HELEN GILLMOR, 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
Defendant Bryant Kazuyoshi Iwai ("Defendant" or "Defendant Iwai") is charged in the Indictment filed on September 17, 2015 (ECF No. 18) as follows:
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.
The Fourth Amendment of the United States Constitution generally requires law enforcement officers to obtain a warrant before entering a home uninvited.
The Government has the burden of demonstrating the reasonableness of a warrantless entry.
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.
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.
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.
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.
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.
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.
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.
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.
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.
In limited situations, the Fourth Amendment permits the government to seize, without a warrant, evidence laying in plain view.
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. (
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.
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.
An item's incriminating character is determined in the context of surrounding circumstances.
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.
The law enforcement officers' seizure of the handgun, bags containing a substance resembling methamphetamine, and drug paraphernalia was permissible under the plain view exception.
A valid consent to search eliminates the need to obtain a warrant or show that police conduct conformed to a recognized warrant exception.
Determining the voluntariness of a consent requires an examination of the totality of circumstances.
The Ninth Circuit Court of Appeals has identified five factors that indicate whether an individual voluntarily consented to a search:
The five factors serve as a guidepost, not as a mechanical checklist. A court may review other relevant facts in its examination of whether the defendant's consent was voluntary.
As Agent Jones and his team entered the apartment, they saw Defendant come out of the kitchen. Defendant was then handcuffed and seated on the living room floor.
At the January 6, 2016 Motion to Suppress Hearing, Drug Enforcement Agency Special Agent Richard Jones' Testified as follows:
Agent Jones testified that he did not seek to interrogate Defendant as to the circumstances of his arrest; he was merely looking to obtain Defendant's consent to search the apartment.
A few minutes after Defendant verbally agreed to a search of his apartment, Officer Jennifer Bugarin arrived with a consent-to-search form.
Officer Bugarin met with Defendant Iwai and Officer Lardizibal in an area between the living room and bedroom. Both officers were visibly armed and were wearing their tactical gear with police markings. Officer Lardizibal removed Defendant's handcuffs, and Officer Bugarin explained the contents of the consent form to Defendant. Officer Bugarin also wrote the apartment address on the form.
At 3:25pm, Defendant Iwai initialed and signed the consent form inside his apartment, unit 2303. (Hearing Ex. 1). Officer Bugarin had mistakenly written 2302 instead of 2303. The Defendent did not notice the error.
After receiving Defendant's signed consent form, law enforcement officers searched the apartment and found approximately 14 pounds of crystal methamphetamine, more than $32,000 in United States currency, a digital scale, a ledger, and plastic bags. (Ex. A of Def. Motion at ¶¶ 27-28, ECF No. 24).
A person is considered to be in custody when his freedom to move is curtailed in a similar degree to that of a formal arrest.
The totality of circumstances establishes that Defendant was in custody when he permitted the officers to search his apartment. Defendant was surrounded by multiple officers. The officers had handcuffed Defendant soon after they entered the apartment, and Defendant was seated on the living room floor when Agent Jones asked him to consent to a search. It was clear that Defendant was not free to leave.
The officers who were in the apartment at the time, including Agent Jones and Officer Bugarin, did not have their firearms drawn.
Defendant was not apprised of his
There is no evidence as to whether Defendant was told he had a right to withhold or retract his consent. Defendant was very cooperative and calm throughout his interactions with the officers. He did not hesitate in providing his consent.
There is no evidence indicating that the officers told Defendant that they could obtain a search warrant if he did not consent to a search. The officers did not offer any promises to Defendant in exchange for his consent, nor did they threaten him or force him to sign the consent form.
Two of the five factors (no weapons drawn; no threats) favor a finding of voluntary consent. One factor (custody) favors a finding of involuntary consent. The remaining two factors (lack of
Defendant's physical and mental condition at the time of his consent appeared normal. Testimony introduced at the hearings demonstrated that Defendant was not intoxicated, fatigued, or under the influence of drugs. He was coherent and did not indicate any hesitation or misunderstanding.
The officers' treatment of Defendant Iwai was similarly ordinary. Defendant was not handcuffed when he signed the consent form. There is no evidence that any law enforcement officer threatened or otherwise coerced him into agreeing to a search. Officer Bugarin carefully explained the contents of the form to Defendant. In addition, the Ninth Circuit Court of Appeals has held that the existence of a signed consent form is an indication of voluntary consent.
The Court finds Defendant's consent to search his apartment was voluntary under the totality of the circumstances.
