Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 1 of 12

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Criminal Action No. 16-cr-00281-CMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
CHARLES JASON WOOD,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION TO SUPPRESS

This matter is before the Court on Defendant Charles Jason Wood’s Motion to
Suppress. (Doc. # 26.) The Court held a half-day evidentiary hearing on the Motion on
February 23, 2017. For the reasons described herein, Defendant’s Motion to Suppress
is granted.
I.

BACKGROUND

Defendant Wood has been charged by Indictment in this case for his alleged
possession with the intent to distribute certain controlled substances, possession of a
firearm in furtherance of a controlled substance crime, and for felon in possession of a
firearm. (Doc. # 1.) In brief, Mr. Wood was arrested after police officers observed him
cutting narcotics for distribution in his parked car. As recounted in greater detail below,
officers were present to observe Mr. Wood only because they were tracking the vehicle
he was driving, a 2001 White BMW (“2001 White BMW), with an electronic tracking

 Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 2 of 12

device that had been affixed pursuant to a search warrant that was tied to the previous
driver of the vehicle, an individual named S.B. Mr. Wood challenges that search
warrant as violative of his Fourth Amendment rights, and seeks to suppress the
evidence gleaned from the search and seizure.
Detective Michael Garnett, a law enforcement officer with the Colorado Springs
Police Department, testified during the suppression hearing that, as part of a drug
investigation wholly unrelated to Mr. Wood, he sought and obtained a search warrant to
track a 2001 White BMW, known to be driven by an individual named S.B. The
probable cause statement underlying the warrant set forth information concerning S.B.’s
distribution of drugs in the Colorado Springs area, and his use of the 2001 White BMW
in connection with that activity. The warrant, obtained on May 27, 2016, authorized
officers to attach an electronic tracking device to the 2001 White BMW and to monitor
the vehicle via the electronic tracking device for a period of 60 days.
Detective Garnett further testified that, prior to affixing the tracking device to the
2001 White BMW, on June 1, June 2, and June 3, law enforcement officers conducted
surveillance on S.B. and his residence, located at 1428 N. El Paso Street in Colorado
Springs. On all three days, the 2001 White BMW was observed parked in the driveway.
On all three days, S.B. was observed leaving his residence and driving away in the
White BMW.
On June 7, 2016, at 10:30 p.m., an electronic tracking device was placed on the
2001 White BMW. At that time, the 2001 White BMW was parked in the driveway of
S.B.’s residence. Because the tracking device was affixed to the 2001 White BMW on

2

 Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 3 of 12

June 7, the warrant authorized electronic tracking of the 2001 White BMW through
August 6.
Detective Garnett testified that on June 28, 2016, in connection with their
ongoing surveillance of the 2001 White BMW, officers observed that the chrome rims on
the 2001 White BMW had been removes and a “For Sale” sign affixed to the passenger
side window of the 2001 White BMW.
From the time the tracking device was affixed on June 7 until July 2, the data
reveals that the 2001 White BMW was parked at 1428 N. El Paso St. – S.B.’s residence
– on 23 out of 25 days. From July 3 on, the tracking data shows that the 2001 White
BMW was parked at 210 N. Murray Boulevard in Colorado Springs, an address with no
known connection to S.B., and the location we now know to be Mr. Wood’s residence.
Detective Garnett’s report indicates that on July 8, 2016, he sought to surveil the
2001 White BMW to “see if [his] previous suspect [i.e. S.B.] was still driving the vehicle
or if it still had the same plate number.” Using the data provided by the electronic
tracking device, Detective Garnett located the 2001 White BMW, which was in transit
from the apartment parking lot at 210 N. Murray to the parking lot of a nearby high
school. Detective Garnett located the 2001 Whtie BMW in the parking lot of the high
school and drove by it. He testified that he noticed that there was no license plate
attached to the 2001 White BMW and that a white male was sitting in driver’s seat;
however, he was unable to determine whether the driver was S.B. or a different white
male.

