Last week’s post considered how just a slice of the investigation into Steven Avery—widely known from the true-crime documentary series, Making a Murderer—makes a compelling tool for teaching students the basics of search warrants. This week, we shift gears to explore the tale of two New York rappers whose stories both setup and explain how the automobile exception works in modern practice.
A primer on the automobile exception
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Supreme Court generally views searches conducted without a warrant as per se unreasonable. Across several decades, however, the Supreme Court has recognized numerous “well-delineated” exceptions to that general rule. Among other exceptions, for instance, it has interpreted the Fourth Amendment to permit warrantless searches of automobiles. Enter the automobile exception.
Although Supreme Court automobile exception jurisprudence has evolved considerably since its Prohibition-era inception, one case stands out above all others: California v. Acevedo. In Acevedo, Jamie Daza claimed a Federal Express package that law enforcement knew contained marijuana. Daza took the package to his apartment, after which Charles Acevedo arrived. Acevedo entered Daza’s apartment, stayed for a few minutes, and left carrying a brown paper bag. Acevedo then placed the bag in the trunk of his vehicle and drove away. Officers quickly stopped Acevedo, searched his trunk, and found the paper bag, inside of which the officers found marijuana. In upholding the warrantless searches of Acevedo’s trunk and bag, the Supreme Court defined the automobile exception as follows: “The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.”
Today, officers rely on the automobile exception to access all types of vehicles, including ordinary cars, mobile homes, boats, airplanes, busses, tractor trailers, and trains. Moreover, applying the Supreme Court’s 1995 opinion in Wyoming v. Houghton, police rely on the exception to justify searching various types of containers inside a vehicle, including computers, cell phones, and luggage. But the scope of the automobile exception is fundamentally limited to the areas within a vehicle where law enforcement has probable cause to believe contraband is located. Accordingly, police must have probable cause to believe a vehicle contains contraband for the automobile exception to justify a warrantless search.
The story of the “Together Forever” Mafia
Michael “Rab” Garrett and Paul “Paulie” Rivera together were members of the rap group TF Mafia. According to the group’s 2009 album, titled Bossilini, “TF Mafia is a musical representation of a larger organization called Together Forever” (hereafter “TF”). In 2012, the FBI discovered that TF was a criminal enterprise—an actual modern-day mafia—with wide-ranging criminal interests in drug trafficking, prostitution, money laundering, and murder. And, as it would turn out, music videos published by TF Mafia became a key piece of evidence against Garrett and Rivera at the pair’s 2015 jury trial.
In its heyday, between 2007–2013, TF was based out of Rivera’s tattoo shop in Brownsville, New York, though it grew a strong offshoot presence in Scranton, Pennsylvania. Rivera founded the organization, and Garrett grew to become a leader in the group. Although the investigation into TF was a complicated one that involved multiple law enforcement agencies at the federal and state levels, the organization’s downfall began with two traffic stops—stops that initially presented as straightforward.
Michael Garrett’s 2010 Traffic Stop
On September 1, 2010, New Jersey State Police Trooper Armando Rivas, a seven-year state police veteran, was patrolling Interstate I-80 in Hope, New Jersey. At roughly 10:30 p.m., Rivas observed a black 2008 Mercedes with New York plates traveling westbound in the left lane. He then watched as the car made an unsafe lane change while failing to use a turn signal—both of which were traffic violations pursuant to New Jersey state law. On the basis of those violations, Rivas pulled the Mercedes over.
To begin the stop, Rivas exited his vehicle and approached the Mercedes from the passenger side. He then began a conversation with the car’s sole occupant, Michael Garrett, who said that he was on his way to a Mohegan Sun casino to attend an event as a DJ or rapper. Rivas explained why he stopped Garrett, requested Garrett’s license and registration, and returned to his police vehicle to check Garrett’s driving record. During that check, Rivas learned that Garrett had a suspended license and an outstanding traffic warrant. At that time, Rivas placed Garrett under arrest and called a tow truck operator to have the Mercedes towed to a private lot.
As Rivas worked to detain Garrett, Trooper Rachel Trent arrived on the scene. The pair agreed that Rivas would transport Garrett to the station while Trent waited for the tow truck to arrive. As Garrett left, he asked Trent to retrieve three cell phones from his car to hold for him, which she did. At the station, Rivas directed Garrett, pursuant to department protocol, to remove his shoes and belt. When Garrett complied, Rivas discovered a partially smoked joint in Garrett’s left shoe.
