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United States v. Hernandez

May 3, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JAMES HERNANDEZ, DEFENDANT.



The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge

MEMORANDUM ORDER

Defendant James Hernandez ("Hernandez") moves to suppress the evidence discovered in the search of his truck after his wife Christy Boen ("Boen") was arrested on an outstanding warrant. The Government maintains the search was valid arguing although the Supreme Court has modified the law on searches incident to arrest, the search in this case was valid as an inventory search since the vehicle was being towed. The Government also argues Hernandez lacks standing to challenge the search of the vehicle. The Court held an evidentiary hearing on this motion on February 19, 2010 and ordered the parties to file supplemental briefing. The Court is now prepared to rule on the motion to suppress.

Factual Background

On March 14, 2009, in Smelterville, Idaho, Shoshone County Sheriff's office dispatched an officer to Walmart to investigate a stolen purse. Deputy Jones responded and while investigating was told by an employee there was a suspicious person who had been standing outside the store for some time. Deputy Jones made contact with Hernandez and asked him what he was doing. Hernandez indicated he was waiting for his wife to return with their truck which earlier had not been working, but his wife must have been able to get the truck running. Deputy Jones requested Hernandez' name and Hernandez provided his name. Deputy Jones determined that Hernandez had a non-extraditable, non-arrestable warrant from California and also had a suspended license. Deputy Jones then asked the name of Hernandez' wife and a description of the truck in order to help Hernandez locate his wife. Hernandez provided the requested information and the officer determined that Boan had an extradictable warrant from Seattle, WA.

Deputy Richter then arrived on the scene and was advised of the situation by Deputy Jones. Deputy Richter reported he had noticed a truck off the side of the road matching the description by Hernandez on his way to Walmart. Deputy Richter left Walmart to check the truck. He ran the license plate number and discovered the truck was registered to Hernandez. Deputy Richter approached the truck and determined there appeared to be a woman asleep in the vehicle. He then requested Deputy Jones to come as back up. The officers asked the sleeping person to step out of the car and after she identified herself a Boan, she was arrested her on the outstanding warrant. She was placed in the back of the patrol car. Deputy Jones then contacted disptach requesting a tow truck.

It is undisputed that the officer did not ask Boan if she had someone who could come get the vehicle before he started impounded the truck and started searching the vehicle. It is also undisputed that the officers did not ask Hernandez if he had anyone who could retrieve the vehicle instead of having it towed.

Prior to the tow truck arriving Deputy Richter began searching and taking an inventory of the contents of the truck. He first found Japanese-style decorative swords which Boan indicated were her husband's. She also confirmed Hernandez had a prior felony conviction and that he was at Walmart. Deputy Jones then found a ziplock bag behind the passenger's seat on the floor with credit cards in different people's names. Deputy Jones showed Deputy Richter what he had found. Deputy Richter then left the vehicle to go back to Walmart to pick up Hernandez.

Deputy Richter found Hernandez outside Walmart and asked him if there was anything illegal in the truck. Hernandez said no. Deputy Richter told Hernandez about the credit cards that were discovered and Hernandez indicated he did not know about the cards. Deputy Richter placed handcuffs on Hernandez, informed him he was in custody for the credit cards and transported him back to the location of the truck on Airport Road.

Deputy Jones continued to search the vehicle when Deputy Richter left for Walmart and he discovered a firearm in a black bag with red lettering on it. Deputy Jones showed Deputy Richter the firearm when he returned. Deputy Richter questioned Hernandez about the bag and the firearm and he denied knowledge about either item. Hernandez was placed under arrest and given his Miranda rights.

The truck was towed and a further inventory of the items in the truck were inventoried by the officers and many items were removed from the truck including items thought to contain residual amounts of drugs based on initial field tests.. It was determined the truck doors did not lock, so the truck was parked between two other vehicles to prevent access to the contents of the truck while it was impounded.

Defendant argues that the search was not properly incident to arrest based on the recent Supreme Court case of Arizona v. Gant ___ U.S. ___, 129 S.Ct. 1710 (2009) and that the inevitable discovery exception does not apply as the officers did not ask Boan or Hernandez about having someone else come and retrieve the truck before it was towed. Moreover, Hernandez maintains there was not a public safety concern to justify the impoundment and towing of the truck since the vehicle was not parked on the on/off ramp of the interstate and was not blocking the flow of traffic. The Government argues the Defendant does not have standing as the search was incident to the arrest of Boan, not Hernandez, the search was incident to the arrest, and in the alternative, the inventory search was proper based on the impoundment of the vehicle in accordance with state law.

Analysis

1. Does Hernandez have standing to contest the search of the truck? "The term 'standing' is often used to describe an inquiry into who may assert a particular Fourth Amendment claim." United States v. Taketa, 923 F.2d 665, 669 (9th Cir. 19991). Standing involves two inquiries: 1) whether the proponent of a particular legal right has alleged injury in fact; and 2) whether the proponent is asserting his own legal rights and interests rather that basing his claim for relief upon the rights of third parties. Rakas v. Illinois, 439 U.S. 128, 139 (1978).

The government argues Hernandez does not have standing to attack the search of the vehicle as even though Hernandez was the registered owner of the vehicle at the time of the search, he was not present at the scene when Boan was arrested so he was not available to retrieve the truck and based on the known fact Hernandez had a suspended license, the vehicle could not have been turned over to him if he had been present when Boan was arrested. The government appears to be arguing while Hernandez has alleged injury in fact in the form of the evidence used against him for the felon in possession of a firearm charge, the Defendant is ...


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