USA v. Rock CR-92-60-D 11/24/92 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 92-00060-01-D

Jeffrey Rock

O R D E R

Defendant Jeffrey Rock has been charged with being a felon

in possession of a firearm,

(g), possession of a

firearm during a drug trafficking crime,

(c), and

possession of marijuana with intent to distribute,

(a)(1). The court held a hearing on November 23, 1992, on

defendant's motion to suppress.

FACTS

On June 14, 1992, Officer Vynorius of the Newton Police

Department stopped Rock for speeding and a yellow line violation

After determining that Rock's New Hampshire driver's license had

been revoked. Officer Vynorius arrested Rock for driving after

revocation and placed him in a police cruiser at the scene.

Officer Vynorius then returned to Rock's vehicle to determine

whether one of Rock's two passengers could take the vehicle home

While he was standing at the driver's side of the vehicle. Officer Vynorius observed what appeared to him to be a partially

burned marijuana cigarette on the lip of the ashtray. He also

observed approximately three inches of a clear plastic baggie

jammed between the seat cushions of the front seat. After making

these observations. Officer Vynorius instructed the two

passengers to leave the vehicle. When the passenger in the back

seat pushed the back of the front seat forward to exit the

vehicle. Officer Vynorius saw that the rest of the baggie

contained a green vegetative substance he believed to be

marijuana. Shortly thereafter. Officer Vynorius seized the

cigarette and the baggie containing the vegetative matter during

a search of the passenger compartment. When the search was

completed, the vehicle was towed to Estabrook's Garage where it

was impounded until a search warrant could be obtained for the

trunk.

Officer Vynorius obtained a warrant for the trunk the next

day. He was assisted in the search by Lieutenant LaBell. Two

more baggies of marijuana and other items were seized during the

search of the trunk. During this search, both Officer Vynorius

and Lieutenant LaBell heard someone releasing the hood of the

vehicle. Approximately three minutes later, Roland Estabrook, a

co-owner of the garage, came around the vehicle with an open

plastic bag containing an object covered with a red rag.

Estabrook offered the bag to Lieutenant LaBell, who removed the

object and determined that it was a pistol. All witnesses

- 2 - testified that Estabrook was not asked to participate in the

police search. Officer Vynorius and Lieutenant LaBell both

testified that they were not aware that Estabrook was inspecting

the engine compartment until he emerged with the bag. Estabrook

testified that he discovered the bag while inspecting the engine

compartment to determine whether the battery cables had to be

disconnected. He claimed that it was a common practice to make

such inspections of impounded vehicles.

DISCUSSION

Rock contends that all evidence arising from the search and

seizure of his vehicle should be suppressed because the police

lacked probable cause to search his vehicle and because

Eastabrook was working in concert with the police in their search

of the impounded vehicle, violating Rock's Fourth Amendment

protection against unlawful search and seizure. Rock also

contends that a statement he gave to a government agent approxi­

mately two months after his arrest should be suppressed because

it was tainted by the illegal search of his vehicle. The court

does not find these arguments persuasive.

THE PASSENGER COMPARTMENT SEARCH

When the police make a lawful arrest of the occupant of an

automobile they may as a contemporaneous incident of that arrest,

search the passenger compartment of the automobile including the

contents of any containers found within the passenger

- 3 - compartment. New York v. Belton,

(1980) .

Thus, since the validity of Rock's arrest for driving with a

revoked license is uncontested, the warrantless search of Rock's

passenger compartment at the time of his arrest was lawful under

federal law whether or not probable cause existed to conduct the

search. The fact that Rock was in the police cruiser at the time

of the search is irrelevant because the case law has drawn a

bright line defining the scope of an automobile search incident

to an arrest as including the passenger compartment of the

vehicle, even if the passenger compartment is no longer within

the reach of the arrestee at the time of the search. New York v.

Belton,

(1980) (upholding a passenger

compartment search incident to arrest even though the arrestee

had been removed from the vehicle prior to the search); United

States v. White,

(6th Cir. 1989); United States

v. Karlin,

(7th Cir. 1988) .

Alternatively, when a police officer legitimately stops an

automobile and has probable cause to believe that contraband is

concealed somewhere within it, he may conduct a warrantless

search of the entire vehicle, including the trunk and any

containers found within the vehicle, whether or not he arrests an

occupant of the vehicle. California v. Acevedo, 111 S. C t . 1982,

1985 (1991); United States v. Ross,

(1982).

Thus, if Officer Vynorius had probable cause to believe that

contraband could be found in Rock's vehicle, he was justified in

making a warrantless search of the passenger compartment.

- 4 - Rock contends that the passenger compartment search was

improper because Officer Vynorius lacked a sufficient basis for

his conclusion that the cigarette in the ashtray and the baggie

concealed between the cushions of the front seat contained

marijuana. The facts do not support this contention. Officer

Vynorius had substantial training and experience in the detection

and identification of marijuana. He had participated in more

than 100 drug arrests. Accordingly, he had a basis in his prior

experience for his opinion that the cigarette and the baggie

contained marijuana. See, e.g.. United States v. Ortiz,

(1975); United States v. Soule,

(1st

Cir. 1990). Although Officer Vynorius admitted that he could not

from a distance distinguish a hand-rolled tobacco cigarette from

a marijuana cigarette, he did not need to rely on his

observations of the cigarette alone to justify his search. He

also saw the clear plastic baggie containing approximately 25

grams of a green vegetative substance hidden between the seat

cushions of the front seat. Officer Vynorius' observations,

coupled with his training and experience, were sufficient to

support the Government's contention that Officer Vynorius had

probable cause to search the passenger compartment. Accordingly,

the passenger compartment search was justifiable on the

alternative ground that it was an automobile search supported by

probable cause.

