Opinion
CRIMINAL 1:21-CR-30
11-10-2022
UNITED STATES OF AMERICA, Plaintiff, v. AUSTIN LODGE, Defendant.
REPORT AND RECOMMENDATION RECOMMENDING THAT DEFENDANT'S MOTION TO SUPPRESS [ECF NO. 28] BE DENIED
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE
Pending before the undersigned Magistrate Judge is Defendant Austin Lodge's (“Defendant”) Motion to Suppress Physical Evidence [ECF No. 28], filed on July 1, 2022. By Order dated July 5, 2022 [ECF No. 29], the presiding United States District Judge, Hon. Thomas S. Kleeh, referred the motion to the undersigned for conducting a hearing and entering a report and recommendation as to disposition of the motion.
The Court also is in receipt of the Government's response to Defendant's motion, filed on July 11, 2022. [ECF No. 38]. The undersigned conducted a hearing on Defendant's motion on July 13, 2022, at which the Court heard witness testimony and accepted exhibits into evidence. At the hearing on July 13, 2022, the undersigned invited counsel for the parties to submit any additional briefing on the issues arising herein, should they choose to submit any, by July 20, 2022.
On July 15, 2022, Defendant filed a supplement [ECF No. 43] to his motion to suppress, which included a motion to submit an additional exhibit. By the included motion, Defendant sought to admit into evidence an additional body camera video generated by a law enforcement officer [“LEO”] at the time of the pursuit and arrest of Defendant. By Order dated July 18, 2022, the undersigned ordered Defendant's counsel to provide a copy of the proposed exhibit to the undersigned for review, and also ordered the Government to file any response to the same. The Government timely filed such a response on July 27, 2022, objecting to submission of the additional exhibit as untimely and without context which could have been gleaned from examination of witnesses at the suppression hearing. By Order of event date herewith, the undersigned granted Defendant's motion and received the additional body cam footage into evidence.
Based on a detailed review of Defendant's motion [ECF No. 28], the Government's response [ECF No. 38], the exhibits introduced into evidence at the hearing on Defendant's motion, the testimony given by witnesses at said hearing, and review of Defendant's additional exhibit noted above (including Defendant's motion concerning the additional exhibit [ECF No. 43] and the Government's opposition to it [ECF No. 45]), the undersigned RECOMMENDS that Defendant's motion be DENIED as set forth herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant stands accused in a two-count indictment which a Grand Jury returned against him on May 4, 2021. [ECF No. 1]. Defendant is named in the Indictment with the offenses of (1) Possession with Intent to Distribute Methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C), and (2) Possession with Intent to Distribute Heroin, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C).
Defendant was detained by the Harrison County (West Virginia) Sheriff's Department (“Sheriff's Department”) in the early morning hours of December 13, 2018. A LEO with the Sheriff's Department was on patrol of an area, about which there had been a number of complaints of drug activity. The LEO saw Defendant's vehicle parked at a residence where drug activity had been concentrated. A few minutes later, the LEO observed Defendant's vehicle traveling away from that residence. A few moments after that, the LEO observed Defendant's vehicle traveling at a high rate of speed, approximately 100 miles per hour.
LEOs eventually caught up with Defendant once he had pulled into a residence. Defendant questioned whether the LEOs actually were officers, and fled on foot into nearby woods. LEOs gave chase on foot, and ultimately caught and detained Defendant after an extended struggle. In the course of his fleeing, Defendant had tossed aside a backpack. LEOs recovered the backpack shortly after Defendant's arrest. Inside the backpack, LEOs found quantities of a number of controlled substances, including crystal methamphetamine, marijuana, and suboxone strips, as well as plastic bags and digital scales. LEO's searched Defendant's person incident to arrest, and found a metal container with heroin inside.
Defendant was taken into custody, ultimately, on the basis of his absconding from parole.
Defendant challenges, first, the assertion that he was traveling at excessive speed, and thus challenges the propriety of the traffic stop. Secondly, Defendant challenges the propriety of the resulting searches which yielded the controlled substances resulting in the Indictment here. The Government, on the other hand, argues that its evidence credibly demonstrates that Defendant was speeding excessively. As such, the Government argues, the resulting detention, arrest, and seizure of evidence were lawful.
II. SUMMARY OF TESTIMONY AND OTHER EVIDENCE
During the aforementioned suppression hearing on July 13, 2022, the Court heard sworn testimony from three witnesses, namely, (1) Deputy Jon Flanagan (“Flanagan”) of the Sheriff's Department, (2) Lori Barker (“Barker”), and (3) Defendant himself. The Court also received into evidence the following:
1. Government's Exhibit 1 [ECF No. 41], the body camera footage generated by Flanagan during his pursuit of Defendant on foot and arrest of Defendant on December 13, 2018, during which LEOs collected certain evidence which is the subject of Defendant's motion;
2. Government's Exhibit 2 [ECF No. 41], body camera footage from an unknown officer generated during LEOs' pursuit of Defendant on December 13, 2018, depicting Barker's conversation with an LEO; and,
3. Defendant's Exhibit 3, body camera footage from an unknown officer generated during LEOs' pursuit of Defendant on December 13, 2018, depicting Barker's conversation with an LEO, Flanagan's conversation with a colleague regarding Defendant's attempt to enter Barker's home through the front door, and Defendant's statements to LEOs about his owning the backpack at issue in this case.
As noted in the Order entered on even date herewith, allowing Defendant's Exhibit 3 into evidence, this exhibit is mislabeled. Defendant did not admit exhibits into evidence at the suppression hearing, thus this exhibit should be labeled “Defendant's Exhibit 1.” However, in the interest of consistency, the undersigned will refer to Defendant's exhibit here as “Defendant's Exhibit 3.” At the suppression hearing, the Government admitted only two exhibits into evidence, so Defendant's labeling this exhibit this way does not compete with the label of another Exhibit 3.
