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United States v. Carter

United States District Court, E.D. Tennessee, Winchester

December 29, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JESSE O. CARTER, Defendant.

          REPORT & RECOMMENDATION

          SUSAN K. LEE UNITED STATES MAGISTRATE JUDGE

         Before the Court is a motion to suppress and supporting memorandum filed by Jesse O. Carter (“Defendant”) seeking to suppress all evidence resulting from a vehicle stop and warrantless search of his vehicle [Docs. 26 & 29].[1] Defendant alleges the initial stop, subsequent warrantless vehicle search, and his follow-on confession violate the tenants of the Fourth Amendment to the United States Constitution. The United States of America (“the Government”) filed a response in opposition to the motion [Doc. 31]. An evidentiary hearing on the motion was held December 13, 2017, and the parties each submitted a post hearing brief [Docs. 35 & 38]. After fully considering all of the parties' evidence and argument, I RECOMMEND that Defendant's motion to suppress be DENIED.

         I. FACTUAL BACKGROUND

         During the evidentiary hearing, the Government presented the testimony of the following law enforcement officers: Deputy Shane Ballew (“Ballew”), Deputy Steven Page (“Page”), Lieutenant Steven Turpin and Chief Deputy Mark Evans (“Evans”), all of the Van Buren County Sheriff's Department (“Department”), and Tennessee Bureau of Investigations (“TBI”) Agent Harold Eaton (“Eaton”). The Government offered as exhibits the Department's Computer Aided Dispatching (“CAD”) report of Defendant's stop and arrest (Exhibit 1), a TBI toxicology report of Defendant's blood sample (Exhibit 2), Defendant's Arrest Report prepared by Ballew (Exhibit 3), and the Tennessee Multiple Offense Citation issued to Defendant by Ballew (Exhibit 4). Defendant presented no witnesses or documentary evidence. Following are the pertinent facts.

         On the evening of October 29, 2016, Ballew and Page were on patrol and travelling one behind the other in separate patrol cars as they engaged in their regular patrol duties. Both deputies observed a Ford Mustang cross the left fog line on a straight stretch of Highway 111, which is a four-lane highway with no median in the pertinent area. The Mustang was observed crossing the fog line three times. At 7:39 p.m., Ballew, who was in the front patrol car, initiated a stop of the Mustang after he observed it swerve across the fog line three times. Page, who was driving the patrol car behind Ballew, also observed the Mustang swerving and contemporaneously commented on the erratic driving to Evans who happened to be on a phone call with Page at the time of Page's observation.

         Ballew approached the driver's side of the vehicle and Page approached the passenger's side. From the Mustang's doorpost behind the driver's door, Ballew leaned forward to talk to the driver, who was later identified as Defendant, through the open front driver's window. Ballew had never seen or heard of Defendant prior to the stop and he had absolutely no information about Defendant or his potential involvement in drug dealing. Ballew immediately detected the distinct odor of raw marijuana as he talked to Defendant about the reason for the stop. Ballew has smelled, and then found, raw marijuana about 50 times.

         Defendant admitted his driver license was revoked, but provided registration and insurance papers to Ballew. Ballew handed the registration papers across the roof of the vehicle to Page, who was positioned next to the closed passenger's side window. Page smelled the papers and detected the odor of raw marijuana coming from the registration papers. Page has smelled and then found in a search (and seized) raw marijuana more than 40 times. Page agreed there have also been a few times when he smelled the odor of raw marijuana when none was found.

         Because Ballew had observed erratic driving and other signs of possible impairment, including that Defendant was sweating, nervous, and had dilated pupils, Ballew suspected Defendant was driving while impaired. Ballew asked Defendant to perform the Standardized Field Sobriety Tests (“SFST”), which Ballew is certified to administer. Ballew administered the SFST consistent with his training and concluded that Defendant was too impaired to drive safely. Specifically, during the “Horizontal Gaze Nystagmus Test, ” Defendant's eyes lacked smooth pursuit because they could not follow Ballew's finger movement and during the “Walk and Turn Test, ” Defendant missed heel-to-toe placement several times, stepped off the line, and did an improper turn. Even though Defendant said he had no medical issues, because he also stated that he was unable to perform the “One Leg Stand Test” due to weak legs, Ballew did not administer this test. Page saw the “Walk and Turn Test' and he also concluded that Defendant was impaired and failed the test for the above reasons and because Defendant started the test early contrary to standard instructions.

         Based on Ballew's observations of Defendant's driving and his conclusions about Defendant's performance on the SFST as indicating Defendant was too impaired to drive safely, Ballew arrested Defendant for driving under the influence in violation of Tenn. Code. Annotated § 55-10-401 and for driving on a revoked license in violation of Tenn. Code. Annotated § 55-50- 504 at 7:51 p.m.