Defendant now argues that his consent is invalid, as the consent form he signed had an error in the apartment number. When the officers and Defendant discussed the search of his apartment, they were in unit 2303, where Defendant signed the consent form. At no point was apartment 2302 involved in the investigation.
A consent form, like a search warrant, is valid if it sufficiently describes the place to be searched.
Law enforcement may not use a suspect's statements that were elicited from custodial interrogation unless they inform him of the right to remain silent and of his right to the presence of an attorney.
After Defendant signed the consent-to-search form in the apartment, Officers Echiberi and Bugarin brought him to the bedroom. Officer Echiberi informed Defendant that he was under arrest for possession of methamphetamine. Officer Bugarin testified that she took out her police credentials and badge, identified herself as a police officer, and read a card that had a Miranda warning to Defendant. She stated:
Officer Bugarin testified that Defendant Iwai answered, "yes." Officer Bugarin responded by asking him if he was willing to answer some questions. Defendant Iwai then stated he wanted a lawyer. Officers Echiberi and Bugarin immediately ceased any questioning and prepared Defendant for transport to the Honolulu Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") Office to be processed for booking.
Officers Bugarin and Liana escorted Defendant Iwai, who was in handcuffs, to a police car. Defendant was placed in the front passenger seat, Officer Bugarin got into the driver's seat, and Officer Liana sat in the rear passenger seat behind Defendant.
During the 15-20 minute transit to the ATF Office, Defendant Iwai began speaking to Officers Bugarin and Liana.
At the January 6, 2016 Motion to Suppress Hearing Police Officer Jennifer Bugarin testified as follows:
Neither officer questioned Defendant about the case during the transit to the ATF Office. Officer Liana testified that Defendant Iwai was talkative throughout the transit.
Defendant's unsolicited statements during the drive to the ATF Office demonstrated his willingness and "desire to open up a more generalized discussion relating . . . to the investigation."
A suspect's waiver of his right to an attorney is valid if made voluntarily, knowingly, and intelligently.
In determining whether an accused person has made a valid waiver, courts review the totality of the circumstances surrounding the waiver, including the background, experience, and conduct of the suspect.
Under the totality of circumstances analysis, a waiver is voluntary if the statement "was the product of a free and deliberate choice rather than coercion or improper inducement."
During the car ride to the ATF Office, Defendant spontaneously spoke to Officers Bugarin and Liana. The officers did not interrogate him at any point during the transit, nor did they substantively followup on his offer to cooperate. The testimony introduced at the suppression hearings established that Defendant's offer to cooperate was of his own free will. There is no evidence of any coercive behavior on the part of the officers. Defendant's waiver of
A waiver is knowing and intelligent if "it is made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it."
Officer Bugarin testified that she informed Defendant of his
The totality of the circumstances surrounding Defendant's offer of cooperation establishes that Defendant Iwai reinitiated conversation with Officers Bugarin and Liana, and that he voluntarily, knowingly, and intelligently waived his
A confession is valid if made voluntarily.
Upon arrival at the ATF Office, Defendant Iwai was taken to an interview room. The interview room was small, square-shaped, and had three chairs and a table. Defendant sat in a chair. Officer Bugarin took off his handcuffs, gave him some water, told him that she would return, and left the room.
Agent Jones and Officer Correa briefly entered the interview room. The officers asked Defendant to consent to a search of his cellular telephone. Officer Correa provided a consent form to Defendant and explained it to him. Defendant Iwai indicated that he understood Officer Correa, and signed it. (Hearing Ex. 3). The officers did not question Defendant about the case. Defendant did not have trouble communicating with Officer Correa, nor did he appear intoxicated or fatigued.
Approximately 15 minutes after Officer Bugarin left, she and Officer Echiberi entered the interview room. The two officers were in plainclothes and were not visibly armed. They sat across from Defendant Iwai.
Officer Bugarin presented Defendant with an "Advice of Rights" form. (Hearing Ex. 2). She told Defendant that the form had the same line of questioning that she previously presented to him in the apartment. Officer Bugarin read each line to Defendant and told him to initial each sentence that he understood.
At 4:30pm, Defendant signed and initialed the "Advice of Rights" form. He wrote "yes" next to the questions asking, "Do you understand your rights?" and "Are you willing to answer some questions?" (Hearing Ex. 2). Defendant Iwai did not ask for an attorney. He did not appear fatigued. Officers Bugarin and Echiberi signed the form as witnesses.