The undersigned also notes receipt of Flanagan's incident report resulting from events on December 13, 2018 giving rise to the Indictment herein, provided as an attachment to Defendant's motion. [ECF No. 28-1].
A. Flanagan's Testimony
The Government called Flanagan to testify. According to his testimony, Flanagan was working the midnight shift for the Sheriff's Department in the early morning hours of December 13, 2018. [12:22:16 to 1:22:30]. In his capacity as a deputy with the Sheriff's Department, Flanagan was assigned to road patrol, which included routine surveillance. [12:21:53 to 12:22:15]. During his shift on December 13, 2018, Flanagan was in a marked police vehicle, was wearing a police uniform, and was wearing a functional body camera. [12:22:33 to 12:22:58]. Flanagan's police vehicle was not equipped with its own camera. Id.
The citations here to times in brackets correspond to the times of the Court's archived audio recording of the suppression hearing on July 14, 2022, which is located on the section of the Court's intranet site for FTR recordings.
During his above-noted shift, at around 3:00 a.m., Flanagan was patrolling the East View area of Clarksburg. [12:23:10 to 12:23:21]. Flanagan was concentrated on this area because the Sheriff's Department had been handling a number of calls about drug activity and suspicious persons there. [12:23:22 to 12:23:46]. A particular residence giving rise to a number of such calls was a house trailer occupied by Mark Cole (“Cole”). [12:23:47 to 12:24:09]. Flanagan was patrolling the vicinity of Cole's trailer. [12:24:10 to 12:24:28].
Flanagan noticed a silver Nissan sedan (“Nissan”) with Pennsylvania plates parked at Cole's trailer. [12:24:29 to 12:24:50]. Flanagan also noticed that, inside a portion of Cole's trailer, the lights were on, while lights in the surrounding structures in the area were off. [12:24:51 to 12:25:01]. Flanagan continued his patrol of the area. [12:25:30 to 12:25:37]. Flanagan's practice was to drive in a repeated loop of the area he patrolled, to see if anything had changed from his prior view, and he did so at this time. [12:25:48 to 12:25:59].
Flanagan proceeded up a nearby street, which at the time was called Green Avenue (and which currently has a different name which Flanagan could not recall). [12:26:01 to 12:26:16]. On Green Avenue, Flanagan passed the Nissan coming from the opposite direction. [12:26:17 to 12:26:31]. Flanagan knew that this Nissan was the same vehicle he saw earlier at Cole's trailer because it had the same plates. [12:27:07 to 12:27:10]. On cross-examination, Flanagan stated that when he encountered the Nissan at this time, the Nissan was in working order and there was nothing about it, standing alone, which was suspicious. [1:16:03 to 1:16:56]. The driver had committed no traffic infractions at that time. Id. Rather, Flanagan was interested in the Nissan only because it had been at Cole's trailer. Id.
Green Avenue intersects with Philippi Pike, and there is a stop sign at that intersection at which traffic proceeding from Green Avenue to Philippi Pike must stop. [12:27:21 to 12:27:33]. Once Flanagan passed the Nissan, he immediately turned around in a nearby driveway so as to be traveling in the same direction as the Nissan. [12:27:03 to 12:27:20]. By the time Flanagan had turned his vehicle around, the Nissan was out of sight. Id.
Flanagan stated that the area is residential, and as such there is a speed limit of 25 miles per hour unless it is posted differently. [12:27:35 to 12:27:52].
Flanagan explained that, in the short time which elapsed for him to turn around, he would have expected to have seen the Nissan once he had turned around if it were being driven at a normal speed. [12:27:53 to 12:28:24]. On cross-examination, Flanagan acknowledged that he planned to follow the Nissan and pull it over if he could find reason to do so, and inquire of the driver about why he or she had been at Cole's trailer. [1:21:28 to 1:21:59].
Once Flanagan had his vehicle turned around on Green Avenue and stopped at the stop sign at the intersection of Green Avenue and Philippi Pike, he saw the Nissan in the distance traveling on Philippi Pike in the direction of the community of Anmoore. Id. On crossexamination, Flanagan estimated that approximately six to eight seconds elapsed between (a) the moment when he passed the Nissan on Green Avenue and (b) the moment when he arrived at the intersection of Green Avenue and Philippi Pike and saw the Nissan again. [1:19:11 to 1:19:47]. Further, on cross-examination, Flanagan stated that the Nissan, were it traveling at a normal speed, still should have been visible once Flanagan turned his police vehicle around on Green Avenue. [1:19:53 to 1:20:24]. Flanagan stated that so little amount of time elapsed that the Nissan should have been stopped at the stop sign at the intersection of Green Avenue and Philippi Pike. Id. However, because the Nissan was not visible, Flanagan suspected that the driver had not stopped at the stop sign, although Flanagan was candid in saying that he did not witness such a traffic violation. Id.
Flanagan proceeded onto Philippi Pike to attempt to catch up with the Nissan. [12:28:26 to 12:28:28]. Flanagan accelerated his vehicle to a speed of 100 miles per hour; the Nissan was increasing its distance from Flanagan, leading Flanagan to conclude that the Nissan was traveling at approximately the same speed. [12:28:29 to 12:29:01]. Philippi Pike is a two-lane road with a number of potholes and crumbling edges. [12:29:28 to 12:30:01]. Much of the segment of Philippi Pike in question is fairly straight and fairly flat. [1:18:55 to 1:19:06]. Flanagan stated that it often has chunks of pavement missing and is not well maintained. [12:30:02 to 12:30:17]. Philippi Pike is not a roadway that is conducive for traveling safely at speeds of 100 miles per hour. [12:30:18 to 12:30:27]. In any event, per Flanagan, traveling at such speeds is illegal on that roadway. Id.
