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United States v. Johnson

United States District Court, M.D. Tennessee, Nashville Division

June 20, 2019




         Before the Court are motions to suppress the evidence obtained during several vehicle stops. Specifically, Johnson and Bryant move to suppress evidence resulting from a stop on July 14, 2015 (Doc. Nos. 40, 45, 131); Johnson challenges stops on August 11, 2016 and February 13, 2017 (Doc. No. 68); and Bryant attacks a stop on February 21, 2017 (Doc. No. 61). The Government opposes all of the motions. (Doc. Nos. 43, 67, 73, 137.) After full briefing, the Court held a three-day evidentiary hearing. (Doc. Nos. 170-172, 176.) For the following reasons, the Court will grant Defendants' motions to suppress evidence obtained from the July 14, 2015 and February 13, 2017 vehicle stops. In all other respects, the motions will be denied.

         I. Relevant Law

         A. Vehicle Stops and the Fourth Amendment

         The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Temporary detention of individuals during an automobile stop by the police, even if only for a brief period and a limited purpose, constitutes a “seizure” of “persons” within the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10 (1996); see also Brendlin v. California, 551 U.S. 249, 263 (2007) (vehicle stop is a seizure of passengers as well as drivers). The Court of Appeals for the Sixth Circuit “has developed two separate tests to determine the constitutional validity of vehicle stops: an officer must have probable cause to make a stop for a civil infraction, and reasonable suspicion of an ongoing crime to make a stop for a criminal violation.” United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008). Any evidence seized during an illegal traffic stop must be suppressed as “fruits of the poisonous tree.” Id. (quoting Wong Sun v. United States, 371 U.S. 471, 484 (1963)).

         1. Stopping a Vehicle for a Civil Infraction

         A police officer may stop a car if he or she has probable cause to believe that a civil traffic violation has occurred. Blair, 524 F.3d at 748 (citing United States v. Sanford, 476 F.3d 391, 394 (6th Cir. 2007)). “Probable cause is a reasonable ground for belief supported by less than prima facie proof but more than mere suspicion.” United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)). It does not require an actual showing of a violation; rather, a probability or substantial chance of a violation is sufficient. United States v. Christian, 925 F.3d 305, 2019 WL 2308021, at *4 (6th Cir. 2019) (citing United States v. Tagg, 886 F.3d 579, 585 (6th Cir. 2018)); United States v. Collazo, 818 F.3d 247, 254 (6th Cir. 2016).

         The key question is whether the police officer actually “believe[d] that a traffic violation occurred.” Sanford, 476 F.3d at 396 n.2. “The legality of the stop turns on the validity of the officer['s] objective explanation for making the stop, not on the subjective intentions of the officer[] in initiating the stop.” United States v. Herbin, 343 F.3d 807, 809 (6th Cir. 2003); see also Whren, 517 U.S. at 812-13 (officer's subjective intent is irrelevant). The Court must focus on whether the particular officer who stopped a vehicle “had an objectively verifiable reason” for doing so. United States v. Tullock, 578 Fed.Appx. 510, 513 (6th Cir. 2014) (citing United States v. Hughes, 606 F.3d 311, 315-16 (6th Cir. 2010); Herbin, 343 F.3d at 809); see also Whren, 517 U.S. at 813. The Court does not focus “on whether a reasonable officer ‘would' have stopped the suspect (even though he had probable cause to believe that a traffic violation had occurred), or whether any officer ‘could' have stopped the suspect (because a traffic violation had in fact occurred), but on whether this particular officer in fact had probable cause to believe that a traffic offense had occurred, regardless of whether this was the only basis or merely one basis for the stop.” United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (emphasis added).

         This is a fact-dependent analysis that turns “on what the officer knew at the time he made the stop.” Id.; United States v. Valdez, 147 Fed.Appx. 591, 594 (6th Cir. 2005). If the Court concludes that an officer “did not see the traffic violation” or “did not have probable cause to believe a violation had occurred” until events that occurred after the stop, it cannot find that probable cause existed. Ferguson, 8 F.3d at 391. The credibility of the officer and other witnesses is central to the probable cause determination, so “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Blair, 524 F.3d at 749 (quoting Anderson v. City of Bessemer City, N.C. , 470 U.S. 564, 573 (1985)). Because “the whole is often greater than the sum of its parts, ” the final determination regarding probable cause must be made based on the totality of the circumstances. District of Columbia v. Wesby, 138 S.Ct. 577, 586-88 (2018); United States v. Arvizu, 534 U.S. 266, 277-78 (2002); Christian, 2019 WL 2308021, at *3-4.

