NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA Crim. Action No. 11-310 (JLL)

V. OPINION

KOLE AKINOLA

Defendant.

LINARES, District Judge.

This matter comes before the Court by way of Defendant Kole Akinola (“Defendant” or

“Akinola”)’s (1) motion to suppress evidence seized from a rental vehicle on April 27, 2011, and

(2) motion to suppress statements made during a telephone conversation on April 27, 2011. The

Court has considered the submissions made in support of and in opposition to Defendant’s

motions, as well as the arguments and evidence presented on the record during the extensive

evidentiary hearing held in connection with these motions. For the reasons set forth below,

Defendant’s motions are DENIED.

I. FACTUAL BACKGROUND’

Shortly after 5:00 a.m. on April 27, 2011, Officers Ryan Schwartz and Timothy Faranda

ofthe Glen Ridge Police Department (“GRPD”) stopped a red Chevy Camaro (the “vehicle” or

“Camaro”) traveling westbound on Bloomfield Avenue. (See Def. Exs. 21, 29.) The officers

The facts set forth herein are based on the testimony the Court heard during the evidentiary hearing, the evidence

placed on the record, and the parties’ written submissions. The Court accepts the veracity ofthese facts for the

purpose of deciding Defendant’s motions.

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stopped the Camaro after having observed it braking abruptly and swerving between lanes. (See,

e.g., Tr. 133:2-9, 1.47:4-7, 2.35:13-14, 2.36:8-22.) Based on the officers’ observations, they

believed that the Camaro’s driver, later identified as Akinola, was driving under the influence of

alcohol. (See, e.g., Tr. 1.47:19-21, 2.36:23-2.37:3.)

After stopping the Camaro, the officers approached the driver’s side window to speak

with Defendant. (See Gov’t Ex. 2 at 5:21:13.) The officers claim to have smelled alcohol

emanating from Defendant’s breath and from the vehicle. (See, e.g., Tr. 1.54:17-2 1, 1.55:3-10,

1.58:5-7, 2.38:2-6.) The officers also observed that Defendant had watery droopy eyelids,

slurred speech, and was making slow and fumbled hand movements. (Id.) When asked to

provide his driving credentials, Defendant provided the vehicle’s registration and proof of

insurance, but failed to provide a driver’s license. (See Def. Ex. 29; Tr. 2.60:16-17.) A records

check subsequently revealed that Defendant’s driver’s license had expired in 2002 and was not

renewed. (See Def. Ex. 29.)

Suspecting that Defendant was intoxicated, Officer Faranda asked Defendant to exit the

Camaro to perfbrm field sobriety tests. (See Tr. 1.59:5-6; Gov’t Ex. 2 at 5:23:53-5:24:10.)

Officer Faranda administered three field sobriety tests and concluded that Defendant failed two

out of the three. (Tr. 1.60:3-10.) After Defendant completed the field sobriety tests, Officer

Schwartz placed him under arrest for (1) driving while intoxicated in violation of N.J.S.A. §

39:4-50; (2) careless driving in violation ofN.J.S.A. 39:4-97; (3) failing to maintain a lane in

violation of N.J.S.A. § 39:4-88(b); and (4) driving without a license in violation ofN.J.S.A. §

39:3-10. (Def. Ex. 29.)

After Defendant was placed under arrest, Officers Schwartz and Faranda made

arrangements to impound the Camaro and have it removed from Bloomfield Avenue. Before the

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Camaro was removed, Officer Faranda advised Defendant that the Camaro would be impounded

and asked him if he wanted to retrieve anything from it. (Gov’t Ex. 2 at 5:37:33.) Defendant did

not specifically answer Officer Faranda’s question, but requested that the officers permit him to

call someone to take the vehicle. (Gov’t Ex. 2 at 5:37:40.) This request was denied. (Gov’t Ex.

2 at 5:37:50.)

Subsequently, Officers Schwartz and Faranda transported Defendant to GRPD

headquarters. Sergeant James McCann, who had arrived on the scene shortly after the stop,

remained on the scene to wait for the tow company to impound the Camaro. (Tr. 3.32:14-15.)

While waiting for the tow company, Sergeant McCann began performing an inventory search of

the vehicle. During his search, Sergeant McCann found, among other things, two cellular phones

and a set of keys in the passenger compartment. Inside the trunk, Sergeant McCann found an

open soft, leather briefcase. (See Def. Ex. 31.) According to Sergeant McCann, some of the

items ofthe briefcase had spilled about the trunk. (See Def. Ex. 31; Tr. 3.42:7-8, 3.44:25-

3.45:5.) These items included several checkbooks; prepaid debit cards in other people’s names;

multiple pages of white, lined paper with several different names, corresponding social security

numbers, and dates of birth; and a doctored W-2 form. (See Def. Ex. 31; see also Gov’t Exs. 7-

9.) Based on his training and experience, Sergeant McCann instantaneously recognized the

items he found in the trunk as potential evidence offraud. (Tr. 3.51:13-3.53:13, 3.135:15-23.)

Sergeant McCann brought the briefcase and the loose items to headquarters for further

investigation. (See Def. Ex. 31; Tr. 3.54:11-14.)

At headquarters, Sergeant McCann gave the briefcase and the loose items to Detective

Sergeant Dean Gnardellis. (Tr. 3.54:9-14.) Sergeant McCann explained to Detective Sergeant

Gnardellis that he had retrieved the briefcase and the loose items while conducting an inventory

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search of a vehicle whose driver had been arrested for driving while intoxicated. (See, e.g., Def.

Ex. 23.) Detective Sergeant Gnardellis then confirmed with Sergeant McCann that the briefcase

was open when he found it. (Tr. 4.15:22-4.16:1-6.) Thereafter, Detective Sergeant Gnardellis

inventoried the frill contents ofthe briefcase and the loose items that Sergeant McCann removed

from the vehicle. Among the things that Detective Sergeant Gnardeliis found inside the

briefcase were: (1) Turbo Tax receipts in different individuals’ names without attached cards; (2)

several cellular phones; (3) five United States Postal Service money orders, each in the amount

of $1,000; (4) three New Jersey State income tax refund checks in different people’s names; (5) a

composition notebook with numerous names and corresponding personal identification

information and dollar amounts; (6) multiple pages from a 2007 copy of the Union County

Correctional Facility daily population report; and (7) several W-2s. (See Gov’t Ex. 23.)