Flanagan did not activate the emergency lights on his vehicle so as to effectuate a stop of the Nissan. [12:29:07 to 12:29:11]. Instead, Flanagan switched his radio to a private frequency to alert other deputies nearby that the Nissan was fleeing. [12:29:12 to 12:29:24]. Flanagan then saw the Nissan execute a left turn from Philippi Pike onto Moonlight Drive. [12:29:25 to 12:29:26]. On Moonlight Drive, the Nissan made the first left turn, to a garage. [12:30:50 to 12:30:54]. On cross-examination, Flanagan could not give a precise estimate of the distance the Nissan traveled on Philippi Pike, i.e. from Green Avenue to Moonlight Drive, although he did not think that the distance was multiple miles long, and did not outright disagree with Defendant's counsel's suggestion that the distance is approximately one mile. [1:27:00 to 1:27:45].
In pursuing the Nissan, Flanagan did not activate his vehicle's lights or sirens. [1:04:30 to 1:04:39].
Flanagan observed that the driver of the Nissan was alone in that vehicle, and that the driver was a white male. [12:31:01 to 12:31:17]. Flanagan observed the driver of the Nissan open the door and exit the vehicle. Id. Flanagan opened his own vehicle door to exit it, called out “police, stop” to the driver of the Nissan, and dropped the radio with which he was communicating to dispatch as to his location. [12:31:18 to 12:31:51]. The driver of the Nissan fled on foot and Flanagan pursued him. [12:31:53 to 12:31:57].
The driver of the Nissan proceeded from the area of the garage to an adjoining property on which was situated a house trailer with a porch. [12:31:58 to 12:32:08]. The driver of the Nissan ran onto the porch and attempted to enter that residence. [12:32:09 to 12:32:14]. Flanagan recalled that the door of this residence opened slightly, apparently by someone from the inside of the residence. [12:32:32 to 12:32:43]. The driver of the Nissan attempted to shove a camouflage backpack through the door, but the door ultimately was shut in his face. [12:32:44 to 12:33:15]. The driver knocked on the door two or three more times, looked back at Flanagan, and then ran from the porch. [12:32:49 to 12:33:01].
The driver went to the left side of the trailer, around a detached shed, and then proceeded to the right. [12:33:03 to 12:33:49]. Flanagan chased the driver into the backyard area. [12:33:50 to 12:34:02]. Flanagan illuminated the area with a handheld flashlight, and shouted to the driver “police, stop.” [12:34:03 to 12:34:14]. As Flanagan caught up to the driver, he saw that the driver no longer had the backpack, and that the driver was reaching into his waistband area. [12:34:15 to 12:34:28]. Flanagan feared that the driver was reaching for a weapon, so Flanagan drew his service weapon, pointed it at the driver, and again shouted “police, stop.” [12:34:29 to 12:34:38].
At this same time, another LEO, Deputy Deem (“Deem”), arrived on the scene and had proceeded to the backyard area. [12:34:39 to 12:34:47]. The driver saw Deem arrive on the scene and so continued to flee on foot through nearby woods. [12:34:48 to 12:35:47]. Flanagan and Deem pursued the driver on foot, and announced that they were police and commanded the driver to stop. [12:35:49 to 12:36:05]. The driver exclaimed that he could not see the officers' badges, and yelled for help and expressed distress about being robbed. [12:37:30 to 12:37:40]. In the course of this pursuit, Flanagan was knocked to the ground when he hit a tree limb, while Deem continued to pursue the driver. [12:36:08 to 12:36:38]. Flanagan remained still as Deem seemed to be chasing the driver back into the area where Flanagan was waiting. [12:36:30 to 12:36:55]. Flanagan was waiting in anticipation of being able to apprehend the driver, but Deem eventually caught the driver just before the driver made his way to Flanagan. Id.
Flanagan explained that, since this time, Deem has been promoted to the rank of sergeant.
Flanagan went to assist Deem, and the driver resisted being arrested. [12:36:56 to 12:37:05]. As Flanagan and Deem attempted to handcuff the driver and commanded him to stop resisting, again stating that they were police, the driver continued to resist. [12:37:06 to 12:37:21]. The LEOs were unable to handcuff the driver, so Flanagan used “hammer strikes” with his fists as well as “knee strikes” to attempt to subdue the driver. [12:37:22 to 12:38:36]. At some point in the struggle, Deem used “OC spray” or “pepper spray” to incapacitate the driver. [12:39:05 to 12:39:16]. Flanagan also was hit with the spray, inadvertently, and was thus adversely impacted by it. [12:39:17 to 12:39:22]. Eventually, Flanagan was able to handcuff the driver's right wrist. [12:38:37 to 12:39:04]. Deem was able to handcuff the driver's left wrist. [12:39:22 to 12:39:27]. Because the driver was resisting the LEOs so much, the LEOs had to employ the uncommon technique of latching their two sets of handcuffs, one to the other, from the driver's left and right wrists, rather than the driver being handcuffed with a single pair of cuffs. [12:39:28 to 12:40:05]. Effecting even this handcuffing was a strenuous effort for the two LEOs. Id. Flanagan also sustained a lower back injury in the course of the arrest and had difficulty standing afterwards because of shooting back pain. [12:40:10 to 12:41:43]. Combined with the effects of the spray, Flanagan was nauseated to the point of vomiting, as reflected in the end of the body cam video. [1:01:26 to 1:02:00].
Flanagan ultimately identified the driver as Defendant. [12:42:00 to 12:42:07].
