United States v. Tootoo
United States v. Tootoo
Opinion of the Court
ORDER GRANTING DEFENDANT’S MOTION TO SUPPRESS EVIDENCE, FILED APRIL 12, 2011
The Indictment charges Defendant Aloalii Tootoo (“Defendant”) with knowingly and intentionally possessing with the intent to distribute five grams or more of methamphetamine, its salts, isomers, and salts of its isomers, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B) on or about March 3, 2011. [Indictment, filed 3/17/11 (dkt. no. 9), at 1.] On April 12, 2011, Defendant filed a Motion to Suppress Evidence (“Motion”) in which he seeks to suppress all evidence obtained as a result of the March 3, 2011 traffic stop and subsequent warrantless search of his automobile, of the black zippered bag found in this vehicle, and of a white round container found within the black bag during the traffic stop. Plaintiff the United States of America (“the Government”) filed its Opposition to the Motion on May 26, 2011, and a notice of supplemental authority on June 17, 2011. Defendant filed his joint Reply to the Government’s Opposition and notice of supplemental authority on June 23, 2011.
This matter came on for hearing on June 29, 2011. During the hearing, the Court received oral testimony from Drug Enforcement Administration (“DEA”) Special Agent Richard Jones (“Agent Jones”), DEA Special Agent Joseph Cheng (“Agent Cheng”), and Immigration and Customs Enforcement Special Agent James Chambers (“Agent Chambers”). The Court permitted the parties to file written arguments on the Motion in supplemental memoranda. Defendant filed his Supplemental Memorandum in support of the Motion on July 5, 2011, and the Government filed its Supplemental Opposition on July 7, 2011. After careful consideration of the Motion, the supporting and opposing memoranda, testimony of the witnesses and the arguments of counsel, Defendant’s Motion is HEREBY GRANTED for the reasons set forth below.
BACKGROUND
The Court provides the following recitation of the relevant events based on the testimony and evidence presented.
A. The Surveillance
On March 3, 2011, an informant reported that: an individual who travels to Hawaii with methamphetamine to sell, and then returns to California was staying at a hotel in Waikiki; and the individual was only identified as a Samoan male with the nickname, Low. The informant also gave this individual’s telephone number. Agent Jones researched this telephone number and found out that it had appeared on the phone tolls in a DEA wiretap investigation. He asked Agent Cheng to find out whether telephone calls had been intercepted for this telephone number. Agent Cheng discovered that someone using that telephone number had made five telephone calls to Defendant’s telephone number, and, during one of these calls, the caller left a voice mail message in which he identified himself as Low and asked that the call be returned. Agent Cheng recognized the caller’s name as being Alan Mapuatuli’s nickname. Agent Jones ran a criminal history check, and found out that Mr. Mapuatuli had been mentioned in other DEA investigations and had a prior conviction
At approximately 8:00 p.m., agents observed a Samoan male (later identified as Defendant) enter the hotel, take the elevator to the twentieth floor and, at approximately 8:25 p.m., leave the twentieth floor, exit the hotel lobby, and drive away in a white, four-door, Pontiac G-6. Agent Jones testified that he heard Agent Cheng, who was near the hotel for the surveillance, transmit over the radio that he thought he knew that car and thought that DEA had seized it before.
B. The Traffic Stop
A short distance from the hotel, Defendant was stopped by a Honolulu Police Department (“HPD”) patrol officer and cited for a traffic infraction, specifically, for a violation of Revised Ordinances of Honolulu (“ROH”) § 15-19.30(a) (1990),
C. The Wiretap Investigation
Defendant’s telephone calls had been intercepted in 2009 as part of a wiretap investigation conducted jointly by the DEA, and state and other federal agencies. As of March 3, 2011, Agent Jones had been aware of this investigation, had read one of the affidavits in support of the wiretap application, had known when certain parts of the investigation were going on, had been told by Agent Cheng or another agent that a cooperator had contacted Defendant to purchase methamphetamine which was delivered by somebody else, and was aware that Defendant had been convicted of drug trafficking.