         Thereafter, based on the odor of raw marijuana coming from the Mustang, the deputies searched the stopped vehicle without a warrant. The warrantless search occurred after Defendant was placed under arrest, but before he was transported to the jail. Ballew is a certified canine-handler and his certified drug-detection canine[2] was in his patrol car at the time he stopped Defendant. Ballew was certain that he had probable cause for a warrantless vehicle search based on his own detection of the odor of raw marijuana, so he did not deploy his canine or ask Defendant for consent to search the Mustang. Neither marijuana nor an indicator of marijuana use-such as a roach clip, residue, etc.-was found in the Mustang. Each deputy expected to find raw marijuana during the search based on the strong and distinct odor of raw marijuana each had detected. Each was surprised when they found no raw marijuana. However, inside a red backpack on the front passenger floorboard, Page located three separate containers wrapped in plastic containing crystal shards that appeared to be approximately five pounds of methamphetamine.[3]

         Due to the large quantity of methamphetamine in the backpack, the deputies called the Sheriff to report on the case. The Sheriff advised the deputies to tow the car to the impound lot and to obtain a search warrant before continuing the search of the Mustang. The deputies proceeded to follow those instructions. Because Ballew had a canine in his patrol car, Defendant was transported to the jail by Page. After Defendant was at the jail, a search warrant was obtained for taking a blood sample from Defendant. Eventual testing of Defendant's blood sample by the TBI indicated absolutely no marijuana or alcohol in his system; instead, Defendant tested positive for methamphetamine, amphetamines, and lidocaine.

         The deputies testified it is the policy of the Department to arrest a driver if he or she is driving on a revoked license or while impaired. Both deputies seemed to indicate a driver would not be permitted to call someone to pick up an unattended vehicle given the charges of driving while impaired. Typically, but perhaps not always, upon arresting a driver on such charges, the vehicle is inventoried and then towed. The deputies testified that they would have inventoried and towed the Mustang even if they had not developed probable cause for a search of the vehicle and located the methamphetamine in this case because of the driver's suspected impairment and the roadside location of the stop near a construction zone, which the deputies deemed to be an unsafe place to leave an unattended vehicle. The deputies also testified that as part of the towing process, they would have been required to conduct an inventory of the contents of the Mustang, including the backpack, before the towing company took possession of the vehicle pursuant to the written policy or policies of the Department.[4]

         A few days later, Eaton conducted a custodial interrogation of Defendant on October 31, 2016. Defendant reportedly made incriminating statements about his involvement in the distribution of methamphetamine. As pertinent to the motion to suppress, Defendant stated he had taken a bus to Atlanta to pick up the methamphetamine-laden backpack and Mustang, and was driving back from Atlanta when stopped by Ballew.

         After the vehicle was towed to the Department's impoundment lot, Ballew obtained a search warrant for a search of the Mustang. Page and other law enforcement officers then searched the vehicle on November 2, 2016. The search conducted pursuant to the warrant yielded an additional small quantity of methamphetamine hidden in the engine compartment and other potential evidence.

         All Department witnesses testified the deputies did not have operating dashboard or body cameras or other recording equipment at any relevant time. Many months prior to the stop, both deputies requested repairs to, or replacement of, their broken dashboard recording equipment without success and the recording equipment in their patrol cars had not worked for at least a year prior to the stop. Evans explained the lack of repair or replacement of the dashboard recording equipment as being the result of budget constraints and the loss of a grant obtained by a prior administration.

         II. ANALYSIS

         Defendant seeks to suppress all evidence resulting from the traffic stop and vehicle search, including his confession. Defendant mainly argues that probable cause does not support either the traffic stop or warrantless search of his vehicle.

         A. Standards

         The cornerstone of Defendant's argument is the Fourth Amendment, which prohibits unreasonable searches and seizures. U.S. Const. amend. IV.[5] The foundation for analysis of an automobile stop is provided in Terry v. Ohio, which holds that temporary police stops for the purposes of a law enforcement investigation are “seizures” to one's “person.” 392 U.S. 1, 17-19 (1968). Stopping a vehicle and detaining its occupants is a seizure-a non-consensual, investigative detention-under the Fourth Amendment. United States v. Cortez, 449 U.S. 411, 417 (1981); United States v. Gross, 550 F.3d 578, 582 (6th Cir. 2008). Seizures are not prohibited by the Constitution; instead, the Constitution requires a seizure to be reasonable under the circumstances.

         The Government has the burden to establish the application of a warrant exception by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n. 14 (1974) (“[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.”). A preponderance of the evidence simply means an amount of evidence that is enough to persuade the court that the ...


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