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United States of America v. Kenneth Scott Gordon (01

September 10, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
KENNETH SCOTT GORDON (01), DEFENDANT.



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

ORDER DENYING DEFENDANT KENNETH SCOTT GORDON'S MOTIONS TO SUPPRESS ORDER DENYING DEFENDANT KENNETH SCOTT GORDON'S MOTIONS TO SUPPRESS

I. INTRODUCTION

On May 18, 2011, Defendant Kenneth Scott Gordon ("Gordon") was indicted along with two co-Defendants for conspiracy to distribute, and possession with intent to distribute, methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), & 841(b)(1)(A). Gordon now moves to suppress evidence seized from a black bag he was carrying when he was arrested on May 14, 2011, and from a wallet and a cellular telephone found on him at that time. In Gordon's Motion to Suppress No. 1, Doc. No. 74, and Motion to Suppress No. 2, Doc. No. 75, ("the Motions") he argues that the warrantless searches of the three items violated the Fourth Amendment.

The court held an evidentiary hearing on the Motions on August 6, 2012. Supplemental briefing by both parties was filed on August 24, 2012, Doc. Nos. 99 & 100, and on September 5, 2012 by Gordon. Doc. No. 103. The court has considered the supporting, opposing, and supplemental memoranda; the arguments of counsel; the evidence admitted into the record; and the credibility of the witnesses testifying at the hearing. Based on the following, the court finds and concludes that the searches of the black bag, the wallet, and the cellular telephone were reasonable under the Fourth Amendment and were constitutional under the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement. Accordingly, the Motions are DENIED.

II. FACTUAL BACKGROUND

Four witnesses testified at the August 6, 2012 hearing: Drug Enforcement Agency ("DEA") Special Agents Matthew Rumschlag ("Agent Rumschlag") and Clement Sze ("Agent Sze"), and Honolulu Police Department ("HPD") Officers Donald Marumoto ("Officer Marumoto") and Len Fujinaka ("Officer Fujinaka"). The parties also stipulated to facts regarding a wallet taken "from the person" of Gordon, and of the wallet's contents. See Doc. No. 96, Stip. re. Motion No. 1 & Ex. S-1. The court also received nine exhibits into evidence.

Although the testimony of witnesses differed in some aspects, the witnesses generally agreed on those facts, set forth below, which are most crucial to determining whether the searches were valid. In particular, in carefully assessing the testimony of each witness, including their demeanor and manner of testifying, the court finds Agent Rumschlag's testimony -- as supported by certain testimony of other witnesses -- to be credible and consistent with the other evidence in the record as to key details. The court also finds the testimony of Agent Sze credible as to his search of the cellular telephone. Based upon its review of the evidence and testimony presented at the hearing, the court finds the following facts by a preponderance of the evidence. See United States v. Vasey, 834 F.2d 782, 785 (9th Cir. 1987) ("The government must prove the existence of an exception to the Fourth Amendment Warrant Requirement by a preponderance of the evidence.") (citations omitted).

A. The Surveillance Operation

Gordon was arrested on May 14, 2011 and subsequently charged for his role as a courier of drug money. Cooperating co-Defendant Richelle Higa ("Higa") had been arrested the day before, having been found in possession of approximately four pounds of methamphetamine. Higa told DEA agents that couriers picked up money from her -- hidden in boxes of macadamia nut candy --as payment for narcotics that she had received from co-Defendant Tyrone Fair. Couriers would come to her residence to pick up boxes and fly them to the mainland for delivery. A courier was scheduled to arrive at Higa's residence in the Pearl City area of Oahu at approximately 10:30 a.m. on May 14, 2011 to pick up money. Thus, law enforcement officials established a surveillance operation and placed macadamia nut candy boxes (filled with paper intended to simulate currency) inside Higa's apartment. Surveillance was set up both inside and outside the apartment, with cameras videotaping what was happening inside.

At approximately 10:24 a.m. on May 14, 2011, officers observed Gordon arrive at Higa's apartment complex and park his vehicle. Carrying a black duffel bag, Gordon entered Higa's apartment and stayed for approximately thirty seconds. Inside, law enforcement officials witnessed and videotaped Gordon enter the apartment, take the candy boxes, and place them in his black bag. Gordon then left the residence with his bag hanging by a strap from his shoulder. Agent Sze (who was waiting in the lobby of the apartment complex) followed Gordon out of the complex, staying several feet behind him. As Gordon approached his vehicle, Officers Marumoto and Fujinaka, and two other HPD Officers, detained him. Officer Marumoto grabbed Gordon's right arm and another officer grabbed the left arm. Agent Rumschlag, who had been around the corner monitoring the situation, then arrived on scene.

