United States v. Kerr, 300 F. Supp. 3d 1226 (2018)

March 13, 2018 · United States District Court for the Eastern District of Washington · NO. 2:16–po–00079–SAB; NO. 2:16–po–00108–SAB

300 F. Supp. 3d 1226

UNITED STATES of America, Plaintiff-Appellant,
v.
Vicki Irene KERR, a.k.a. Vicki F. Kerr; Ashley M. Bunton, Defendants-Appellees.

NO. 2:16-po-00079-SAB
NO. 2:16-po-00108-SAB

United States District Court, E.D. Washington.

Signed March 13, 2018

CVB, AUSA, U.S. Attorney's Office, Spokane, WA, for Plaintiff-Appellant.

John Stephen Roberts, Jr., William Miles Pope, Spokane, WA, for Defendants-Appellees.

ORDER RE: MOTIONS TO SUPPRESS

Stanley A. Bastian, United States District Judge This is a consolidated interlocutory appeal from an Order entered by the United States Magistrate Judge for the Eastern District of Washington granting Defendants' motions to suppress evidence of personal drug possession seized from their purses during an administrative search conducted at the entrance to the Social Security Administration ("SSA") office in Spokane. No. 2:16-po-00079-SAB, ECF No. 45; No. 2:16-po-00108-SAB, ECF No. 44. A hearing on this appeal was held on February 15, 2018 in Spokane, Washington. Defendants were represented by John Stephen Roberts, Jr. and William Miles Pope, and the Government was represented by Tyler Tornabene, Kyle Olson, and Michelle Tonelli. At the hearing, the Court took the appeal under advisement. For the reasons set forth herein, the Court reverses the magistrate court's ruling and remands for further proceedings consistent with this opinion.

Background

On June 6, 2016, Defendant Ashley M. Bunton attempted to enter the Spokane SSA. During an administrative inspection, the on duty Protective Security Officer ("PSO") uncovered two pipes containing illegal narcotics inside an eyeglass case. Bunton was then arrested by the Federal Protective Services ("FPS") and the pipes and contraband were confiscated. She was issued a citation for possession of methamphetamine on federal property, in violation of 41 C.F.R. § 102-74.200.

On June 9, 2016, Defendant Vicki I. Kerr likewise attempted to enter the SSA when the PSO uncovered illegal narcotics during an administrative search of her bag located in a four-by-three inch polka-dot container. The container held a smaller opaque container in which there was a white powdery substance. Kerr admitted that the container held drugs. The FPS Inspector was summoned to the SSA. He examined the container, identified the contents as methamphetamine, and placed her under arrest. She was also issued a citation for possession of methamphetamine on federal property.

Defendants Bunton and Kerr moved to suppress all evidence obtained during the administrative search of their respective purses, including methamphetamine and paraphernalia, arguing that the search violated their Fourth Amendment rights. The magistrate court held an evidentiary hearing over the course of three days. The Division Director of the Cyber Physical Operations Division of the FPS testified that the security measures for a given site are determined after assessing the risk of a terrorist attack, criminal mischief, and other dangers. Other factors include the neighborhood where the facility is located, the building's history, the work performed, the population served, and opinions of the tenants. The Spokane SSA is assessed at a Risk Level two on a scale of one to five, one having the least risk and five having the most.

The Spokane SSA is located in a privately-owned building in a private business park. Visitors enter through exterior doors into a general public elevator lobby, and then are individually admitted through a second door to an interior anteroom. A number of notices are attached to the wall and doors to the anteroom. One such notice informs visitors in large red letters: "INSPECTION"; "all persons entering this facility will be subject to inspection"; "purses, backpacks, briefcases and other containers in the immediate possession of persons entering this facility are subject to inspection in accordance with 41 CFR 102-74.370." ECF No. 23-3. Other notices contain federal regulations; indicate that firearms and weapons are prohibited; and state that having marijuana or other controlled substances is not permitted. Through the doors is a table and magnetometer; there is no x-ray machine. PSOs ask for photo identification and confirm the visitor has business at the SSA. Visitors are then told that they will be subject to an administrative search. They are then instructed to place their personal items in a bin and empty their pockets. They proceed through the magnetometer and then a search of their items commences.

