United States District Court, D. Hawaii
ORDER DENYING DEFENDANT KPEL HOLLINS' MOTION TO
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
October 9, 2018, Defendant Kpel Hollins moved to suppress all
evidence recovered following the execution of a search
warrant on his vehicle. Dkt. Nos. 514, 514-1, 514-4. Hollins
principally moves for suppression on the ground that the law
enforcement search was conducted without a warrant and
without probable cause. On October 19, 2018, the government
filed an opposition to the motion to suppress, Dkt. No. 535,
to which Hollins replied, Dkt. No. 541. Hollins submitted a
law enforcement surveillance video of his vehicle as part of
his briefing. Dkt. No. 546. Although an evidentiary hearing
was originally scheduled on the motion to suppress, after
discussion with counsel and with no witnesses having been
designated, the Court vacated the hearing. Dkt. No. 537.
Having reviewed the video in toto, the parties'
memoranda, the record, and the relevant legal authorities,
the Court DENIES the Motion to Suppress Evidence for the
Fourth Amendment protects individuals against unreasonable
searches and seizures. U.S. Const. Amend. IV. “Searches
and seizures that offend the Fourth Amendment are unlawful
and evidence obtained as a direct or indirect result of such
invasions is considered fruit of the poisonous tree and is
inadmissible under the exclusionary rule.” United
States v. McClendon, 713 F.3d 1211, 1215 (9th Cir. 2013)
(quotation omitted). The “ultimate touchstone” in
such an inquiry is “reasonableness.” Riley v.
California, 134 S.Ct. 2473, 2482 (2014).
when a search is performed by law enforcement officers,
reasonableness requires a judicial warrant. Id.
There are, however, specific exceptions to the warrant
requirement. Id. As both parties acknowledge in
their memoranda, one such specific exception concerns
automobiles. More specifically, “the search of an
automobile can be reasonable without a warrant” due to
the “ready mobility” and “pervasive
regulation” of automobiles. Collins v.
Virginia, 138 S.Ct. 1663, 1669-70 (2018) (quotations
omitted). “When these justifications for the automobile
exception come into play, officers may search an automobile
without having obtained a warrant so long as they have
probable cause to do so.” Id. at 1670
cause “means a fair probability that contraband or
evidence is located in a particular place.” United
States v. Kelley, 482 F.3d 1047, 1050 (9th Cir. 2007)
(quotation omitted). “Whether there is a fair
probability depends upon the totality of the circumstances,
including reasonable inferences, and is a commonsense,
practical question.” Id. (quotation omitted).
“Neither certainty nor a preponderance of the evidence
is required.” Id.
argues that the Fourth Amendment was violated because law
enforcement searched his vehicle without a warrant and
without probable cause. Hollins further challenges the
veracity of a search warrant affidavit used to procure a
subsequent search of his vehicle on the ground that it
omitted information about the earlier warrantless search.
Hollins also argues that the search warrant affidavit
erroneously asserted that he “resided together”
with Conleysha Gaston.
principally argues that (1) an initial search of his car
occurred without a warrant and without probable cause, and
(2) law enforcement omitted from a subsequent search warrant
affidavit the fact that a warrantless search had occurred.
Although Hollins does not assert that any evidence he seeks
to suppress was obtained during the initial search, he argues
that the evidence obtained as a result of executing the
search warrant should be suppressed because the initial
search helped law enforcement “gather further
information” resulting in the search warrant
initial matter, Hollins' argument is noticeable for what
it does not identify: the “further information”
law enforcement gathered during the initial search that
helped or caused them to obtain a search warrant. After all,
if the initial search did not prompt the application for a
search warrant, the search warrant can hardly be described as
tainted by that search. See United States v. Hill,
55 F.3d 479, 481 (9th Cir. 1995) (“To be untainted by
[a] prior search, the officers' decision to seek the
warrant must not have been prompted by what they had seen
during the earlier unlawful search.”); see also
Wong Sun v. United States, 371 U.S. 471, 488 (1963)
(explaining that the appropriate question is “whether,
granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at
by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary
taint.”) (quotation omitted). Hollins' failure to
identify the “further information” that
supposedly prompted the search warrant application dooms his
arguments for suppression based upon the illegality of the
initial search and its omission from the affidavit. This is
especially the case where, as here, the government argued in
opposition that the search warrant application was not based
upon the initial search, and Hollins entirely ignored this
argument in reply.