Meanwhile, back at the scene of the traffic stop, a tow truck operator by the name of Todd Unangst arrived. When towing “higher-end” cars, like Garrett’s Mercedes, Unangst’s common practice was to use a piece of equipment called a “tow loop” in order to move the vehicle without damaging its suspension or frame. Keeping with that practice, Unangst obtained a key to Garrett’s trunk to search for the vehicle’s tow loop. When Unangst opened Garrett’s trunk, he smelled marijuana. He then lifted the trunk’s floor mat and saw a bag approximately ten to twelve inches in length. Thinking the package was suspicious, Unangst called Trent over to the trunk and asked her to “check it out.” Trent made a note of the package and directed Unangst to tow Garrett’s vehicle to the police station—rather than to the private lot as originally planned.
Upon arrival at the police station, Trent retrieved the package and handed it to Rivas. Rivas would later describe the mysterious package as “a clear vacuum-sealed bag with a black bag inside of it.” Rivas showed the package to Garrett who responsively told Rivas that the package was not his. Rivas then asked for consent to search the package, which Garrett denied. Garrett further denied Rivas’s request for consent to search his Mercedes.
After looking more into Garrett’s background and learning that he possessed an extensive criminal history, Rivas elected to call his superior, Detective Jeffrey Shotwell, for assistance. Shotwell took his turn looking at the mysterious package. Like Rivas, Shotwell observed that the package contained a separate, dark-colored, thin plastic bag. He also noticed that it was vacuum sealed, which he suspected was to mask the smell of its contents.
Shotwell then decided to pick up the package. He felt its contents and detected that several small round packages were contained within. Believing that the package contained drugs, Shotwell elected to cut it open. Upon doing so, Shotwell discovered five small interior plastic bags, each of which contained numerous multi-colored balloons. Each balloon had heroin concealed within. After a more thorough search, officers found a total of 506 multi-colored balloons inside the package, collectively housing forty-five total grams of heroin. A search of Garrett’s car, pursuant to a search warrant, revealed a bag of marijuana, rolling papers, a digital camera, and a fourth cell phone.
Paul Rivera’s 2012 Traffic Stop
On the morning of January 18, 2012, sixteen months after Garrett’s traffic stop, Pennsylvania State Police Trooper Thomas Horan was patrolling Interstate 81 in Susquehanna County, Pennsylvania. At roughly 8:08 am, Horan was driving in the left lane behind a silver Honda Accord with New York plates. The Honda moved into the right lane, allowing Horan to pass. After Horan went by, however, the Honda immediately moved back into the left lane. Horan then pulled into an emergency turnaround area of the highway, thereby allowing the Honda to pass him. Horan reentered the highway and observed the Honda driving in the left lane for roughly two minutes without passing a vehicle. Horan elected to stop the Honda for committing what is known in Pennsylvania as a “left-lane violation.”
Horan began the traffic encounter by walking up to the passenger side of the Honda and counting five occupants in the car. After asking for identification from all five occupants, Horan identified the driver as Paul Rivera (“Rivera”). Horan explained to Rivera that he pulled the vehicle over for a left-lane violation. As they were talking, Horan noticed the smell of marijuana and asked Rivera who owned the vehicle, to which Rivera replied that it belonged to “his boss,” Michael Garrett.
After returning to his patrol car, Horan learned that Rivera had an extensive criminal history and that the vehicle was registered to a Honda dealer in Brooklyn, New York, not to Garrett. When Horan returned to the Honda, he asked Rivera for the car’s registration, which Rivera did not have. He further asked where the group was going, to which Rivera gave differing answers. Given that Rivera appeared excessively nervous, Horan elected to call for backup. Veteran Trooper Paul Lindsay arrived on the scene at roughly 8:30 a.m. Lindsay also received inconsistent answers about the group’s travel plans and observed Rivera exhibiting nervous behavior. Horan then gave Rivera a traffic citation for the left-lane violation, which Rivera appeared happy to receive. Suspecting further criminal activity, Horan requested that a K9 unit report to the scene.
Roughly thirty minutes later, Trooper Gerald Powell and his dog, “Johnny,” arrived. At that time, Horan and Lindsay ordered the Honda’s occupants out of the car and instructed them to stand on the side of the road. During the ensuing exterior vehicle sniff, Johnny alerted to the center console of the Honda by jumping into the car through either an open door or window. Horan then informed Rivera that he was going to seize the vehicle. At 9:29 a.m., the officers took Rivera and the vehicle’s four passengers into custody and requested the vehicle be taken to the police station.