PSOs are instructed to inform visitors that they are subject to an administrative inspection, and once that inspection starts, they must remain until its conclusion. They are not trained to inquire whether the visitor understands the parameter of the search and do not advise individuals of their right to refuse. However, the visitor is given the opportunity to decline the inspection after they are informed of the requirements pursuant to training and policy materials. As SSA facilities commonly experience incidences of assault, search protocol dictates that the administrative search is employed solely to screen for bombs, weapons, and other destructive devices. PSOs are taught to identify everything in the bag, no matter the size, as seemingly innocuous items may be used as, or to make, weapons.

The administrative search policy in place at the Spokane SSA provides:

A. Screening and inspections may be conducted by FPS law enforcement personnel and PSOs on persons, motor vehicles, package, containers and vessels arriving on, working at, visiting or departing Federal property. This includes examination of individuals and all contents of accessible property, including, but not limited to, containers, compartments, and envelopes that can hold a firearm, dangerous weapon, or explosive. Risk analysis and operational and strategic intelligence may provide guidance in executing appropriate screening and security measures on federal properties.

...

C. Administrative inspections may only be conducted for the purpose of finding firearms, other dangerous weapons, and explosives.

D. Administrative inspections may not be conducted to detect evidence of crimes unrelated to the protection of federal properties. However, if such evidence is discovered during an inspection for firearms, dangerous weapons, and explosives, then appropriate law enforcement action will be taken by law enforcement officers.

G. All administrative inspections are to be tailored to the protection of federal property and the people thereon. The inspections should be designed to be minimally intrusive, in that they are no more intensive or extensive than reasonably necessary to detect firearms, dangerous weapons, or explosives.

ECF No. 23-10. The search here is designed to be minimally intrusive, does not invest discretion in officers conducting the search, and has no secondary purpose of gathering evidence for criminal prosecution.

Legal Standard

A defendant is not entitled to a trial de novo by a district judge on appeal. Rather, the scope of appeal is the same as an appeal to the court of appeals from an order entered by a district judge. Fed. R. Crim. P. 58(g)(2)(D). Legal rulings on motions to suppress are reviewed de novo and factual findings are reviewed for clear error. See United States v. Giberson , 527 F.3d 882, 886 (9th Cir. 2008) (citing United States v. Summers , 268 F.3d 683, 686 (9th Cir. 2001) ). "The clear error standard is significantly deferential and is not met unless the reviewing court is left with a definite and firm conviction that a mistake has been committed." Fisher v. Tucson Unified Sch. Dist. , 652 F.3d 1131, 1136 (9th Cir. 2011) (quoting Cohen v. U.S. Dist. Court for N. Dist. of Cal. , 586 F.3d 703, 708 (9th Cir. 2009) ) (internal quotation marks omitted).

The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures. Warrantless searches are presumed unreasonable and are therefore unconstitutional. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Administrative searches are an exception to the warrant requirement. The burden is on the Government to demonstrate that such a search is in furtherance of a specific and legitimate non-criminal goal, is no more extensive nor invasive than necessary to address that goal, does not give discretion to the searching individual, and does not have a collateral purpose of collection of criminal evidence. United States v. Bulacan , 156 F.3d 963, 967 (9th Cir. 1998). An airport security screening search is a very common form of administrative search and they have been found to be constitutionally reasonable provided they are "no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [ ][and] that it is confined in good faith to that purpose." United States v. Aukai , 497 F.3d 955, 962 (quoting United States v. Davis , 482 F.2d 893, 913 (9th Cir. 1973) (overruled on other grounds) ) (internal quotation marks omitted).

