United States District Court, E.D. Missouri, Southeastern Division
REPORT AND RECOMMENDATION
ABBIE CRITES-LEONI, District Judge.
Mario Evans is charged with being a felon in possession of a firearm, knowingly possessing marijuana with the intent to distribute, and carrying the firearm in connection with the drug trafficking offense. [Doc. 2] He filed a Motion to Suppress Evidence [Doc. 29] alleging that officers violated his Fourth Amendment rights. Specifically, the Defendant claims that an officer unlawfully entered a car wash bay of a vacant business where the Defendant's car was parked, and then unlawfully seized a gun and marijuana observed in plain view on the driver's seat. Id. at 1-2. He also claims that items seized from the Defendant's person, digital scales and car keys, as well as statements made by the Defendant while in custody should be suppressed. Id.
An evidentiary hearing was held [Doc. 35] and following the hearing, both parties submitted memoranda. [Docs. 43, 51] The undersigned recommends that the following findings of fact and conclusions of law be adopted and that the Defendant's Motion to Suppress Evidence be denied.
II. Proposed Findings of Fact
Close to midnight on August 2, 2013, Officer Brent Douglas of the Charleston Department of Public Safety was on duty and patrolling a high crime area near the intersection of West Marshall Street and South Green Street. (Tr. 55-56) Although the city of Charleston is a small town with a population of roughly 5, 000 people, there is a high incidence of crime. (Tr. 57) The area where Officer Douglas was patrolling was within a six block area that is considered a very high crime area for drug dealings, shootings, and even murder. (Tr. 57-59) In addition, Officer Douglas was aware that there had recently been a number of burglaries in the area. (Tr. 61)
On the southwest corner of Marshall and Green Streets there is an old, vacant car wash with which Officer Douglas was familiar. (Tr. 56, 60) The building has two bays for washing cars that are open on one side; vehicles can pull in or out of the bays from the south side of the building which is not visible to the main roadway of Marshall Street. (Gov. Ex. #2 and #3; Tr. 24-25, Def. Ex. A/1 & B/2) On the north side of the building, each car wash bay has a garage door that remains closed; the garage doors are visible to passersby on Marshall Street. (Tr. 24; Def. Ex. A, originally marked as #1A) Only one vehicle can fit in each of the bays. (Tr. 25; Gov. Ex. #4)
Adjoining the garage bays is an enclosed area that was used for storage on August 2, 2013 (Tr. 32), which had previously served as a barbeque restaurant before the business shut down. (Tr. 23) While the car wash had been operated as a commercial business in the past, it had not been in operation for at least the five years prior to August 2013. (Tr. 23, 29-31, 156) During that time-frame, the city initiated the process to condemn the building. (Tr. 30-31, 155-156) The owner of the building (Freddie Evans, the Defendant's uncle (Tr. 20, 135)), however, cleaned it up enough so the building would not be condemned. (Tr. 23, 31) There were no barricades or signs posted anywhere on the property to keep people out. (Tr. 85-86)
While on patrol in the area of Marshall and Green Streets, shortly before midnight on August 2, 2013, Officer Douglas noticed that there was a car parked behind what the officer knew to be Freddie Evans' defunct car wash. (Tr. 56, 59) He also noticed that only the car's front lights were on. (Tr. 59, 107) Officer Douglas turned west onto Green Street, which runs on the east side of the car wash property and then stopped his patrol car behind the parked vehicle "to investigate what was going on." (Tr. 59-61; Gov. Ex. #2) As Officer Douglas approached the parked vehicle, he noticed that there was a second car parked in one of the car wash bays, as well as an individual standing near the driver's side of the car in that bay. (Tr. 61-62, 112, 121) That person emerged from the dark and walked toward Officer Douglas, who in turn shone his flash light in the person's direction. (Tr. 65-66, 120-121) Officer Douglas recognized the man on sight as the Defendant, Mario Evans. (Tr. 66) Officer Douglas knew the Defendant, because he had arrested the Defendant on a prior occasion and participated in an investigation of the Defendant. (Tr. 66-67) Based on that prior experience, Officer Douglas knew that the Defendant had prior felony convictions involving drugs, plus an arrest for First Degree Robbery and Armed Criminal Action. (Tr. 68-69, 101-102, 122-124, 130, 186; Gov. Ex. #1) Based on his prior knowledge, when Officer Douglas saw the Defendant, he was concerned that he was in a dangerous situation. (Tr. 69-70, 72)