At some point after the stop, the officers learned that the Camaro belonged to Avis Car

Rental (“Avis”), and was rented to a Mellissa Bailey (“Bailey”), Defendant’s girlfriend. (See Tr.

3.39:5-15; Bailey Aff. ¶ I; Akinola Aff. ¶ 8.) Bailey had rented the Camaro for Defendant’s use

because he did not have a credit card. (See Akinola Aff. ¶J 9-li.) According to Defendant, he

deposited money into Bailey’s bank account so that she could use this money to pay the costs

incurred in renting the Camaro. (See id. ¶ 11; see also Bailey Aff. ¶J 3-4).

When they arrived at GRPD headquarters, Officers Faranda and Schwartz placed

Defendant in a holding cell. (See Def. Exs. 21, 29.) Officer Faranda advised Defendant that

Sergeant McCann was performing an inventory search of his vehicle and, again, asked him if

there was anything he needed. (Tr. 1.66:9-15.) Defendant responded that he needed his “school

bag,” but that he would “get it later.” (Id.)

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Approximately 20 minutes after Defendant arrived at headquarters, Sergeant McCann

administered an Alcotest (i.e., a breathalyzer test) which revealed that Defendant had 0.05%

blood-alcohol content. (See Def. Br. in Supp. Mot. at Ex. E.) Later, while still in the holding

cell, Defendant requested to make a phone call. (See Tr. 4.114:15-23.) Officer Charles Roberts

of the GRPD then brought a telephone to Defendant. (See Tr. 4.114-4.116.) With Officer

Roberts’ assistance, Defendant placed the call and spoke to an unidentified male in Yoruba, a

Nigerian language. (See Gov’t Ex. 13.) This call was recorded. (See id.)

Later that day, Detective Sergeant Gnardellis called Special Agent Eric Malecki of the

U.S. Postal Inspection Service, and advised him that GRPD officers discovered items during an

inventory search that may warrant further investigation. (See, e.g., Gov’t Ex. 23.) On April 28,

2011, Special Agent Malecki tiled a complaint charging Defendant with conspiring to defraud

the United States and the Internal Revenue Service in violation of 18 U.S.C. § 286. Thereafter,

on May 9, 2011, a federal grand jury returned an indictment charging Defendant with conspiracy

to defraud the United States and the Internal Revenue Service by obtaining federal income tax

refunds based on the submission of materially false federal income tax returns in violation of 18

U.S.C. § 286.

Defendant then filed a motion to suppress the evidence seized from the rental vehicle on

August 24, 2011, and a motion to suppress the statements made during the telephone

conversation on December 10, 2011. The Court held an evidentiary hearing in connection with

Defendant’s motions that took place over the course ofsix days. Following the evidentiary

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hearing, the Court allowed the parties to file post-hearing submissions, 2and heard oral argument

on January 25, 2013.

11. LEGAL STANDARD

The Fourth Amendment to the U.S. Constitution guarantees “[tihe right ofthe people to

be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. To prevail on a motion to suppress, a defendant generally

bears the burden of proving that the challenged search or seizure was unreasonable under the

Fourth Amendment. See United States v. Acosta, 965 F.2d 1248, 1257 n.9 (3d Cir. 1992) (“The

proponent of a motion to suppress has the burden of establishing that his Fourth Amendment

rights were violated.”). However, when a search is conducted without a warrant, as is the case

here, the burden shifts to the Government to demonstrate by a preponderance of the evidence that

the warrantless search did not run afoul ofthe Fourth Amendment. See, e.g., United States v.

Johnson, 63 F.3d 242, 245 (3d Cir. 1995).

III. DISCUSSION

In deciding whether the search of the Camaro and the seizure of evidence therefrom

violated Defendant’s Fourth Amendment rights, the Court must consider the following: (1)

whether the officers had a reasonable suspicion that Defendant had violated any traffic laws prior

to stopping him; (2) whether the officers had probable cause to arrest Defendant; (3) whether

Defendant has standing to challenge the search ofthe vehicle and briefcase; and (4) whether,

assuming that Defendant has standing to challenge the search ofthe vehicle and the briefcase,

2 On February 6, 2013, Defendant filed a request for permission to file a supplemental memorandum to respond to

certain arguments the Government raised during the oral argument held on January 25, 2013. On this same date, the

Court granted Defendant’s request, allowing him to file his supplemental memorandum no later than February 8,

2013. Defendant filed his supplemental memorandum on February 15, 2013, a week after the deadline this Court imposed. In spite of his failure to comply with the Court’s deadline, the Court has reviewed and considered the

points raised in Defendant’s supplemental memorandum.

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that search was properly conducted in accordance with the GRPD’s impoundment and inventory

procedures.

Additionally, in deciding whether to suppress Defendant’s statements during the April

27, 2011 telephone call, the Court must determine whether Defendant had a reasonable

expectation that this conversation would remain private.

The Court will now address the merits of each of Defendant’s motions.

A. Evidence Seized from the Camaro

1. The Traffic Stop

Traffic stops based on an officer’s “reasonable, articulable suspicion that criminal activity

is afoot” do not run afoul of the Fourth Amendment. illinois v. Wardlow, 528 U.S. 119, 123

(2000) (citing Teriy v. Ohio, 329 U.S. 1, 30 (1968)). “{Aj traffic stop will be deemed a

reasonable ‘seizure’ when an objective review of the facts shows that an officer possessed

specific, articulable facts that an individual was violating a traffic law at the time of the stop.”

United States v. Defmn-Colina, 464 F.3d 392, 398 (3d Cir. 2006). A “[r]easonable, articulable

suspicion is a less demanding standard than probable cause and requires a showing considerably

less than preponderance ofthe evidence.” Id. at 396. “Courts give considerable deference to

police officers’ determinations ofreasonable suspicion, and the cases are steadily increasing the

constitutional latitude of police to pull over vehicles.” United States v. Mosley, 454 F.3d 249,

252 (3d Cir. 2006) (citing cases). In deciding whether a traffic stop was based on a reasonable

suspicion, courts “must consider the totality ofthe circumstances — the whole picture.” United

States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002) (quotation marks and citation omitted).