Flanagan recovered the camouflage backpack which he had earlier observed Defendant carrying. [1:02:02 to 1:02:20]. Inside the backpack, LEOs found large amounts of controlled substances, including crystal methamphetamine, marijuana, and suboxone strips, as well as plastic bags and digital scales. Id. Upon a patdown of Defendant's person, incident to arrest, LEOs found a metal container with heroin inside. [1:03:40 to 1:03:47]. Flanagan considered the backpack to have been abandoned, as it was not in any person's possession when LEOs recovered it. [1:04:38 to 1:04:44]. On cross-examination, Flanagan explained that he found the backpack beside the shed that was situated close to the house trailer on Moonlight Drive which Defendant had attempted to enter. [1:48:28 to 1:49:44]. The backpack was on top of a pile of some kind of vegetative debris and/or scrap metal. Id. Flanagan stated that he did not determine who owned the shed [1:49:45 to 1:49:48]. Flanagan did not have a search warrant to search the backpack nor Defendant's consent to search it, and the backpack was not within Defendant's reach at the time Flanagan found it. [1:50:01 to 1:50:33].
The moment when Flanagan finds the backpack can be observed in the body cam footage which comprises Government's Exhibit 1, at the 8:38:22 time mark.
Flanagan stated that Defendant's operation of the Nissan at such excessive speed was an offense for which he could have arrested Defendant. [1:02:30 to 1:02:40]. The offense amounted to reckless driving. [1:02:41 to 1:02:48]. As for the circumstances of Defendant's arrest here, he actually was arrested based upon his absconding from parole. [1:02:49 to 1:03:30].
Although not cited specifically in the course of these proceedings, reckless driving is criminalized in West Virginia by dint of the provisions at W.Va. Code § 17C-5-3. Further, it appears that authority for making such an arrest given these factual allegations is set forth at W.Va. Code § 62-1-5a(1).
B. Barker's Testimony
The Defendant called Lori Barker to testify. Barker testified that she knows Defendant because Defendant and her daughter have a child together. [2:13:04:to 2:13:10]. Barker explained that Defendant has lived at her residence on Moonlight Drive. [2:13:40 to 2:13:50]. The incident in this matter took place in the area of her residence. [2:13:51 to 2:13:58]. Barker was present at her home at the time of events here. [2:14:00 to 2:14:26]. Defendant resided at Barker's home at the time. [2:16:55 to 2:17:00]. Defendant would have had permission to enter Barker's home at that time. [2:17:01 to 2:17:27].
At approximately 3:00 a.m. on December 13, 2018, Barker was asleep in her bedroom when she heard knocking at the front door. [2:14:27 to 2:14:43]. Ordinarily, this door was unlocked, but she had locked it at that time because of unspecified other concerns. Id. She went outside to look to see what was happening, because she heard screaming. [2:14:44 to 2:15:02]. Outside, she saw two police vehicles in front of her home, with no lights on. Id. She heard yelling behind her home, in the distance. [2:15:03 to 2:15:13]. The yelling consisted of cries for help. [2:15:30 to 2:15:38]. She ran to her adjacent building, and could hear someone shouting “stop, police.” [2:15:14 to 2:15:25]. Barker eventually recognized once of the voices as that of Defendant. [2:16:01 to 2:16:07]. Barker returned to the inside of her home, afraid to go towards the commotion alone in the dark. [2:16:12 to 2:16:27]. Looking to the outside from within her home, Barker eventually saw that Defendant had been arrested. [2:16:28 to 2:16:41].
Barker testified that she did not speak to any LEOs or Defendant at that time. [2:16:42 to 2:16:44]. On cross-examination, however, the Government played body camera footage from the time of these events at Barker's home. This video was admitted as Government's Exhibit 2. Barker acknowledged that the video depicts her residence, and her speaking with a LEO. [2:25:41 to 2:25:50]. Barker further stated that she did not recall this interaction. Id.
C. Defendant's Testimony
Defendant testified on his own behalf. Defendant testified that he indeed was driving a vehicle in the East View area of Clarksburg on December 13, 2018. [2:48:15 to 2:48:21]. He recalled seeing two police vehicles in the moments when he was approaching Philippi Pike and then turning onto Philippi Pike.
Presumably, one of these police vehicles was Flanagan's. Flanagan did not testify that another police vehicle was in this vicinity during this portion of that night's events. There is nothing in the record otherwise about a second police vehicle at this place and at this time.
As he drove on Philippi Pike, Defendant did not notice police vehicles following him, nor did he notice any illumination by emergency lights. [2:50:00 to 2:50:10]. Defendant stated that he did not commit any traffic violations while driving on Philippi Pike. [2:50:19 to 2:50:25]. Defendant stated that he did not believe he was speeding. [2:50:29 to 2:50:51]. Defendant stated that he was not in a hurry. [2:50:52 to 2:50:55]. On cross-examination, Defendant stated that he could have been speeding, yet disagreed that he was speeding excessively. [2:5529 to 2:55:34].
Defendant stated that he then turned onto Moonlight Drive. [2:50:56 to 2:51:00]. Defendant explained that he was traveling to Barker's residence. [2:51:01 to 2:52:29]. When Defendant got to his destination on Moonlight Drive, he testified, he walked to the front porch to enter through the front door. Defendant found the front door locked. [2:52:30 to 2:52:49]. Defendant knocked on the door, but got no answer. [2:52:50 to 2:52:59]. Defendant left the front porch to walk around to the back porch, and when he did, an unknown person was shining a light in his eyes and commanding him to stop. [2:53:00 to 2:53:08]. Defendant stated that he ran. [2:53:15 to 2:53:18].
Defendant acknowledged having the backpack at issue, and throwing the backpack beside the shed. [2:53:25 to 2:53:30]. Defendant stated that he intended to retrieve the backpack later. [2:53:31 to 2:53:33].
Defendant stated that the people he encountered may have stated that they were police officers, but that he did not necessarily believe them. [2:53:38 to 2:53:48]. Defendant testified that he was not in an optimal state of mind, although it is unclear what exactly Defendant meant by that. [2:54:01 to 2:54:03]. Defendant stated that he was scared, he panicked, and he tried to leave the scene. [2:54:04 to 2:54:10].