The area of the defunct car wash was not well lit as the only pole light was not functioning. (Tr. 65) In addition to seeing the Defendant emerge from the dark car wash bay, Officer Douglas also observed that there were two people in the parked car that originally caught his attention. (Tr. 69) Furthermore, Officer Douglas did not know whether or not there were any additional people in the area of the Defendant's vehicle that was parked in the car wash bay. (Tr. 69-70, 114-115)
When Officer Douglas was approached by the Defendant, the Defendant told Officer Douglas that his family owned the car wash. (Tr. 113, 121, 128, 141) From the moment Officer Douglas encountered the Defendant, he maintained visual contact of: (1) the Defendant, (2) the occupants of the vehicle parked on the lot, as well as (3) the vehicle parked in the car wash bay. (Tr. 69-70, 125)
Shortly thereafter, a backup officer arrived to the scene. (Tr. 70, 125; Def. Ex. C) When the backup officer arrived, Officer Douglas walked toward the car wash bay where the Defendant's car was parked to determine whether any other people were present. (Tr. 70-71, 115-116) Officer Douglas approached the passenger side of the vehicle parked in the bay (Tr. 72) and utilized his flashlight to inspect the interior of the Defendant's car. (Tr. 70-71, 129-130) He was looking for individuals, not evidence. (Tr. 70-71, 120) He discovered that no other person was in the vehicle, but he observed a handgun and a substance he believed to be marijuana in plain view on the driver's seat of the Defendant's car. (Tr. 71, 73; Gov. Ex. #5) Based on those observations, the Defendant was placed under arrest. (Tr. 75) A pat down search of the Defendant resulted in the discovery of a digital scale and a set of keys. (Tr. 76) The backup officer, Officer McDermott, pressed a button on a key fob and the dome light went on in the Defendant's vehicle, which was parked in the car wash bay. (Tr. 76, 117) The Defendant was then placed in the rear of Officer Douglas' patrol unit. (Tr. 76-77)
In regard to the vehicle that was parked in the car wash bay, Officer Douglas believed it to be a black Ford and associated the vehicle with the Defendant, as he had seen the Defendant drive the vehicle on prior occasions. (Tr. 115, 133-134) In addition, the Defendant admitted that the vehicle parked in the car wash bay belonged to him (Tr. 139, 159, 194), although he stated that the vehicle was brown instead of black and the seats were tan (Tr. 192).
While the Defendant was secure in the patrol unit, Officer Douglas made contact with the occupants of the parked vehicle that had caused him to stop. (Tr. 77) A woman, Latrisha Banks (the Defendant's girl-friend) (Tr. 137), was in the driver's seat. (Tr. 77) Another woman was in the front passenger seat. Officer Douglas requested consent to search the vehicle and he received consent. Id. In searching the vehicle, Officer Douglas observed an envelope with money in it, a marijuana cigarette, and loose marijuana in a folded piece of paper in the backseat of the car. (Tr. 78) He also observed an empty plastic bag on the ground outside the passenger side of the car. Id. Both of the women were placed under arrest. (Tr. 80)
When the Defendant was taken to the station for processing, Officer Douglas did not intend to question the Defendant so he did not give the Miranda warning. (Tr. 82-83) During the booking process, the Defendant asked Officer Douglas what charges were going to be filed. (Tr. 83) Officer Douglas advised that the charges would be "possession with intent to distribute a controlled substance and felon in possession of a firearm." Id. The Defendant then asked, "[h]ow are you going to charge me with a gun? It doesn't even work. I just got it yesterday." (Tr. 84)
The Defendant's uncle, Freddie Evans, testified that he owned the defunct car wash and that the Defendant did not have an ownership interest in the car wash, although the Defendant had worked at the car wash approximately five or six years ago when the business was still open. (Tr. 28-30, 32) Evans also stated that he wouldn't object if anyone parked on the property surrounding the car wash. (Tr. 36) He indicated that there were no fences around the car wash (Tr. 26, 37), there were no signs telling people not to trespass (Tr. 26, 36-37), and people could drive through the property to get to various other locations (Tr. 33-35). Evans further testified that if suspicious activity was observed on the property he would want it to be checked out. (Tr. 51) Evans was a twenty-five year employee for the Missouri Department of Corrections (Tr. 27) and would not approve of anyone dealing drugs or bringing drugs on his property (Tr. 35-36).