3

 Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 4 of 12

At that point, Detective Harris, a colleague accompanying Detective Garnett,
exited their vehicle and walked past the parked BMW. Because the windows of the
BMW were tinted, Detective Harris reported that he was also unable to identify the
driver. He did, however, observe the driver cutting a large amount of narcotics for
apparent distribution. 1
Shortly thereafter, Detective Garnett observed the driver of the 2001 White BMW
engage in what he believed to be a narcotics transaction with a person in a second car
in the parking lot. A third officer, Officer Zahrobsky, was radioed, arrived at the scene,
and approached the 2001 White BMW to make contact with the driver. After a brief
scuffle and an attempt to flee, Mr. Wood was subdued and handcuffed. Near the 2001
White BMW, officers discovered a brown satchel containing cash and Ziploc bags.
Inside the car, officers found controlled substances, firearms, and ammunition.
Of significance to the defendant’s motion is that Detective Garnett, on cross
examination, testified that he had doubts on July 8 that S.B. was still driving the vehicle,
and it was because of those doubts that he decided to pull the tracking data and
intercept the vehicle for visual surveillance.
S.B. was subpoenaed by the Defendant and testified that, at the request of his
sister, L.B., who was the record title holder to the 2001 White BMW, he sold the 2001
White BMW to Mr. Wood on either July 2 or July 3, 2016, for $4000. On the day of the

1

For reasons unknown to this Court, the Government failed to call Detective Harris to testify at
the hearing, nor did it introduce into evidence his report recounting the events of July 8. These
statements were gleaned from the testimony and report of Detective Garnett, and are
accordingly hearsay. However, the Court does not rely on them for the ultimate decision, and
they are included purely for the purpose of the factual narrative.
4

 Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 5 of 12

sale, he gave possession of the 2001 White BMW, including the title and keys, to Mr.
Wood. He also testified that he removed the license plates and other personal items
from the 2001 White BMW before he gave possession to Mr. Wood. Mr. Wood took the
stand and confirmed that he paid S.B. $4,000 for the 2001 White BMW and took
possession of the vehicle on July 2, 2016. He further testified that although the title to
the 2001 White BMW was in the name of his ex-wife, she authorized him to drive it and
he felt like it was his own vehicle when he was driving it.
II.

DISCUSSION

A. Standing
“A district court cannot suppress evidence unless the movant proves that a
search implicates Fourth Amendment interests.” United States v. Jones, 44 F.3d 860,
871 (10th Cir. 1995). To this end, “a defendant raising a Fourth Amendment challenge
must first demonstrate that he has standing to object to the search.” United States v.
Poe, 556 F.3d 1113, 1121 (10th Cir. 2009) (citing United States v. Rubio–Rivera, 917
F.2d 1271, 1274 (10th Cir. 1990)); see also United States v. Arango, 912 F.2d 441, 445
(10th Cir. 1990) (quoting Rakas v. Illinois, 439 U.S. 128, 139-40 (1978)) (internal
quotation marks omitted) (noting that “Fourth Amendment rights are personal and
cannot be asserted vicariously” and that a non-owner driver did not have standing to
challenge the search of a car). In determining whether Mr. Wood has standing to
challenge the search warrant, this Court must examine two factors: “[1] whether the
defendant manifested a subjective expectation of privacy in the area searched and [2]
whether society would recognize that expectation as objectively reasonable.” Arango,

5

 Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 6 of 12

912 F.2d at 445 (citation omitted). “The burden of showing standing to challenge a
search and seizure rests with the defendant.” United States v. Martinez, 983 F.2d 968,
972 (10th Cir. 1992) (citing Rakas, 439 U.S. at 130).
In deciding whether society would recognize an expectation of privacy as
objectively reasonable, “we consider concepts of real or personal property law . . . .”
Arango, 912 F.2d at 445. “[O]ne who owns or lawfully possesses or controls property
will in all likelihood have a legitimate expectation of privacy by virtue of this right to
exclude.” Id. (quoting Rakas, 439 U.S. at 143 n. 12). Notably, however, mere physical
possession of a vehicle and that vehicle’s key, and the mere presence in a vehicle, is
insufficient to establish a reasonable expectation of privacy. See United States v.
Obregon, 748 F.2d 1371, 1374-75 (10th Cir. 1984) (holding that a driver’s physical
possession of keys and vehicle were insufficient to confer standing where the driver was
not party to the rental car agreement); United States v. Erwin, 875 F.2d 268 (10th Cir.
1989) (defendant’s mere possession of a vehicle’s rear door key was insufficient to
establish an objectively reasonable expectation of privacy in the vehicle); United States
v. Allen, 235 F.3d 482, 489 (10th Cir. 2000) (“the mere fact of presence in the car” is
insufficient to meet the defendant’s burden to prove standing). Though the movant
“need not always come forward with legal documentation establishing that he lawfully
possessed the area searched . . . [he] must at least state that he gained possession
from the owner or someone with the authority to grant possession.” Arango, 912 F.2d
at 445 (citing United States v. Miller, 821 F.2d 546, 548 & n. 2 (11th Cir. 1987))
(emphasis added). The Tenth Circuit has held the following criteria “important[ ] though

