UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 16-cr-166-01-JD Opinion No.

Joseph Davis

O R D E R

Joseph Davis is charged with possession of a firearm by a

convicted felon in violation of

(g)(1) and

924(a)(2). Davis moves to suppress all evidence that was seized

as the result of a search after Davis was arrested for driving

under the influence of drugs or alcohol in the early morning of

July 2, 2016. The government opposes the motion.

The court held a hearing on the motion to suppress on

December 14 and 15, 2016. During the hearing, the defense

presented testimony from Davis, Davis’s wife, Tori Payne, and

Aaron Lee Bruton, who had been with Davis prior to the arrest.

The government presented testimony from Hampton police officers,

Matthew Robinson, Justin Hood, and Christopher Zigler, who

participated in the arrest, and from Jovan Townes, who had been

with Davis prior to the arrest. Standard of Review

The defendant bears a threshold burden to show a Fourth

Amendment violation to support a motion to suppress. United

States v. Young,

(1st Cir. 2016); see also

United States v. Battle,

(1st Cir. 2011) (citing

Minnesota v. Olson,

(1990)). When, as here, a

warrantless search of a vehicle is at issue, the defendant has

the burden to show that he had a reasonable expectation of

privacy in the vehicle. United States v. Almeida,

(1st Cir. 2014). If the defendant shows a Fourth Amendment

violation, the government must show, by a preponderance of the

evidence, that an exception to the warrant requirement applies.

Nix v. Williams,

(1984); United States v.

Matlock,

, 178 & n.14 (1974).

Background

On the evening of July 1, 2016, Davis and his then fiancé,

Tori Payne, travelled to Hampton, New Hampshire, for Davis to

perform as a rap artist at the Cloud 9 Bar and Grille on Hampton

Beach with another rap artist, Aaron Bruton.1 Davis and Payne

drove in Payne’s car, a 2013 Ford Focus, with Payne driving.

Other people, including Aaron Bruton, Bruton’s two cousins who

1 Davis and Payne were married in September of 2016.

2 were visiting from New York, Davis’s brother, and Jovan Townes,

also went to the Cloud 9 bar but drove in separate cars.

Payne testified at some length that she did not allow

anyone else, including Davis, to drive her car because it was in

her name, it was new, and because her insurance covered only

her. Davis testified, however, that he drove the car almost

every day with her knowledge and according to their schedule for

picking up Payne’s daughter from school and to do errands.

Payne also acknowledged that Davis had driven her car.

Payne parked the car on the street near the club. Payne

and Davis got out of the car to talk with the other people who

came with them. Payne serves as Davis’s manager and promoter

for his performances. Bruton parked near Payne’s car. Payne

and the whole group, including Davis, went into the club to

prepare for the performance. Payne left the keys in her car so

that the people in their group could get equipment out of the

car for the show if it were needed.

Payne left her purse in the trunk of the car to avoid

taking it into the bar. She said that she had many things in

the trunk, in addition to her purse, including children’s

clothes, shoes, Davis’s hats, jumper cables, and a gun that had

been her grandfather’s which she kept in a black Dirt Devil bag.

Payne testified that she did not keep the gun in the interior of

3 the car because children rode in the car. She also testified

that she never told Davis that the gun was in the trunk because

it was none of his business.

Once Davis was checked in and ready to perform, Payne left

the club to walk up the strip at Hampton Beach to promote Davis

as a rap artist. She testified that Davis, his brother, and his

friends had gotten on her nerves that night so that she did not

want to be with them. She walked up the Hampton Beach strip

interacting with people, taking pictures, and handing out CDs.

Payne did not stay in the area of the Cloud 9 bar but instead

traveled a distance up the strip.

After the performance, in the early morning of July 2,

2016, Davis, Bruton, and others left the club and went to get

pizza. Davis needed to go to the bathroom, so he went back to

the club but was not allowed inside. He got the keys to Payne’s

car from his brother in order to drive north on Ocean Boulevard

to the public bath house on the beach to find a bathroom.

Bruton and his cousins got into their car and left at the same

time, following Davis.

