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United States v. Fuchs

United States District Court, W.D. Tennessee, Western Division

September 30, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ZACHARY FUCHS, Defendant.

          ORDER ADOPTING IN PART REPORT AND RECOMMENDATION AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS

          MARK S. NORRIS, UNITED STATES DISTRICT JUDGE.

         Defendant moves to suppress (1) evidence found in the vehicle he was driving during a search of the vehicle conducted by the Gallaway Police Department after a traffic stop; and (2) statements he made in response to police interrogation while he was handcuffed during that traffic stop. (ECF No. 19.) After an initial hearing, Chief Magistrate Judge Vescovo entered her Report and Recommendation on Defendant's Motion to Dismiss (“Report”) on April 3, 2019. (ECF No. 32.) The Report recommended denying the motion as to suppression of the physical evidence collected during the traffic stop and granting the motion as to the statements Defendant made while handcuffed. (ECF No. 32 at PageID 81-82.) Defendant filed a combined motion seeking to reopen proof on his motion to suppress and making objections to the Report on May 1, 2019. (ECF No. 35.) In his motion, Defendant asserted that his counsel had discovered evidence that undermined the credibility of the government's only witness at the initial hearing, Officer David Nabors, who had conducted the traffic stop and the search of the vehicle. (Id. at PageID 87-88.) Defendant requested this Court to re-open the proof or to hold a de novo hearing on the matter. (Id.) The government responded on May 14, 2019. (ECF No. 37.) This Court granted Defendant's motion to the extent it sought a de novo hearing and held the hearing on September 6, 2019.

         Upon consideration of the record as developed at the hearing before Chief Magistrate Judge Vescovo and the de novo hearing, this Court ADOPTS the Report in part, and GRANTS in part and DENIES in part Defendant's Motion to Suppress.

         BACKGROUND

         I. Suppression Hearing Before Chief Magistrate Judge Vescovo

         At the hearing before Chief Magistrate Judge Vescovo, the government called one witness, Officer David Nabors, and introduced two exhibits into evidence: (1) the Affidavit of Complaint for Fuchs' arrest; and (2) a disc containing a video of Officer Nabors' body camera footage during the traffic stop and subsequent arrest. (ECF No. 29; ECF No. 32 at PageID 59.) Defendant did not call any witnesses or introduce any exhibits. (Id.) As described below, most of the traffic stop at issue was recorded via Officer Nabors' body-worn camera.

         Officer Nabors testified that he initiated the stop of Defendant's vehicle on June 6, 2018 at approximately 11:00 a.m. because the vehicle did not have a license plate. (ECF No. 32 at PageID 60.) Officer Nabors pulled behind the vehicle and activated his lights and siren as the vehicle pulled into the parking lot of private business, Crystal Steel. (Id.) Officer Nabors made contact with Defendant, who was the driver and only person in the vehicle. (Id.) Officer Nabors testified that Defendant was initially combative and accused Officer Nabors of taking his license plate. (Id.) Defendant provided Officer Nabors with his name, birthdate, and social security number but admitted that he did not have a driver's license, vehicle registration, or proof of insurance. (Id. at PageID 60-61.) Officer Nabors testified that it was the policy of the Gallaway Police Department to tow any vehicle drive by an individual lacking a valid driver's license, vehicular insurance, or registration. (Id. at PageID 75.) Officer Nabors testified that he detected the odor of marijuana during this initial contact with Defendant. (Id. at PageID 61.) However, Officer Nabors failed to include this information in the Affidavit of Complaint. (Id.)

         After this initial contact with Defendant, Officer Nabors returned to his vehicle, called Chief James Mayes[1] for backup, and because Fayette County dispatch was down at the time, called the El Paso Intelligence Center (“EPIC”) to run the Defendant's information. (Id. at PageID 60.) From this point forward, there is body camera footage of the traffic stop. (Id. at PageID 61.) Officer Nabors testified that while sitting in his patrol car during this time, he noticed that the flashlight on his body camera was on and realized he had mistakenly turned the flashlight on instead of the camera when he initiated the traffic stop. (Id.) Upon realizing his mistake, Officer Nabors activated his body camera. (Id.)

