Case 3:15-cr-00015-LRH-VPC Document 70 Filed 04/18/16 Page 1 of 7 1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 *** 8 9 UNITED STATES OF AMERICA, 10 Plaintiff, 11 v. 12 3:15-CR-00015-LRH-VPC ORDER SHAUN JERMAINE ESTES, Defendants. 13 14 Before the Court is Defendant Shaun Jermaine Estes’ (“Estes”) Motion to Suppress. Doc. 15 16 #38.1 The United States of America (“United States”) filed an opposition (Doc. #41), to which 17 Estes replied (Doc. #43). An evidentiary hearing was held on March 30 and 31, 2016, during 18 which witnesses testified and exhibits were admitted. During the course of the suppression hearing, defense counsel offered into evidence 19 20 exhibits numbered 125, 126, 127, 128 and 130, which were records subpoenaed by the defense 21 from T-Mobile U.S., Inc., and related documents, relevant to the history of Estes’ cell phone 22 usage on December 4, 2014. The government objected to the records based upon their prior non 23 disclosure to the government and the Court reserved ruling but conditionally admitted them and 24 allowed time for the parties to submit points and authorities in support of their respective 25 positions. In reviewing the recent points and authorities filed by the parties and further 26 considering the failure of disclosure of the telephonic records to the government, as had been 27 ordered by the Court in its October 22, 2015 order (ECF No. 34), the Court is hereby sustaining 28 1 Refers to the Court’s docket number. 1 Case 3:15-cr-00015-LRH-VPC Document 70 Filed 04/18/16 Page 2 of 7 1 the government’s objection to the admissibility of Exhibits 125, 126, 127, 128 and 130, and is 2 not considering them in deciding the motion to suppress before the court. 3 I. 4 Factual Background On December 4, 2014, in Reno, Nevada, Amtrak Detective Madhu Kurup (“Kurup”) 5 contacted Estes while he was on the Amtrak train platform smoking a cigarette and speaking on 6 his cell phone. Estes was en route by train from Chicago, Illinois, to Emeryville, California. The 7 train had made a brief stop of less than 15 minutes at the Reno station. Sometime prior to the 8 train’s arrival, Kurup, as a member of a drug interdiction team associated with the Reno Police 9 Department, studied passenger booking records and found that Estes’ one-way ticket had been 10 purchased with a credit card in another person’s name on November 29, 2014, for travel 11 beginning December 2, 2014. Kurup considered this to be an indicator of an intent to transport 12 illegal contraband and/or profits made from the sales of illegal contraband. A Reno police 13 detective and a canine officer from the interdiction team were requested for purposes of 14 investigation of Estes during the train’s stop in Reno. 15 When the train stopped in Reno, Kurup and Reno police detective Tony Moore 16 (“Moore”) had checked Estes’ cabin and found it empty. Shortly afterward, Kurup observed a 17 man speaking on a cell phone and smoking a cigarette on the passenger platform adjacent to the 18 train. Suspecting this might be Estes, Kurup approached him, displayed his badge, identified 19 himself and confirmed that the individual was Estes. Kurup directed Estes to get off the phone 20 and Estes complied. Kurup then asked to see Estes’ identification and train ticket, which Estes 21 provided. With Moore then standing nearby, Kurup advised Estes that he was suspected of illegal 22 activity and asked if Estes had any illegal weapons, large amounts of drugs, or large amounts of 23 money. Estes responded that he was not in possession of anything illegal. Kurup then asked 24 Estes for consent to search his room and luggage. Estes refused to consent. Kurup then advised 25 Estes that a police dog would be deployed in the area of Estes’ train cabin and if the dog gave a 26 positive alert, Estes’ belongings would be seized and a search warrant would be obtained. Kurup 27 and Moore then alerted canine Officer Jayson Hill (“Hill”), who was stationed nearby with his 28 2 Case 3:15-cr-00015-LRH-VPC Document 70 Filed 04/18/16 Page 3 of 7 1 police dog. With Estes, Kurup and Moore in the hallway area outside Estes’ cabin, Hill lead his 2 dog through hallway. The person with whom Estes had been speaking on his cell phone on the train platform 3 4 was a longtime friend, Erika Dean. During the time that Kurup and Moore escorted Estes back to 5 the area of his train cabin, Dean was concerned about her terminated phone conversation with 6 Estes and repeatedly attempted to call him back on his cell phone. Her calls went unanswered 7 until either Kurup or one of the officers finally answered the phone and advised that Estes could 8 not speak with her. When the police dog was led down the hallway by Estes’ room, it showed some interest 9 10 outside of the room, but did not “alert” on the room. The officers knew they could not seize 11 Estes’ belongings and obtain a search warrant due to the lack of a positive alert by the dog. 12 However, Kurup did not advise Estes that the canine had not alerted on Estes’ room. Instead 13 either Kurup