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Based on its review of the video of the traffic stop, (see Gov’t Ex. 2.), and the credible

testimony of Officers Faranda and Schwartz, this Court finds that the traffic stop of the Camaro

was based on a reasonable, articulable suspicion.

Officers Faranda and Schwartz both testified that while traveling eastbound on

Bloomfield Avenue in Glen Ridge, they witnessed the Camaro traveling westbound swerving

between two lanes. (Tr. 1.32:4-1.33:9, 1.37:9-1.38:6, 2.35:11-2.36:19.) The officers then turned

around, and began following the Camaro. (Tr. 1.33:10-13, 2:68:17-21.) As they followed the

Camaro, the officers observed it cross over a double yellow line. (Tr. 1.48:8-19, 1.49:14, 2.80:7-

18, 2.81:11—12.)

The video of the traffic stop largely corroborates the officers’ testimony concerning

Defendant’s erratic driving. (See Gov’t Ex. 2.) The video shows the Camaro traveling on the

left westbound lane of Bloomfield Avenue, braking abruptly, (see Gov’t Ex. 2 at 5:19:30), and

swerving left onto the double yellow lines separating the east and westbound lanes of Bloomfield

Avenue. (See Gov’t Ex. 2 at 5:19:25-33.) Although the video does not clearly show the Camaro

crossing the double yellow lines, it does show the Camaro gradually veering far to the left of the

double white lines separating the two westbound lanes of Bloomfield Avenue. (See Gov’t Ex. 2

at 5:17-35.) In light ofthe distance between the Camaro and the double white lines on its right,

it is apparent to the Court that the Camaro must have crossed over the double yellow lines, as

Officers Faranda and Schwartz both testified. (See, e.g., Tr. 1.48:8-19, 1.49:14, 2.80:7-18,

2.81:11-12.)

Indeed, the observations of Officers Faranda and Schwartz provided a reasonable and

articulable suspicion that Defendant was driving carelessly and under the influence of alcohol in

violation ofN.J.S.A. § 39:4-50, 39:4-97. See, e.g., State v. Pavao, 239 N.J. Super. 206, 209

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(App. Div. 1990) (“The erratic nature of the vehicle’s movement provided an articulable and

reasonable suspicion that defendant was driving carelessly or while under the influence of

alcohol.”) (citations omitted). Based on the totality ofthe circumstances, this Court holds that

the traffic stop ofthe Camaro was constitutional.

2. Defendant’s Arrest

Having determined that the stop of the vehicle was proper under the Fourth Amendment,

the Court now turns to consider whether there was probable cause to arrest Defendant.

The Fourth Amendment requires that an arrest be based on probable cause. See Pq(fv.

Kaltenbach, 204 F.3d 425, 435 (3d Cir. 2000). “Probable cause to arrest exists when the

information within the arresting officer’s knowledge at the time ofthe arrest is sufficient to

warrant a reasonable law enforcement officer to believe that an offense has been or is being

committed by the person to be arrested.” See id. at 436. “While probable cause to arrest requires

more than mere suspicion, the law recognizes that probable cause determinations have to be

made on the spot under pressure and do not require the fine resolution of conflicting evidence

required at trial.” United States v. Navedo, 694 F.3d 463, 467 (3d Cir. 2012) (internal quotation

marks and citations omitted). Courts use a totality of the circumstances analysis to determine

whether an arrest was properly based on probable cause. See Maryland v. Pringle, 540 U.S. 366,

371 (2003).

The crux of Defendant’s argument challenging the validity of his arrest is that his

performance on the field sobriety tests could not have established probable cause to believe that

he was driving while intoxicated because Officer Faranda administered these tests improperly.

(See, e.g., Def. Post-Hearing Reply Memo. at 13.) Defendant emphasizes that the officers’

probable cause determination is belied by the fact that his Alcotest revealed a 0.05% blood

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alcohol content, which is below the per se legal intoxication limit in New Jersey. 3

Defendant’s argument assumes that his performance on the field sobriety tests is the only

factor this Court should consider in determining whether there was probable cause for an arrest.

Even assuming, arguendo, that Officer Faranda failed to administer the field sobriety tests

properly, this Court must consider whether there were other factors supporting a finding of

probable cause to arrest Defendant.

According to the testimony of Herbert Leckie, Defendant’s own expert on the

administration of Alcotest and field sobriety tests, field sobriety tests are merely one of the tools

that police officers use to determine whether a driver is too intoxicated to drive. (See Tr. 6.74:1-

22.) Such tests are not “the only tool.” (Tr. 6.74:21-22.) Mr. Leckie acknowledged that in

deciding whether to arrest someone for driving while intoxicated, a police officer would also

consider, among other things, whether he or she smelled alcohol on the driver’s breath, the

driver’s responsiveness to questions, and the driver’s behavior. (See Tr. 6.74.)

Based on the credible testimony of Officers Faranda and Schwartz, the Court concludes

that Defendant’s arrest was supported by probable cause and was constitutionally proper.

Specifically, as discussed supra, both officers observed the Camaro weaving between lanes, and

even crossing a double yellow line. (See, e.g., Tr. 1.32:4-1.33:9, 1.37:9-1.38:6, 2.35:11-2.36:19.)

When Officer Faranda approached the driver’s side window after stopping the Camaro, he

smelled “a distinct odor of alcoholic beverage emanating from [Defendant’s] breath,” 4and

observed “fumbled hand movements and watery droopy eyelids.” (Tr. 1.54:17-20.) He further

Under New Jersey law, a driver with a blood-alcohol content of 0.08% or above is considered to be intoxicated as a

matter of law. See N.J.S.A. § 39:4-50(a).

‘

On the video, Officer Faranda is heard telling Defendant that he was “concerned with [his] driving,” could “smell

the alcohol,” and that Defendant was “not going straight.” (Gov’t Ex. 2 at 5:23:17-33.)

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noted that Defendant was “slightly incoherent during the stop,” meaning that he was

unresponsive to some of the questions being asked. (Tr. 1.54:20-21, 1.55:3-10.) Officer

Schwartz similarly testified that when he first encountered Defendant, he detected an odor of

alcohol, and noticed that his “eyelids were slightly droopy” and that his eyes “were bloodshot.”

(Tr. 2.38:4-6.)