After Defendant signed the "Advice of Rights" form, Officer Bugarin asked him if he wanted the interview to be recorded. Defendant declined. Officer Echiberi proceeded to question him as Officer Bugarin took notes. Defendant was very cooperative during the interview, and did not appear fatigued or sleepy. The interview lasted between one and one-and-a-half hours.
Once Officer Echiberi completed his questioning, Officer Bugarin left the interview room and prepared a typewritten confession for Defendant. (Hearing Ex. 4). Officer Bugarin returned with Officer Liana. Officer Bugarin asked Defendant Iwai to read the confession and initial next to each paragraph that was correct. At 7:52pm, Defendant Iwai initialed next to each paragraph, and signed and dated the confession. (Hearing Ex. 4). Defendant did not object to any part of the confession. He did not indicate that any part of the confession was incorrect. Officer Bugarin testified that she did not pose as a lawyer, nor did she provide legal advice to Defendant.
Officer Bugarin then asked Defendant to make a recorded telephone call to the sender of the package. Defendant agreed. After the call, Officer Bugarin showed a still image of security camera footage from a Las Vegas post office. (Hearing Ex. 5). Defendant Iwai identified a person in the picture as the sender of the package.
The totality of the circumstances regarding Defendant's confession demonstrates that it was made voluntarily. The Supreme Court and the Ninth Circuit Court of Appeals have both held that confessions made after advisement and waiver of
The conditions in which Defendant confessed support a conclusion that his confession was voluntary. The interview at the ATF Office lasted between one and one-and-a-half hours, well within the accepted bounds of an interrogation's duration.
Defendant's mental and physical states were ordinary. Defendant was very cooperative during his interview with Officers Bugarin and Echiberi. He did not appear fatigued or sleepy. Testimony introduced at the suppression hearings indicated that Defendant never displayed any signs of drug or alcohol intoxication. There is no evidence that Defendant was subjected to undue coercion or inducement, so as to cause his will to become overborne.
Defendant argues that his confession is invalid, as he signed it under the impression that Officer Bugarin was acting as his attorney. No evidence was presented to support Defendant's argument.
Defendant Iwai first came into contact with Officer Bugarin during the controlled delivery operation. Officer Bugarin joined the entry team in Defendant Iwai's apartment and was one of the officers who arrested Defendant. Throughout their entire interaction in the apartment, Officer Bugarin was visibly armed and wore tactical gear that had police markings on it. She was the only female law enforcement officer involved with the operation. Officer Bugarin identified herself as a police officer by showing her credentials to Defendant. She explained to Defendant the contents of a consent-to-search form for his apartment. She also apprised Defendant of his
After arresting Defendant, Officer Bugarin drove him to the ATF Office in a police car. Defendant was handcuffed throughout the entire journey. In response to the statements Defendant initiated in the car, Officer Bugarin specifically told him that they could talk about the case when they arrive at the ATF Office, and that she would inform him of his rights again.
In the interview room, Officer Bugarin informed Defendant Iwai of his
The facts regarding Defendant's interactions with Officer Bugarin overwhelmingly establishes that no reasonable person would mistake Officer Bugarin as his attorney. Officer Bugarin did not attempt to deceive Defendant into believing she was an attorney.
The evidence presented establishes that Defendant's confession was voluntary.
The Fourth Amendment generally requires the government to obtain a warrant or consent before searching the contents of a cellular telephone.
The government bears the burden of proving by a preponderance of the evidence that the consent was voluntary.
As previously stated, The Ninth Circuit Court of Appeals has identified five factors that indicate whether an individual voluntarily consented to a search:
Shortly after he arrived at the ATF Office interview room, but before he was questioned by Officers Bugarin and Echiberi, Defendant was asked by Agent Jones and Officer Correa to consent to a search of his cellular telephone. Officer Correa provided a consent form and explained its contents to Defendant Iwai. Defendant indicated that he understood the form, and signed it. (Hearing Ex. 3).
A review of the five factors supports a finding that Defendant voluntarily consented to a search of his cellular telephone. Officer Bugarin had administered a
In addition to the five factors, other evidence presented demonstrates that Defendant consented voluntarily. Officer Correa provided a consent form to Defendant and explained it to him. Defendant Iwai indicated that he understood the form and signed it. (Hearing Ex. 3). The fact that Defendant signed a consent form favors a finding of voluntary consent.
Defendant voluntarily consented to a search of his cellular telephone.
Defendant Bryant Kazuyoshi Iwai's Motion to Suppress Evidence and Statements (ECF No. 24) is
IT IS SO ORDERED.