On cross-examination, Defendant reviewed the portion of Government's Exhibit 1 in which he has the first interaction with LEOs. Defendant acknowledged that he was just a few feet away from the LEOs, that the LEOs were telling him that they were officers, and that the LEOs were wearing police uniforms. [2:58:20 to 2:58:31]. Further, on cross-examination, Defendant stated that he did see the police vehicles parked at the scene on Moonlight Drive, then stated that he may have seen them, and then stated that he could not recall. [2:58:32 to 2:58:46]. Further, on cross-examination, Defendant acknowledged that he ran from the LEOs, and complained that officers were not affording him an opportunity to see their badges. [2:59:09 to 2:59:37]. In reviewing the video that is Government's Exhibit 1, on cross-examination, Defendant acknowledged running away at the same time he asked to see Flanagan's badge. [2:59:50 to 3:00:14].
This moment is at the 8:24:07 time mark in Government's Exhibit 1.
III. LEGAL ISSUES AND ANALYSIS
At the outset of the analysis here, the undersigned notes that he has reviewed Defendant's Exhibit 3. Defendant seems to present the exhibit for two reasons. First, the exhibit shows an inconsistency with Flanagan's testimony at the suppression hearing. At the suppression hearing, Flanagan stated that the front door of the Barker residence opened when Defendant was knocking, and then shut, while in the video Flanagan says he does not think anyone answered the door. Second, the exhibit shows further indicia of Defendant's ownership of the backpack (and thus further shows Defendant's purported privacy interest in it), in that the video captures Defendant admitting to LEOs that he owns the backpack. These additional factual matters do not change the substance of the undersigned's review and analysis of the record.
Defendant contends, firstly, that the allegation about his driving at excessive speeds has not been corroborated or sufficiently established. The evidence produced to Defendant in discovery sets forth a mere general allegation of speeding, Defendant argues. Defendant disputes that he was speeding as alleged. Secondly, Defendant thus argues, the resulting stop was improper. Defendant argues that there was no reasonable suspicion for LEOs to perform a prolonged, investigatory stop of Defendant. Thus, according to Defendant, the resulting arrest, search, and seizure of evidence here were unlawful. Relatedly, Defendant asserts that he did not abandon the backpack, and intended to retrieve it.
On the contrary, the Government argues there is sufficiently credible evidence to show that Defendant was speeding excessively on Philippi Pike. As such, per the Government, Defendant committed a severe enough traffic offense that he could have been outright arrested for it. Moreover, the Government emphasizes that Defendant would have been arrested regardless, because he had absconded from parole. (Indeed, Defendant was arrested on that basis). In any event, the Government states, Defendant was not at all compliant with LEOs, in that he fled and violently fought against arrest. The implication here is that Defendant did not doubt the LEOs' legitimacy, but rather was interested only in fleeing because he knew he was in trouble. Finally, the Government insists that Defendant's backpack was abandoned, such that Defendant had no privacy interest in it and no constitutional protections with respect to it.
There is an important factual distinction with regard to the evidence in this case. As noted in the summary of factual testimony, above, LEOs recovered controlled substances from both (a) the backpack which Defendant tossed during LEOs' pursuit of him and which he did not possess at the time of arrest, and (b) a patdown of Defendant upon his arrest. By his motion to suppress, Defendant seeks to “suppress[] any evidence derived from the unlawful search of his person. . .”. [ECF No. 28 at 7]. Based on argument received during the hearing before the undersigned on July 13, 2022, it is clear that Defendant seeks to suppress evidence recovered both from the backpack and from the patdown incident to arrest. As such, evidence recovered from the backpack requires an additional level of analysis, as more fully set forth below.
A. Legal Principles
As a foundational matter, the undersigned notes the well-established principle that the Fourth Amendment of the United States Constitution protects “[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. Moreover, “the general rule [is] that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause.” Michigan v. Summers, 452 U.S. 692, 700 (1981).
A warrantless arrest and search incident to such arrest are permissible where there is probable cause that crime has been, is being, or will be committed, although if it is a misdemeanor, the crime must be committed in the officer's presence. U.S. v. Dickey-Bey, 393 F.3d 449, 453 (4th Cir. 2004). “‘[P]robable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Id. (quoting Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). “Probable cause is judged by an analysis of the totality of the circumstances . . . which are weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. Under this pragmatic, common sense approach, we defer to the expertise and experience of law enforcement officers at the scene.” Id. (citations and quotations omitted).
The undersigned notes the vast body of caselaw differentiating between police stops where there is probable cause of a crime being committed versus stops governed by the lesser standard of reasonable, articulable suspicion of a crime. Based upon arguments at the hearing before the undersigned on July 13, 2022, the parties appear to agree that the facts and circumstances in this matter are governed by the probable cause standard.
As for automobile stops, it is clear that they are a “seizure” under the Fourth Amendment. U.S. v. Sowards, 690 F.3d 583, 587-588 (4th Cir. 2012). As for a LEO stopping a vehicle for traveling above the speed limit, there must be some “indicia of reliability” to support the LEO's conclusion that the vehicle was speeding. Id. “[W]here an officer estimates that a vehicle is traveling in only slight excess of the legal speed limit, and particularly where the alleged violation is at a speed differential difficult for the naked eye to discern, an officer's visual speed estimate requires additional indicia of reliability to support probable cause.” Id. However, “where an officer estimates that a vehicle is traveling in significant excess of the legal speed limit, the speed differential-i.e., the percentage difference between the estimated speed and the legal speed limit-may” establish probable cause for the stop. Id.
Moreover, “it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.'” Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). It is the Government's burden to demonstrate that one of these exceptions applies. Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971). Among those few exceptions to the requirement to obtain a warrant is the circumstance where the search of a person is incident to an arrest of that person. “[A] police officer who makes a lawful arrest may conduct a warrantless search of the arrestee's person and the area ‘within his immediate control.' Davis v. United States, 564 U.S. 229, 232 (2011) (citation and quotation omitted). The policy behind this exception is to remove any weapons an arrestee may possess and to secure evidence. United States v. Davis, 997 F.3d 191, 195 (4th Cir. 2021).
