United States District Court, D. Hawaii
ORDER DENYING DEFENDANT BRYANT KAZUYOSHI IWAI’S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS (ECF NO. 24)
Helen Gillmor United States District Judge.
Defendant Bryant Kazuyoshi Iwai moves to suppress all evidence and statements the Government obtained from a controlled narcotics delivery operation that occurred on August 5, 2015.
The Court finds that (1) the law enforcement officers’ entry into Defendant’s apartment to prevent the imminent destruction of evidence was lawful; (2) The officers’ seizure of the objects in plain view: a handgun, substances resembling methamphetamine, and drug paraphernalia, was lawful; (3) Defendant voluntarily consented to a search of his apartment; (4) Defendant waived his right to counsel by initiating conversation about his conduct with the officers during his transit to the Honolulu Bureau of Alcohol, Tobacco, and Firearms Office; (5) Defendant confessed voluntarily; and (6) Defendant consented voluntarily to a search of his cellular telephone.
Defendant Iwai’s Motion to Suppress Evidence and Statements (ECF No. 24) is DENIED.
Defendant Bryant Kazuyoshi Iwai (“Defendant” or “Defendant Iwai”) is charged in the Indictment filed on September 17, 2015 (ECF No. 18) as follows:
Count 1- conspiracy to distribute and possess with intent to distribute approximately 9, 479.3 grams of methamphetamine, its salts, isomers, and salts of isomers, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.
Count 2- attempt to possess, with intent to distribute approximately 2, 778.6 grams of methamphetamine, its salts, isomers, and salts of isomers, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.
Count 3- possession with intent to distribute approximately 6, 700.7 grams of methamphetamine, its salts, isomers, and salts of isomers, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).
Count 4- possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(2).
In addition to the four enumerated counts, the Indictment contained a forfeiture allegation for $32, 240 in United States currency, a Smith & Wesson .38 caliber revolver, and five rounds of W-W brand .38 caliber ammunition, all of which were seized from Defendant’s apartment at 98-288 Kaonohi Street, Unit 2303, Aiea, Hawaii.
On October 13, 2015, Defendant filed DEFENDANT’S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS (“Defendant’s Motion”). (ECF No. 24).
On October 27, 2015, the United States filed its Opposition to Defendant’s Motion. (ECF No. 28).
On January 6, 7, and 12, 2016, the Court held hearings on Defendant’s Motion. (ECF Nos. 38; 39; 41).
On January 12, 2016, the Court ordered Defendant to undergo a mental competency evaluation. (ECF No. 41).
On April 8, 2016, a report from a psychiatrist regarding Defendant’s mental competency was filed under seal. (ECF No. 70).
At the hearing on April 12, 2016, the Court found Defendant competent to stand trial. The Court then held the final hearing on the Defendant’s Motion. (ECF No. 72).
Defendant Bryant Kazuyoshi Iwai (“Defendant” or “Defendant Iwai”) moves to suppress all evidence and statements the Government obtained from a controlled narcotics delivery operation that occurred on August 5, 2015.
Honolulu Police Officers Joshua Correa (“Officer Correa”), Kyle Echiberi (“Officer Echiberi”), Brian Whipple (“Officer Whipple”), Persian Lardizibal (“Officer Lardizibal”), Jennifer Bugarin (“Officer Bugarin”), and Matthew Liana (“Officer Liana”) testified at the hearings on Defendant Iwai’s Motion to Suppress.
United States Postal Inspector Jensen Rodrigues (“Postal Inspector Rodrigues”) and Drug Enforcement Agency (“DEA”) Special Agent Richard Jones (“Agent Jones”) also testified at the hearings on Defendant Iwai’s Motion.
Defendant did not put forward any evidence controverting the witnesses’ testimony. The Court finds the witnesses’ testimony credible.