Later that day, Horan applied for and received a warrant to search the Honda. During the ensuing search, officers discovered a red plastic bag containing two vacuum-sealed packages in the Honda’s trunk. Each of the two vacuum-sealed packages contained a black plastic bag. One of those black plastic bags contained roughly 6.105 ounces of crack cocaine. The other contained 170 additional bags containing heroin (in total roughly 7.5 grams) marked “Monster Mash.” All five of the vehicle’s occupants were then placed under arrest.
Garrett & Rivera Are Prosecuted
After an extensive federal investigation into TF, federal prosecutors jointly charged Rivera and Garrett in a wide-ranging indictment on April 28, 2014. The indictment charged the pair with violating numerous federal statutes, including racketeering, racketeering conspiracy, interstate prostitution, sex trafficking of children, conspiracy to distribute narcotics, money laundering, conspiracy to commit murder in aid of racketeering, and witness tampering—among other offenses.
Garrett and Rivera retained separate counsel, both of whom filed suppression motions in June of 2014. Garrett sought the suppression of evidence obtained as a result of the September 1, 2010 traffic stop. For his part, Rivera moved to suppress evidence found during the January 18, 2012 traffic stop. In a comprehensive 100+ page order, the district court denied both motions on February 4, 2015.
How do the Garrett & Rivera traffic stops benefit students in the classroom?
At the outset, I can’t help but pause and acknowledge that the Garrett and Rivera fact patterns make clear to students that law school exams are not as far-fetched as the stereotypes would have them believe! Collectively, I think the Garrett and Rivera stops make for an outstanding opportunity for students to realize just how much goes on during a traffic stop and that each discrete decision an officer makes is subject to hindsight criticism by savvy defense counsel. Moreover, the two stops raise fascinating questions about the automobile exception’s application. Accordingly, the balance of this post offers just two examples of how the Garrett and Rivera stops make for an especially engaging classroom discussion around the following topics: (1) the speed in which officers need to make decisions during even a routine traffic stop, and (2) the reach of the automobile exception’s probable cause requirement. [Friendly note: if you’re interested in a more complete discussion of the Fourth Amendment’s probable cause requirement, you might enjoy reading this previous post.]
Things happen quickly
During our initial discussion, I want students to see how quickly Fourth Amendment questions can arise during a routine traffic stop. In the context of Garrett’s stop, I first ask students (more for fun than anything else) whether they know what a “tow loop” is—I certainly did not! It matters because that’s why Unangst allegedly opened Garrett’s trunk and ultimately found the mysterious vacuum-sealed bag. And that discovery prompted Trent to have Garrett’s vehicle towed to the station, rather than to a private lot.
Lots of a great discussion questions arise from that decision. For example, did Trent lawfully view the bag in plain view (see the plain view post here)? Could officers later rely on the inventory search exception to search Garrett’s vehicle if Trent initially planned to have his vehicle towed to a private lot? Could she have searched the “odd” package right there on the side of the road? Even better, did Trent lawfully retrieve the bag from Garrett’s vehicle when she arrived at the station? Further still, after Garrett declined to provide consent to search, was Shotwell—the confused officers’ supervisor—permitted to pick up the package? To manipulate it? To cut it open?!
More discussion questions arise and you probably do not need my help to generate them, but here are a few: could Shotwell lawfully pick up the bag and manipulate its contents? Surely that violated the plain feel doctrine as discussed in Minnesota v. Dickerson. Could he also warrantlessly cut open the bag? Surely not, right? Garrett, it seems, had a good case for suppression. [Side note: Garrett sure is creative. He had 506 balloons in a small 10-12” package. If drug criminals were that creative in 2010, I can only imagine what they’re up to now.]
The facts surrounding Rivera’s traffic stop are likewise fascinating. To begin, recall what he was stopped for: a “left-lane violation.” Students start to understand, if they have not already, that just about anything counts as a traffic violation. Accordingly, there is some truth to the belief that an officer can pull over a citizen for just about anything. That aside, Rivera quickly said it was not his vehicle (standing questions arise!) and, later, the officer gave Rivera a traffic citation for the left lane violation. Surly, at that point, the traffic stop was finished, right? But it continued when the officers brought a dog on the scene. Better still, where exactly did the dog alert? Did he alert to the center console outside the vehicle? Or, rather, did he breach the space of the vehicle in order to alert? The answer is not clear, but the question generates a great conversation with students about whether the dog’s placement at the time of alert changes the “search” analysis. I close the Rivera preview discussion by asking students whether all of the vehicle’s occupants could challenge the stop, the dog alert, and the ultimate seizure of the package. Those questions make for an excellent in-class review opportunity.
