United States District Court, D. Alaska
ORDER RE MOTION TO SUPPRESS
SHARON L. GLEASON, District Judge.
Defendant Tam Van Nguyen filed a Motion to Suppress and Exclude Evidence at Trial at Docket 43. The motion has been fully briefed and a hearing on the motion was held on January 29 and 30, 2015. For the following reasons, the motion will be granted in part and denied in part.
Unless otherwise noted, the following facts come from Officer Christopher Honan's affidavit in support of his application for a search warrant as well as a follow-up phone call between Officer Honan and Magistrate Judge Tina Teaford. Defendant Nguyen operates the Dutch Harbor Asia Store. On May 23, 2014, an informant (identified at the hearing as S. Wicke) agreed to assist the police by buying drugs from his source, Eric Joseph Roach. Based on his prior experiences with Roach, Wicke said that Roach would obtain the drugs from the Dutch Harbor Asia Store. On May 24, 2014, Wicke contacted Roach. The officers obtained a Glass warrant to listen to the conversation between Wicke and Roach. Roach told Wicke he could get "tar" (a common name for heroin) and Wicke gave Roach $200 of pre-recorded money. Roach then used Wicke's cell phone to call his supplier. After the phone call, Roach took a taxi and headed toward the area of the Dutch Harbor Asia Store. Officers observed Roach going into the store. At the suppression hearing, Officer Honan stated that Roach exited and sat in front of the store with Nguyen. Then Roach got into a taxi to leave the area. At the suppression hearing, it was established that police surveillance of Roach was interrupted for a period of time. Soon after, Roach met with Wicke in Unalaska and gave him two small zip-lock bags with a brown hard substance, which Wicke turned over to the police. A field test resulted in a presumptive positive for heroin.
Police officers then seized the Dutch Harbor Asia Store. Sergeant William Sims was initially at the store; Officer Kevin Wood was at the store thereafter. Officer Wood testified at the suppression hearing that he was told by Sergeant Sims that nothing was to enter or leave the store. Officer Wood's report, written two weeks after the incident, stated that he was instructed to let no one enter or leave the store. At the suppression hearing, the officers explained that when they entered the store, Nguyen was holding his cell phone. The officers told Nguyen to put it down on the counter and Nguyen complied. The officers then conducted a pat-down search of Nguyen. A short time later, Sergeant Sims left the store then dialed the number that Roach had called using Wicke's phone prior to going to the Dutch Harbor Asia Store. Nguyen's cell phone rang, confirming that it was the number Roach had dialed. At the suppression hearing, Officer Wood testified that, at some point thereafter, Nguyen asked if he could close a drawer below the cash register and Officer Wood responded that he could not. Officer Wood testified that drugs were later found in the drawer after the search warrant was obtained.
About four hours later, Nguyen asked to use the restroom. Nguyen was told that he could either be observed while using the restroom or he could consent to a search prior to his use. Nguyen agreed to the search and the police discovered three bindles of cocaine on his person. Nguyen then allegedly said "I'm in big trouble, I don't want to go to jail, " and "I'm dead."