         After providing EPIC with Defendant's information, Officer Nabors was advised that Defendant had a prior conviction for manufacturing and attempting to manufacture methamphetamine, that Defendant allegedly carried a handgun, and that Defendant had previously been charged with stealing a vehicle during the commission of a theft. (Id. at PageID 62.) While Officer Nabors was on the phone with EPIC, Chief Mayes arrived on the scene and approached Defendant's vehicle. (Id.) Shortly thereafter, Officer Nabors can be heard on the body camera footage telling EPIC that he would call them back, but that he needed to get Defendant out of the car and secure him because Defendant was moving around and reaching under his seat. (Id.) Officer Nabors testified that based on the information he received from EPIC and his observations of Defendant's movements, he decided it was necessary at that time to detain Defendant for officer-safety purposes. (Id.)

         Officer Nabors proceeded to exit his vehicle and approached Chief Mayes and Defendant, who was sitting in the vehicle with the door shut and the window down talking on his cell phone. (Id.) Officer Nabors directed Defendant to step out of the vehicle. (Id.) Defendant complied and asked Officer Nabors if he was under arrest. (Id.) Officer Nabors told Defendant he was not under arrest but that he was going to detain Defendant. (Id.) After handcuffing Defendant, Officer Nabors questioned him about the owner of the vehicle, whether it was stolen, and if Defendant had ever stolen a vehicle before. (Id. at PageID 63.) Officer Nabors continued to question Defendant, specifically asking him if there was anything illegal in the car, to which Defendant responded that there “might be half a blunt or something.” (Id.) Defendant denied several more times that there was anything illegal in the vehicle in response to Officer Nabors continued questioning. (Id. at PageID 63-64.)

         While Officer Nabors was questioning Defendant, Chief Mayes can be seen lifting the hood of the vehicle. Officer Nabors testified that he could not testify as to what Chief Mayes was doing, but that he believed Chief Mayes was likely attempting to find a vehicle identification number (“VIN”) because they suspected the vehicle may have been stolen. (Id. at PageID 64.) Officer Nabors further testified that the VIN number in the door jamb of the driver's door was painted over or altered in a way that made it impossible to read. (ECF No. 32 at PageID 64.)

         After closing the vehicle's hood, Chief Mayes walked around the back of Defendant's vehicle and instructed Officer Nabors to move the vehicle. Officer Nabors testified that it was necessary to move the vehicle because it was blocking the entrance to the business, and a semi-truck was trying to get by. On the body camera footage, Officer Nabors can be seen moving his police vehicle out from behind Defendant's vehicle and then forward, and then similarly moving Defendant's vehicle forward. After moving Defendant's vehicle, Office Nabors rolled up the driver's side window. Officer Nabors testified that he rolled the window up in order to confine the odor of marijuana inside the vehicle to increase the chance of his narcotics detection canine, “Kilo, ” accurately alerting to the presence of narcotics. (ECF No. 32 at PageID 65.)

         After moving Defendant's vehicle, Officer Nabors retrieved Kilo from his vehicle and began walking Kilo around Defendant's vehicle. Officer Nabors testified that Kilo passively alerts to the presence of narcotics by sitting, changing his breathing pattern, or generally changing his behavior. (ECF No. 32 at PageID 65.) As Officer Nabors walked Kilo around the vehicle, Kilo sat near the driver's side door and then sat again after jumping on the rear bumper of the vehicle. Officer Nabors testified that he identified both of these actions as alerts to the presence of narcotics. (ECF No. 32 at PageID 65.) Thereafter, Officer Nabors returned Kilo to his police vehicle, and Officer Nabors and Chief Mayes began searching Defendant's vehicle.

         During the search of the vehicle, Officer Nabors initially found a plastic bag underneath the driver's seat that had a white residue, a roll of packaging tape, and plastic gloves. Continuing the search, Officer Nabors found a bag containing 1.1 pounds of methamphetamine hidden behind a tray in the center dash console.

