:00 p.m., two Manchester Police Officers, James Tareco and Robert
Oxley, were on a routine foot patrol in a high-crime area when
they observed a 1987 two-door Ford Mustang hatchback turn left at
an intersection through a red traffic light. The officers
ordered the vehicle to stop and asked the driver for his license.
The driver, in response, produced a Florida operator's license
and identified himself as John Doward.
While Officer Tareco was writing out a traffic citation.
Officer Oxely called police headguarters to determine if any
outstanding warrants existed for Doward's arrest. Doward and a
passenger remained in the car. While waiting for the results of
the warrant check, Doward stated that he might be the subject of
an invalid warrant from Ohio. Moments later, at approximately
7:10 p.m.. Officer Oxely received word from headguarters that
Doward was wanted on a valid Ohio warrant. Doward was removed
from the car, handcuffed, and placed under arrest. The passenger
was also removed from the Mustang, but he was not arrested and
was allowed to remain on the sidewalk next to the vehicle.
Seconds after the arrest, a police cruiser arrived on the
scene, parking approximately seven feet from Doward's automobile.
As Officer Oxely placed Doward in the cruiser. Officer Tareco
began a warrantless search of Mustang. After a brief search of
2 the vehicle's front interior. Officer Tareco began searching the
hatchback area. Moments later, a prison van arrived and
transported Doward to the police station.
After Doward was removed from the scene. Officer Tareco told
Officer Oxely that he had discovered a gun cleaning kit and
several boxes of ammunition in one of two suitcases located in
the hatchback area. At this point, Doward's adult daughter,
Michelle Vanagel, stepped forward from the crowd and asked one of
the police officers what they were doing with her car. Vanagel
had been looking for her father and had arrived after Doward had
been taken to the police station. When Vanagel was guestioned by
the police, she admitted that she owned the car, but she stated
that her father owned the suitcases. Officer Oxely then searched
the second suitcase and found a weapon and holster. These items
were discovered some thirty seconds after Doward was transported
to the station. The entire search, which began immediately after
Doward was arrested, lasted approximately three minutes.
Doward was taken to the Detective Division of the Manchester
Police Department for an interview with Detective Clark Karolian.
After obtaining his history. Detective Karolian read Doward his
Miranda rights. As he read each right. Detective Karolian asked
Doward if he understood the significance of the right. Doward
3 verbally acknowledged that he did and executed a waiver of rights
form. Doward then admitted that he kept the gun with him for
protection.
At the conclusion of the oral interrogation. Detective
Karolian gave Doward the option of drafting a written statement
so that there would be no misunderstanding as to what transpired.
Doward wrote the following:
I John Doward had a .38 caliber revolver in my [possession] for personal protection. I had no [intention] of committing any type of crime. . . . The hand gun is not stolen and all I have it for is for my own safety. . . . I kept the hand gun in my suitcase in the back of the car . . . . For me to get the weapon I had to get out of the car. The weapon was not reachable at any time from the driver['s] seat.
As Doward was writing this statement. Detective Karolian
decided to run a criminal history check on Doward. As he left
the interview room. Detective Karolian was approached by Officer
Tareco, who stated that Doward's daughter had also been arrested
because there were two outstanding warrants on her from Derry
District Court. Doward's criminal history check revealed that he
had a lengthy record of arrests and convictions.
The entire interrogation of Doward lasted approximately
thirty minutes. Detective Karolian testified that Doward was
coherent, cooperative, talkative, and at ease, and did not appear
4 to be under the influence of drugs or alcohol.
II. DISCUSSION
Doward seeks suppression of the evidence seized from the
hatchback area of the car because the search was not
contemporaneous with the arrest and was not within the "narrow
compass" of the passenger compartment. Doward also seeks to
suppress the statements made to Detective Karolian because,
according to Doward, the Detective stated that if he did not
confess to owning the gun, the police would bring a weapon charge
against his daughter, Michelle Vanagel. The court does not find
these arguments persuasive.
A. Automobile Search
Under New York v. Belton, when an officer "has made a lawful
custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger
compartment of that automobile" and examine "the contents of any
containers found within the passenger compartment." 453 U.S.