Additionally, a warrantless search of property (either real or personal) which has been abandoned may be proper. The Fourth Circuit has articulated how to determine the propriety of such a warrantless search of abandoned property:
A finding of abandonment is based “not [on] whether all formal property rights have been relinquished, but whether the complaining party retains a reasonable expectation of privacy in the articles alleged to be abandoned.” United States v. Haynie, 637 F.2d 227, 237 (4th Cir. 1980) (quoting United States v. Wilson, 472 F.2d 901, 902 (9th Cir. 1973)). To determine whether the defendant maintains a reasonable expectation of privacy in an item, the court performs “an objective analysis” which considers the defendant's actions and intentions. United States v. Davis, 657 F.Supp.2d 630, 647-48 (D. Md. 2009), aff'd, 690 F.3d 226 (4th Cir. 2012). “Intent [to abandon] may be inferred from words spoken, acts done, and other objective facts.” Id. at 648 (quoting United States v. Hoey, 983 F.2d 890, 892 (8th Cir. 1993)).United States v. Small, 944 F.3d 490, 502 (4th Cir. 2019). “When a person voluntarily abandons his privacy interest in property, his subjective expectation of privacy becomes unreasonable, and he is precluded from seeking to suppress evidence seized from it.” United States v. Stevenson, 396 F.3d 538, 546 (4th Cir. 2005) (citations omitted).
It is the Government's burden, by a preponderance of the evidence, to establish the admissibility of evidence seized without a search warrant. Small, 944 F.3d at 502.
Finally, a well-established principle is that of the exclusionary rule. This rule holds that a court should exclude evidence obtained by dint of law enforcement's unlawful arrest or search. See Mapp v. Ohio, 367 U.S. 643 (1961). Relatedly, however, a court should suppress evidence in a criminal matter “only where its deterrence benefits of exclusion outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006) (citations and quotations omitted).
B. Analysis
In the case at bar, the necessary sequential analysis is as follows. The first issue is whether there is credible, reliable evidence that Defendant was speeding excessively on Philippi Pike, such that the stop of him was lawful. The second issue, then, is whether Defendant's resulting arrest and the recovery of evidence (from both the backpack tossed during LEOs' pursuit of Defendant and from Defendant during patdown at arrest) leading to the Indictment herein were lawful. Ancillary to the second issue is whether Defendant abandoned his backpack, such that there was no privacy interest in it.
1. Allegation of Defendant Speeding Excessively
As a threshold matter, in his motion, Defendant complains of the paucity of information produced in discovery to substantiate the allegation that he was speeding excessively on Philippi Pike. Defendant notes that there are no witnesses other than Flanagan, and no video footage of him operating the Nissan. Further, by his motion, Defendant questions whether the Nissan was capable of driving at the excessive speeds alleged, especially over the relatively short distance Defendant traveled. Defendant also emphasizes, as factors which would inhibit excessive speed, the poor road conditions of Philippi Pike, the darkness that would have provided limited visibility, and the need to decelerate to make the sharp turn from Philippi Pike onto Moonlight Drive. Defendant requests that the Court require the Government to establish, to the Court's satisfaction, that a traffic violation occurred as alleged. After all, Defendant argues, without credible evidence that the traffic violation occurred in the first place, the ultimate stop and arrest of Defendant, and searches yielding incriminating evidence, were improper.
The undersigned concludes that Flanagan was credible in his testimony, and substantiated the allegation that Defendant was speeding excessively. First, and perhaps most importantly, in his testimony, Flanagan gave detail and context for his assertion that Defendant was driving at excessive speed, approximately 100 miles per hour. Flanagan explained the initial moment when he surmised that Defendant was speeding excessively: when the Nissan was not visible at the stop sign at the intersection of Green Avenue and Philippi Pike just seconds after Flanagan turned around his patrol vehicle to tail the Nissan. Flanagan explained that, if the Nissan were being driven at a normal speed, it still would have been visible after Flanagan turned his patrol vehicle around. Secondly, Flanagan explained how he followed the Nissan, and in so doing, accelerated his patrol vehicle to a speed of 100 miles per hour. Yet, as Flanagan further explained, he was not closing the distance on the Nissan, but that the Nissan was pulling farther away from him. This of course means that the Nissan was traveling at a rate of speed of 100 miles per hour, perhaps more. What is more, Flanagan testified that he radioed to his colleagues nearby to alert them that the Nissan was fleeing, supporting his observation in the moment that the Nissan was speeding excessively.
As noted in the recitation of legal principles above, Flanagan's stop of the automobile is a “seizure” under the Fourth Amendment. Sowards, 690 F.3d at 587-588. For the stop of a vehicle for a traffic violation, the LEO must have probable cause that there was such a violation. Id. Further, per Sowards, the probable cause giving rise to a stop of a vehicle for speeding must be based on an “indicia of reliability.” Id.
In the instant matter, Flanagan's stop of the Nissan certainly was based on indicia of reliability, in contrast to the scenario in Sowards. In Sowards, the LEO stopped a vehicle when he made a visual estimate that the vehicle was traveling only five miles per hour over the speed limit of 70 miles per hour. Id. at 585. The LEO's patrol vehicle had radar equipment, but the LEO had purposely parked the vehicle at an angle that prevented an accurate reading from the radar equipment. Id. As a condition of obtaining certification for using radar equipment, the LEO in Sowards had to estimate, by sight, the speeds of twelve vehicles. As part of that test, the LEO's estimate could have been off upwards of 12 miles per hour. The LEO there did not attempt to confirm his speed estimate using some other means, such as pacing. Id. The Fourth Circuit took issue with how the LEO “used absolutely no technique or method to visually guess vehicle speeds.” Id. at 589 (emphasis in original). The Fourth Circuit also took issue with how the LEO glossed over the need to account for the distance an object travels and the time it takes to travel that distance in order to calculate its speed. Id. The Fourth Circuit also found fault with how the LEO “exhibited a notable absence of fluency in his knowledge of distance measurements.” Id. at 590.