         II. De Novo Suppression Hearing

         At the de novo hearing, the two exhibits from the initial hearing (see ECF Nos. 29 & 32) were made part of the record for the de novo hearing, and the government introduced two additional exhibits: (1) the certification sheets and K9 training logs for Kilo; and (2) a photograph of the rear of the vehicle Defendant was driving taken from Officer Nabors' body camera footage. (ECF No. 46.) Defendant introduced one exhibit, the state court transcript from the hearing on his motion to suppress in the Circuit Court of Tennessee at Somerville. (Id.) The government called Officer Nabors to testify again, and Defendant called one witness, Chief James Mayes of the Gallaway Police Department.

         Officer Nabors' testimony at the de novo suppression hearing was consistent with his testimony at the initial hearing before the Magistrate Judge, except as to the topic of the VIN number of Defendant's vehicle. At the initial suppression hearing, Officer Nabors testified that the VIN number of the vehicle had been painted over or altered in a way that made it impossible to read. At the de novo hearing, Officer Nabors testified that his statement at the initial hearing was based on a conversation he had with someone at the Gallaway Police Department once the vehicle had been impounded. Officer Nabors stated that he did not look for the vehicle's VIN number during the traffic stop, and his testimony at the initial hearing that the VIN number had been painted over was not based on personal knowledge.

         Chief Mayes, who provided backup to Officer Nabors during the traffic stop of Defendant, also testified at the de novo hearing. Chief Mayes testified that in June of 2018, he was a Captain at the Gallaway Police Department. Chief Mayes' testimony at the de novo hearing contradicts Officer Nabors' testimony in several respects.

         First, Chief Mayes testified that he believed it was improbable that Officer Nabors had accidentally hit the flashlight button on his body camera instead of the button to record. Chief Mayes stated that there were other occasions in which Officer Nabors did not start his body camera at the beginning of a traffic stop.

         Second, Chief Mayes testified that he did not smell marijuana when he approached Defendant's vehicle, and he was surprised to learn that Officer Nabors testified that he had smelled marijuana. On cross examination, Chief Mayes acknowledged that he had made traffic stops during which he detected the smell of marijuana but ultimately there was no marijuana found in the vehicle.

         Additionally, Chief Mayes testified that he disagreed with Officer Nabors using Kilo as a police canine because Kilo was not owned by the Gallaway Police Department. During cross examination, Chief Mayes testified that it is not unusual for a canine handler to take his animal home with him, and the only factor that was different with Officer Nabors and Kilo was that Officer Nabors owned Kilo. As to the traffic stop of Defendant, Chief Mayes testified that while Officer Nabors was running Kilo around Defendant's vehicle, he spoke with Defendant and told him that Kilo was first going to urinate on his tire, and then Kilo would sit because Officer Nabors told him to sit. Chief Mayes testified that he had observed Kilo urinate on tires before alerting during prior traffic stops. Chief Mayes further testified that he observed instances when Kilo had alerted but no drugs were found, but the Gallaway Police Department did not keep records of these apparent false positive alerts.

         Finally, Chief Mayes testified that he was looking for the VIN number when he lifted the vehicle's hood, and the VIN number on the vehicle was in fact legible, although it was somewhat difficult to read. There was no testimony regarding whether Chief Mayes spoke with Officer Nabors regarding the VIN number, either during or after the traffic stop.

         Chief Mayes' testimony also corroborated Officer Nabors' testimony in several respects. Chief Mayes confirmed that the Gallaway Police Department did not have any written policies at the time of the traffic stop, and that since he became Chief, they have started working on implementing written policies. Despite the lack of written policies, Chief Mayes' testimony corroborated Officer Nabors regarding the Gallaway Police Department's towing policy and inventory searches upon impoundment of a vehicle. Chief Mayes also stated that he agreed with the decision to tow the vehicle and that it was his opinion that the methamphetamine would have been found during an inventory search of the vehicle.

         There was also testimony from Chief Mayes regarding matters that were not directly related to the traffic stop of Defendant. Chief Mayes testified that he opposed Officer Nabors' hiring because of he had several misdemeanors on his record. Chief Mayes also testified that when Officer Nabors left the Gallaway Police Department, his personnel file went missing.

         STANDARD ...


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