Probable cause and the automobile exception
After spotting those numerous Fourth Amendment questions, I transition the class to the district court’s decision to deny both Garrett and Rivera’s separate motions to suppress. Here, the automobile exception and the Court’s decision in Acevedo take center stage. At the outset, compare the Supreme Court’s decision in Acevedo with the September 1, 2010 traffic stop of Garret’s Mercedes.
In Acevedo, the officers searched one paper bag and immediately found marijuana within. To the contrary, following Garrett’s stop, Trent told Rivas about the mysterious vacuum-sealed bag in Garrett’s trunk once Trent returned to the station. Assuming that the Court’s decision in Acevedo provided officers with probable cause to believe the vacuum-sealed bag contained drugs, it’s important to think through the limits of that probable cause. Did probable cause exist to open the bag? If so, did that same probable cause permit opening the dark colored interior bag? And if that’s the case, did that probable cause extend to opening the five additional plastic bags? And, if so, did it further extend to the 506 separate balloons? Asked simply, the question is whether the Supreme Court’s decision in Acevedo permitted the police to open all the varied layers of Garrett’s complex vacuum-sealed package? Or, in the alternative, did probable cause to search the vacuum-sealed package terminate when they found a sealed bag within the package, rather than drugs?
Those questions are important because they expose a question left unanswered by Acevedo: how far does probable cause to search a vehicle extend? The differences between Acevedo and Garrett’s stop are straightforward enough. Indeed, opening a paper bag is a binary proposition—there is either contraband in the bag or not. But in Garrett’s case, officers had to open several bags—each a separate Fourth Amendment intrusion—in order to find heroin. This raises another question left unanswered by Acevedo; namely, whether probable cause to search a vehicle’s container allows officers to search additional closed containers found therein.
Taking a step back, the thematic purpose of this discussion is to push students on what the automobile exception permits officers to do once they have found the object of their search. In Acevedo, the police did not have probable cause to believe that contraband was hidden in any other part of the car than the trunk. But does finding drugs in the trunk gives officers new probable cause to search the balance of the car for more drugs? I suppose that depends on whether they think Acevedo himself is a user rather than a trafficker. If, for instance, the officers in Acevedo had not found anything in the brown paper bag, I think that’s somewhat simpler and, yes, probable cause for searching the vehicle terminates.
As for the “container within a container” question raised by Garrett’s case, I think the clear answer is that officers must get a warrant once they have identified the package as suspicious. If no one can say definitively what’s inside the strange package, it’s simply too risky to move forward with cutting it open. Sure, the district court approved of that decision here, but I’m not sure every district court ultimately would—or should. After all, this district court approved of the warrantless search, in part, by treating the strange package just like the paper bag in Acevedo. It reasoned, “[a]s in Acevedo, Detective Shotwell had probable cause to believe that the vacuum-sealed package recovered from the trunk of the Garrett Vehicle contained contraband, thus allowing a warrantless search of the package.” But, again, the officers in Acevedo did not have to cut open several interior bags to find drugs as did the officers in Garrett’s case.
Lastly, recall the scene at the station following Garett’s traffic Stop. As officers were evaluating what to do with Garrett’s suspicious package, Detective Shotwell elected to cut it open. How does Acevedo apply to an officer’s decision to destroy the suspect’s property? Did Shotwell’s decision change the Fourth Amendment analysis in any manner? In other words, is cutting open a package sufficiently analogous to the opening of the paper bag in Acevedo?
In Acevedo, officers had, through investigative efforts, established a reason to believe what was inside the paper bag. By contrast, officers may well have suspected that Garrett’s plastic bag contained drugs, but that suspicion did not mature into probable cause until after Shotwell picked up the package and felt its contents. Feeling the bag’s contents suggests that Shotwell did not, in fact, have sufficiently developed probable cause at that time he picked up the bag. But the suppression court declined to dive into that level of detail, noting instead that “Shotwell had probable cause to believe the vacuum-sealed package recovered from the trunk of the Garrett Vehicle contained contraband, thus allowing a warrantless search of the package.” That analysis seems far too simplistic and too heavily reliant on a false comparison between the paper bag in Acevedo and the complex vacuum-sealed bag found in Garrett’s car.
Looking ahead
We have just two posts left, so come back next week for my discussion on teaching the voluntariness doctrine through the West Memphis Three.
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