The police applied for a search warrant for the store supported by an affidavit sworn to by Officer Honan. The warrant application included older information about the Dutch Harbor Asia Store. At 9:08 PM on the night of May 24, 2014, Magistrate Judge Teaford called the Unalaska Department of Public Safety to speak with Officer Honan about the search warrant application. Magistrate Judge Teaford inquired about the older information in Officer Honan's affidavit, observing that "it's just a background of that store over the 15 years, yes." During the call, Officer Honan told the magistrate judge that he had observed Roach leave the store with a white plastic shopping bag, but when he later contacted the informant, the informant had the drugs in a Ziploc bag in his pocket. Officer Honan stated that he didn't know if Roach had had the drugs before he went into the store. The magistrate judge then stated "... that's where maybe this history comes in." During the call, the magistrate judge stated "so the Dutch Harbor Asia store - and this is also the same location that you've now for about close to 15 years had ongoing controlled buys...." Officer Honan did not correct Magistrate Judge Teaford's expressed understanding that there had been "ongoing controlled buys" for nearly 15 years. The magistrate judge found that there was probable cause to issue a search warrant for the premises, which was faxed to Unalaska at 9:58 PM. The warrant authorized a search of the Dutch Harbor Asia Store premises and an adjacent storage unit for illegal controlled substances and paraphernalia, as well as the seizure of financial documentation, electronic devices used for storing and/or sending information, and currency or notes located during the search that may be profits from illegal drug trafficking. Nguyen's motion seeks to "suppress all evidence obtained from [the warrant for Nguyen's store] and subsequent warrants based on the same[, ]... evidence found at the Asia [Store], evidence found on the body of Nguyen, evidence found on Nguyen's phone and evidence found at Nguyen's residence... pursuant to [several additional warrants]."
Nguyen raises several arguments in his filings. First, he maintains that there was no probable cause for the search warrant issued by Magistrate Judge Teaford. He argues that much of the information included in the affidavit and statements to the magistrate judge was stale and should not be considered in evaluating whether there was probable cause. And he asserts that the remaining information Wicke received from Roach and relayed to the officers was insufficient to support a probable cause finding and unsupported by any personal observation by the officers, who lost track of Roach for a portion of the time between Roach's visit to the Dutch Harbor Asia Store and his meeting with Wicke to deliver the drugs. Second, Nguyen asserts that the officers' initial seizure of the store and the subsequent search of Nguyen were unlawful without a search warrant because there were no exigent circumstances such that any resulting information should be excluded from the probable cause analysis in the search warrant application. Nguyen also argues that after the officers' initial pat-down, he was in custody because he was not free to leave the store such that all the statements he made at the store should be suppressed because he was not given any Miranda warnings at that time. Finally, Nguyen maintains that the phone call made by the police to Nguyen's phone was a constitutionally impermissible warrantless search.
In the Supplemental Memorandum in Support of Motion to Suppress filed by Nguyen's current counsel, Nguyen argues that Officer Honan made inaccurate statements during his call with the magistrate judge when the officer stated that there had been a search of the Dutch Harbor Asia Store in 2005 and that he believed Nguyen was arrested for possession of cocaine around the same time. Nguyen also notes that the magistrate judge was not informed of the two more recent failed attempts to execute controlled buys from Mr. Nguyen and his wife at the store. Nguyen's reply also specifically requested a Franks hearing.
The Government's opposition argues that the warrantless seizure of the store and the detention of Nguyen were permitted by exigent circumstances, specifically concerns about the destruction of evidence. The Government concedes that the background information provided in the affidavit and statements to the magistrate judge was stale and should not be considered by this Court. Accordingly, the stale information will not be considered in the Court's evaluation of probable cause and the Court will do so. But the Government maintains that even after that information is excluded, there was sufficient evidence to find probable cause for the issuance of the search warrant for the store premises.
I. The Government's Warrantless Seizure of the Store
Police may secure a location temporarily without a warrant when exigent circumstances exist. "Exigent circumstances are present when a reasonable person would believe that... entry was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts." But even when exigent circumstances exist, officers must still have probable cause to support the seizure of a premises without a warrant.
Here, the officers had the right to enter a store that was open to the public. They also testified that they were concerned that evidence in the store could be destroyed if they did not seize the store while seeking a search warrant. The Government's opposition asserts that "Nguyen could have fled, flushed the cocaine on his person down the toilet, hidden or destroyed the Roach buy money and prepackaged heroin, meth and cocaine then in the store, and then gone to his residence and hidden or destroyed the pound quantities of those drugs cached in his bedroom and crawlspace." The Court finds that concern about the destruction of illegal drugs at the store was an exigent circumstance sufficient to permit the seizure of the store while the officers sought a search warrant of those premises. And ...