United States District Court, E.D. Tennessee, Knoxville
REPORT AND RECOMMENDATION
H. BRUCE GUYTON, Magistrate Judge.
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This case came before the Court on August 28, 2014, for a scheduled pretrial conference and evidentiary hearing on the Defendant's Motion to Suppress Evidence [Doc. 79]. Assistant United States Attorney Caryn L. Hebets appeared on behalf of the Government. Attorney Joseph A. Fanduzz represented the Defendant, who was also present. At the conclusion of the testimony, defense counsel asked to file a post-hearing brief with regard to the suppression motion. The Court granted that request, and the Defendant filed a post-hearing brief [Doc. 90] on September 10, 2014. The Court took the matter under advisement the following day. After reviewing the parties' arguments, the evidence presented at the hearing, and the relevant legal authorities, the Court recommends that the Defendant's motion to suppress be denied.
I. POSITIONS OF THE PARTIES
Defendant Lorenza Jackson is charged [Doc. 7], along with three named codefendants, with conspiracy to distribute heroin from September 1, 2011, to October 16, 2013 (Count One), and with possession of heroin with intent to distribute on September 14, 2013 (Count Two). The Defendant asks [Docs. 79 and 90] the Court to suppress all evidence seized during the September 14, 2014 seizure and frisk of his person because the frisk and seizure of cash concealed in his pocket violated his rights under the Fourth Amendment. He argues that the officer did not have specific and articulable facts that he was armed and dangerous to permit the warrantless Terry frisk of his person. He also contends that the officer improperly seized the cash detected in his pocket during the frisk because the officer could not have immediately recognized it as contraband.
The Government responds [Doc. 82] that the officer had reasonable suspicion that the Defendant was armed and dangerous based upon the totality of the circumstances of the stop, including the information that the Defendant had given the driver drugs to hold. The Government also maintains that the officer properly seized cash from the Defendant's pocket under the plain feel doctrine, because the officer immediately recognized it as contraband during the frisk.
II. SUMMARY OF THE TESTIMONY
The Government presented the testimony of Knoxville Police Department (KPD) Officer Robert Cook, who testified as follows:
On the morning of September 14, 2013, Officer Cook was on patrol in the area of Interstate 40 (I-40) and Kingston Pike. [Tr. at 4] As he pulled up to a traffic light, he passed a car stopped at the light and saw that the front passenger was not wearing a seatbelt. [Tr. at 4, 16] At the hearing, Officer Cook identified the Defendant as the individual whom he had observed as the passenger. [Tr. at 6] On the day of the stop, Officer Cook noted the license tag number as the car drove past him and ran the tag number on his in-car computer. [Tr. at 4, 16] He learned that the car was registered to Katie Miller. [Tr. at 6] A further records check revealed that Miller had an outstanding arrest warrant. [Tr. at 4, 6] Officer Cook caught up to the car, which by now was on I-40, and initiated a traffic stop. [Tr. at 5, 18] He approached the female driver and asked for identification. [Tr. at 5, 6] She provided a driver's license, which revealed that she was Katie Miller. [Tr. at 6] Officer Cook returned to his car and verified with the KPD records department that there was a valid arrest warrant for Miller. [Tr. at 6] At this point, Officer Cook requested that a second officer report to the scene to insure his safety while making a felony arrest. [Tr. at 10]
Officer Cook returned to the driver's side of the car, told Miller to get out of the car, and directed her to the front of his police car. [Tr. at 7] There, he told Miller that he was arresting her on an outstanding warrant and handcuffed her. [Tr. at 7] He asked Miller if she had anything illegal on her person, to which she replied that the Defendant had stuffed something down her pants. [Tr. at 7, 19] Officer Cook asked what it was, and Miller said it was heroin. [Tr. at 7, 19] Officer Cook did not attempt to retrieve the heroin from Miller but, instead, placed Miller in the back of his cruiser and radioed for a female officer to report to the scene to search Miller. [Tr. at 8, 10-11]
Once Miller was detained in the back of his cruiser, Officer Cook went to the passenger side of Miller's car and asked the Defendant for identification. [Tr. at 8] Officer Cook testified that the Defendant seemed very nervous and told Cook that he did not have his identification with him. [Tr. at 8] The Defendant identified himself as J. Davis. [Tr. at 7, 20] Officer Cook asked for his social security number, which the Defendant fumbled twice in giving. [Tr. at 8] Officer Cook said that the Defendant continued to appear to be looking for his identification, even after stating that he had none. [Tr. at 21] Officer Cook stated that he believed that he had probable cause to arrest the Defendant based upon Miller's statement that he gave her heroin. [Tr. at 8-9] He said that in his experience drugs and guns are commonly found together. [Tr. at 9]
Officer Cook stated that he asked the Defendant to step out of the car as Officer Gerlach arrived on the scene. [Tr. at 11] After the Defendant got out of the car and while Officer Gerlach was standing at the car's rear bumper, Officer Cook patted down the Defendant. [Tr. at 12] Officer Cook felt what he recognized as a substantial amount of cash in the Defendant's pocket but did not remove the cash. [Tr. at 12] He then handcuffed the Defendant and placed him in the back of Officer Gerlach's cruiser. [Tr. at 12-13] He did not tell the Defendant that he was under arrest at that time, but he believed the Defendant to be under arrest for heroin distribution and giving a false name. [Tr. at 13-14] The female officer arrived a few minutes after the Defendant was placed in the cruiser. [Tr. at 14] She searched Miller and found heroin on her person. [Tr. at 14-15]
Officer Cook testified that a K-9 officer arrived on the scene, and his dog alerted on Miller's car, which was then searched. [Tr. at 14-15] After the search of the car, Officer Cook searched the Defendant incident to his arrest and removed $3, 063 from the Defendant's pocket. [Tr. at 12, 15] The currency consisted mostly of twenty dollar bills with a few one-hundred dollar bills. [Tr. at 15]
On cross-examination, Officer Cook testified that after first spotting Miller's car, he stopped at the red light with Miller's car behind him in the turn lane. [Tr. at 16] He said that if Miller's car windows were not tinted so dark that the tint blocked his view of the Defendant. [Tr. at 16] When the light turned green, he waited for Miller to pass him so that he could get the license tag number. [Tr. at 17] After he stopped Miller's car on the interstate, the Defendant had his seatbelt buckled. [Tr. at 18] Officer Miller stated that approximately five minutes passed between stopping the car and placing Miller in his cruiser. [Tr. at 20] Officer Cook agreed that he had not confirmed that Miller had heroin on her person when he put her in his police car and stated that he did not ask her how much heroin she had. [Tr. at 20, 26] He acknowledged that he had not observed any unusual behavior from the Defendant up to that point. [Tr. at 20] Officer Cook said that when the Defendant said his name was J. Davis, Officer Cook did not believe him due to his actions. [Tr. at 20] The Defendant was acting nervous and continued to look for identification after telling Officer Cook he did not have any. [Tr. at 21]
Officer Cook stated that when he asked the Defendant to get out of the car, he had already decided to arrest him. [Tr. at 21] Officer Cook said he frisked the Defendant for his own safety. [Tr. at 21-22] The Defendant was wearing loose shorts that hung down to his knees. [Tr. at 23-24] When Officer Cook felt the cash in the Defendant's pocket, he believed it was related to the sale of heroin. [Tr. at 22] Officer Cook agreed that nine minutes and thirty seconds elapsed between him stopping Miller's car and him taking the Defendant into custody. [Tr. at 24] He ...