United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

KELLY ANN DARLING,

Defendant.

___________________________________/

No. CR-09-0627 EMC

ORDER GRANTING DEFENDANT’S

MOTION TO SUPPRESS EVIDENCE

(Docket No. 14)

Defendant is charged with violation of 21 U.S.C. § 844(a), possession of a controlled

substance, a Class A misdemeanor. Defendant brought a motion to suppress controlled substances

allegedly found in the car by United States Park Rangers based on: (1) the lack of reasonable

suspicion to stop her vehicle and to conduct a search, and (2) violation of her Miranda rights. The

Court held an evidentiary hearing on March 30, 2010 and has reviewed pre-hearing as well as posthearing briefing by the parties. For the reasons stated below the Court finds that Defendant’s

Miranda rights were violated and that the evidence collected following that violation must be

suppressed.

I. FACTS

The Court, after hearing testimony and reviewing the evidence presented at the evidentiary

hearing, finds the following facts.

At approximately 3:49 p.m. on May 5, 2009, Rangers Kelly Maples and Shannon Jay were

on patrol in the area of Bunker Road and Capehart Housing. The rangers observed a 1984 Mercedes

Benz traveling eastbound on Bunker Road. They observed the left tail brake lamp was not working,

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in violation of California Vehicle Code § 24603(b). Ranger Maples stopped the vehicle at the

intersection of Bunker Road and Lamoraux and advised the driver of the violation. As Defendant

reached over to get her license, insurance and registration from the glove compartment, Ranger

Maples, according to her testimony, noticed a very faint smell of marijuana. Ranger Maples then

asked Defendant if she had a medical marijuana 215 card to which she stated that she did not know

what a “215 card” was and denied having any marijuana. Ranger Maples took the registration,

insurance and California driver’s license to verify the information.

While approaching her patrol car to run the verification, Ranger Maples told Ranger Jay she

smelled burnt tobacco. She did not tell Ranger Jay that she smelled marijuana. Ranger Jay then

approached the Defendant who remained in her car. Ranger Jay smelled burn tobacco, but not

marijuana. Ranger Jay admitted at the hearing he only had a “hunch” there might be marijuana in

the car and did not have reasonable suspicion or probable cause to search the car. Nor did he see

anything that suggested Defendant was under the influence. Based on his hunch, Ranger Jay then

advised Defendant that if she gave him the marijuana, he would issue her a citation in lieu of arrest. 

Defendant then reached into an ashtray (which was not in Ranger Jay’s view) and retrieved a burn

cigarette butt which Ranger Jay believed was a marijuana cigarette.

Ranger Maples moved Defendant and her passenger, Marlen Corben, to a nearby curb, while

informing dispatch that they now were on a narcotics contact and would need an additional unit sent

to the location. As Ranger Jay directed Defendant and Mr. Corben to exit the vehicle and sit on a

nearby curb, Defendant told Ranger Jay that she had additional marijuana in the vehicle and

attempted to retrieve it when he directed her to sit on the curb. Ranger Bob Del Secco arrived to the

location within five minutes to assist, while Ranger Maples and Jay searched the vehicle for

additional contraband.

Rangers Maples and Jay searched the vehicle for the additional contraband that Defendant

had referred to and found a partially burned marijuana cigarette in the ashtray. Ranger Jay then

searched Defendant’s purse which was located between the driver’s seat and front passenger seat. 

He opened up the black makeup bag inside the purse and found a baggie with marijuana. 

Additionally, Ranger Jay found three small (2" x 2") ziplock baggies that contained a whitish

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crystalline substance consistent with the color and texture of methamphetamine. Ranger Jay then

searched Defendant’s wallet, which was also in the purse, and found a brown clod which had the

odor and appearance of concentrated Cannabis. Ranger Jay seized all the items as evidence and

used a NIK field test kit to perform a test of the crystalline substance and it showed positive for

methamphetamine. The brown clod showed positive for marijuana.

Rangers Jay and Maples then moved to the trunk of the vehicle. Ranger Maples located a

black cash box inside the trunk which contained an orange and blue ceramic pipe consistent with the

use of drugs. Ranger Jay located a cardboard box that contained a multi-colored glass pipe also

consistent with drug use, and a silver mesh purse containing several (2" x 2") baggies with

“Batman” insignia matching the baggie located in the makeup bag. There were also several (2" x

2") plastic baggies with red lips insignia and an electronic gram scale fond in the silver mesh purse.

Rangers Maples and Jay seized and secured all the items and placed Defendant under arrest

and performed a search of her person. No further contraband items were found on Defendant’s

person. Defendant was transported to Marin County Jail for booking, and she was cited and

released.