The Defendant testified that the marijuana cigarette and loose marijuana found in his girl-friend's car belonged to him and that he had been seated in the backseat of the vehicle when Officer Douglas arrived at the scene. (Tr. 173-174) The Defendant claimed that the reason they were parked behind the building is because the women needed to go to the bathroom and he was trying to decide whether or not he was going to stay with his girlfriend. Officer Douglas' arrival, however, didn't allow time for the girls to go to the bathroom. (Tr. 165-167) The Defendant admitted that he parked his car in the bay around 6 p.m., and then connected with his girl-friend. (Tr. 170, 172) He also admitted that he had smoked marijuana earlier that evening and that he smokes marijuana every time he eats. (Tr. 157-158, 161) In regard to his use of the car wash, the Defendant indicated that he parked there from time to time and over the years he had actually stayed in the storage portion of the car wash when it was late at night and he didn't have anywhere else to sleep. (Tr. 149-150, 152-53) He claimed there was an operational bathroom inside the storage area of the car wash, but when pressed, agreed the electric was not operable in August 2013. (Tr. 168-169, 182) The Defendant had been kicked out of his girl-friend's apartment a day or so before his arrest (Tr. 177-178) and he "believe[d]" there was a bed in the storage room of the car wash (Tr. 180).
The undersigned heard the testimony of all the witnesses at the suppression hearing. The primary inconsistency in the testimony of the Defendant and Officer Douglas that has an impact on the issues in this case concerns the location of the Defendant when the officer arrived. Officer Douglas' testimony was that the Defendant was standing in the car wash bay on the driver's side of his vehicle. (Tr. 64) The Defendant, on the other hand, testified he was in the backseat of his girlfriend's car. (Tr. 139) Officer Douglas had no reason to lie and his testimony regarding the sequence of events was more credible. The Defendant on the other hand, admitted to smoking marijuana on the night in question (Tr. 158-159), had a motive to lie (Tr. 182-183), and his claim about why he was at the car wash when Officer Douglas stopped to investigate the parked car was not credible. The Defendant claimed that the women in his girlfriend's car were planning to use the bathroom in the storage room of the defunct car wash, however, the women who the Defendant claimed needed to go to the bathroom were simply sitting in the parked car with only the front lights on when Officer Douglas arrived. Furthermore, during the suppression hearing, the Defendant denied that the gun and marijuana were in his vehicle when he parked it in the car wash bay on August 2, 2013. (Tr. 190-191) On the night in question, however, the Defendant did not dispute the location of the gun, rather he said he didn't understand how he could be charged with being a felon in possession, because he purchased the gun the day before and the gun didn't work. (Tr. 84) The undersigned rejects the testimony of the Defendant as to the issue of where he was located when Officer Douglas arrived and accepts the testimony of Officer Douglas.
The Defendant confirms in his post-hearing brief [Doc. 43] that he believes the Court should suppress evidence seized from his vehicle that was parked in one of the car wash bays of his uncle's defunct car wash business, as well as items seized from his person following his arrest and any statements he made while in custody. The Defendant believes that the aforementioned evidence should be suppressed based on his assertion that Officer Douglas was not "in a place where he had a right to be when he shined a flashlight and illuminated the interior of the [Defendant's vehicle]." Id. at 5. The Government opposed the Defendant's Motion. [Docs. 34, 51]
III.A. To assert a Fourth Amendment violation a party must demonstrate a legitimate expectation of ...