Defendant maintains that the officers’ reliance on the field sobriety tests was “not only

relevant to the probable cause determination, but [was] the decisive factor.” (See Def. Supp. Br.

at 3.) Defendant argues that Officer Faranda’s acknowledgement that he may not have arrested

Defendant if he had passed the field sobriety tests demonstrates that the field sobriety tests were

dispositive in the officers’ probable cause determination. (Tr. 1.127:25-1.129:13.) Defendant

further asserts, without providing any citation to the record, that Officer “Faranda reasonably

concluded that his observations did not rise [sic] to adequate probable cause without the failed

[field sobriety tests].” (Def. Supp. Br. at 3.)

Even ifthis Court were to find that the field sobriety tests were administered improperly,

and that Defendant’s performance on these tests tipped the scale in the officers’ decision to arrest

Defendant, it would not necessarily follow that probable cause was lacking from an objective

standpoint. See Devenpeck v. Afford, 543 U.S. 146, 153 (2004) (“[T]he fact that the officer does

not have the state of mind which is hypothecated by the reasons which provide the legal

justification for the officer’s action does not invalidate the action taken as long as the

circumstances, when viewed objectively, justify that action.”) (emphasis added); cf Whren v.

United States, 517 U.S. 806, 813 (1996) (“Subjective intentions play no role in ordinary,

probable-cause Fourth Amendment analysis.”). Indeed, ifthe officers had concluded that

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Defendant had passed the field sobriety tests, they may very well have decided not to arrest him

in spite ofthe existence of probable cause. 5

Based on a totality of the circumstances, this Court concludes that the officers had

probable cause to arrest Defendant even without considering Defendant’s performance on the

field sobriety tests. In light of the Court’s conclusion, it need not determine whether those tests

were properly administered.

3. Defendant’s Standing to Challenge the Search ofthe Camaro and the Briefcase

Having determined that the stop of the Camaro and Defendant’s arrest were

constitutionally proper, the Court must now consider whether Defendant has standing to

challenge the search of the Camaro and ofthe briefcase located therein.

“Fourth Amendment standing requires that the individual challenging the search have a

reasonable expectation of privacy in the property searched. . . and that he manifest a subjective

expectation of privacy in the property searched.” United States v. Kennedy, 638 F.3d 159, 166

(3d Cir. 2011) (ellipsis in original) (internal quotation marks and citations omitted). That is,

Fourth Amendment standing requires a reasonable expectation of privacy from both an objective

and subjective standpoint. See, e.g., Kyllo v. United States, 533 U.S. 27, 33 (2000) (“[Aj Fourth

Amendment search does not occur.. unless the individual manifested a subjective expectation

of privacy in the object ofthe challenged search, and society is willing to recognize that

expectation as reasonable.”) (internal quotation marks and citation omitted). “[A] reasonable or

legitimate expectation of privacy must have a ‘source outside of the Fourth Amendment, either

The Court notes that even if Defendant had actually been driving sober when he was pulled over, this would not

create an absence of probable cause to arrest. See, e.g., Jones v. Middletown Twp., 253 Fed. Appx. 184, 188 (3d Cir.

Nov. 8, 2007) (“Because probable cause is a less exacting standard than proof beyond a reasonable doubt, the

absence of probable cause is not established by an adjudication of innocence in the criminal proceeding.”) (citing

Coleman v. Burnett, 477 F.2d 1187, 120 1-02 (D.C. Cir. 1973)).

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by reference to concepts ofreal or personal property law or to understandings that are recognized

and permitted by society.” Kennedy, 638 F.3d at 164 (quoting Minnesota v. Carter, 525 U.S.

83, 88 (1998)).

Defendant argues that he had a reasonable expectation of privacy in the Camaro

notwithstanding the fact that he was not an authorized driver. In the alternative, Defendant

argues that he had a reasonable expectation of privacy in the briefcase. The Court will address

each of these arguments in turn.

a. Defendant’s Standing to Challenge the Search of the Camaro

In Kennedy, the Third Circuit addressed one of the very questions before this Court—

whether a defendant has standing to challenge the search of a rental car of which he is not an

authorized driver. In that case, the defendant’s girlfriend rented a car and then lent it to the

defendant, who had a valid driver’s license. 638 F.3d at 161. The defendant’s name was not

listed in the rental agreement. Id. Acting on an arrest warrant, police officers encountered the

defendant while he was walking to the rental car, and placed him under arrest on suspicion of

having sold stolen weapons to two minors in exchange for money and drugs. Id. One of the

officers then contacted the rental car’s owner, who requested that the car be impounded. Id.

Following the car’s impoundment, one of the officers conducted an inventory search of the car.

Id. In the trunk, the officer found a partially open duffle bag containing a disassembled rifle. Id.

at 162. The officer then stopped the search and spoke to a detective, who subsequently obtained

a search warrant to search the rest of the vehicle. Id. The detective found a semi-automatic

handgun and 202 grams of cocaine base, among other things, inside the vehicle. Id. The

defendant then moved to suppress the evidence seized from the vehicle. Id. at 161.

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In considering whether the defendant had standing to challenge the search of the rental

car, the Third Circuit held that “as a general rule, the driver of a rental car who has been lent the

car by the renter, but who is not listed on the rental agreement as an authorized driver, lacks a

legitimate expectation of privacy in the car unless there exist extraordinary circumstances

suggesting an expectation of privacy.” Id. at 165. Finding that there were no extraordinary

circumstances suggesting an expectation of privacy in the rental car, the court held that the

defendant lacked standing to challenge the search ofthe rental car. Id. at 168.

Here, Defendant argues that he has standing to challenge the search of the Camaro even

though his name was not on the rental agreement. Specifically, he argues that he had a

reasonable expectation of privacy in the Camaro because he was “the defacto renter.” (See Def.

Br. in Supp. Mot. at 15-16.) To support this argument, Defendant relies primarily on United

States v. Smith, a case which the Third Circuit acknowledged “as an example of extraordinary

circumstances that might overcome the general rule” that an unauthorized driver lacks standing

to challenge the search of a rental car. See Kennedy, 638 F.3d at 168 (citing United States v.

Smith, 263 F.3d 571 (6th Cir. 2001)).

In Smith, the Sixth Circuit held that a defendant had a reasonable expectation of privacy

in a rental vehicle of which he was the defacto renter because he had a business relationship

with the rental company in that he reserved the vehicle in his name, paid for it with his own

credit card, and had an “intimate relationship with his wife, the authorized user of the vehicle.”