         2. Stopping a Vehicle for Criminal Activity

         Terry v. Ohio, 392 U.S. 1 (1968), governs traffic stops made on the basis of the reasonable suspicion of criminal activity. Id.; Arvizu, 534 U.S. at 273 (2002); United States v. Belakhdhar, 924 F.3d 925, 927 (6th Cir. 2019). The Government bears the burden of proving the existence of reasonable suspicion by a preponderance of the evidence, United States v. Torres-Ramos, 536 F.3d 542, 552 (6th Cir. 2008), and the court evaluates reasonable suspicion based on the totality of the circumstances. United States v. Martin, 289 F.3d 392, 396 (6th Cir. 2002) (citing United States v. Roberts, 986 F.2d 1026, 1029 (6th Cir.1993)). The analytical framework involves two steps. First, the government must articulate specific facts that create reasonable suspicion for the initial detention. Id. (citing United States v. Torres-Ramos, 536 F.3d 542, 551 (6th Cir. 2008)). These specific facts must “warrant a man of reasonable caution in the belief that the action taken was appropriate.” Terry, 392 U.S. at 21-22 (citations omitted). Critically, “[t]he officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or hunch' of criminal activity.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (citing Terry, 392 U.S. at 27).

         If the initial detention based on reasonable suspicion is proper, then the second question is “whether the degree of intrusion . . . was reasonably related in scope to the situation at hand, which is judged by examining the reasonableness of the officials' conduct given their suspicions and surrounding circumstances.” Torres-Ramos, 536 F.3d at 551-52 (quoting United States v. Caruthers, 458 F.3d at 464 (6th Cir. 2006)); Terry, 392 U.S. at 19-20. In short, the second aspect of the Terry analysis is whether the detention is “limited in [both] scope and duration.” Florida v. Royer, 460 U.S. 491, 500 (1983). This means that (1) a stop “must . . . last no longer than is necessary to effectuate the purpose of the stop, ” and (2) “the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.” United States v. Everett, 601 F.3d 484, 489-89 (6th Cir. 2010) (citing Royer, 460 U.S. at 500). The burden for both is on the Government. Royer, 460 U.S. at 500.

         A vehicle stop for a civil traffic infraction is analogous to a Terry stop for purposes of the duration and scope limitations. Rodriquez v. United States, 135 S.Ct. 1609, 1614 (2015); United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999). “[B]ecause addressing the [traffic] infraction is the purpose of the stop, it may last no longer than is necessary to effectuate th[at] purpose, ” Rodriguez, 135 S.Ct. at 1614 (internal quotation marks and citation omitted), unless something occurs to create reasonable suspicion to justify a further detention. Blair, 524 F.3d at 752. In determining the reasonable duration of a stop, “it [is] appropriate to examine whether the police diligently pursued [the] investigation.” United States v. Sharpe, 470 U.S. 675, 686 (1985). Beyond determining whether to issue a traffic ticket, an officer's mission includes “ordinary inquiries incident to [the traffic] stop.” Illinois v. Caballes, 543 U.S. 405, 408 (2005). “Typically such inquiries involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.” Rodriguez, 135 S.Ct. at 1615.

         Under Terry, officers may extend a stop for a traffic violation beyond the scope of what was originally permissible if “something happen[s] during the stop to cause the officer to have a reasonable and articulable suspicion that criminal activity is afoot.” United States v. Davis, 430 F.3d 345, 353 (6th Cir. 2005). In analyzing whether officers have impermissibly extended a traffic stop without reasonable suspicion of criminal activity, courts have “consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.” Everett, 601 F.3d at 492. “[T]he proper inquiry is whether the totality of the circumstances surrounding the stop indicates that the duration of the stop as a whole - including any prolongation due to suspicionless unrelated questioning - was reasonable.” Id. at 494 (internal quotation marks and citations omitted). This requires examination of “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” Sharpe, 470 U.S. at 686. This diligence standard does not “require [an officer] to move at top speed, ” and some amount of questioning is permissible so long as the officer's “overall course of action during a traffic stop, viewed objectively and in its totality, is reasonably directed toward the proper ends of the stop.” Everett, 601 F.3d at 495.

         B. Consent to Be Searched

         “In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own.” United States v. Drayton, 536 U.S. 194, 207 (2002). Accordingly, while the Fourth Amendment protects citizens against unreasonable searches and seizures, a search of a person is reasonable if that person gives free and voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011). Consent is voluntary when it is “unequivocal, specific and intelligently given, uncontaminated by any duress or coercion.” United States v. Moon, 513 F.3d 527, 537 (6th Cir. 2008) (internal citations omitted).

         Voluntariness is a fact-specific inquiry determined by examining the totality of the circumstances. Bustamonte, 412 U.S. at 227; Schneckloth 412 U.S. at 226; United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999). The circumstances surrounding an individual's consent are examined objectively and a searching examination is required. See Whren, 517 U.S. at 813; Worley, 193 F.3d at 386. Several factors guide the examination. First, “a court should examine the characteristics of the accused, including the age, intelligence, and education of the individual; whether the individual understands the right to refuse to consent; and whether the individual understands his or her constitutional rights.” Beauchamp, 659 F.3d at 572 (citing United States v. Jones, 846 F.2d 358, 360 (6th Cir. 1988)). Second, a court should consider the details of the detention, including the length and nature of detention, Bustamonte, 412 U.S. at 226; the use of coercive or punishing conduct by the police, id. at 226; and indications of “more subtle forms of coercion that might flaw [an individual's] judgment.” Beauchamp, 659 F.3d at 572 (quoting United States v. Watson, 423 U.S. 411, 424 (1976)). While the police do not have to inform an individual of his right to refuse consent, Ohio v. Robinette, 519 U.S. 33, 39-40 (1996), the absence of such a warning is to be considered in the totality of the circumstances analysis. Beauchamp, 659 F.3d at 572 (citing Bustamonte, 412 U.S. at 227). The Government's burden “cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968).