or Moore told him that the dog had shown strong interest in the room. According to 14 Kurup, Estes then responded that he had a small amount of marijuana in his room and he then 15 gave his consent to Kurup to search the room and Estes’ baggage. According to Kurup, Estes 16 opened his luggage bag in the room and removed a small bag of marijuana and Kurup then, with 17 Estes’ consent, searched the remainder of the bag and found a 9mm Kel-Tec handgun. Kurup 18 told Estes he was in violation of Amtrak’s firearms policy and he would be removed from the 19 train. Detective Moore thereafter contacted records and learned that Estes had a prior felony 20 conviction. Estes was then placed under arrest for Felon in Possession of a Firearm and placed in 21 handcuffs. Estes made an unsolicited comment that he had purchased the weapon from a pawn 22 shop in Arkansas and he believed the purchase was legitimate and legal. After exiting the train 23 and meeting up with transport officers, Estes was advised of his Miranda rights and repeated the 24 statement. He was then booked in jail.2 25 II. Legal Standard The Fourth Amendment protects individuals against unreasonable searches and seizures. 26 27 U.S. Const. amend. IV. Any evidence resulting from an unconstitutional search or seizure cannot 28 2 Estes has been in federal custody since March 12, 2015. 3 Case 3:15-cr-00015-LRH-VPC Document 70 Filed 04/18/16 Page 4 of 7 1 be admitted as proof against the victim of the search, and therefore must be suppressed. See 2 Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Although 3 warrantless searches generally are impermissible under the Fourth and Fourteenth Amendments, 4 one exception to the warrant requirement is for searches conducted pursuant to valid consent. 5 Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). The government must prove that a consent 6 to search is voluntary by a preponderance of the evidence. United States v. Matlock, 415 U.S. 7 164, 177 (1974). A consent to search is valid if the consent was freely and voluntarily given and 8 not the result of duress or coercion, express or implied. Schneckloth, 412 U.S. at 228. Whether 9 the consent given to search was freely and voluntarily given is a question of fact to be 10 determined by the totality of the circumstances. Id. at 248–49. The government's burden of 11 demonstrating that the consent was freely and voluntarily given is a heavy one. United States v. 12 Chan-Jimenez, 125 F.3d 1324 (9th Cir. 1997). 13 III. 14 Discussion Estes argues, among other things, that he did not consent to the search of his belongings 15 on the Amtrak train and that even if he did, his consent was not freely and voluntarily given. The 16 United States argues that the search of Estes’ belongings was constitutional because Estes 17 provided voluntary consent for the search. 18 The Court finds that Erika Dean’s testimony at the suppression hearing was very credible. 19 Estes and Dean were engaged in a cell phone conversation when Kurup approached Estes, Kurup 20 directed Estes to get off the phone, Estes complied with the request. Dean could hear Estes being 21 directed to get off the phone and she became concerned when Estes did not call her back shortly 22 thereafter. She then repeatedly attempted to call Estes back, several calls went unanswered, until 23 finally an officer answered and spoke briefly to her. Kurup testified that he never saw Estes 24 speaking on the phone on the platform, never told him to get off the phone, never heard the 25 phone ring while he was with Estes, and never answered the phone or spoke with a caller. The 26 two police officers had no recollection of Estes using his phone, the phone ringing or anyone 27 answering it. 28 4 Case 3:15-cr-00015-LRH-VPC Document 70 Filed 04/18/16 Page 5 of 7 1 In order to establish the validity of a consent to search, the government bears the heavy 2 burden of demonstrating that the consent was freely and voluntarily given. Schneckloth, 412 U.S. 3 at 222. Whether consent to search was voluntarily given or not is “to be determined from the 4 totality of all the circumstances.” Id. at 227. In United States v. Welch, 4 F.3d 761, 763 (9th 5 Cir.1993), the Ninth Circuit identified several factors to be considered in determining whether 6 consent to search was voluntary. Among the factors that tend to show a lack of voluntariness are: 7 (1) the person was in custody; (2) the officer had his weapon drawn; (3) the officer failed to 8 administer Miranda warnings; (4) the officer did not inform the person of his right to refuse to 9 consent; and (5) the person was told that a search warrant could be obtained. Chan-Jimenez, 125 10 F.3d at 1327. The government must prove that a consent to search is voluntary by a 11 preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 178, 94 S. Ct. 988, 996, 12 39 L. Ed. 2d 242 (1974). 