I. EVIDENCE SEIZED FROM DEFENDANT IWAI’S APARTMENT
A. The Officers’ Entry into Defendant’s Apartment
The Fourth Amendment of the United States Constitution generally requires law enforcement officers to obtain a warrant before entering a home uninvited. United States v. Stafford, 416 F.3d 1068, 1073 (9th Cir. 2005). Warrantless entries are permitted only under limited exigent circumstances. Kentucky v. King, 131 S.Ct. 1849, 1856 (2011) (identifying various situations that permit warrantless searches). A recognized exigent circumstance arises when law enforcement officers enter a residence to prevent the imminent destruction of evidence. King, 131 S.Ct. at 1856; Dixon v. Wallowa Cnty., 336 F.3d 1013, 1018 (9th Cir. 2003).
The Government has the burden of demonstrating the reasonableness of a warrantless entry. United States v. Carbajal, 956 F.2d 924, 930 (9th Cir. 1992). A warrantless entry conducted to prevent the imminent destruction of evidence may be constitutional if supported by probable cause. United States v. Alaimalo, 313 F.3d 1188, 1193 (9th Cir. 2002). Probable cause exists where, under the totality of circumstances, there is a fair probability or substantial chance that the evidence faces imminent destruction. United States v. Brooks, 367 F.3d 1128, 1134 (9th Cir. 2004); Dixon, 336 F.3d at 1018.
Defendant was Suspected of Drug Distribution
On August 4, 2015, the United States Postal Inspection Service intercepted a package en route from Las Vegas, Nevada, to Defendant Iwai’s residence at 98-288 Kaonohi Street, Apartment 2303, Aiea, Hawaii. (Motion to Suppress Hearing Exs. 11; 12). A search warrant was obtained, and the package was opened in the presence of Officers Bugarin and Echiberi. The package contained approximately six pounds of methamphetamine. Officer Bugarin testified that a typical drug parcel contains between one and two pounds of methamphetamine.
As a result of discovering the large quantity of methamphetamine in the package, the United States Postal Inspection Service and DEA planned a controlled delivery of the package to the destination address, Defendant’s apartment.
Installation of a GPS Tracking Device and Beeper
In the morning of August 5, 2015, Officer Correa obtained a warrant to place a GPS tracker and beeper inside the package. (Hearing Exs. 9; 10).
A beeper is a credit card-sized device that is designed to alert law enforcement when a parcel is opened. The beeper is triggered when one of its hair-thin wires, which are attached to all sides of the box, is severed. In most cases, the beeper alerts because the parcel has been opened. On rare occasion, however, some force striking the parcel or the dropping of the parcel may sever the delicate wire and trigger the beeper’s signal.
Officer Bugarin tested the beeper and installed it inside the package. She then resealed the package and tested the beeper again. The beeper passed both tests.
Defendant does not challenge the validity of the Government’s interception and search of the package, nor does he dispute the legality of the Government’s installation of a GPS tracker and beeper in the package.
The Officers Could Not Obtain an Anticipatory Search Warrant for Defendant’s Apartment
In preparation for the controlled delivery, Officers Correa and Echiberi surveilled Defendant’s apartment building and learned that the postal service does not deliver parcels to individual apartment units. Residents pick up packages from either a communal mailbox or the building manager’s office.
The officers chose to deliver the package to the manager’s office, so as to prevent the arousal of Defendant’s suspicion. The typical delivery procedure, however, precluded the officers from obtaining an anticipatory search warrant for Defendant’s apartment. The officers had no ability to know where the package would be taken or opened. See United States v. Grubbs, 547 U.S. 90, 94 (2006) (holding that an anticipatory warrant is “based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place”) (internal quotations and citation omitted).
The Controlled Delivery
At approximately 11:48am, a group of law enforcement officers comprised of DEA agents, DEA task force officers, and Postal Inspector Rodrigues, initiated the controlled delivery operation. Officer Bugarin was the lead case agent and the only female law enforcement officer involved with the operation. The officers positioned themselves around the apartment building’s perimeter, inside the building manager’s office, and in stairwells near Defendant Iwai’s apartment.
At around noon, Postal Inspector Rodrigues posed as a mail carrier and used the apartment building’s callbox to contact apartment 2303. A male answered the call, and Postal Inspector Rodrigues informed him that a package would be left with the building manager.
