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United States of America v. Larry Lee

June 6, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
LARRY LEE, DEFENDANT.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS

I. INTRODUCTION

Defendant Larry Lee seeks an order from the court suppressing evidence seized from his van pursuant to a consent search on January 25, 2011. After reviewing the motion, the supporting and opposing memoranda, the arguments of counsel, and considering the testimony and credibility of the witnesses, the court finds that Defendant voluntarily consented to the search of his van and that the search was lawful under the automobile exception to the Fourth Amendment. As a result, Defendant's Motion to Suppress is DENIED.

II. BACKGROUND

A. The Government's Case

On December 27, 2010, various items, including a government-issued firearm, were stolen from Department of Homeland Security, Immigration and Customs Enforcement ("ICE") Special Agent Ivan Young's vehicle while parked at a Costco retail store located in Honolulu. A joint ICE and Honolulu Police Department ("HPD") Crime Reduction Unit ("CRU") investigation ensued.

On January 15, 2011, Young and members of the HPD interviewed Joshua Bagayas-Cabalar. Bagayas-Cabalar informed law enforcement that he and Kevin Agno stole the items from Special Agent Young's vehicle, and then sold them to Lee for $400 at the Ala Moana Beach Park on December 27, 2010. According to Bagayas-Cabalar, Agno had called Defendant and arranged the sale.

HPD CRU Corporal Anthony Chong, with five other CRU members, went to Defendant's Honolulu residence located at 1621 Ala Wai Boulevard on January 25, 2011 at approximately 4:00 p.m. The officers were dressed in tee shirts and shorts, with their firearms concealed. Chong testified that they knocked on the door without announcing that they were police. Defendant's son, Kainoa Haas, answered.*fn1 Haas confirmed that Defendant lived in the apartment. Haas then walked to the back of the apartment and called out to Defendant, who then came to the door. According to Chong, no firearms were drawn during this period or at anytime during the January 25 encounter.

Chong then explained to Defendant that he had traffic warrants outstanding for his arrest, and that two people wished to speak with him. Within a short period of time, ICE agents Young and Jason Pa arrived.

Pa and Young, also dressed in street clothes and concealing their firearms, met Defendant outside his apartment door. Pa showed Defendant his law enforcement credentials, and stated that he had information that Defendant may be in possession of items stolen from a government-owned vehicle. Pa testified that he told Defendant that he wanted to ask his some questions, but told him that he was not under arrest*fn2 and that he was not required to answer any questions. Pa also asked for consent to search Defendant's apartment and pick-up truck, telling Defendant that he could refuse consent. According to Pa, Defendant agreed to speak with him and consent to a search.

Defendant, Pa, and Young then went inside the apartment to Haas' bedroom.*fn3 With the bedroom door open and unobstructed, Pa explained the reason for the interview -- to determine if Defendant was in possession of stolen items that he had obtained from Agno. Again, Pa asked for consent to search the apartment and Defendant's pick-up truck, telling Defendant that he could refuse to consent. Although Defendant again consented, the search failed to uncover any of the items stolen from Young's vehicle. Pa described his tone throughout the January 25 encounter as conversational.

Pa then interviewed Defendant in the bedroom. Defendant confirmed that he knew Agno and identified Agno's photograph and phone number. He also stated that he had previously obtained an antique firearm from Agno and had purchased cell phones from Agno at the Ala Moana Beach Park after Christmas 2010.*fn4

Chong then took Defendant outside to wait for an HPD transport vehicle.*fn5 Chong testified that as is often his practice, he did not place Defendant in handcuffs.*fn6 While outside, the apartment building's resident manager, Robert Sablan, motioned to speak with Chong. Sablan then told Chong (outside of Defendant's presence) that Defendant owned a white Volkswagen van that he used for storage and that it was located in the parking lot. Upon questioning, Defendant confirmed that he owned the van. Chong asked permission to search the van --Defendant responded that Chong could search it, but added that he did not want to be responsible if anything was found in the van, and that if Chong found something, Agno might have placed it in the van. Defendant also explained that he did not have keys to the van, but the door could be opened through a window.

Chong relayed this conversation to Pa. Pa then met with Defendant, stating that he appreciated Defendant's cooperation and understood that he owned a Volkswagen van. Pa then requested consent to search the van, explaining to Defendant that he could refuse to consent. And again, Defendant consented to a ...


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