B. The Black Bag

As the Officers detained Gordon, the black bag was removed from Gordon's shoulder and Gordon was handcuffed. It is unclear who removed the bag -- Agent Rumschlag testified that "I believe I seized the bag or one of the officers that were in the area," while Agent Sze recalls seeing Officer Marumoto taking it from Gordon's shoulder. Regardless, Agent Rumschlag testified credibly that, after Gordon was arrested and placed in handcuffs, he immediately placed the bag on the ground and opened it. He immediately looked inside (as he had been trained to do), confirmed that the macadamia nut boxes that agents had placed in Higa's apartment were in the bag, and saw other boxes and some souvenir items. Agent Sze, Officer Marumoto, and Officer Fujinaka confirmed that Gordon was carrying a black bag on one of his shoulders when he was detained. Shortly after his arrest, Gordon was taken to a law enforcement van that was parked near Gordon's vehicle.

As for timing, the removal of the bag from Gordon, the arrest and handcuffing, and the search of the bag occurred contemporaneously -- according to Agent Rumschlag, they occurred "almost instantaneously." Agent Rumschlag testified consistently and credibly that Gordon had the bag on his shoulder when he was detained, that the bag was taken, and that an initial search occurred at the scene as Gordon was being handcuffed or shortly thereafter.*fn1 That is, Agent Rumschlag opened the bag very close to the time of his arrest, within "a matter of seconds." Officer Marumoto confirmed that Gordon was placed under arrest maybe a "couple seconds after" Gordon was stopped and that Agent Rumschlag was "dealing with a bag" at that time.

As for proximity, the bag was within Gordon's reaching distance at the time -- Agent Rumschlag credibly testified that the bag was "right behind where Mr. Gordon was standing" and "he was standing right near me." The court specifically asked Agent Rumschlag if Gordon was right in front of the bag when he looked inside and he answered that Gordon "was within distance of the bag."

The Government does not dispute that Gordon was under the custody and control of law enforcement when Agent Rumschlag initially searched the bag. Gordon offered no resistance to the arrest, and was surrounded by several officers. The testifying witnesses did not observe any other persons at the scene that they deemed to be potential threats. Weapons were neither observed at the scene nor found in the bag.

After Agent Rumschlag made his initial search of the bag, it was transported by law enforcement, along with Gordon, to the DEA office at the PJKK Federal Building ("the Federal Building") in Honolulu. The Federal Building is an approximately twenty or thirty minute drive from where the arrest took place. Agent Rumschlag returned to the Federal Building at the same time. It is unclear exactly how the bag was taken to the Federal Building (Agent Sze recalls the bag being transported by Officer Marumoto and HPD Officers in the van, although Officer Marumoto testified that he did not see the bag again after it was turned over to federal agents). It is undisputed, however, that the bag remained in the complete control of law enforcement from when it was removed from Gordon's shoulder at the scene of the arrest until it arrived at the Federal Building.

Shortly after arriving at the Federal Building, Agent Rumschlag opened the bag and conducted a more thorough search of its contents. This involved removing all of the items from the bag and completing an inventory of those items. Agents found the macadamia nut candy boxes that they had planted (i.e., the boxes containing paper to simulate the weight of currency). They also found other boxes of a different brand of macadamia nut candy, which they had not planted, containing bundles of United States currency.

Agent Rumschlag and Special Agent Joe Cheng took photographs of the bag and its contents at the DEA office. Government Exhibit 2B is a photograph of at least nine bundles of $20 and $100 bills found inside the opened candy boxes. The first of these photographs contains a time stamp which indicates that it was taken at 11:24 a.m., approximately one hour after Gordon was arrested. Although the authenticity of the time stamp was not established, the 11:24 a.m. time stamp is consistent with other evidence indicating that the photographs were taken approximately one hour after the initial arrest.

C. The Wallet

When Gordon was detained and arrested, law enforcement removed his wallet from him. The wallet was later searched at the DEA office at the Federal Building and found to contain a Hawaiian Airlines boarding pass in Gordon's name for a 1:00 p.m. flight that day (May 14, 2011) from Honolulu to Oakland, California. For purposes of these Motions, the parties have agreed to the following stipulated facts:

The parties agree and stipulate that, if called, law enforcement witnesses would testify that a wallet was taken from the person of Defendant Gordon at the time of his arrest on May 14, 2011, and remained in the custody of law enforcement agents thereafter. The parties further stipulate that the wallet was transported along with the defendant back to the DEA Offices, where it was first searched by DEA agent Matt Rumschlag and Task Force Agent Burt Akana. A Hawaiian Airlines Boarding Pass, a copy of which is attached hereto, marked as Exhibit S-1, was found during a search of the wallet at the DEA offices. The ...


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