6

 Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 7 of 12

not determinative” in determining whether a defendant has standing to assert a violation
of his Fourth Amendment rights based on the search on objects inside a vehicle: “(1)
whether the defendant asserted ownership over the items seized from the vehicle; (2)
whether the defendant testified to his expectation of privacy at the suppression hearing;
and (3) whether the defendant presented any testimony at the suppression hearing that
he had a legitimate possessory interest in the vehicle.” United States v. Parada, 577
F.3d 1275, 1280 (10th Cir. 2009) (quoting United States v. Allen, 235 F.3d 482, 489
(10th Cir. 2000)) (emphasis added, internal quotation marks omitted).
After reviewing both S.B’s and Mr. Wood’s testimony and applying the framework
set forth by the Tenth Circuit, this Court concludes that Mr. Wood, despite not being the
legal owner of the 2001 White BMW, has standing to bring this Fourth Amendment
challenge. Mr. Wood was the one who paid the $4,000 for the 2001 White BMW and
his use of the vehicle transcends mere physical possession. He testified at the
suppression hearing that his ex-wife, with whom he shares a child, authorized him to
use the vehicle, and that he had done so freely during the short period of time between
the time he purchased the 2001 White BMW on July 2 and his arrest on July 8.
Moreover, he attested to a belief that the car was his own when he was driving it.
B. The Merits
The Fourth Amendment requires that warrants be supported by probable cause,
as determined by a neutral and detached magistrate. U.S. Const. amend. IV; United
States v. Ramirez, 63 F.3d 937, 941 (10th Cir. 1995). However, the probable cause
analysis does not end with the issuance of the warrant, as the executing officers may
7

 Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 8 of 12

subsequently discover information that undermines probable cause and renders any
search based on the warrant unconstitutional. Maryland v. Garrison, 480 U.S. 79, 86-87
(1987). “[O]nce the mistake is discovered, the government cannot use the authority of
the warrant, or of the order, to conduct a search or interception that they know is
unsupported by probable cause or is otherwise outside the scope of the statute or the
Constitution.” United States v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997).
In this case, the probable cause undergirding the warrant was founded
exclusively in the illicit activities of S.B. On July 2, nearly halfway through the lifecycle
of the warrant, S.B. relinquished the possessory interest he had in the vehicle when it
was sold and, in doing so, vitiated the probable cause at the heart of the warrant. The
Government does not dispute that electronic tracking continued after the sale of the
vehicle. If the executing officers knew or had reason to know of the sale, their
continued search was “unsupported by probable cause” and violative of the Fourth
Amendment.
The Supreme Court’s opinion in Maryland v. Garrison is instructive on this
peculiar problem. In Garrison, officers obtained a warrant to search the third floor of an
apartment complex, reasonably believing that one apartment comprised the entire floor.
480 U.S. at 80. In fact, there were two separate apartments, only one of which was
occupied by the target of the warrant, McWebb. Id. During the execution of the
warrant, officers unknowingly but reasonably searched Garrison’s apartment and found
drug paraphernalia. Id. at 81. Only after an officer answered the phone and the caller