454, 460 (1981); accord United States v. Roio-Alvarez, 944 F.2d
959, 970 (1st Cir. 1991). Doward does not contest that he was
subject to a lawful custodial arrest. Instead, he argues that
the hatchback area is not a "passenger compartment" for purposes
5 of Belton. Next, he claims that because he was outside the
vehicle, handcuffed, and taken from the scene, the weapon was no
longer in an area within his immediate control and therefore was
not properly seized incident to arrest. The court addresses each
argument in turn.
1. Passenger compartment
"Passenger compartment" has been defined broadly by most
courts since the Belton decision to include whatever area was
within the passenger's reach. See, e.g.. United States v. Pino,
855 F.2d 357, 364 (6th Cir. 1988) (rear section of mid-sized
station wagon), cert, denied, 493 U.S. 1090 (1990); United States
v. Garcia, 785 F.2d 214, 225 (8th Cir.) (referring generally to
the interior of the automobile), cert, denied, 475 U.S. 1143
(1986). The Court of Appeals for this Circuit has held that this
definition encompasses the hatchback area as well. Roi o-Alvarez,
944 F.2d at 970; accord United States v. Russell, 670 F.2d 323,
327 (D.C.Cir.), cert, denied, 457 U.S. 1108 (1982). Accordingly,
Doward's argument on this point is rejected.
2. Contemporaneous search
The approach urged by Doward, one which reguires a
determination into the likelihood that a particular arrestee
removed from his vehicle could gain access to the passenger
6 compartment and its contents, has been rejected by most courts in
favor of a "bright line" test. See Belton, 453 U.S. at 460;
United States v. Jackson, 918 F.2d 236, 238, 240 (1st Cir. 1990);
United States v. White, 871 F.2d 41, 44 (6th Cir. 1989); United
States v. Karlin, 852 F.2d 968, 970-71 (7th Cir. 1988), cert.
denied, 489 U.S. 1021 (1989). The constraining principle under
this test is not whether the arrestee, handcuffed or not, could
reach into the vehicle and seize some item within it, but whether
the search was contemporaneous with the arrest. See Belton, 453
U.S. at 460-62 (upholding search contemporaneous with arrest
where arrestees were removed from vehicle and separated prior to
search); Jackson, 918 F.2d at 240 (upholding search
contemporaneous with arrest where arrestees were removed from
car, handcuffed, and placed in police cruiser prior to search);
United States v. McCradv, 774 F.2d 868, 870-72 (8th Cir. 1985)
(upholding search contemporaneous with arrest where arrestee was
removed from car and placed in police cruiser prior to search);
Karlin, 852 F.2d at 970-72 (upholding search contemporaneous with
arrest where arrestee was placed in the rear of a police cruiser
prior to search); see also White, 871 F.2d at 44 (holding that
"even after the arrestee has been separated from his vehicle and
is no longer within reach of the vehicle or its contents, the
7 Belton rule allowing a police officer to search a vehicle
incident to a lawful arrest applies, and such a search is
valid"). Here, the search was initiated immediately after Doward
was removed from the car and placed under arrest. The ammunition
and gun cleaning kit were discovered before he was taken to the
police station, and the weapon and holster were found almost
immediately thereafter. The search was well within the "bright
line" rule, and the items were therefore properly seized.
B. Statements Made To Detective Karolian
In his motion to suppress, Doward alleges that certain in-
custody statements were involuntary because Detective Karolian
exerted psychological pressure by stating, during the
interrogation, that if he did not confess, his daughter would be
charged with a crime. Doward, however, failed to produce any
evidence at the hearing to support his claim. In fact, the only
testimony elicited on the subject was from Detective Karolian,
who categorically denied threatening or otherwise coercing Doward
into giving his statements. Because I find Detective Karolian's
testimony to be worthy of belief and, in any event, there is no
evidence that Doward was subjected to psychological pressure, his
statements will not be suppressed. III. CONCLUSION
For the foregoing reasons, Doward's motions to suppress
(document nos. 22-23) are denied.
SO ORDERED.
Paul Barbadoro United States District Judge
May 5, 1993
cc: Robert P. Woodward, Esg. U.S. Attorney U.S. Probation U.S. Marshal