Findings of Fact and Conclusions of Law

The magistrate court found that the administrative search at issue was in furtherance of a legitimate governmental goal, i.e. , to prevent destruction of property and injury in government facilities. The court further found that the search did not have an impermissible secondary or unofficial goal of gathering evidence for criminal prosecution. The court declined to find that there are reasonable limits to the scope of an administrative inspection or to the discretion invested in officers conducting the search due to the minute size of bomb components, dangerous weapons, or virulent agents. The findings of fact are accepted on appeal because they are supported by substantial evidence in the record, are not clear error, and neither party challenges them.

Ultimately, the court held that the administrative search at issue is not the least intrusive consistent with current technology because an x-ray machine is less intrusive than a hand search. The court further held that Defendants did not have adequate notice of the actual search and did not manifest their consent to the search. Accordingly, the magistrate court held that the warrantless administrative searches were illegal and suppressed evidence uncovered in the course of those searches.

Discussion

The magistrate court erred by applying the wrong legal standard to determine that the administrative search was not the least intrusive consistent with current technology and by imputing a consent analysis to the Fourth Amendment's reasonableness requirement.

Intrusiveness of the Search

The magistrate court began its analysis by stating the applicable law as follows: "[c]ase law conditions administrative searches on being no more intrusive than necessary, and 'consistent with current technology. ' " No. 2:16-po-00079-SAB, ECF No. 45, at 6; No. 2:16-po-00108-SAB, ECF No. 44, at 6. Applying this standard, the magistrate court held:

The search in this case was not conducted with current technology. A widely available x-ray machine has the power to maintain the realm of privacy by effecting an equally effective but less intrusive means of searching entrants to the SSA building.

Accordingly, the Court finds the administrative searches at issue were not the least intrusive consistent with current technology.

No. 2:16-po-00079-SAB, ECF No. 45, at 7; No. 2:16-po-00108-SAB, ECF No. 44, at 7.

Contrary to the magistrate court's holding, governmental entities are not required to use the least intrusive means possible in conducting administrative searches. The United States Supreme Court has "repeatedly refused to declare that only the 'least intrusive' search practicable can be reasonable under the Fourth Amendment." City of Ontario, Cal. v. Quon , 560 U.S. 746, 763, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010). This is because the logic of such elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all search-and-seizure powers. Bd. of Ed. of Indep. Sch. Dist. No. 92 of Pottawatomie Cty. v. Earls , 536 U.S. 822, 837, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002). In order to constitute a valid administrative search, the scheme must be no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives. See Aukai , 497 F.3d at 962. The phrase "in the light of current technology" was not intended to measure the type of searches used or the available search technologies. Instead, it was intended to help identify the prohibited items. To conclude otherwise inappropriately puts the Court in the role of choosing the search protocols and devices. The Court's role should be limited to reviewing the decisions made by the parties involved and evaluating whether those decisions are reasonable and constitutional.

The magistrate court received testimony that weapons or bomb parts may be minute and not easily identifiable. Thus, the magistrate found there are no limits to which items can be searched. While it is true that an x-ray scan may be less intrusive than a hand inspection, the Government is not required to implement the least intrusive screening procedure possible.¹ Given the safety concerns at the Spokane SSA, a hand inspection of all of a visitor's items is reasonable and no more intrusive than necessary to further the Government's legitimate goal in preventing destruction and injury on federal property. Additionally, the Government attempts to minimize the intrusiveness of the search, and any personal embarrassment it may cause, by limiting access to the search area to only one visitor at a time. The Court is satisfied that the administrative search at issue is not for the secondary impermissible purpose of collecting evidence for criminal prosecution, is no more extensive nor intensive than necessary, and is therefore consistent with the protection guaranteed by the Fourth Amendment.² Accordingly, the magistrate court erred when it considered current technology as a separate prong to the administrative search exception to the warrant requirement.