II. CONCLUSION

A. Initial Stop

The U.S. Park Rangers conducted a valid vehicle stop of Defendants. Because they observed

her left brake lamp was not operating properly that had reasonable suspicion she was in violation of

California Vehicle Code § 24603(b) which requires vehicles to have two stop lamps. A traffic stop

may be based on reasonable suspicion. United States v. Choudhry, 461 F.3d 1097, 1100 (9th Circ.

2006).

B. Vehicle Search

Once a traffic stop in initiated based on reasonable suspicion, the Government concedes that

a warrantless search of the vehicle must be based on probable cause to believe the automobile holds

contraband or evidence of a crime. Government’s brief in opposition to motion to suppress, p. 5. 

Short of a search, law enforcement officers may engage in a reasonable inquiry that does not

unreasonably extend the duration of a lawful traffic stop. United States v. Mendez, 476 F.3d 1077,

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1081 (9th Cir. 2007). The reasonableness of such questioning depends on the totality of the

circumstances. United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008).

In the instant case, the brief questioning by Rangers Maples and Jay was reasonable. Both

smelled burnt tobacco, and Ranger Jay sensed a very faint smell of marijuana. Questions related to

marijuana were brief and were related to observations made by the officers.

The critical question is whether the Park Rangers had probable cause to search the car after

Ranger Jay, acting on a hunch, advised Defendant to turn over the marijuana in order to avoid arrest,

to which Defendant responded by turning over what appeared to Ranger Jay to be a marijuana

cigarette butt. If Defendant’s response and production of the cigarette butt was validly obtained,

then at that point the Park Rangers had probably cause to search the car. If the cigarette and

Defendant’s response were not lawfully obtained, then that basis for probable cause for the ensuing

search of the car would be vitiated.

The Court thus turns to the lawfulness of Defendant’s response and production of the

cigarette elicited by Ranger Jay’s threat of arrest. As discussed below, what transpired was in part a

search and in part a communication implying an admission. The Court first examines the lawfulness

of the search under the Fourth Amendment.

C. Consensual Search

Had Ranger Jay examined areas of the car not within plain view, this would have been a

search. Had Ranger Jay asked permission to enter the car, entered the car and examined such areas,

there would have been a search by consent. Here, Ranger Jay obtained the same result by inducing

Defendant, who, rather than opening the door and permitting the Ranger to enter the vehicle and

search, instead handed over contraband from a place (ashtray) not within the officer’s plain view. 

Analytically the result is the same -- a search was effectuated by Ranger Jay through Defendant’s

consent. Cf. United States v. Winsor, 846 F.2d 1569, 1573 (9th Cir. 1988) (search effected when

door opened by party upon police command). 

Since there was concededly no probable cause for the search, the critical question is whether

consent to the search was validly obtained. In analyzing this question, the Court notes that in the

absence of a warrant, the Government bears the burden of establishing the legality of the search. 

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 The Government bears the burden of showing evidence is not the fruit of the poisonous tree.

United States v. Twilley, 222 F.3d 1092, 1097 (9th Cir. 2000).

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United States v. Johnson, 936 F.2d 1082, 1084 (9th Cir. 1991). Cf. Katz v. United States, 389 U.S.

347, 357 (1967) (warrantless search is per se unreasonable under the 4th Amendment subject to a

few specific exceptions). More particularly, in this case, the Government has the burden of proving

any consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968).

Defendant handed the putative contraband over to Ranger Jay only after he threatened arrest

(as opposed to a citation) if she did not. Consent to a search is not voluntary when made under a

threat of arrest. The Ninth Circuit has observed that even if an arrest had not yet been made,

“consent obtained under threat of subjecting [Defendant] to such an arrest cannot be said to be

voluntary.” United States v. Ocheltree, 622 F.2d 992, 994 (9th Cir. 1980). United States v. Soriano,

361 F.3d 494, 602 (9th Cir. 2004) (factors in assessing voluntariness of consent include whether

defendant was in custody [see discussion below regarding arrest], whether Miranda warnings were

given, and whether defendant was notified that she had a right not to consent).

The Court concludes Ranger Jay’s acquisition of Defendant’s cigarette butt in response to his

threat of arrest violated the Fourth Amendment. It was the result of a search made without probable

cause or valid consent. Since the ensuing search of the entire vehicle which uncovered drugs was

predicated in part upon the probable cause supplied by the cigarette butt, that evidence of those

drugs was the “fruit[ ] of the poisonous tree” of the Fourth Amendment violation. Wong Sun v.

United States, 371 U.S. 471, 488 (1963); United States v. Washington, 490 F.3d 765, 774 (9th Cir.

2007).1

 As such, it is subject to suppression on this ground.