13 The United States has not met its burden to show that consent by Estes was freely and 14 voluntarily given. When initially asked, Estes expressly refused to consent to the search of his 15 room or his bags. Kurup then advised Estes that a police dog would be deployed and if the dog 16 gave a positive alert, Estes’ items would be seized and a search warrant would be obtained. The 17 threatened seizure of Estes’ bags is significant when it is considered that Estes was traveling by 18 train across the country, and this incident was occurring during a brief stop along his journey to 19 California. Then, shortly after being told that an alert of Estes’ room by the police dog would 20 result in his bags being seized, Estes was informed that the dog had shown strong interest in the 21 room. No one explained to Estes the difference between an “interest” and an “alert” by the dog, 22 and it was shortly afterward that the disputed consent by Estes was given. The context in which 23 the statements were made strongly suggested that if Estes did not now consent to a search, his 24 bags would be seized and a search warrant would be obtained. Particularly after refusing to 25 consent to a search just minutes before, the court does not find that a free and voluntary consent 26 to search then occurred. See United States v. Armijo, 781 F. Supp. 1551, 1558 (D.N.M. 1991) 27 (“In fact, prior to being threatened that his car and his mother would be detained, Mr. Armijo 28 unequivocally declined to consent to a search of his luggage. It was only after Agent Small's 5 Case 3:15-cr-00015-LRH-VPC Document 70 Filed 04/18/16 Page 6 of 7 1 threat that Mr. Armijo reluctantly surrendered the luggage. It is clear, therefore, his consent was 2 not voluntarily given”). 3 4 The court is troubled by the lack of credibility which permeates the Kurup testimony in this case. The court comments on some of the factors of concern: 5 Kurup described a very consensual and casual conversation with Estes on the train 6 platform. The fact is that the encounter with Estes had been carefully planned by the drug 7 interdiction team composed of Kurup, Detective Moore, and canine Officer Hill. The only 8 purpose of their being together at the Reno train station was to confront Estes and to act within 9 an approximate ten to fifteen minute period of the train’s temporary stop. When Kurup 10 approached Estes on the train platform, there was an obvious immediacy in the encounter. The 11 denial by Kurup of Estes being involved in a cell phone conversation on the train platform, of 12 directing Estes to get off the phone and not hearing repeated return calls by Erika Dean in the 13 several minutes following the conversation, raises serious questions concerning Kurup’s 14 description of a seizure-free atmosphere surrounding Estes as well as Kurup’s credibility in 15 general. 16 Further concern arises from the warning given to Estes that if he refused to consent to a 17 search, that a canine sniff would be conducted and if the dog alerted to the room or Estes’ 18 belongings, Estes’ belongings would be seized and a search warrant obtained, obviously 19 separating Estes from his luggage. Further concern arises after the dog did not alert to the room, 20 which was a fact only appreciated by Kurup and the police officers. Notwithstanding the clear 21 lack of probable cause for a search and seizure, Estes was then informed that the dog had shown 22 serious interest in the room. Estes would likely have no idea of the difference between an alert 23 and only interest in the room. The “serious interest” comment was obviously imparted with the 24 hope that it would bring about a consent by Estes to a search of his room and luggage. At no time 25 was Estes told of his right to refuse consent. 26 Kurup’s credibility is further strained by the consent then attributed to Estes. Although 27 Kurup and the two police officers were at the train stop together for the ten to fifteen minute 28 period for the specific purpose of investigating Estes and his possible involvement with drugs, 6 Case 3:15-cr-00015-LRH-VPC Document 70 Filed 04/18/16 Page 7 of 7 1 Estes’ voluntary consent to search testified by Kurup was not witnessed at any time by either of 2 the two police officers. No attempt was made by Kurup to have Detective Moore or Officer Hill 3 witness or confirm the alleged consent by Estes, no attempt was made to create an audio 4 recording of Estes’ consent, and no attempt was made to obtain a written consent from Estes 5 although a consent form is a standard form used in Reno police investigations. 6 IV. 7 Conclusion Considering all of the above, and particularly because the consent claimed by Kurup is 8 totally uncorroborated, the government has failed to meet its burden to prove a free and 9 voluntary consent in this case. As a result, the evidence seized and any incriminatory statements 10 11 12 arising from such an unlawful seizure must be suppressed. IT IS THEREFORE ORDERED that Estes’ Motion to Suppress (Doc. #38) is GRANTED, the Indictment against Estes is DISMISSED and trial is VACATED. 13 IT IS SO ORDERED. 14 DATED this 18th day of April, 2016. 15 16 17 LARRY R. HICKS UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 7