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United States v. Hefner

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

January 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRADLEY PAYTON HEFNER, Defendant.

          REPORT AND RECOMMENDATION

          DEBRA C. POPLIN, UNITED STATES 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 matter is before the Court upon Defendant Bradley Payton Hefner's Motion to Suppress [Doc. 32], filed on January 2, 2019. The Government filed a response in opposition to the motion [Doc. 35]. An evidentiary hearing on the motion was held on January 18, 2019. Assistant United States Attorney Brent N. Jones was present representing the Government. Attorney Mark E. Brown was present representing Defendant Hefner, who was also present. At the conclusion of the hearing, the Court took the suppression motion and related filing under advisement.

         I. POSITION OF THE PARTIES

         Defendant seeks to suppress all evidence, including a black and silver Taurus 9 millimeter handgun, seized as a result of a warrantless search of the vehicle in which he was sitting on July 8, 2018. Defendant argues that the law enforcement officer lacked a reasonable suspicion of criminal activity, which caused the initial contact to turn into an unconstitutional search and seizure, and unreasonably extended the initial contact to deploy a drug detection dog to establish probable cause. Defendant further argues that the officer engaged in unconstitutional profiling.

         The Government asserts that the stop to check on the well-being of the driver, followed by a detention to investigate criminal activity, was reasonable. Further, the Government maintains that due to the information the law enforcement officer knew at the time of the stop, a valid warrantless search of the vehicle was conducted based upon probable cause. Finally, the Government argues that while the officer had probable cause to search for weapons and drugs based on multiple factors, the officer had additional justification once the drug detection dog alerted positively on the vehicle within minutes of the initial stop.

         II. FACTUAL BACKGROUND

         During the evidentiary hearing, the government presented the testimony of Deputy Thomas Cowden (“Cowden”) of the Sevier County Sheriff's Department. Defendant presented no witnesses. The following facts are taken from the testimony at the suppression hearing as well as a bodycam video recording made at the time of the stop.[1]

         Cowden has been a law enforcement officer for approximately eight years, and a K-9 officer for the past four years. On July 8, 2018, Cowden was engaged in his regular patrol duties. At approximately 2:00 a.m., Cowden was traveling south on Chapman Highway when he observed “roughly about a quarter mile away” a set of headlights facing west to east across the highway. Cowden testified that as he was approaching, the vehicle had ample time to advance out of the parking lot and onto the highway but did not do so. Cowden pulled into the parking lot to check on the person in the vehicle, as well as the business located on the property[2], which was closed during that time of the night. Cowden testified that there had been “numerous amounts of drug activity going on in that area.”

         Cowden explained that he initially pulled into the parking lot to determine whether the vehicle occupant was alright or whether the vehicle had broken down, and generally to see if his assistance was needed. While he did not recognize the vehicle, Cowden stated that as he approached the vehicle at a T-bone angle, his headlights shined on the driver side window, and he immediately recognized Defendant Hefner. Defendant was holding an object out the window with his left hand. As he got closer, Cowden was able to determine that the object was a flashlight, which was not turned on. Cowden initiated a radio call requesting an officer to come and back him up. He testified that the nature of the stop changed at that point. Cowden explained that he had many dealings with Defendant over the years with complaints of violent crimes and drug activities. Specifically, Cowden noted the most recent incident involved a female alleging that she had been picked up by Defendant, who represented himself to be a bond agent. She claimed that Defendant put a gun to her head, forced her to take meth, and “did several sexual things to her.” Cowden further testified that he has worked domestic calls involving Defendant “where victims have stated he was violent on several occasions.” Additionally, Cowden stated that a couple of years ago, he was involved in a call that resulted in the removal of a shotgun and pistol from Defendant's residence. Cowden testified that he and other officers choose not to approach Defendant alone because “it always plays out with a weapon.”

         When he walked up to the car, Cowden inquired about Defendant's reason for being in the parking lot. Defendant responded that he was waiting on Tabitha Gibbs (“Gibbs”) to come from the residence across the highway. Cowden noted that the residence which Defendant referenced was “well known” to him. Cowden explained that he knew Gibbs had “been in our system numerous times, too, for drug activities, ” and that there was a warrant out for her arrest. Upon ascertaining this information, Cowden began to suspect drug activity.

         At that point and for his safety, Cowden asked Defendant to step out of the vehicle, lift up his shirt, and turn in a circle to make sure he did not have a weapon. Defendant complied, and Cowden observed a “gun holster” on Defendant's right hip, which Cowden described as being small and black with a “slit enough for the barrel to go down.” Cowden questioned Defendant concerning the whereabouts of a weapon, and Defendant maintained that the holster was for a flashlight. The video recording revealed that Defendant was asked whether he had “weapons or anything on him, ” and Defendant responded “no.” Defendant was then asked whether he had a knife in his pocket, and Defendant replied “yes, ” and handed it over to the officer. Cowden asked Defendant for consent to search the vehicle, and Defendant refused. Cowden testified that he always asks for consent to search before deploying his canine. Cowden then ran his canine around Defendant's vehicle, and it alerted on the passenger side of the vehicle. This all occurred within two minutes of when Cowden pulled into the parking lot.

         Cowden testified that he always patrols with his canine named “Cross, ” and has handled Cross for four years. Cross is trained to detect marijuana, methamphetamine, cocaine, ecstasy and heroine. Cross alerts by exhibiting a change in behavior-sitting. Because Cross is the only dog on duty at night during a twelve-hour shift, Cowden stated that he “gets used quite a bit.” Cowden is on duty with Cross fourteen days a month, and Cowden estimated that Cross is used at least seventy percent of the time and sometimes on multiple occasions in one night.

         After Cross alerted on the passenger side of Defendant's vehicle, Cowden then performed a search of the vehicle. He discovered two small burnt roaches, which appeared to be marijuana, in the front ashtray between the two seats. He also found a black and silver Taurus 9 millimeter pistol (“the firearm”) in the flip down console of the back seat. The firearm was loaded with one bullet in the chamber and fifteen in the magazine.

         At that point, Cowden handcuffed Defendant. When Gibbs arrived on the scene, she was placed under arrest on her outstanding warrant. Cowden believed Defendant to be a convicted felon, because he had requested that dispatch run a criminal history of Defendant and was advised that Defendant had pleaded guilty to second degree burglary in South Dakota. During the exchange, Defendant stated ...


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