Hampton police officers, Detective Matthew Robinson and

Officer Justin Hood, were in a cruiser facing southbound on

Ocean Boulevard not far from the Cloud 9 bar. Officer

Christopher Zigler was in another cruiser also monitoring

4 traffic on Ocean Boulevard and was parked next to Robinson and

Hood. The officers saw a car back out of a space near the Cloud

9 bar and proceed north on Ocean Boulevard without its lights

on. The car drifted across the road, crossed the fog line, and

stopped just off the travel lane close to pylons at end of the

parking area. The car was not in a parking space but instead

was parallel to the traveled part of Ocean Boulevard, blocking

access to a handicap parking space. Robinson and Zigler came up

behind the car and activated their blue lights.

Robinson went to the driver’s side and Zigler went to the

passenger side of the car. Hood stood behind Zigler on the

passenger side. The officers had flashlights to look into the

car. Davis was the only person in the car.

Robinson noticed that the car smelled of alcohol and

marijuana and that there were blue transparent cups, known as

party cups, stacked on the console with liquid in them.

Robinson thought that Davis was driving under the influence.

Robinson saw that Davis was wearing a very large blue bandana

around his neck, which Robinson thought was odd in the heat of

the summer.

Robinson told Davis that he was stopped because he did not

have the car lights on and asked him what he had had to drink.

Davis apologized for his driving and explained that he had just

5 performed at the Cloud 9 bar, that he was looking for a

bathroom, and that he urgently needed to urinate. Davis then

urinated in his pants. Robinson noticed that Davis appeared to

be impaired.

While they were talking, Davis repeatedly put his hand down

in the area of his right pocket or the center console. That was

a safety concern for Robinson so he told Davis to keep his hands

where Robinson could see them. Although Davis complied, his

hand then drifted back down to his right side.

Robinson asked Davis for his license, which Davis produced.

At the same time, the car lurched forward because Davis had not

put the car into park. Robinson went back to his cruiser to

check Davis’s license on the computer, which took several

minutes because Robinson also called dispatch to check the

license.

While Robinson was back at his cruiser, Davis took off the

blue bandana and put it over the party cups on the center

console. Zigler also noticed that Davis repeatedly put his hand

down near his right side. Zigler asked Hood to watch Davis and

walked to the cruiser to talk to Robinson.

Zigler reported to Robinson that he was uneasy about the

situation because Davis kept reaching down to his right side and

because he had covered the cups with his bandana. Zigler

6 suspected that Davis was trying to conceal something, which was

probably an open container of alcohol. Robinson said there was

a strong odor of alcohol and marijuana in the car. While

Robinson was trying to contact dispatch, Zigler went back to

Davis’s car to talk with him. Zigler also noticed a strong

smell of alcohol and marijuana in the car.

Through the license check, Robinson learned that the car

was not registered to Davis and that Davis’s license was

suspended. Robinson returned to Davis’s car and asked Davis to

step out of the car. He saw the blue bandana on the center

console. Zigler was standing with Robinson when Davis opened

his door, and Zigler saw a bottle of alcohol, labeled Hennessey,

in Davis’s door pocket.

When Bruton saw the police cruisers pull up behind Davis,

Bruton pulled over and then drove back around, eventually

parking about three spaces from where Davis and the police

cruisers were located. Bruton got out of his car and walked

over to Davis and the officers.

The officers noted that Davis had difficulty walking and

that he leaned on the car for balance. Davis admitted that he

had had a couple of drinks at the Cloud 9 bar. Davis agreed to

do sobriety tests, and Robinson administered three tests. Davis

7 failed the tests, and Robinson arrested him for driving under

the influence.2

Once Davis was in handcuffs, Robinson began to search him.

Because Davis’s pants were wet with urine and Hood was wearing

gloves, Hood completed the search. Hood took car keys out of

Davis’s pocket. After the search, Davis was put in the cruiser.

A crowd had gathered around Davis’s car and the cruisers.

While Robinson did the field sobriety tests and placed Davis

under arrest, Zigler was monitoring the crowd and asking them to

move back to allow room for the tests. The officers testified

that two men came forward out of the crowd and identified

themselves as friends of Davis.3 Davis also said that he knew

the men. Robinson asked the men if they would take Davis’s car

so that it would not have to be towed but they refused. The

officers did not get the men’s names, and the men left.