263 F.3d at 5 86-87.

Defendant contends that like the defendant in Smith, he was a dejacto renter because,

among other reasons, (1) he had a business relationship with Avis by virtue of his having

discussed details of the rental with an Avis agent; (2) he had an “intimate relationship” with the

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renter, and deposited funds into the renter’s account for the purpose of paying for the rental; (3)

he and the renter both understood the vehicle would be for his use; and (4) the renter used the

funds that Defendant deposited into her account to pay the credit card fees in connection with the

rental. (See Def. Br. in Supp. Mot. at 16-17.)

Defendant’s reliance on Smith is misplaced for three reasons. First, unlike the defendant

in that case, Defendant was not a licensed driver. Second, the intimate relationship between the

authorized driver and the defendant in Smith was much stronger than the relationship between

Defendant and Bailey, the authorized renter of the Camaro. In Smith, the defendant and the

authorized renter were married; here, Defendant and Bailey claim merely to have been dating.

Finally, Defendant’s claim that he, like the defendant in Smith, had a business relationship with

the rental dealership is meritless because any such relationship was based on deception. 6Indeed,

both Defendant and Bailey have acknowledged that the Camaro was rented for Defendant’s use

ab initio. (See Akinola Aff. ¶ 9; Bailey Aff. ¶ 2.) Yet, they concealed this fact from Avis,

presumably, because they did not want to disclose that they intended for an unlicensed driver to

drive the Camaro.

The Third Circuit has specifically observed that “an individual who borrows a rental car

without the permission or knowledge of the owner not only acts in contravention of the owner’s

property rights, but also deceives the owner of the vehicle while increasing the risk that the

property will be harmed or lost.” Kennedy, 638 F.3d at 165. As Avis’s security manager

testified, Avis does not rent its cars with the expectation that unlicensed drivers will drive them.

(Tr. 2.24:22-2.25:2.). In driving the Camaro with neither a valid driver’s license nor Avis’s

knowledge and consent, Defendant placed an unbargained-for risk of property harm and loss on

It bears mentioning that the defendant in Smith paid for the rental car in his own name and with his own credit

card. By contrast, in this case Defendant did not directly pay the rental agency for the Camaro.

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Avis. Accordingly, he cannot have a reasonable expectation of privacy in the Camaro. See

Kennedy, 638 F.3d at 167 (holding that unauthorized drivers lack a reasonable expectation of

privacy in a rental vehicle because, among other reasons, their unauthorized use of such vehicles

amounts to “a deceptive means of placing unbargained-for risk of property harm and loss onto

the rental company.”).

As he did not have a reasonable expectation of privacy in the Camaro because he was an

unauthorized driver, Defendant lacks standing to challenge the Camaro’s search. See generally

Kennedy, 638 F.3d at 159-69; see also United States v. Seeley, 331 F.3d 471, 472 n.l (5th Cir.

2003) (per curiam) (holding that rental car driver who was neither the renter nor authorized

driver lacked standing); United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994) (holding that

unauthorized driver ofrental car who had been given permission to drive by authorized driver

lacked standing); United States v. Roper, 918 F.2d 885, 887-88 (10th Cir. 1990) (holding that

unauthorized user ofrental car lacked standing).

b. Defendant’s Standing to Challenge the Search of the Briefcase

Defendant argues that even if he lacks standing to challenge the search ofthe Camaro, he

had a distinct privacy interest in the briefcase, which he placed in the Camaro’s trunk. The

Government, on the other hand, argues that without a reasonable expectation of privacy in the

Camaro, Defendant “could not have had a reasonable expectation of privacy in his briefcase.”

(See Gov’t Opp. Br. at 16.)

Although the Kennedy court did not explicitly state that an individual who lacks standing

to challenge the search of a vehicle also lacks standing to challenge the search of bags or

containers within the vehicle, the Court agrees with the Government that Kennedy supports that

very proposition. Defendant’s attempt to distinguish Kennedy on the basis that the officers in

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that case obtained a warrant to search the rest ofthe vehicle upon finding an open bag with a

disassembled rifle in the trunk is unavailing for two reasons. First, the fact that the officers in

Kennedy obtained a warrant played no role in the court’s standing analysis. Second, the Kennedy

court concluded that the defendant lacked a privacy interest in the car, despite the district court’s

opposite conclusion. 7

Indeed, in Kennedy, the Third Circuit did not make any distinction between one privacy

interest with respect to the vehicle, and another with respect to the defendant’s bag. Notably, the

Kennedy court approvingly cited United States v. Wellons, a case in which the Fourth Circuit

held that “one who can assert no legitimate claim to the car he was driving cannot reasonably

assert an expectation of privacy in a bag found in that automobile.” See Wellons, 32 F.3d at 119

(cited in Kennedy, 638 F.3d at 165).

Wellons is in accord with a recent unpublished Third Circuit decision, United States v.

White, No. 11-4035, 2012 U.S. App. LEXIS 23456 (3d Cir. Nov. 15, 2012). In White, a

defendant challenged a police officer’s search of a locked box contained within a stolen vehicle

he was driving. The Third Circuit affirmed the district court’s denial of the defendant’s motion

to suppress, and in so doing, observed that “[a] person has no legitimate expectation of privacy in

a place where he has no right to be.” White, 2012 U.S. App. LEXIS 23456, at The White

court approvingly cited Wellons for the specific proposition that “[a] person who cannot assert a

legitimate claim to a vehicle cannot reasonably expect that the vehicle is a private repository for

his personal effects, whether or not they are enclosed in some sort of a container, [including

personal luggage].” Id. at *11 (bracketed text in original) (quoting Welions, 32 F.3d at 119).

In light ofKennedy and White, this Court sees no legal basis to draw a distinction

The district court had denied the defendant’s motion to suppress on the basis that the search was a valid inventory

search. See Kennedy, 638 F.3d at 162-63.

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between Defendant’s privacy interest with respect to the Camaro, and that which he contends

exists with respect to the briefcase. Accordingly, because Defendant lacked a reasonable

expectation of privacy in the Camaro, he also lacked a reasonable expectation of privacy in the

briefcase located therein.

