The opinion of the court was delivered by: Brown, Judge.
Defendants are charged in a five-count Superseding Indictment with mail theft and possession of stolen mail in violation of 18 U.S.C. §§ 1708 and 2 (Counts 1, 2, and 5) and unlawful possession of a counterfeit mailbox key and lock in violation of 18 U.S.C. §§ 1704 and 2 (Counts 3 and 4). All three Defendants are named in Counts 1-4. Only Defendant Grasseth is named in Count 5, which charges possession of a stolen Personal Identification Number (PIN) for a credit card. Defendants were arrested following an early morning stop. They filed motions to suppress evidence arguing there was no reasonable suspicion for the stop and the police lacked probable cause for the ensuing non-consensual search of their vehicle. Defendant Phillips also moved to suppress statements she provided following her arrest on grounds that her statements constitute "fruit" of the illegal stop and search. Defendants Grasseth and Phillips have moved to join in all motions filed by Co-Defendants. The motions for joinder are unopposed.
The government contends the arresting officer had reasonable suspicion for the initial stop which ripened into probable cause to believe that evidence of a crime would be found in the vehicle. Thus, the government asserts the warrantless search is justified under the automobile exception. For the reasons that follow, Defendants' motions to suppress are DENIED.
The Court finds the following facts by a preponderance of the evidence:
At approximately 2:00 a.m. on February 16, 2001, Polk County Sheriff's Sergeant Robert Ruark was on patrol on Wallace Road in a remote section of the West Salem area. He noticed a minivan with its headlights on parked off of Riverbend Road NW in a driveway next to where he knew, from nine years patrol experience in the area, there was a row of mailboxes. Ruark, however, could not actually see the mailboxes from where he was stopped. The driveway, approximately four car-lengths wide, is set in from Riverbend Road NW by a few feet and then branches off into two driveways: one leading to a sand and gravel business (which was closed at this hour) and one leading to a residence.
Sergeant Ruark had heard from other officers that there had been recent thefts and attempted thefts in the area.*fn1
Remaining on Wallace Road in his marked patrol vehicle, Ruark waited and watched the van for several minutes. He initially thought the van might be delivering newspapers; however, he became suspicious and decided to investigate when the van did not move.
Ruark drove to the van, pulled along its rear left side, and stopped. From that position, he observed the driver look to the patrol car, then turn and lean back toward the center of the back seat. As the driver sat back, the front passenger also leaned toward the center back seat. The driver then leaned toward the center of the back seat again. During these movements, Ruark noticed the van brake lights activated three times, and the van rocked from side to side as though someone in the back was moving around hurriedly. Indeed, Defendant Brandy Michelle Phillips testified she had been sitting in the front passenger seat, and, when she realized a police officer was approaching, she and Defendant Dominic Alan Grasseth changed places shortly before Deputy Ruark approached the van because she knew she had warrants out for her arrest and she thought she might be less recognizable if she moved to the back seat. There were no side passenger windows on the van, however, and Ruark could not see if anyone was actually in the back of the van.
At this point, Ruark activated his overhead vehicle lights and requested cover. There is no dispute this action constituted a "stop" even though the van had been parked.
Ruark approached the driver (Defendant Mark Elwayne Gust), determined there was a rear passenger (Defendant Phillips), and told the occupants that he was concerned about them being in an area where thefts had recently occurred. Ruark noticed Gust's leg was shaking nervously as he spoke with him. In response to Ruark's questions, Gust and the front passenger (Defendant Grasseth) indicated they did not know anyone in the area and they did not live in the area. Gust said they were parked in the area, "just talking." Phillips claimed she lived in Falls City. Ruark thought Defendants had chosen an odd place to park for a talk given that none of them lived in the area, the right side of the van was very close to the mailboxes, the driveway was so large they could have easily pulled over in another location where the mailboxes would not have blocked or partially blocked the passengers' access, and they could have parked further into the driveway if they wanted greater privacy from the main road.
During this initial questioning, Ruark noticed a large, apparently full, black plastic bag on the rear floor by Defendant Phillips's legs covered almost completely by a blanket. The bag was in a position consistent with where he had seen the driver and the front passenger repeatedly leaning. Ruark also noticed the passenger side rear-view mirror was pulled in toward the front passenger,*fn2 the front passenger window was down, a door to one of the mailboxes was hanging completely open, two other mailboxes were open "a crack," and one mailbox was open approximately one inch.
When Ruark asked for identification from all three, Grasseth's hands shook as he handed out his I.D. and Phillips denied she had any I.D. with her. Phillips said her name was Tambree Yarbrough and her birth date was 2/26/76.
Sergeant Ruark returned to his patrol car to run a computer check on the three individuals. He watched as Gust observed him in the van's side rearview mirror and as Gust leaned back between the seats again. Grasseth rolled up the front passenger window.
The computer check revealed Grasseth was on felony probation for unauthorized use of a vehicle. Another officer advised Ruark by radio that Grasseth also was a suspect in a recent burglary in Dallas, Oregon. Gust had a prior record of felony parole for failure to appear. The "Yarbrough" name had no record, but was ...