Agent Chambers, in the course of the wiretap investigation in 2009, learned that: (1) in 1999, Defendant was convicted of a drug offense involving methamphetamine in the District of Hawaii; (2) from June 2009 through September 2009, a wiretap investigation involving the monitoring of telephone calls to and from Defendant’s telephone, as well as those of David Feleti
DISCUSSION
Defendant argues that the traffic stop was unlawful because the law enforcement officers did not know his identity until after he was stopped by the HPD patrol officer and presented his driver’s license, and because the traffic stop was based on a mistake of law and therefore cannot support reasonable suspicion that Defendant was involved in criminal activity. Under the Fourth Amendment, Defendant is guaranteed to be free from “unreasonable searches and seizures”. U.S. Const, amend. IV. A traffic stop constitutes a seizure for Fourth Amendment purposes. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (citations omitted). At a minimum, a traffic stop must be supported by reasonable suspicion “formed by ‘specific, articulable acts which, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity.’ ” United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000) (citations omitted). A traffic violation is “sufficient to justify an investigatory stop, regardless of whether (i) the violation was merely pretextual, (ii) the stop departed from the regular practice of a particular precinct, or (iii) the violation was common and insignificant.” United States v. Choudhry, 461 F.3d 1097, 1102 (9th Cir. 2006) (citations to Whren omitted).
A traffic stop which is not supported by a reasonable suspicion that the person detained is engaged in criminal activity violates the Fourth Amendment, and “the evidence gathered as a result of the unconstitutional stop must be suppressed.” Lopez-Soto, 205 F.3d at 1106 (citing Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).
Defendant was stopped and cited for a traffic infraction, that is, for driving with a partially obstructed front windshield because of a shell necklace hanging from the rearview mirror and adjacent to the front windshield at the time of the traffic stop. He argues that the patrol officer was mistaken in his belief that driving with a shell necklace hanging from the rearview mirror violated ROH § 15-
The Government however correctly points out that, as to the HPD patrol officer, it does not matter if he was mistaken about the violation or that he was directed to make the traffic stop under the pretext of a traffic violation.
Based on the evidence presented, together with objective and reasonable inferences from that evidence, the Court CONCLUDES that Agent Jones did not have reasonable suspicion formed by specific, articulable acts to suspect that Defendant was engaged in criminal activity at the time of the traffic stop.
The Government next argues that reasonable suspicion, if not probable cause, existed based on the agents’ collective knowledge for both the stop and subsequent searches. The two situations in
The first is “where law enforcement agents are working together in an investigation but have not explicitly communicated the facts each has independently learned.” United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007). The second occurs “where an officer ... with direct personal knowledge of all the facts necessary to give rise to reasonable suspicion ... directs to requests that another officer ... conduct a stop, search or arrest.” Id. at 1033. In both situations, collective knowledge may be imputed only if there has been some “communication among agents.” Id. at 1032.
Id. at 475-76 (alterations and emphasis in original). Neither the first nor the second situation apply to Agent Chambers and his investigation because: (1) there is no evidence that Agent Chambers and Agent Jones “were working together in an investigation”;
CONCLUSION
On the basis of the foregoing, Defendant’s Motion to Suppress Evidence, filed April 12, 2011, is HEREBY GRANTED.
IT IS SO ORDERED.
. At the hearing, the Court heard testimony regarding some of the exhibits attached to the parties’ memoranda, and the Court admitted Defendant's Exhibit 2 in evidence without any objections by the Government. [Minutes, filed 6/29/11 (dkt. no. 48), at 1.]
. ROH § 15-19.30(a) provides, in pertinent part: "No person shall drive any motor vehicle with any sign, poster or other nontransparent material upon the front windshield ... of such vehicle which obstructs the driver's clear view of the highway or any intersecting highway.”
. Agent Jones testified that
prior to Mr. Tootoo even arriving, it was set up that if the — if we wanted to have a vehicle pulled over, that we needed a violation to be able to pull the vehicle over. So, yes, we — I discussed this with the officer. Okay. That before we ever approached the vehicle or turned on the lights, we needed a violation, State violation.
[Hrg. Trans., 6/29/11, filed 6/30/11 (dkt. no. 49), at 26.]
. Even assuming, however, that the Government could establish that the facts of this case meet the requirements of the first situation, there is no evidence that Agent Chambers communicated anything. Rather, he testified that he was not contacted about Defendant until after the arrest had been made, and did not participate in the surveillance. The only communication possibly related to Agent Chambers is the exchange between Agents Jones and Kobayashi regarding the name "Low”, and this information related to Mr. Mapuatuli, the person under surveillance on March 3, 2011, not to Defendant.
Reference
- Full Case Name
- United States v. Aloalii TOOTOO
- Status
- Published