important is Hollins' argument that probable cause did
not exist for the initial search. This contention is
primarily based upon Hollins' characterization of the
video evidence. Hollins argues the video shows that officers
surveilling his vehicle were “uncertain as to whether
Gaston had left a package in the vehicle.” According to
Hollins, “[t]he special agents specifically discussed
entering the vehicle to confirm the presence of the white
bag.” In reply, Hollins goes further, arguing that the
officers were “excitedly unsure” about whether a
drug transaction had taken place and there was “near
panic in their voices” as they expressed doubt about
what they had just observed. In Hollins' eyes, the video
shows that none of the officers knew what Gaston had done in
the course of entering and then exiting Hollins' vehicle.
reviewed the entirety of the video, the Court finds that
Hollins' characterizations of the same are wildly
inaccurate. In pertinent part, the video shows the following.
Gaston was sitting in the driver's seat of a car parked
directly in front of Hollins' parked vehicle. Gaston
exited out of the driver's door of her car, walked around
the front of her car, and opened the back passenger door of
her car. At this point, the video does not show anything in
Gaston's hands. Gaston then leaned into her car, leaned
back out, and turned to face Hollins' vehicle. At this
point, there is clearly a white bag in Gaston's left
hand, which she switches to her right hand. Gaston then walks
to Hollins' vehicle, opens the front passenger door, and
sits down in the front passenger seat. Other than Gaston,
there is no one in Hollins' evidently unlocked vehicle.
The video does not show with specificity what it is Gaston
does while sitting in Hollins' vehicle, but she is seen
fiddling with or moving things around the center console.
Gaston then exits the front passenger side of Hollins'
vehicle and opens the back passenger door of the same
vehicle. Gaston looks into and then leans into the back
passenger side of Hollins' vehicle. During this process,
both of Gaston's hands can be seen. Nothing is contained
in either. Gaston then leans out of Hollins' vehicle and
closes the back passenger door with her empty right hand.
Gaston then walks toward and around the front of Hollins'
vehicle. As she does so, her left hand is visible. There is
nothing contained in her left hand. Gaston then enters her
light, the video clearly shows that Gaston left the white bag
at issue in Hollins' vehicle because it was in her hands
when she approached and entered it, but the white bag was not
in her hands when she exited. What then of the officers'
reaction, on which Hollins places so much emphasis? There are
two officers. After Gaston re-enters her car, one of the
officers (whom the Court will call the “first
officer”) says, “Her hands are empty. Her hands
are empty yeah?” The other officer (whom the Court will
call the “second officer”) says, “I
couldn't see the hands.” At this point, “the
guy” arrives on the scene, and the first officer states
that “the guy” appears to be saying something to
Gaston. “The guy” then walks away, and Gaston
drives away. The first officer then states that “the
guy” is “Kaps.” “Kaps” is
another name for Hollins. The first officer then says that
Hollins did not go back to his vehicle, “so the package
should still be in his car.” In a subsequent video
clip, Hollins can be seen opening his vehicle after Gaston
drives away. Hollins leans into his vehicle, returns to an
upright position outside of the vehicle, and then closes the
door. As Hollins walks away, he can be seen carrying a black
bag. The first officer then says, “I don't think
he's going to take the whole.” In the next video
clip, the first officer says, “If the car's not
locked, we can go through real fast and see.” There are
no further pertinent statements from the officers before
another individual, who is presumably an undercover officer,
opens the back passenger door of Hollins' vehicle and
looks in without entering. Two to three seconds after opening
the door, the undercover officer closes it and walks away.
The first officer then says, “But he looked to see if
the bag was in there?” The second officer responded
affirmatively that the undercover officer had looked. In the
final video clip, the first officer states that Hollins will
not sell the “whole three keys at work” and there
is a “good chance” Hollins will have “at
least a pound or two left when he leaves later.” The
first officer then says that it would be an
“option” “to stop and grab that bag later,
” but it is not his decision. As it relates to the
instant motion to suppress, that is the end of the video.
to Hollins' arguments, the officers are never brought to
near panic or excitement about whether Gaston left a bag in
Hollins' vehicle. Instead, the first officer
matter-of-factly states that Gaston's hands were empty
when she exited Hollins' vehicle. Although the first
officer then phrased the same statement as a question to his
colleague, there is no doubt or uncertainty conveyed.
Moreover, the second officer's statement that he could
not see Gaston's hands was delivered with frustration,
not panic. The mere fact that the second officer could not
see Gaston's hands does not mean he believed Gaston had
something in her hands when she returned to her car. To the
extent there was any doubt about the officers'
understanding, the first officer made things clear when he
said that, because Hollins did not go toward his car after