4. Whether the Search was Properly Performed under the GRPD’s Policy

Having concluded that (1) Officers Faranda and Schwartz had a reasonable suspicion to

stop the Camaro, (2) probable cause existed to arrest Defendant, and (3) Defendant lacks

standing to challenge the search of the Camaro and the briefcase, this Court has valid bases to

deny Defendant’s motion to suppress the evidence seized from the Camaro without further

analysis. Nevertheless, even assuming, arguendo, that Defendant has standing to challenge the

search, the Court would still deny Defendant’s motion because the search was a valid inventory

search.

It is well settled that “[w]arrantless searches and seizures are presumptively unreasonable

and are therefore prohibited under the Fourth Amendment unless an exception applies.” United

States v. Mundy, 621 F.3d 283, 287 (3d Cir. 2010). “[O]ne exception to the warrant requirement

is for inventory searches oflawfully seized automobiles.” Id. To be lawful, an inventory search

“must be conducted according to standardized criteria or established routine, consistent with the

purpose of a non-investigative search.” Id. (quotation marks and citation omitted). Inventory

search procedures “serve three ‘strong governmental interests’: ‘[1] to protect an owner’s

property while it is in the custody of the police, [2] to insure against claims of lost, stolen, or

vandalized property, and [3] to guard the police from danger.” Id. (quoting Colorado v. Bertine,

479 U.S. 367, 372 (1987)). “The criteria or routine must limit an officer’s discretion in two

ways: first, as to whether to search the vehicle, and second, as to the scope of an inventory

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search.” Id. at 288 (citation omitted) (emphasis in original). The purpose ofthese limitations is

to ensure that an inventory search is not “turned into a purposeful and general means of

discovering evidence of a crime.” United States v. Salmon, 944 F.2d 1106, 1120 (3d Cir. 1991)

(citation and quotation marks omitted).

The GRPD’s inventory policy requires that three conditions be satisfied prior to an

inventory search: (1) “[t]he vehicle must be properly impounded;” (2) the inventory search

cannot serve as a pretext for conducting an investigative search; and (3) “ifthe owner or

permissive user is present, that individual must be given the option of consenting to the inventory

search or making arrangements for protecting the property, including the removal of items prior

to the inventory search.” (Gov’t Ex. 3 at III.) The GRPD inventory policy allows for officers to

open and inspect “containers found during a consented inventory search.” (Gov’t Ex. 3 at III.D.)

Defendant argues that the inventory search of the Camaro was unlawful because (1) he

was denied the opportunity to make arrangements for someone else to retrieve the Camaro; (2)

he never consented to the search, as required by the GRPD’s inventory policy; (3) the inventory

search was merely a pretext for conducting an investigative search; and (4) the search and

seizure of the contents within the briefcase were unreasonable. None of Defendant’s arguments

is availing.

First, the officers did not have any discretion to allow Defendant to make alternative

arrangements to impoundment once they arrested him for driving while intoxicated. Under

John’s Law, “[w]henever a person has been arrested for a violation of [N.J.S.A. § 39:4-50] .

the arresting law enforcement agency shall impound the vehicle that the person was driving at

the time of the arrest.” See N.J.S.A. § 39:40-50.23 (emphasis added). Although John’s Law

allows for an impounded vehicle to be released to someone other than the arrestee prior to the

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expiration ofthe statutorily required 12-hour impoundment period, nothing in the statute allows

an officer not to impound a vehicle after arresting someone for driving while intoxicated. See

N.J.S.A. § 39:40-50.23(b)-(c).

Defendant points out that notwithstanding John’s Law, Section JII.A ofthe GRPD

inventory policy does not permit impoundment when a driver is placed under arrest unless the

vehicle “constitutes a danger to persons, property, or public safety and the driver cannot arrange

for someone to remove the vehicle.” (See Def. Br. in Supp. Mot. at 25.) This language would

possibly support Defendant’s argument that the officers should have allowed him to make

alternative arrangements to impoundment ifthey had arrested him for something other than

driving while intoxicated. However, to interpret the language ofthe GRPD inventory policy as

requiring officers to afford an individual arrested for driving while intoxicated an opportunity to

arrange for someone to retrieve the vehicle prior to impoundment is untenable because such an

interpretation would require police officers to disregard John’s Law. Accordingly, the Court is

compelled to conclude that the vehicle was properly impounded pursuant John’s Law, and in

accordance with Section II of the GRPD inventory policy, which enumerates a non-exhaustive

list of instances in which an officer may impound a vehicle. 8

Second, there is no dispute that the officers never obtained Defendant’s consent to search

the Camaro. Consent, however, is not required under the GRPD inventory policy. What is

8 Section II of the inventory policy enumerates a list of instances that allow an officer to impound a vehicle.

Notably, the GRPD inventory policy makes clear that the instances allowing officers to impound a vehicle are “not

limited to” those enumerated in Section II. (See Gov’t Ex. 3 at II.)

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required is that the owner or permissive user be given the option of consenting to a search

making arrangements for protecting property within the vehicle. 9

In this case, Officer Faranda specifically asked Defendant whether he wanted to obtain

anything from the Camaro prior to the inventory search. (Tr. 1.61:18-25; Gov’t Ex. 2 at 5:37:31-

36.) Defendant did not respond to Officer Faranda’s question, and instead requested that the

officers not impound his car. (Tr. 1.166:7-13; Gov’t Ex. 2 at 5:37:31-5:38:32.) As Officer

Faranda credibly testified on two separate occasions, Defendant reconfirmed that he did not want

to retrieve anything from the Camaro while he was in the celiblock in the police station, stating

that he would retrieve a bag from the car “at another date and point in time.” (Tr. 1.66:6-15;

5.64:14-22.) Accordingly, the fact that Defendant did not give his consent to the inventory

search does not make that search unlawful.’°

Third, there is nothing in the record to suggest that Sergeant McCann’s inventory search

was merely a pretext for conducting an investigative search. It would require a leap in logic to

infer, as Defendant urges this Court to do, that because Sergeant McCann became aware that

Defendant was on probation and suggested to Officer Faranda to contact Defendant’s probation

officer, Sergeant McCann improperly sought to investigate whether the Camaro contained

evidence of other criminal activity. When asked whether he expected to find evidence of

For the purpose of its analysis, the Court has assumed that the officers were required to treat Defendant as the

Camaro’s owner or permissive user, even though he did not have a valid driver’s license and was driving the

Camaro without Avis’s knowledge or consent.

