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United States v. Ditto

United States District Court, E.D. Tennessee, Greeneville Division

March 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JULIUS LEON DITTO, Defendant.

          REPORT AND RECOMMENDATION

          Clifton L. Corker United States Magistrate Judge.

         Defendant, Julius Leon Ditto (“Ditto”), has filed a Motion to Suppress [Doc. 19). The United States filed a Response in Opposition [Doc. 22]. This matter is before the Court pursuant to 28 U.S.C. 636(b) and the standing orders of the District Court for a Report and Recommendation.

         On Tuesday, March 19, 2019, the Court conducted an evidentiary hearing on Defendant's motion. Present at the hearing were Defendant, his counsel, Donald E. Spurrell, Esq., and Assistant United States Attorney Thomas McCauley, Esq. Testifying at the hearing was Officer Trevor Salyer. This matter is now ripe for resolution. For the reasons stated herein, the undersigned RECOMMENDS the Motion to Suppress be DENIED.

         I. Procedural Background

         On August 15, 2018, a federal grand jury returned an indictment against Ditto, charging him with being a felon in possession of a weapon, specifically a DMPS Panther, .223 caliber AR-15 rifle, in violation of 18 U.S.C. § 922(g)(1) [Doc. 1]. On December 19, 2018, Ditto filed a Motion to Suppress [Doc. 19], arguing that the traffic stop violated his Fourth Amendment rights. The United States responded [Doc. 22] that the officer had sufficient probable cause to effect the traffic stop. The hearing on this motion was originally set for January 9, 2019 but was continued until March 19, 2019 based on Defendant's motion to continue [Doc. 23].

         II. Findings of Fact

         On July 4, 2018, Officers Trevor Salyer and Dustin Johnson, officers with the Elizabethton Police Department Vice Unit, were surveilling a neighborhood off of Broad Street in Elizabethton, Tennessee. The officers observed a silver BMW sedan traveling toward them on Broad Street toward the intersection with West Elk Avenue. This intersection involves a Y-type interchange, with Broad Street merging into West Elk, necessitating multiple sets of traffic lights to control traffic. As a car of interest coming from the surveilled location, the officers chose to follow the vehicle in hopes of investigating it further. When the BMW reached the intersection, the officers observed it make a wide turn from Broad Street onto West Elk, with the left-side tires of the vehicle crossing the double yellow lines on West Elk before correcting back within the right lane. This was the first violation of Tennessee Code Annotated § 55-8-123.

         The officers continued to follow the BMW down West Elk. Less than a mile down the road, they observed the car drift again toward the center yellow lines, this time with the left wheels driving directly on the center lines. This was the second violation. Shortly after the BMW corrected back into its lane, the officers observed the car again driving over the center yellow lines. See Exhibit 1, Timestamp 08:35:10. This is the third violation. At this point, the officers effected a traffic stop on the BMW for a violation of Tenn. Code Ann. § 55-8-123, a failure to maintain lane. After making contact with the driver, Ditto, the officers learned that he had an outstanding warrant from the United States Marshals Service for a violation of probation. As Officer Salyer placed Ditto under arrest, he observed a rifle round fall out of Ditto's lap, leading Officer Salyer to inquire whether there were any weapons in the vehicle. Ditto advised that there was a gun in the back seat. Upon a search of the vehicle, the officers found an AR-15 rifle with a loaded magazine and a box of ammunition in the vehicle.

         III. Analysis

         Defendant argues that the actions that the officers observed, specifically the three occurrences of driving on or over the center yellow lines, did not amount to probable cause to effect the traffic stop and that the gun and ammunition found as a result should be suppressed. The United States responded that the officers had probable cause to effect the stop under the plain language of the statute as interpreted by the Tennessee state court and the Sixth Circuit.

         It is undisputed that an officer may effect a traffic stop when he has “probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996). This results in a “fact-dependent determination [that] is made from the totality of the circumstances and includes a realistic assessment of the situation from a law enforcement officer's perspective.” United States v. Warfield, 727 Fed.Appx. 182, 186 (6th Cir. 2018) (quoting United States v. Ferguson, 8 F.3d 385, 391-92 (6th Cir. 1993)) (internal quotation marks omitted). Therefore, “the inquiry for purposes of determining the existence of probable cause does not require that the Court affirmatively find that defendants violated a traffic law.” United States v. Howard, No. 3:18-CR-29-TAV-HBG, 2018 WL 6061439, at *3 (E.D.Tenn. 2018). In this case, officers relied on Tenn. Code Ann. § 55-8-123, which in part states:

Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules, in addition to all others consistent with this section, shall apply:
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety;…

         In interpreting this statute, the Tennessee Supreme Court has recently noted that “[c]learly, the primary purpose of Section 123(1) is to enhance highway safety. Just as clearly, a motorist must be allowed to leave her lane of travel in order to avoid obstructions or other dangers.” State v. Smith, 484 S.W.3d 393, 407 (Tenn. 2016). That Court further agreed with the Ohio Court of Appeals' observations on a similar statute: “Common sense dictates that the statute is designed to keep travelers, both in vehicles and pedestrians, safe.” Id. This focus on public safety and the plain language of the statutes led that Court to hold “that Section 123(1) is violated when a motorist strays outside of her lane of travel when either (1) it is practicable for her to remain in her lane of travel or (2) she fails to first ascertain that the maneuver can be made with safety‚ĶThus, even minor lane excursions may ...


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