D. Miranda

As noted above and as evident by both parties’ briefing of the Miranda issue, Defendant’s

act of handing the cigarette butt over to Ranger Jay in response to his directive that she give him the

marijuana to avoid arrest also constituted a testimonial act implicitly conceding she possessed

marijuana. See Doe v. United States, 487 U.S. 201, 210 (1988) (conduct is testimonial if it is

“explicitly or implicitly, relat[ing[ a factual assertion or disclose information.”). This admission,

potentially admissible evidence at trial, also provided probable cause for the ensuing search of the

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 With respect to routine traffic stops, the Supreme Court has previously held that Miranda

protections do not ordinarily apply, because of the non-coercive and temporary nature of routine traffic

stops. See Berkemer v. McCarty, 468 U.S. 420, 438-40 (1984). However, the Supreme Court has

admonished lower courts to be “vigilant” so that police do not “‘delay formally arresting detained

motorists, and . . . subject them to sustained and intimidating interrogation at the scene of their initial

detention.’” Pennsylvania v. Bruder, 488 U.S. 9, 10 n.1 (1988) (citing Berkemer, 468 U.S. at 440). 

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vehicle. The Court therefore examines whether Ranger Jay should have issued a Miranda warning

prior to threatening arrest if Defendant did not give him the marijuana. See Pennsylvania v. Muniz,

496 U.S. 582, 589 (1990) (Fifth Amendment applies to the testimonial or communicative acts).

The Government argues that Miranda warnings were not required because Ms. Darling was

not subject to a custodial interrogation when she retrieved the marijuana cigarette from the ashtray. 

See United States Opp. at 6. Specifically, at oral argument, the Government contended that Ranger

Jay’s statement to Ms. Darling -- that he would issue a citation, in lieu of an arrest, if Ms. Darling

produced the marijuana cigarette -- did not amount to “custody” under Miranda because Ranger

Jay’s statement did not suggest that an arrest was imminent. Notwithstanding the Government’s

position, the Court finds that Ranger Jay’s statement constituted “custody” under Miranda as a

“formal arrest,” and at the very least, as a functional equivalent of a “formal arrest.” 

For Miranda purposes, an individual is considered to be in “custody” whenever there is a

“‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” 

California v. Beheler, 463 U.S. 1121, 1125 (1983) (citing Oregon v. Mathiason, 429 U.S. 492, 495

(1977) (per curiam)); see also United States v. Kim, 292 F.3d 969, 973-74 (9th Cir. 2002) (to

determine whether an individual was in “custody,” the court must decide whether there was a formal

arrest or functional equivalent of a formal arrest, based on the objective circumstances and whether a

reasonable person would believe that he or she was free to leave); United States v. Bengivenga, 845

F.2d 593, 596 (5th Cir. 1988) (“A suspect is therefore ‘in custody’ for Miranda purposes when

placed under formal arrest or when a reasonable person in the suspect’s position would have

understood the situation to constitute a restraint on freedom of movement of the degree which the

law associates with formal arrest.”).2

In this case a Miranda warning was not required upon the ranger’s initial stop and

questioning. Until the point of Ranger Jay’s threat of arrest, this was a routine traffic stop, without a

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“sustained and intimidating interrogation.” Bruder, supra. However, the situation changed when

Ranger Jay threatened arrest. The Government conceded at the hearing herein that had Ranger Jay

formally placed Defendant under arrest and then immediately thereafter told her that if she admitted

possessing marijuana he would release her, he would have violated her Miranda rights. This is

consistent with California v. Beheler, United States v. Kim, and United v. Bengivenga cited above. 

The fact that Ranger Jay did not first formally arrest Defendant but instead told her she would be

arrested if she did not in essence admit to possessing marijuana makes no material difference. Given

the imminence of the impending arrest which could be avoided only by admitting to possession of

marijuana (by handing it over), Ranger Jay’s extraction of the implicit admission was as coercive as

an interrogation following an arrest. Defendant was not free to leave and was subject to a restraint

on freedom equivalent to a formal arrest. Kim, supra; Bengivenga, supra. To hold otherwise would

exalt form over substance and license a rhetorical circumvention of Miranda. Therefore, Ranger

Jay’s conduct violated Defendant’s Miranda rights, and testimonial evidence of her response in

handing over the cigarette butt must be suppressed.

However, this does not necessarily imply the fruits of a Miranda violation -- the ensuing

search of the vehicle predicated on probable cause based not on the physical evidence of the

cigarette butt, but on her testimonial conduct implicitly admitting possession of marijuana -- must be

suppressed as well. The parties have not briefed the question whether the “fruits of the poisonous

tree” doctrine applies to a Miranda violation. See United States v. Patane, 542 U.S. 630 (2004)

(violation of Miranda does not necessarily require suppression of physical evidence).

The parties are hereby ordered to submit further briefing on this issue. Cross briefs shall be

filed two weeks (14 days) from the date of this order. Absent further order setting the matter for

further hearing, the matter shall then be taken under submission.

IT IS SO ORDERED.

Dated: July 14, 2010

 EDWARD M. CHEN

United States Magistrate Judge

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