Lola Velazquez-Aguilu, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.
James S. Becker, OFFICE OF THE FEDERAL DEFENDER, for defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
PATRICK J. SCHILTZ, District Judge.
Defendant Christopher Lee Rousseau is charged with one count of possession with intent to distribute methamphetamine, one count of carrying a firearm in relation to a drug-trafficking crime, one count of being an armed career criminal in possession of a firearm, and one count of being an armed career criminal in possession of ammunition. This matter is before the Court on Rousseau's objection to Magistrate Judge Franklin L. Noel's April 3, 2013 Report and Recommendation ("R&R"). ECF No. 36. Judge Noel recommends denying Rousseau's motions to suppress statements made to the police [ECF No. 28] and to suppress evidence obtained from the search of Rousseau's vehicle [ECF No. 29]. Following a de novo review, see 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(3), the Court overrules Rousseau's objection and adopts the R&R.
The Court adopts all of the factual findings set forth on pages one through three of the R&R. The R&R's factual findings will not be repeated here.
A. Search of Rousseau's Vehicle
The Fourth Amendment protects the "right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Warrantless searches are "per se unreasonable under the Fourth Amendment § subject only to a few specifically established and well-delineated exceptions.'" Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The R&R concludes that the search of Rousseau's vehicle falls under two such exceptions § the automobile exception and the exception for searches incident to arrest. The Court agrees.
1. The Automobile Exception
The Court finds that the search of Rousseau's vehicle falls within the automobile exception to the warrant requirement. The automobile exception "allows law enforcement to search a vehicle without a warrant if they have probable cause to believe the vehicle contains evidence of criminal activity." United States v. Brown, 634 F.3d 435, 438 (8th Cir. 2011) (internal quotations omitted). "Probable cause exists where there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. (internal quotations omitted).
The police unquestionably had probable cause to believe that evidence of a crime would be found in Rousseau's vehicle. Before Rousseau was even pulled over, the police had received a tip from a confidential informant who had proved reliable in the past. The informant had informed the police that Rousseau would be driving a vehicle, the type of vehicle that Rousseau would be driving, the road along which Rousseau would be traveling, and the direction in which Rousseau would be going. See R&R at 1-2. All of this information was verified before the police stopped Rousseau. "The core question in assessing probable cause based upon information supplied by an informant is whether the information is reliable. Information may be sufficiently reliable to support a probable cause finding if it is corroborated by independent evidence." United States v. Thompson, 690 F.3d 977, 985 (8th Cir. 2012) (internal quotations omitted).
The informant had also told the police that Rousseau would be in possession of a gun. See R&R at 4 n.2. That information was corroborated when the police found ammunition in Rousseau's pocket when he was searched incident to his arrest. In short, the tip from the informant, the prior reliability of the informant, the corroboration of the evidence provided by the informant, and especially the bullets found in Rousseau's pocket combined to provide ample reason to believe that a gun or additional ammunition § i.e., evidence of further violations of 18 U.S.C. § 922(g) § would be found in Rousseau's vehicle.
Rousseau contends, though, that the automobile exception applies only "[i]f a car is readily mobile, " see Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam), and that because the police "had already initiated the legally required towing/impound procedure, " Obj. at 4 [ECF No. 38], Rousseau's vehicle was not "readily mobile" at the time of the search. But Rousseau misinterprets the ready-mobility requirement. "[T]he [automobile] exception applies as long as a car is readily mobile' in the sense that it is being used on the highways' or is readily capable of such use' rather than, say, elevated on blocks.'" United States v. Kelly, 592 F.3d 586, 591 (4th Cir. 2010) (quoting California v. Carney, 471 U.S. 386, 392-93 (1985)). There is no doubt that Rousseau's vehicle was readily capable of being used on the highways; the vehicle was searched just moments after Rousseau had been driving it on a highway. Moreover, the vehicle would have remained "readily mobile" § and thus amenable to a warrantless search § even if it had been impounded prior to the search. See Michigan v. Thomas, 458 U.S. 259, 261 (1982) ("[T]he justification to conduct such a warrantless search does not vanish once the car has been immobilized...."); Chambers v. Maroney, 399 U.S. 42, 52 (1970) (finding that police may conduct a warrantless search of a vehicle even after the vehicle has been impounded and is in police custody).
2. Exception for Searches Incident to Arrest
The Court also agrees with Judge Noel that the search of Rousseau's vehicle falls within the exception to the warrant requirement for searches incident to arrest. "[A] police officer who makes a lawful arrest may conduct a warrantless search of the arrestee's person and the area within his immediate control.'" Davis v. United States, 131 S.Ct. 2419, 2424 (2011) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)). Under certain circumstances, police officers may also search an arrestee's vehicle upon the arrest of that person. "[A]n automobile search incident to a recent occupant's arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the ...