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UNITED STATES v. DURAN

March 15, 1995

UNITED STATES OF AMERICA
v.
FRANCISCO MARTIN DURAN, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court are the Defendant Duran's Motion to Suppress Evidence Seized From Chevrolet Truck, the Government's Opposition thereto, and the Defendant's Reply. The Court held an evidentiary hearing on said Motion on March 14, 1995.

 Pursuant to the Fourth Amendment and Rule 12(b)(3) of the Federal Rules of Criminal Procedure, the Defendant seeks an Order suppressing all evidence seized by federal agents from his 1989 Chevrolet pickup truck on October 29 and 30, 1994, or any other time, and any fruits thereof. As grounds therefor, the Defendant argues that federal agents conducted an illegal warrantless search of his truck on October 29, 1994. The Defendant further asserts that the search warrant secured thereafter was so lacking in probable cause that no reasonable agent could rely upon it and that, even if the warrant were supported by probable cause, the agents' search exceeded the scope of the warrant in violation of the Fourth Amendment.

 In Opposition, the Government contends that the officers properly searched the vehicle without a warrant pursuant to the "automobile exception" to the warrant requirement, and that exigent circumstances also justified the decision to do so. In addition, the Government argues that even if the initial search was in error, the agents validly searched the car after it was towed to FBI headquarters pursuant to the warrant later executed by a Magistrate Judge of this. Court. Finally, the Government contends that the Defendant's Motion must be denied because the evidence in the vehicle would have been discovered during the standard inventory search conducted at FBI headquarters.

 Upon careful consideration of the pleadings extant, the oral argument of counsel, the relevant law, and the entire record in this case, the Court agrees with the Government and finds that the Defendant's Motion shall be denied.

 BACKGROUND

 On October 29, 1994 at approximately 3:00 p.m., the Defendant allegedly fired numerous rounds of ammunition from a Norinco SKS semiautomatic weapon in the vicinity of the White House. A tourist tackled the Defendant as he tried to reload his weapon. Officers from the United States Secret Service then subdued the Defendant and arrested him. The Secret Service recovered the Norinco SKS semiautomatic weapon from the Defendant.

 Agent Mark Marek took the Defendant into custody. Agents of the Secret Service searched him incident to arrest, recovering a wallet containing a note with the words "Hey Secret Service!" The note further advised the agents that the Defendant had parked his Chevrolet pick-up truck in the vicinity of the White House and requested that the vehicle be returned to his wife at a certain address in Colorado.

 Based on the information in the note and other information in the Defendant's wallet, law enforcement officers located the truck at approximately 3:30 p.m. on the east side of 17th Street, N.W., just north of D Street. Law enforcement authorities immediately closed 17th Street, N.W., between D and E Streets, to all vehicular and civilian traffic for fear that the vehicle might contain an explosive device.

 Thereafter, the agents summoned a Secret Service Explosive Detection Team (EDT) Officer to the scene, along with his specially-trained canine, "Arno." Arno swept the exterior of the vehicle to determine if it contained any explosives, but this sweep met with negative results.

 Between approximately 5:30 and 7:30 p.m. Secret Service Supervisory Special Agent Steve Schenk was in telephonic contact with Assistant United States Attorney Joseph Valder. A decision was made to impound the vehicle and tow it to FBI headquarters. In order to ensure that the vehicle did not contain an explosive device, however, AUSA Valder authorized bomb technicians to enter the vehicle to conduct a limited protective sweep for explosive materials, as is standard procedure following a dog sweep.

 At approximately 8:00 p.m., at the direction of Secret Service Agent Steve Schenk and with AUSA Valder's approval, Metropolitan Police Department bomb technician Paul Friedlander and his assistant used the keys found on the Defendant's person incident to his arrest to enter the truck in order to inspect the vehicle for explosives. Thereafter, after conducting a standard "RSP" or "render safe procedure," Officer Friedlander declared the vehicle free of explosives.

 During this inspection of the truck, the technicians observed, inter alia, one Mossberg 410 gauge shotgun, lying in the crack between the tailgate and the bed of the truck. Although the officers did not seize the gun or other materials at this time, a Secret Service technician on the scene did photograph them.

 Later that evening, the truck was towed to the Federal Bureau of Investigation's (FBI) headquarters, at which time Special Agent Brad ...


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