‘° Defendant’s reliance on State v. Mangold, 82 N.J. 575 (1980) for the proposition that the inventory search was

unlawful because the officers never gave him the option of consenting to the search is misplaced. Aside from the

fact that this Court is not bound by the New Jersey Supreme Court’s decision in Mangold, the court in that case held

that “a person must be given the option of either consenting to the inventory making his own arrangements for the safekeeping of the property contained in the vehicle” for an inventory search to be valid. Mangold, 82 N.J. at

587 (emphasis added). The officers’ actions in this case were in accordance with Mangold because they gave

Defendant the option ofretrieving his property.

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criminal activity prior to conducting the inventory search, Sergeant McCann credibly testified

that he did not. (Tr. 3.38:13-16.)

Fourth, notwithstanding Defendant’s assertion to the contrary, the Court finds that the

briefcase in the trunk was open, and that its contents were strewn about.” The search and

inventory ofthe loose items strewn about the trunk were in accordance with the GRPD’s

inventory policy because Defendant had been given an opportunity to retrieve his belongings

from the Camaro, an opportunity which he declined. Moreover, Sergeant McCann’s seizure of

the loose items scattered throughout the trunk was lawful because these items were in plain

view. 12

It is well settled that an officer may seize evidence that is in plain view without a search

warrant ifthree conditions are satisfied: (1) the officer must have lawfully arrived at the place

from where the evidence could be plainly viewed; (2) the incriminating nature of the evidence

seized must be immediately apparent; and (3) the officer must have possessed a lawful right of

access to the object itself. See United States v. Stabile, 633 F.3d 219, 241 (3d Cir. 2011)

(citations omitted).

Sergeant McCann testified that the briefcase was open when he found it, and that its contents had spilled

throughout the trunk. (Tr. 3.41:8-14, 3.42:1-3.) Sergeant McCann’s testimony is corroborated by his inventory

report, in which he specifically noted that the briefcase was open. (Def. Ex. 31.) Further corroborating the fact that

the briefcase was open is Detective Sergeant Gnardellis’s testimony that Sergeant McCann informed him that the

briefcase was open. (Tr. 4.15:22-4.16:13.) The only evidence in the record suggesting that the briefcase was closed

is an affidavit in which Defendant asserts that he “closed the briefcase prior to placing it in the locked trunk.” (See

Def. Mot. in Supp. Ex. B at ¶ 14.) In light of Sergeant McCann’s report and the consistent testimony suggesting

that the bag was open, the Court will not credit Defendant’s conclusory assertion in his affidavit, which was not

subject to cross-examination. See, e.g., United States v. Pascu, No. 11-10199, 2012 WL 2449905, at *7 n.9 (D.

Mass. June 26, 2012) (disregarding defendant’s affidavit on a motion to suppress because defendant declined to

testify).

12 It should be noted that the search of the briefcase was also proper under the GRPD inventory policy because the

briefcase was open when Sergeant McCann found it. Sergeant McCann and Detective Sergeant Gnardellis both

credibly testified that they understood Section 111.D as permitting the search of open containers. (See Tr. 3.39:25-

3.40:9, 3.158:18-23, 4.16:2-4.18:9.) The Court finds that the officers’ interpretation of the inventory policy

sufficiently limited their discretion in conducting inventory searches. Accordingly, their application of the inventory

policy in this case was consistent with governing case law. See Mundy, 621 F.3d at 287 (requiring that inventory

searches be “conducted according to standardized criteria or established routine”).

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In this case, Sergeant McCann lawfully accessed the trunk pursuant to the inventory

search exception to the Fourth Amendment’s warrant requirement. Additionally, Sergeant

McCann credibly testified that he immediately understood the fraudulent nature of the loose

items in the trunk, which included a doctored W-2 in other people’s names and white-lined paper

with names, social security numbers, and dollar amounts. (Tr. 3.43:14-23; 3.45:17-20; 3.51:13-

53:13.) Finally, Sergeant McCann had a lawful right of access to the loose items seized because

he found these items in open view upon lawfully searching the trunk pursuant to the GRPD’s

inventory policy.

Sergeant McCann’s recognition of the incriminating nature ofthe loose documents he

found in the trunk of the Camaro provided probable cause to believe that the briefcase contained

evidence of a crime. Indeed, the U.S. Supreme Court has recognized that iflaw enforcement

officers have probable cause to believe if a vehicle or a container within a vehicle contains

evidence of a crime, no Fourth Amendment violation occurs ifthe police open and search the

container without a warrant. See Caflfornia v. Acevedo, 500 U.S. 565, 570 (1991) (“[Ijf probable

cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part ofthe

vehicle and its contents that may conceal the object ofthe search) (quoting United States v. Ross,

456 U.S. 798, 825 (1982)). Based on the incriminating nature ofthe loose items Sergeant

McCann found, Detective Sergeant Gnardellis had probable cause to believe that the briefcase

contained evidence of criminal activity. Thus, his search and full inventory ofthe contents of the

briefcase were lawful.

B. The Telephone Call

The relevant facts pertaining to Defendant’s motion to suppress the statements he made

during his telephone call while in the GRPD headquarters holding cell are not in dispute. Officer

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Roberts, who was present during the call, acknowledged that he did not tell Defendant that his

call would be recorded. (Tr. 4.118:23-25.) Additionally, there were no explicit notices that calls

made from the holding cell would be recorded. (Tr. 4.77:10-19.) There were, however, four

surveillance cameras and two intercom boxes visible from Defendant’s cell when he made the

call. (Tr. 4.33:8-4.38:18.)

Defendant argues that the interception of his call from the GRPD holding cell violated

both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of

1968, which generally prohibits the interception of “any wire, oral, or electronic

communication.” See 18 U.S.C. § 251 1(1)(a). Specifically, Defendant contends that the

interception of his phone conversation was unlawful because he did not receive notice that his

conversation would be recorded, and did not consent to the recording of his conversation.

The Court will now address the merits of Defendant’s Fourth Amendment and Title III

arguments.

a. Fourth Amendment Argument

In the landmark case of Katz v. United States, 389 U.S. 347 (1967), the U.S. Supreme

Court recognized that individuals generally have a reasonable expectation of privacy in a

telephone conversation, and that such conversations are protected under the Fourth Amendment.