At approximately 12:50pm, Officers Correa and Echiberi, who were positioned as undercover officers in the building manager’s office, observed Defendant Iwai pick up the package and head toward the building’s elevators. Defendant entered an elevator with the package and proceeded to the 23rd floor. Officer Echiberi observed Defendant through a video monitor that displayed a live feed from the elevator’s security camera. Officer Echiberi updated the other law enforcement units of Defendant’s movements. Defendant Iwai pushed the package out of the elevator with his feet. He then entered apartment 2303 with the package. The officers held their respective positions and awaited the beeper’s signal.
The Officers’ Entry into Defendant’s Apartment
At approximately 3:15pm, the beeper signaled that the package had been opened inside Defendant’s apartment. Agent Jones led an entry team of around a half-dozen officers to Defendant’s apartment.
Agent Jones knocked on the apartment’s front door and identified himself as police at a volume loud enough to cause a neighboring unit’s residents to open their door. Agent Jones did not hear a response, but saw, through the front door’s peephole, the figure of a person stand up and walk towards the front door. Agent Jones responded by continuing to knock and ask that the door be opened. The person in the apartment stepped away from the door and left Agent Jones’ view. Agent Jones testified that he then heard what sounded like “somebody going through a garbage can[, ] like a rustling of papers or plastic.” He concluded that evidence in the apartment was in danger of being destroyed, and ordered the team to enter the unit.
The officers breached the front door and entered the apartment. They immediately saw Defendant Iwai near the kitchen area. He was the only occupant of the unit. The officers also saw the package. It was unopened.
1. The Officers Entered Defendant’s Apartment Under Exigent Circumstances to Prevent the Imminent Destruction of Evidence
The totality of the circumstances establishes that the officers had probable cause to believe that evidence faced the threat of imminent destruction, and that they entered Defendant Iwai’s apartment to prevent such an event from occurring. See United States v. McCabe, 582 F.App'x 680, 682 (9th Cir. 2014) (stating that “exigencies must be viewed from the totality of circumstances known to the officers at the time of the warrantless intrusion”) (quoting United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985)).
The events culminating in the entry into Defendant’s apartment demonstrate that the officers’ actions comport with the Fourth Amendment. Defendant, and his apartment, were under investigation as part of a drug trafficking interdiction. The United States Postal Inspection Service had intercepted a package addressed to Defendant and found it carried six pounds of methamphetamine. Agent Jones, a highly experienced narcotics investigator, knew that Defendant picked up the package from the building manager’s office and brought it into his apartment. See United States v. Hicks, 752 F.2d 379, 383-84 (9th Cir. 1985) (overruled on other grounds) (“In assessing the existence of probable cause to enter or to search a residence, this court has held that direct observation of contraband in a particular location is not required. A court may also consider ‘the type of crime, nature of the items, and normal inferences where a criminal will likely hide contraband.’”) (quoting United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir. 1978)). Despite identifying himself as a law enforcement officer and repeatedly asking the door be opened, Agent Jones saw the figure of a person stand up, walk towards the front door, and then retreat to the interior of the apartment. See Dualeh v. United States, 466 F.App'x 621, 622 (9th Cir. 2012) (holding that a person watching police officers from the second floor of a home they were about to enter to serve drug-related warrants supported a finding that exigent circumstances to prevent the destruction of evidence existed). The significance of the figure’s suspicious behavior was compounded by the rustling noises Agent Jones heard immediately after seeing the then-unidentified figure back away from the door. The circumstances of these events “would cause a reasonable person to believe that entry . . . was necessary to prevent . . . the destruction of relevant evidence.” Brooks, 367 F.3d at 1135 (internal quotations and citations omitted); United States v. Clement, 854 F.2d 1116, 1119 (8th Cir. 1988) (officers were permitted to enter after seeing someone look through the front door’s peephole and retreat, and hearing a “scrambling” noise); United States v. Ashbourne, 571 F.App'x 422, 424-25 (6th Cir. 2014) (allowing warrantless entry in a situation where officers heard unexplained noises from inside an apartment and received no response after shouting at the resident to come to the door).