- 5 - THE TRUNK SEARCH

Rock argues that the police lacked probable cause to search

his trunk even if they had probable cause to search the passenger

compartment. In support of this contention, he cites several

cases which the court does not find persuasive. The

incriminating evidence in each case cited by the defendant was

limited to paraphernalia alone or very small guantities of

controlled substances. The court concludes that where, as in the

present case, a significant guantity of a substance which appears

to be marijuana is found in two locations within the passenger

compartment of a vehicle, the police have probable cause to

search the entire vehicle. See, e.g.. United States v. Burnett,

(6th Cir. 1986) (2 ounces of marijuana in the

passenger compartment gives rise to probable cause to search the

trunk); United States v. Loucks,

(10th Cir.

1986) (odor of marijuana in passenger compartment gives rise to

probable cause to search the entire vehicle). The court thus

finds no defect in the warrant Officer Vynorius obtained to

search Rock's trunk.

THE ENGINE COMPARTMENT INSPECTION

Rock contends that Estabrook's inspection of the engine

compartment was improper because the inspection exceeded the

scope of the warrant and Estabrook was acting as a government

agent when the inspection was undertaken.

- 6 - It is well established that the Fourth Amendment is

inapplicable "to a search or seizure, even an unreasonable one,

effected by a private individual not acting as an agent of the

government or with the participation or knowledge of any

governmental official." United States v. Jacobsen,

(1984) (guoting Walter v. United States,

(1980) (Blackmun, J. dissenting)). Thus, the issue before the

court is whether Estabrook was acting as a government agent when

he inspected the engine compartment or whether he conducted the

inspection with the knowledge or acguiescence of the Government.

At the outset, the court rejects Rock's claim that

Estabrook's inspection of the engine compartment was a pretext

designed to give the police access to a portion of the vehicle

that they could not lawfully search themselves. All three

witnesses who testified at the suppression hearing stated that

Estabrook inspected the engine compartment on his own initiative.

Officer Vynorius and Lieutenant LaBell testified that although

they heard the hood of the vehicle being opened while they were

at the rear of the vehicle engaged in the trunk search, they were

not aware of Estabrook's activities until he emerged from the

front of the vehicle with the bag containing the pistol.

Estabrook testified that he decided on his own to make the

inspection because he commonly inspected the wiring of older

impounded vehicles such as Rock's to determine whether the

battery cables should be disconnected to eliminate a potential

- 7 - fire hazard. The court finds this uncontradicted testimony

persuasive and concludes that Estabrook acted entirely on his own

when he decided to inspect the engine compartment. Accordingly,

Estabrook was not acting with the knowledge, encouragement or

acguiescence of the Government when he made his inspection of the

engine compartment.

The court also rejects Rock's claims that Estabrook's ties

to law enforcement made him a government agent when he inspected

the engine compartment. Although Estabrook had served as

Newton's police chief in the 1970s, he had not been employed by

the police department for nearly 20 years. Such a remote

connection to the police department cannot support Rock's agency

argument. Similarly, although Estabrook serves as a Special

Deputy Rockingham County Sheriff on a part-time fee for services

basis, his duties as a special deputy do not include any crime

prevention or detection functions. Moreover, his occasional

service as a part-time special deputy is wholly unconnected with

his duties as a co-owner of Estabrook's Garage. Accordingly, it

has no bearing on whether Estabrook was acting as a government

agent when he inspected Rock's engine compartment. See, e.g..

State v. Walker,

,

(Neb.

1990) (holding that a search by a landlord of a tenant's house

was not a governmental act even though the landlord was also a

police officer because the search was conducted for a private

purpose). The mere fact that the Newton police routinely called

Estabrook's Garage to tow and store their impounded vehicles did

not transform Estabrook's engine compartment inspection into a

governmental act. Estabrook's Garage was paid for its services

by the owners of the impounded vehicles, not the police.

Moreover, employees at Estabrook's Garage were used only to tow

and store impounded vehicles, not to search such vehicles.

Accordingly, the court rejects Rock's agency claim. See, e.g..

Cash v. Williams,

(6th Cir. 1972); United

States v. Sellers,

(4th Cir. 1975).

Finally, while Estabrook's decision to inspect the engine

compartment coincided with the police search of the trunk of the

vehicle, the court finds that the two activities were separate

and occurred only coincidentally at the same time. Accordingly,

there was insufficient governmental involvement in Estabrook's

engine compartment inspection to bring Estabrook's actions within

the purview of the Fourth Amendment.

Although the court finds that Estabrook was acting as a

private party not subject to the Fourth Amendment when he

discovered the pistol, the court would not suppress the pistol

even if Estabrook had been acting as a government agent. The

court has found that the police had probable cause to conduct a

lawful warrantless contraband search of the entire vehicle and

any containers in the vehicle under Ross and Acevedo. The

authority to conduct such a search did not lapse because of the impoundment of the vehicle overnight at Estabrook's Garage.

United States v. Johns,

(1985).

Accordingly, the warrantless engine compartment search and the

seizure of the pistol as evidence of a crime would have been

justified even if Estabrook had been acting as a police agent

when he discovered the pistol.

THE SEPTEMBER 3, 1992 STATEMENTS

Rock contends that certain statements he gave to an Alcohol,

Tobacco and Firearms agent on September 3, 1992 should be

suppressed because they were tainted by the allegedly illegal

searches of Rock's vehicle. Because the court finds no

illegality in these searches, the defendant's argument is

unavailing.

CONCLUSION

For the reasons set forth herein. Rock's motion to suppress

(document no. 14) is denied.

SO ORDERED.

Paul Barbadoro United States District Judge

November 24, 1992

cc: United States Attorney United States Probation United States Marshal Marc Chretian, Esg.

- 10 -