Notice and Consent

The magistrate court held that Defendants did not have actual notice of the search nor did they manifest their consent. The record demonstrates that Defendants had sufficient notice of the search, thus, this conclusion was error. Additionally, the magistrate erred in analyzing consent in the context of an administrative search; consent is not a requirement.

Notice of an administrative inspection must be posted in a conspicuous place on the property; one that is reasonably calculated to impart notice on individuals visiting the property. United States v. Bichsel , 395 F.3d 1053, 1055-56 (9th Cir. 2005). Here, several notices were posted prior to a visitor's entrance to the Spokane SSA. Notably, visitors are informed in large red letters: "INSPECTION"; "all persons entering this facility will be subject to inspection"; "purses, backpacks, briefcases and other containers in the immediate possession of persons entering this facility are subject to inspection in accordance with 41 CFR 102-74.370." ECF No. 23-3. Other notices contain language of the applicable federal regulations; indicate that firearms and weapons are prohibited at the facility; and state that having marijuana or other controlled substances is also not permitted. Additionally, PSOs give verbal notice to entrants and state that the visitor will be subject to an administrative inspection prior to an inspection commencing. The notice given was conspicuous and reasonably calculated to impart notice on visitors to the Spokane SSA.

The magistrate court also held that Defendants did not manifest consent to the administrative search. In the context of airport screening searches, the constitutionality of such is "not dependent on consent." Aukai , 497 F.3d at 962. Indeed, consent is rarely if ever an element of Fourth Amendment analysis. Rather, to pass constitutional muster, an administrative search must be neither more extensive nor more intensive than necessary to rule out the presence of weapons and explosives. Id. Where an administrative search is otherwise reasonable, "all that is required is the [visitor's] election to attempt entry into the secured area [of a federal facility.]" Id. at 961. Defendants both attempted entry to the Spokane SSA and submitted their belongings to a search. Because the administrative searches at issue were otherwise reasonable, the magistrate erred in granting Defendants' motions to suppress evidence uncovered as a result of those searches.

Accordingly, the magistrate court's Order Granting Defendants' Consolidated Motions to Suppress Evidence, No. 2:16-po-00079-SAB, ECF No. 45; No. 2:16-po-00108-SAB, ECF No. 44, is reversed and this case is remanded for further proceedings consistent with this opinion.

Accordingly, IT IS HEREBY ORDERED:

1. The Order Granting Defendants' Consolidated Motions to Suppress Evidence, No. 2:16-po-00079-SAB, ECF No. 45; No. 2:16-po-00108-SAB, ECF No. 44, is reversed and this case is remanded for further proceedings consistent with this opinion.

2. Defendants' Motions to File Volume III of the Supplemental Excerpts of Record Under Seal, No. 2:16-po-00079-SAB, ECF No. 79; No. 2:16-po-00108-SAB, ECF No. 81, are GRANTED . The Proposed Sealed Documents, No. 2:16-po-00079-SAB, ECF No. 80; No. 2:16-po-00108-SAB, ECF No. 82, shall be filed under seal.

3. Defendants' Motions in Limine to Exclude Hybrid Witnesses, No. 2:16-po-00079-SAB, ECF No. 26; No. 2:16-po-00108-SAB, ECF No. 23, are referred back to the magistrate court for further proceedings.

IT IS SO ORDERED . The District Court Executive is hereby directed to file this Order and provide copies to counsel.

1 The Court notes that evidence of methamphetamine and drug paraphernalia uncovered during an administrative search of Defendants would also have been uncovered during an x-ray inspection of their property.

2 Defendants' reliance on United States v. Bulacan , 156 F.3d 963 (9th Cir. 1998), is inapposite. The court in Bulacan found that because officers were instructed to locate anything that violates federal regulations during an administrative search, and had wide discretion in doing so, there was a secondary impermissible purpose rendering the search unconstitutional. Id. at 966. This is not the case here. The magistrate found there is no discretion invested in the PSOs nor any secondary impermissible purpose. These findings are not challenged on appeal.