Bruton testified that he was standing within handshake

distance of Davis and the officer at the end of the sobriety

testing and when the officer put Davis in handcuffs. Bruton

2 For purposes of the motion to suppress, Davis agrees that he was lawfully detained and arrested.

3 In the motion to suppress, the defense identified the two men as Aaron Bruton and Jovan Townes. Bruton testified that he did not recall that Townes was there. Townes testified that he was not there when Davis was arrested and that he did not want to get involved because he did not have a driver’s license.

8 also testified that Davis and the officer with Davis asked him

if he could take Davis’s car. He said that that the officer

with Davis took the car keys out of his pocket and handed the

keys to Bruton. According to Bruton, he asked if he could leave

the car where it was, and the officer answered that he could not

do that because Davis was under arrest.

Bruton testified that he never refused to take Davis’s car

and that he continued to try to find someone to take the car.

Jovan Townes testified that Bruton called him when he was on the

way home to Manchester with Davis’s brother and wanted him to

come back to get Davis’s car. Bruton called and texted Payne to

let her know what was going on, and Payne told Bruton that she

was trying to get a ride to get back. Payne testified that she

was far away when she started getting texts and calls and that

she ignored them at first because she was irritated with Davis

and his brother. By the time Payne got back to where Davis and

the car had been, they were gone.

In their testimony, Robinson and Zigler explained that

police policy is to call a tow truck when someone is arrested

for driving under the influence. Sometimes, however, they will

let another person take the car if there is someone who is

authorized by the person under arrest, has a valid driver’s

license, and is not impaired. The officers said that they

9 considered doing that in this instance because Davis had been

polite and cooperative so they were inclined to save him the

towing fee. Furthermore, it would be quicker and simpler if

someone who was sober and with a valid license could take the

car.

Robinson and Hood drove Davis to the police station in the

cruiser. Zigler called a tow truck because no one was able to

take the car, it was illegally parked, and it was a hazard on

Ocean Boulevard at that hour. Zigler stayed with Davis’s car,

waiting for the tow truck to arrive. Bruton testified that he

also stayed and that he had the keys to the car.

The Hampton Police Department has a “Motor Vehicle

Inventory Search Policy.” Under the policy, a vehicle must be

towed if it is illegally parked and is a hazard to traffic.

Officers are required to conduct a “lawful inventory search of a

vehicle” if, among other circumstances, a “vehicle is being

towed under orders of a department member” and the owner or

custodian is under arrest or the driver is under arrest and the

owner or custodian is not present. Doc. 14-3. The inventory

search is made of all areas in the passenger compartment of the

vehicle and the trunk and should be conducted at the scene

before the vehicle is towed.

10 During the search, the officer is to complete an inventory

form. The purpose of the search and inventory “is to protect

the owner’s property . . .; to protect the department member and

department against false claims or disputes over lost, stolen,

or damaged property; to protect the members from potential

danger;” and to help determine if the vehicle is stolen or

abandoned.

Zigler understood that the policy required him

to record on the inventory form only the items of value that

were left in the car.

The policy provides that “any items discovered in plain

view, where the incriminating nature of the item/s are

immediately apparent, shall be seized as evidence of the crime.”

The policy also instructs, however, that “[i]f probable

cause develops during an inventory search, the inventory search

shall cease and the officer shall apply for a search warrant.”

In addition, “[t]he inventory search shall not be

undertaken merely as a subterfuge to facilitate a criminal

investigation.”

Before the tow truck arrived, Zigler opened the car and

took the bottle of Hennessey he had seen in the driver’s door

pocket and the party cups as evidence related to the arrest for

driving under the influence. He also saw a small jar of what

11 appeared to be marijuana behind the cups and took that.4 Zigler

did not take a second jar with what appeared to be remnants of

marijuana. The blue bandana was on the passenger seat. Bruton

testified that he did not see Zigler go into the car.

Zigler got an inventory form and searched the in order to

note anything of value that would be left in the car. In the

trunk, Zigler found a purse and wallet, which belonged to the

registered owner of the car, Payne. Zigler noted those items on

the inventory and left them in the locked trunk. Nothing else

of value was left in the car.

In preparation for towing, Zigler reached across the

driver’s seat to put the keys into the ignition. As he was

doing that, Zigler saw a handgun located between the driver’s

seat and the center console. He thought it was not safe to

leave the gun in the car because it was being towed and would be

left in a parking lot. Zigler took the gun for safekeeping,

both because of the safety risk and to protect an item of value.