The Sowards court did not provide a bright line rule about what the threshold is for excessive speed over the legal limit, without additional “indicia of reliability,” to establish probable cause that the vehicle is speeding. However, that court did explain that “where the alleged violation is at a speed differential difficult for the naked eye to discern, an officer's visual speed estimate requires additional indicia of reliability to support probable cause.” Id. at 592. In other words, and perhaps most important to the instant matter, the Sowards court concluded that an LEO's estimate that a vehicle is traveling significantly faster than the speed limit may, standing alone, establish probable cause that there is a traffic violation.
In the case at bar, Sowards legitimizes Flanagan's determination that there was probable cause that the Nissan was speeding. Flanagan testified that the speed limit where he witnessed the Nissan speeding is 25 miles per hour unless posted differently. There was no evidence presented that the speed limit there was posted differently at the time of events at issue. Further, he testified that the Nissan was traveling at a rate of 100 miles per hour, which is four times the speed limit. That visual speed estimate, given the speed differential, is probably sufficient under Sowards. However, Flanagan's account goes a step further. He substantiated his conclusion about the Nissan's speed by explaining how he himself was traveling at 100 miles per hour behind the Nissan and not gaining on it. What is more, Flanagan explained how the Nissan was not in sight when he first turned his police vehicle around to tail it - suggesting that the Nissan was being operated at excessive speed from that moment.
Additionally, Flanagan did not overstate his conclusions about the Nissan. This actually bolsters his credibility before the undersigned. He candidly explained the ways in which the Nissan appeared to be in working order when he first encountered it, and how Defendant operated it within the bounds of the law prior to the fleeing. He also was candid about how he saw no illegal activity per se when he first saw the Nissan parked at Cole's trailer. Only when there was a blatant violation of the law, excessive speeding, did Flanagan affirmatively engage with Defendant.
In contrast to Flanagan's testimony, Defendant was not credible in his testimony about the speed at which he drove the Nissan. Although Defendant denied that he drove at excessive speed, he did concede that he could have been driving over the speed limit. Moreover, Defendant stated that he was not in a good frame of mind that night. This is borne out by the body camera footage of Defendant's arrest which occurred very shortly after he was driving the Nissan. It is not clear from Defendant's testimony whether his mind was addled by use of controlled substances, consumption of some other type of substance, mental or emotional issues, some combination thereof, or something else altogether. Regardless, Defendant's testimony on this point was not credible. His version of events is questionable, given his candid admission that he was not in a good frame of mind at the time.
Thus, the undersigned FINDS that there is reliable, credible evidence that Defendant was speeding excessively, such that there was probable cause that that Defendant committed the crime of reckless driving. Therefore, the undersigned FINDS that a traffic stop of Defendant was proper.
The evidence before the Court presents a factual nuance. The traffic stop here was not the result of an affirmative pulling over of Defendant along a public road. Rather, the stop was the result of Defendant effectively outrunning a LEO in his vehicle, parking that vehicle, and ultimately fleeing on foot. Because the reason for the LEO's pursuit of Defendant was a traffic violation, both parties herein appear to agree that the facts necessitate an analysis under the law governing traffic stops. The undersigned thus has engaged in such an analysis.
2. Warrantless Arrest of Defendant and Resulting Warrantless Search of Defendant's Person
Because of the finding, above, that the traffic stop of Defendant was proper, the undersigned FINDS that the warrantless arrest was proper because Flanagan credibly established how there was probable cause that Defendant had committed the crime of reckless driving. DickeyBey, 393 F.3d at 453. Thus, it follows that the undersigned FINDS the warrantless search of Defendant's person incident to arrest was permissible. Id. Relatedly, the undersigned reiterates that, per Flanagan's testimony, Defendant would have been arrested regardless because Defendant had absconded from parole. In fact, according to Flanagan, this ultimately was the reason stated for Defendant's arrest. Thus, either by reason of an arrest for reckless driving or for absconding from parole, there would have been a permissible, warrantless search of Defendant's person incident to arrest.
3. Warrantless Search of Defendant's Backpack
Because of the findings, above, that the traffic stop of Defendant and the warrantless arrest and search of his person were permissible, the undersigned FINDS that the search of Defendant's backpack also was permissible to the extent which the backpack simply may be considered to be part of his person.
However, the issue of the search of Defendant's backpack presents another layer of nuance, and thus a need for another level of analysis, to determine whether Defendant abandoned the backpack. If he abandoned the backpack, then he had no privacy interest in it, and thus LEOs' warrantless search of the backpack was permissible. See United States v. Ferebee, 957 F.3d 406, 412-413 (4th Cir. 2019) (explaining unreasonableness of claiming a privacy interest in abandoned property); see also United States v. Stevenson, 396 F.3d 538, 546 (4th Cir. 2005).
From the briefing of the parties and the hearing before the undersigned, the following five factors have been established, and all of them are critical to this analysis: (1) Defendant clearly claimed ownership of the backpack, (2) Defendant clearly stated that he threw the backpack in the place where LEOs recovered it, (3) Defendant threw the backpack in the course of fleeing from LEOs, and Defendant acknowledged that he was fleeing in the moment when he threw it in that location where LEOs recovered it, (4) Defendant had permission to be on the property where he was fleeing and where he threw the backpack, and (5) LEOs did not have a search warrant for the backpack.