         II. Analysis

         Defendants argue that none of the four vehicle stops satisfy the Fourth Amendment to the U.S. Constitution. The Government disagrees. The Court considers each stop in turn.

         A. August 11, 2016 Stop

         Johnson argues that detectives made an improper investigatory stop of his vehicle at a Hermitage, Tennessee car wash on August 11, 2016. He believes that Metro-Nashville Police (“Metro”) detectives only became suspicious of him when he had a brief encounter with occupants of another vehicle suspected of illegal activity. Johnson contends, therefore, that there was no particularized suspicion to stop his vehicle.[1] The Government argues that the totality of circumstances establishes that Metro detectives had reasonable suspicion that Johnson was involved in an illegal drug transaction at the car wash. The Government specifically contends that detectives had suspected that the occupants of another vehicle had engaged in a type of gift card theft used to make drug transactions; detectives reasonably followed that vehicle to the car wash, which is a common location for drug transactions; and they witnessed behavior consistent with a drug transaction between Johnson and a passenger of that other vehicle.

         At the suppression hearing, the Government presented then-Metro Detective Rory O'Farrell and Metro Detectives Erik Funk and Joseph Snyder. All were members of the Madison Crime Suppression Unit and spent a significant amount of their time surveilling retail parking lots where drug transactions occur. Each described the events of August 11, 2016.

         O'Farrell first observed a male from a silver Saturn, later identified as Daniel Richardson, enter a Lowe's Home Improvement (“Lowe's”) store with a plastic bag and return to the silver Saturn with what looked like a receipt in his hand. The detectives then saw a Lowe's employee follow Richardson and appear to write down the license plate number of the silver Saturn. A female, later identified as Toni Lance, then got out of the silver Saturn, went into the Lowe's, and exited with a drink in her hand. The detectives contacted Lowe's, and in response to information they received, decided to continue surveillance of the silver Saturn.

         The detectives then followed the silver Saturn when it left the Lowe's parking lot. It first stopped briefly in an alley behind several pawn shops, and then it continued approximately eight miles to a car wash in Hermitage, an area also known for drug transactions. Upon arrival at the car wash, Johnson was already parked in one of the car wash bays in a white Nissan Altima. O'Farrell parked on the front side of the car wash, and the silver Saturn parked on the back side. He received radio updates from Funk and Snyder, who were parked across from the car wash. O'Farrell saw Lance exit the silver Saturn and walk towards Johnson's Nissan. She went out of view for a minute and then O'Farrell saw her come back into view and walk back to her car. O'Farrell testified that, based upon his experience and training, he believed Lance and Johnson had just met up for a drug transaction. O'Farrell then initiated the traffic stop on Johnson's vehicle, and Johnson was detained. Johnson denied knowledge of any narcotics transaction. A Lowe's gift card and cash were recovered on Johnson.

         Detective Funk's testimony was closely aligned with O'Farrell's version of events. However, Funk also testified that he actually saw Richardson exit the Lowe's with a gift card in his hand, and Lance return into the Lowe's with the gift card and exit with a drink. Based on training and experience that includes dozens of actual observations, Funk knows that it is common behavior for people to fraudulently obtain gift cards and then test the cards to be sure they are working and have a monetary balance. Funk also saw Lance leave the silver Saturn and go into the bay containing Johnson's car for 45-60 seconds. Funk, however, added the detail that when Lance left the bay he saw her “clutching something in her right hand.”

         Finally, Detective Snyder provided substantially similar testimony. Snyder, however, explained that, from his angle in the police cruiser, he could actually see Lance physically enter Johnson's white Nissan in the car wash bay and then leave with something “cupping [in] her hand.” Considering the totality of circumstances, the Court finds that the detectives articulated a particularized and objective basis for having a reasonable suspicion, as opposed to a vague hunch, that Johnson was involved in criminal activity on August 11, 2016. The detectives' testimony was consistent and credible. Each testified based on their personal observations. Each had extensive knowledge of drug activity and schemes in the area. And each relied on their experience and training concerning such street narcotics activity. O'Farrell's testimony mirrors his Arrest Affidavit (Doc. No. 68-1), and the detectives' testimony, viewed together, is cohesive and logical. The detectives' credible testimony established, by a preponderance of the evidence, that Johnson was detained on August 11, 2016 because of a suspected drug transaction. Specifically, Lance walked towards Johnson's vehicle sitting unwashed in a car bay, ...

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