The gun was loaded with a bullet in the chamber and the

safety was off. Zigler unloaded the gun and locked it. To

protect the gun, he wrapped it in Davis’s blue bandana and took

it with him in the cruiser. Zigler then drove to the police

4 The government does not intend to introduce the marijuana as evidence in this case. For that reason, the jar of marijuana is not at issue for purposes of the motion to suppress.

12 station and turned over the Hennessey bottle, cups, and gun to

Robinson.

Discussion

Davis moves to suppress all of the evidence that Zigler

took from Payne’s car. In support, he contends that Zigler

conducted a warrantless search of the car in violation of the

Fourth Amendment. The government objects, arguing that Davis

had no reasonable expectation of privacy in Payne’s car, that

the cups, Hennessey bottle, and bandana were lawfully seized

under the plain view exception to the warrant requirement, and

that the gun was lawfully seized under the community caretaking

exception.

A. Reasonable Expectation of Privacy

It is the defendant’s burden to make a threshold showing

that he had “‘a reasonable expectation of privacy in the area

searched and in relation to the items seized.’” United States

v. Stokes,

(1st Cir. 2016) (quoting Rakas v.

Illinois,

(1978)). “This burden must be

carried at the time of the pretrial hearing and on the record

compiled at the hearing.”

(internal quotation marks

omitted). When the place searched is a car, the defendant must

show “a property interest or a possessory interest in the

automobile.” United States v. Symonevich,

(1st

13 Cir. 2012). When the defendant has borrowed someone else’s car,

with permission, the court considers the following factors to

determine whether the defendant had a reasonable expectation of

privacy in the car:

ownership, possession, and/or control; historical use of the property searched or the thing seized; ability to regulate access; the totality of the surrounding circumstances; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of such an expectancy under the facts of a given case. We look, in short, to whether or not the individual thought of the place (or the article) as a private one, and treated it as such.

Almeida,

.

In this case, there is conflicting testimony about whether

Davis borrowed Payne’s car with her permission and the frequency

of his use of the car. Although Payne testified that Davis was

never allowed to drive her car, Davis testified that he drove

the car with her knowledge and permission almost every day. On

the night of the arrest, he had been a passenger in the car on

the way to the Cloud 9 bar. Davis did not have the keys to the

car, which he obtained from his brother. He drove the car for

only seconds before the stop occurred.

Davis testified that he kept personal belongings in the

car, and Payne testified that Davis’s hats were in the trunk.

Payne also testified that she did not lock the car when she

parked and left the keys in it so that others could get the

14 equipment out as might be necessary. When Davis was stopped and

got out of the car, he left the driver’s door open.

Based on those circumstances, it is far from clear that

Davis had a reasonable expectation of privacy in the car. It is

not necessary, however, to resolve this close question because

even if the Fourth Amendment protected the interior of the car,

the items were seized lawfully.

B. Plain View

The government contends that the cups, bandana, and bottle

of Hennessey were lawfully seized because they were in plain

view. Under the plain view exception to the warrant

requirement, “a warrantless seizure is nevertheless lawful if

(1) the seizing police officer lawfully reached the position

from which he could see the item in plain view; (2) the seizure

satisfied the probable cause standard; and (3) the seizing

officer had a lawful right of access to the object itself.”

United States v. Allen,

(1st Cir. 2009).

“[P]robable cause exists when the incriminating character of an

object is immediately apparent to the police.” United States v.

Sanchez,

(1st Cir. 2010).

In support, the government asserts that Zigler saw the cups

and bandana through the windows of the car and saw the bottle of

Hennessey in the car door when Davis opened the door. Based on

15 Zigler’s observations, the government argues that those items

were properly seized under the plain view doctrine. The defense

does not appear to challenge Zigler’s seizure of the bottle of

Hennessey under the plain view doctrine, but did press Zigler

during the hearing about whether he could see liquid in the cups

and whether he had probable cause to believe there was liquor in

the cups. Zigler testified that he did not see any liquid in

the cups and, therefore, did not have probable cause to seize

the cups.

The court need not decide whether the plain view doctrine

applies in these circumstances, because the cups, the Hennessey

bottle, and the bandana would have been discovered and seized

during the inventory search.

C. Inventory Search

The defense argues that the inventory search was illegal

because there was no reason to tow the car, making the inventory

unnecessary. The defense also contends that Zigler did not

conduct a valid inventory search. The evidence does not support

the defense’s theory.