2. The Beeper’s Errant Signal did not Render the Officers’ Entry Illegal
Defendant places great weight on the beeper’s apparent false alert. The fact that the beeper’s signal precipitated a chain of events that led to a forced entry into the apartment is not dispositive. The officers approached the door because the beeper signal indicated to them the package had been opened. The exigent circumstances in this case arose when the officers heard what sounded like the rustling of paper and plastic. See United States v. Banks, 540 U.S. 31, 38 (2003) (recognizing that the destruction of drugs can occur in less than 20 seconds). Once they heard the rustling noises, “the exigency had matured, [and] the officers were not bound to learn anything more or wait any longer before going in.” Id. at 40.
The officers relied on the efficacy of the beeper in good faith. The beeper passed both of Officer Bugarin’s pre- and post-installation tests. There is no evidence that the beeper routinely malfunctioned, or was unreliable. Testimony introduced at the hearings indicated that while the beeper’s wires were delicate, false signals occurred on rare occasion. In this case, the Defendant had been observed kicking the parcel prior to taking it into his apartment.
The totality of circumstances resulted in an appearance that the package and its contents were in imminent danger of destruction. Brooks, 367 F.3d at 1134. The law enforcement officers’ warrantless entry into Defendant’s apartment complies with the Fourth Amendment.
B. The Officers’ Seizure of Items in Plain View
In limited situations, the Fourth Amendment permits the government to seize, without a warrant, evidence laying in plain view. Horton v. California, 496 U.S. 128, 133-35 (1990). For the plain view exception to apply, (1) “the officers must be lawfully searching the area where the evidence is found”; and (2) “the incriminatory nature of the evidence must be immediately apparent.” Stafford, 416 F.3d at 1076 (internal quotations and citations omitted).
The Officers’ Discovery of Drugs, Drug Paraphernalia, and a Firearm in Defendant’s Apartment
After the officers breached defendant’s front door, they entered the apartment and conducted a security sweep. The officers saw a handgun in plain view on the living room table. They observed six clear plastic bags containing a white powdery substance resembling methamphetamine on the kitchen stove and on a table in the left-side of the apartment. (See Ex. A of Def. Motion at ¶ 27, ECF No. 24). The officers also observed drug paraphernalia commonly used to smoke methamphetamine in the apartment.
1. The Officers were Lawfully Present in the Apartment
Law enforcement officers are lawfully present in a particular area if they either act in accordance with a valid warrant or satisfy one of the Fourth Amendment’s recognized exceptions. Soldal v. Cook Cnty., Ill., 506 U.S. 56, 66 (1992).
The Court finds that the officers conducted a valid entry into Defendant’s apartment to prevent the imminent destruction of relevant evidence. The officers’ presence in Defendant’s apartment was lawful. See Dixon, 336 F.3d at 1018.
2. The Incriminating Nature of the Seized Evidence was Immediately Apparent
An item's incriminating character is determined in the context of surrounding circumstances. United States v. Brinkerhoff, 404 Fed.Appx. 147, 149 (9th Cir. 2010). The incriminating nature of an item is immediately apparent if there is probable cause to believe that the item is illegal or associated with criminal activity. Stafford, 416 F.3d at 1076. Probable cause exists “when the available facts would warrant a reasonably cautious person's belief that the items in plain view are useful as evidence of a crime.” United States v. Miller, 769 F.2d 554, 557 (9th Cir. 1985).
The handgun, bags containing a substance resembling methamphetamine, and drug paraphernalia were immediately suspected to be incriminating evidence. When the law enforcement officers entered Defendant’s apartment, it was in the context of a drug trafficking interdiction. The presence of a white powdery substance provided probable cause to believe that the bags could contain drugs. Id. The drug paraphernalia also provided probable cause to believe it could be associated with the drug trade. United States v. Hudson, 100 F.3d 1409, 1420 (9th Cir. 1996). Similarly, a handgun found during a drug raid’s incriminating nature is immediately apparent. The possession of a firearm in furtherance of a drug trafficking crime is per se illegal. United States v. Armstrong, 554 F.3d 1159, 1163 (8th Cir. 2009) (citing 18 U.S.C. § 924(c)(1)(A)); see also United States v. Kia, 170 F.App'x 457, 461 (9th Cir. 2006).
The law enforcement officers’ seizure of the handgun, bags containing a substance resembling methamphetamine, and drug paraphernalia was ...