8

 Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 9 of 12

asked for Garrison did the officers realize they might be in the wrong apartment. Id. at
81 n.2. At that point, the officers discontinued the search. Id. at 81.
The Supreme Court held that the warrant was valid when issued because officers
reasonably believed that the entire third floor was occupied by McWebb. Id. at 85-86.
But the validity of the warrant when issued was not dispositive of the constitutionality of
the search of Garrison’s apartment.
If the officers had known, or should have known, that the
third floor contained two apartments before they entered the
living quarters on the third floor, and thus had been aware
of the error in the warrant, they would have been obligated
to limit their search to McWebb’s apartment. Moreover, as
the officers recognized, they were required to discontinue
the search of [Garrison’s] apartment as soon as they
discovered that there were two separate units on the
third floor and therefore were put on notice of the risk
that they might be in a unit erroneously included within
the terms of the warrant.
Id. at 87 (emphasis added). Just as in Garrison, where the officers were required to
“discontinue the search . . . as soon as they . . . were put on notice of the risk that they
might be in” the wrong apartment, the officers in the instant case were required to stop
tracking 2001 White BMW as soon as they were put on notice of the risk that S.B. was
no longer in possession of the 2001 White BMW. Put differently, Garrison stands for
the simple proposition that executing officers must discontinue a search when they are
put on notice of the risk that there is a material defect in the underlying warrant.
What remains is to determine whether Officer Garnett was put on notice of the
risk that the warrant was no longer supported by probable cause prior to his interception
of Mr. Wood. If he knew, or should have known, that the car had changed hands, the

9

 Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 10 of 12

continued tracking of the 2001 White BMW and ultimate interception of Mr. Wood in that
vehicle constitutes an unlawful search in violation of the Fourth Amendment.
Officer Garnett writes in his report of July 13 that, between the date he originally
affixed the electronic tracking device and July 5, S.B. was observed driving the vehicle
with a “For Sale” sign in the front passenger side window. The Court agrees with the
Government that, alone, the presence of a “For Sale” sign is not the kind of notice that
would require a police officer to halt an ongoing electronic tracking search. Indeed, the
presence of the sign would suggest that the owner being tracked is still in possession of
the vehicle, even if a sale might be imminent.
The evidence becomes problematic for the officers when viewed in conjunction
with the electronic tracking data, which showed a dramatic departure in the behavior of
the driver of the 2001 White BMW shortly after the “For Sale” sign was first observed.
For the first twenty-five days of electronic tracking, the 2001 White BMW was returning
to the residence of S.B. nearly every day. In early July, the data shows an abrupt
change in the resting location of the vehicle, an address with no known association to
S.B. Moreover, the vehicle never returns to S.B.’s residence, and S.B. is never again
observed operating the vehicle.
The most telling evidence is the report and testimony of Detective Garnett
himself. In his report of July 13, Detective Garnett writes that he “wanted to conduct
surveillance” of the vehicle on July 8 “to see if my previous suspect was still driving the
vehicle or if it still had the same plate number.” His words strongly imply a suspicion
that the vehicle had changed hands. Even if it were possible to construe those words

10

 Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 11 of 12

differently, Detective Garnett plainly admitted during the suppression hearing that he
decided to surveil the 2001 White BMW on July 8 because he doubted S.B. was still
operating the vehicle.
Taken together, the evidence and Detective Garnett’s own admissions
demonstrate beyond mere inference that he had “notice of the risk” that he was
pursuing a warrant unsupported by probable cause. Indeed, it was his apparent
expectation that a person other than S.B. was operating the vehicle, and he endeavored
to identify that individual on July 8. After all, if the priority had been locating S.B., it
would have been more efficacious to return to S.B.’s residence to determine his
whereabouts. Tellingly, Detective Garnett testified that no efforts were made to observe
S.B. at his residence or elsewhere after tracking data indicated the dramatic change in
the location of the 2001 White BMW.
The Court recognizes that granting a motion to suppress in a case like this is an
extraordinary remedy. However, it is the extraordinary duty of law enforcement officers
to ensure that they pursue their important work with an appropriate regard for the
foundational constitutional rights of those they police. Here, the executing officers had
reason to believe that they were prosecuting a search without probable cause, and
forged ahead anyway. For that reason, the Court must suppress.

11

 Case 1:16-cr-00281-CMA Document 47 Filed 02/25/17 USDC Colorado Page 12 of 12

III.

CONCLUSION

For the foregoing reasons, Defendant Charles Jason Wood’s Motion to Suppress
(Doc. # 26) is GRANTED.
DATED: February 25, 2017

BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

o

12