“Under the community caretaking exception to the Fourth

Amendment warrant requirement, police may impound a vehicle for

noninvestigatory purposes when it is reasonable to do so,” such

as when the driver has been arrested, no one is immediately

16 available to take possession of the car, and the car is not

parked legally or may be an impediment to traffic. Jaynes v.

Mitchell,

(1st Cir. 2016) (internal quotation

marks omitted). “Once a car is impounded, an inventory search

follows as a matter of course in prudent law enforcement

practice.”

“[I]nventories pursuant to standard police

procedures are reasonable.” South Dakota v. Opperman,

(1976); United States v. Jeffreys,

(D. Mass. 2015).

The Hampton police policy is to tow a car when the driver

is arrested for driving under the influence and the car is

parked illegally or is a traffic hazard. There is no dispute

that Davis was arrested. Robinson and Zigler testified that the

car was parked illegally and was also a traffic hazard.

Robinson and Zigler also testified that sometimes, instead

of towing and as a courtesy, they will allow another person to

take a car if that person has a valid driver’s license and is

not impaired. They were willing to do that in this case because

Davis had been polite and cooperative. The two men, who Davis

knew and who came forward after he was arrested, refused to take

the car when asked by an officer if they would do so. As a

result, towing the car was the only option.

17 Bruton testified that he was willing to take Davis’s car

and that the officers gave him the keys to the car. Robinson

said he would not have given Bruton the keys to the car without

first ascertaining whether he had a valid driver’s license and

was sober. The court does not find Bruton’s testimony credible.

Under the Hampton police policy, the car had to be

inventoried before it was towed. Zigler testified about his

inventory search which included the interior of the car and the

trunk. He also completed an inventory form listing the purse

and wallet he found in the trunk.

Bruton testified that he never saw Zigler go into Payne’s

car or open the trunk. Bruton’s version of events, however,

does not undermine Zigler’s testimony that he conducted the

inventory search because Bruton was not necessarily watching

Zigler during the entire encounter. Bruton stated that he was

busy on his phone trying to contact Payne and Townes and trying

to find someone to take the car. The court credits Zigler’s

account of the inventory search and concludes that it was

properly conducted and valid.

Even if the bottle, the cups, and the bandana were not

properly seized as evidence in plain view, the inevitable

discovery exception applies:

The application of the inevitable discovery exception involves three questions: first, whether the legal

18 means by which the evidence would have been discovered was truly independent; second, whether the use of the legal means would have inevitably led to the discovery of the evidence; and third, whether applying the inevitable discovery rule would either provide an incentive for police misconduct or significantly weaken constitutional protections.

United States v. Almeida,

(1st Cir. 2014)

(internal quotation marks omitted). The bottle of Hennessey was

in the door pocket, the cups were on the center console, and the

bandana was on the car seat. Zigler would have found those

items in the course of his inventory search and application of

the exception here is appropriate.

D. The Gun

Zigler did not find the gun during the initial inventory

search. Instead, he saw the gun tucked next to the driver’s

seat when leaned across the driver’s seat to put the keys into

the car ignition for the tow truck operator. The gun was

loaded, had a bullet in the chamber, and the safety was off.

Zigler took the gun both as valuable property that should not be

left in the car and for safety reasons.5 The court finds that

Zigler’s testimony is credible about the circumstances of

finding and taking the gun.

The gun was not seized as evidence of a crime. At the time 5

of the impoundment, Davis was charged with driving under the influence, which did not involve the gun. The gun itself did not appear to be evidence of a crime.

19 The impoundment of the car was reasonable and made an

inventory search necessary and appropriate. Zigler legally had

access to the car for the purpose of the impoundment, which

included taking the inventory and putting the keys in the

ignition before the car was towed. Zigler’s explanation that it

would not have been safe or prudent to leave a loaded gun in the

car during the towing process and while the car was stored in a

parking area is consonant with the community care taking

exception. Therefore, seizure of the gun as part of the

inventory process and for the additional purpose of community

safety did not violate the Fourth Amendment.

Conclusion

For the foregoing reasons, the defendant’s motion to

suppress (document no. 11) is denied.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

December 20, 2016

cc: Bruce E. Kenna, Esq. Robert M. Kinsella, Esq. United States Marshal United States Probation

20