As discussed supra, a defendant must establish that he had reasonable expectation of privacy

from both an objective and subjective standpoint to prevail on a motion to suppress. See, e.g.,

Ky/to, 533 U.S. 334, 338 (2000). An objectively reasonable expectation of privacy “is one that

society is prepared to recognize as reasonable.” See Bond v. United States, 529 U.S. 334, 338

(2000).

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Here, Defendant has failed to establish an objectively reasonable expectation of privacy.

Courts have consistently held that detainees lack an objectively reasonable expectation of

privacy in phone calls made from prisons orjails. See, e.g., United States v. Van Poyck, 77 F.3d

285, 291 (9th Cir. 1996) (holding that “any expectation of privacy in outbound calls from prison

is not objectively reasonable and that the Fourth Amendment is therefore not triggered by the

routine taping ofsuch calls.”); United States v. Rushwam, 275 Fed. Appx. 684, 685 (9th Cir. Apr.

28, 2008) (holding that defendant “had no reasonable expectation of privacy in outbound calls he

made from jail”); Bradley v. Mason, 833 F. Supp. 2d 763 (N.D. Ohio 2011) (“Tn this case,

society does not acknowledge that a prisoner has a reasonable expectation of privacy in

telephone calls made from within the jail to individuals other than his attorney”); United States

v. Harrison, 986 F. Supp. 280 (M.D. Pa. 1997) (“Courts have been consistent in holding that an

inmate does not have an objectively reasonable privacy interest in outbound telephone calls.”).

Defendant’s suggestion that he had a reasonable expectation of privacy in his phone

conversation because he was not specifically warned that the conversation would be recorded is

misguided for two reasons. First, the fact that four surveillance cameras and two intercom boxes

were visible from his cell was sufficient, from an objective standpoint, to put Defendant on

notice that he was being monitored.

Second, as Defendant points out, “many cases have upheld monitoring a prisoner’s

telephone conversations, (usually but not always by relying upon the fact that notice ofthe

monitoring practice had been provided.).” See Wayne R. LaFave, 5 SEARcH AND SEIzURE: A

TREATISE ON THE FouRTh AMENDMENT (4th ed. 2004) (emphasis added) (citing cases). Notice,

however, is not an absolute requirement. See, e.g., Van Poyck, 77 F.3d at 291 (recognizing lack

of privacy interest in outbound calls from cell as an independent basis for rejecting Fourth

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Amendment challenge to recording of call). Rather, the critical inquiry is whether the privacy

interest asserted is one that society recognizes as reasonable. As courts have consistently held,

society does not recognize as reasonable any expectation of privacy made in phone calls made

from a prison or jail cell. See, e.g., United States v. Howery, No. 74-567, 1975 U.S. Dist. LEXIS

12552, at *39W (E.D. Pa. May 2, 1975) (refusing to suppress statements made in a holding cell

because a holding cell area is not “protected by a reasonable expectation of privacy.”); see also

Van Povck, 77 F.3d at 291 (“Even if [defendantj believed that his calls were private, no prisoner

should reasonably expect privacy in his outbound telephone calls”); United States v. Friedman,

300 F.3d 111, 123 (2d Cir. 2011) (“[Wjhere a facility provides some notice to inmates that calls

may be monitored, the facility’s ‘practice oftaping and randomly monitoring telephone calls of

inmates in the interest ofinstitutional security is not an unreasonable invasion ofthe privacy

rights of pretrial detainees”) (emphasis added) (citations omitted).

Accordingly, this Court holds that the recording of Defendant’s telephone conversation

did not violate the Fourth Amendment. In light of the Court’s conclusion that Defendant lacked

an objectively reasonable expectation of privacy, it need not consider whether Defendant had a

subjectively reasonable expectation that his call would remain private, or whether he

constructively consented to the recording of his call.

b. Title III Argument

According to the Government, Defendant’s Title III argument is meritless because two

exceptions to Title III’s broad prohibition against the interception of communications apply: (1)

Defendant’s conversation was intercepted “by an investigative law enforcement officer in the

ordinary course of his duties,” see 18 U.S.C. § 25 l0(5)(a)(ii), and (2) Defendant consented to the

interception, see 18 U.S.C. § 251 1(2)(c).

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“To qualify for the law enforcement [exception] under Title III, the interception of an

oral communication must not only be conducted by an investigative or law enforcement officer,

the interception must also have been conducted in the ordinary course of the officer’s duties.”

See,e.g., United States v. Clark, 651 F. Supp. 76, 79 (M.D. Pa. 1986).

In this case, Detective Sergeant Gnardellis credibly testified that all calls at the GRPD,

including prisoner calls, were recorded, without exception, for liability and customer service

reasons. (See Tr. 4.32:17-22.) Defendant does not dispute this fact. Nor does he dispute that his

telephone conversation was intercepted by an “investigative or law enforcement officer” as

defined in Title H1.’

As Defendant’s call was recorded as part of the GRPD’s policy to record all incoming

and outgoing calls indiscriminately and routinely, it falls within the ordinary course exception to

Title III’s prohibitions. See, e.g., United States v. Hammond, 286 F.3d 189, 192 (4th Cir. 2002)

(where law enforcement taped calls as part of established policy, the ordinary course exception

exempted the recordings from the prohibitions of Title III); see also United States v. Morris, No.

07-20, 2008 WL 5188826, at *4 (W.D. Pa. Dec. 8, 2008) (holding that Title III was not violated

where “recordings [took] place in the ordinary course of police duties related to prison

security”); see generally Amati v. City of Woodstock, 176 F.3d 952 (7th Cir. 1999) (concluding

that there is no notice requirement for the “ordinary course” exception” to apply).’ 4

13 An “investigative or law enforcement officer” is defined as “any officer of the United States or of a State or

political subdivision thereof, who is empowered by law to conduct investigations or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses.” 18 U.S.C. § 25 10(7).

14 In light of its conclusion that the law enforcement exception to Title III’s restrictions applies, the Court need not address the Government’s implied consent argument.

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Because Defendant has failed to establish either a Fourth Amendment or Title III

violation with respect to the recording of his telephone call, his motion to suppress statements

made during that call is denied.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion to suppress the evidence seized from the

Camaro on April 27, 2011, and his motion to suppress the statements made during a telephone

conversation on that date are DENIED. An appropriate order follows this opinion.

Date: March 2013

L. Linares

United States District Judge

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