The undersigned also acknowledges two additional points: (1) Defendant claimed that he did not know that he was being pursued by actual LEOs during the pursuit, but thought they could have been imposters, and (2) Defendant claimed that he intended to retrieve the backpack or have someone retrieve it for him. To be clear, and as set forth in more detail here, the undersigned does not find Defendant to be credible as to either of these claims.
Seminal caselaw from the Fourth Circuit is instructive in this factual scenario. Small, 944 F.3d 490. In Small, the Fourth Circuit upheld the District Court's denial of that defendant's motion to suppress. The defendant in that matter was convicted of carjacking, conspiracy to commit carjacking, and destruction of government property. The convictions were based in part on evidence seized by a warrantless search of his mobile phone. Evidence on the phone connected Small to the stolen vehicle and helped LEOs ascertain his identity and location during events at issue. As in the instant matter, Small fled from LEOs; in the process, Small shed personal property, including a shirt, a hat, and the mobile phone. Id. at 503. Small also left a vehicle behind during the pursuit. The Fourth Circuit pointed to how a mobile phone's tracking function can aid LEOs in locating it (and the person possessing it), and how a suspect fleeing LEOs thus would be incentivized to intentionally abandon a mobile phone. Id. The Fourth Circuit looked at the discarded mobile phone in context with the other discarded items to conclude that the phone was one of a series of items abandoned, in which that defendant had no reasonable expectation of privacy. Id.
In short, the undersigned concludes that Defendant here similarly abandoned the backpack, such that he had no reasonable expectation of privacy in it. As with the mobile phone in Small, Defendant herein had every reason to abandon the backpack in the face of LEOs' pursuit. Given the backpack's incriminating contents, abandoning it could thwart criminal trouble - just as Small abandoning the mobile phone could both stymie the pursuit of that defendant and preclude collection of evidence of criminal activity.
Defendant's self-serving argument in the instant matter - that he intended to retrieve the backpack, eventually - is not credible. Defendant cannot invoke this claim, without more, to force the conclusion that the backpack was not abandoned. It is not reasonable for a criminal defendant to toss aside an object containing incriminating evidence during flight, yet claim an absolute privacy interest in it. To this end, to determine whether a person has a reasonable expectation of privacy in such property, Small and related cases require this Court's objective analysis to examine Defendant's intentions and actions. Small, 944 F.3d at 502.
Here, all indications are that Defendant fled LEOs and sought to ditch incriminating items in the process. After all, Defendant first encountered Flanagan when the two passed each other traveling in opposite directions on Green Avenue. This is a residential street, so Defendant necessarily was in close proximity to Flanagan in his marked police vehicle. Common sense dictates that, in that moment, Defendant would have been able to identify the police vehicle as such. Defendant even testified that he saw two police vehicles at this time. Then, Defendant sped off from the area where he first encountered Flanagan, operating the Nissan at a reckless speed of 100 miles per hour. The plain conclusion here is that Defendant wished to put distance between himself and law enforcement. Defendant reached his destination on Moonlight Drive, where he encountered Flanagan again in the police vehicle. Defendant eventually also encountered Deem there. Both LEOs were wearing police uniforms with badges, and shouted to Defendant that they were police and commanded him to stop. Importantly, Defendant tossed the backpack aside while LEOs were pursuing him. In the context of all of these facts, the only reasonable conclusion the undersigned can draw is that Defendant abandoned the backpack rather than be caught with it.
Flanagan did not activate his emergency lights during the pursuit on Philippi Pike or once he stopped at Moonlight Drive. The reason for his not doing so is unclear from the record.
To this end, Defendant's assertion that he did not know that the LEOs were legitimate is simply not credible. Defendant would have seen at least one of the LEOs, Flanagan, in a police vehicle. After all, Flanagan testified that he first shouted at Defendant to stop and announced himself as police, from his police vehicle. This was when Flanagan first arrived on the scene at Moonlight Drive. This also was the moment when Defendant began to flee on foot from the front porch of Barker's home - suggesting that he knew he had encountered law enforcement. Further, Flanagan and Deem were wearing police uniforms and shouting commands consistent with those which LEOs might issue. Defendant decried that he could not see the LEOs' badges, but a review of Flanagan's body cam footage shows Defendant fleeing rather than at all trying to affirm the presence of badges. A reasonable conclusion is that Defendant was attempting to perpetuate a ruse about his disbelief that Flanagan and Deem were actual LEOs.
Finally, the fact that Defendant had permission to be on the property at Moonlight Drive is of no moment. Certainly, the undersigned appreciates that Defendant being permitted to be on the property, residing there at times, and having familiarity with the environs, evinces some expectation of privacy in normal circumstances. However, in the factual scenario here, Defendant was engaged in criminal activity - excessive speeding - moments before LEOs gave chase on the property at Moonlight Drive. Just because Defendant made it to this destination before LEOs caught up with him, and tossed the backpack aside in a location with which he was familiar, does not obviate the fact that LEOs were pursuing him and that he was fleeing from them.
In sum, then, the undersigned FINDS that Defendant abandoned the backpack at issue, such that LEOs warrantless search of it was lawful.
IV. CONCLUSION
Accordingly, the undersigned FINDS that the Government has met its burden, by a preponderance of the evidence, to show the admissibility of evidence seized without a warrant.Thus, for the reasons set forth herein, the undersigned RECOMMENDS that Defendant's Motion to Suppress [ECF No. 28] be DENIED.
To be clear, in reaching this conclusion, the undersigned speaks only to the admissibility of evidence in the context of the motion to suppress. Nothing herein should be construed as a conclusion about the admissibility of evidence at trial as to grounds not raised in the context of the motion to suppress.
Any party shall have fourteen (14) days (filing of objections) from the date of the filing of this Report and Recommendation to file with the Clerk of the Court specific written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the presiding United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to timely file written objections to the Report and Recommendation as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk of Court is DIRECTED to transmit copies of this Report and Recommendation to counsel of record as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.