Opinion
No. 2-00-00016
July 10, 2001
ORDER
In accordance with the memorandum contemporaneously entered, the motion (filed May 22, 2001; Docket Entry No. 654) of the defendant, Jerry Wayne Sherrill, to suppress is granted.
It is so ORDERED.
MEMORANDUM
The Court has before it the motion (filed May 22, 2001; Docket Entry No. 654) of the defendant, Jerry Wayne Sherrill, to suppress, his memorandum (Docket Entry No. 655) in support and the government's response (filed May 30, 2001; Docket Entry No. 675).
A hearing was held on the defendant's motion on June 7, 2001. For the reasons stated below, the defendant's motion shall be granted.
I.
On June 23, 2000, the defendant, Jerry Wayne Sherrill, was driving a red Z-71 Chevrolet extended cab pickup truck and was stopped by Cookeville, Tennessee, Police Officer, Eric Hall. Officer Hall testified that at 6:11 p.m. he received a dispatch informing him to proceed to the office of the drug task force on Highway 70 within the Cookeville city limit. Upon his arrival, a Sergeant Markham informed Officer Hall that a vehicle fitting the description of the defendant's pickup truck would be passing through the intersection of Highway 70 and Pippen Road any minute and that it needed to be stopped. Moments later, Officer Hall viewed the vehicle in question and began to follow it. After Officer Hall confirmed the description and license tags of the vehicle, he activated his lights and pulled over the vehicle about two to three miles from the Highway 70 and Pippen Road intersection. Officer Hall testified that about five minutes transpired from the time which he spoke with Sgt. Markham to the stopping of the defendant's vehicle.
The intersection is within eyesight of the drug task force office.
Officer Hall approached the driver's side of the vehicle and discovered that there were two occupants in the vehicle. He asked the defendant, who was the driver, for his driver's license. The defendant asked Officer Hall why he had been stopped to which he responded by asking the defendant to step to the rear of the truck. Officer Hall testified that about five minutes transpired from the time of the initial stop to the removal of the defendant from the truck. At the rear of the truck, Officer Hall told the defendant that other agents had asked him to stop his vehicle, that they would be arriving on the scene in minutes and that he would inform him of the reason for the stop upon their arrival.
Shortly after the stop, Officer Harrington of the Cookeville City Police Department arrived on the scene, followed by Officers Cobble and Davis of the 13th Judicial District Drug Task Force. All three officers arrived in separate vehicles. Officer Hall estimated that Officer Cobble arrived approximately 6 to 8 minutes after the initial stop. Officer Cobble informed Officer Hall that the reason for the stop was that the windows on the defendant's vehicle appeared to be in violation of Tennessee's window tinting law, Tenn. Code Ann. § 55-9-107. Upon receiving this information, Officer Hall relayed it to the defendant.
Officer Cobble estimated the time to be about 8 to 10 minutes.
Officer Cobble then took out his drug detection dog, Boomer, and proceeded to walk the dog around the defendant's truck. The dog stopped by the passenger side of the truck and alerted to the presence of narcotics. Officer Cobble placed the dog back in his car and asked the defendant for his consent to search his truck. According to Officer Cobble, the defendant responded that he rather the officer had a warrant. Officer Cobble informed the defendant that he would search the truck based on the dog's alert.
Officer Hall testified that prior to Officer Cobble's arrival and during the search of the defendant's vehicle, he was in contact with dispatch, running license and warrant checks on the defendant and his passenger. He stated that the checks were completed after the search and that the whole process took about 10 to 15 minutes.
Officer Cobble searched the interior of the truck and found in the console a small candy wrapper containing a white substance. He then placed the defendant under arrest, charging him and the other passenger with possession of a controlled substance. Officer Cobble subsequently tested the tint on the vehicle's window but did not issue the defendant a citation for illegal window tint.
The defendant is charged in the indictment with conspiring to distribute and possess with intent to distribute cocaine and crack cocaine in violation of Title 21, United States Code, Section 846; and possession and attempt to possess with intent to distribute cocaine in violation of Title 21, United States Code, Sections 841(a)(1) and 846 and aiding and abetting such offenses, in violation of Title 18, United States Code, Section 2.
The defendant asserts that under the Fourth Amendment to the United States Constitution the narcotics discovered during the search of Mr. Sherrill's vehicle should be suppressed because probable cause to search the vehicle was developed as the result of an unlawful traffic stop. Specifically, the defendant asserts that the stop was unreasonable, as Officer Cobble did not have probable cause to believe that Mr. Sherrill had committed a traffic violation for having illegally tinted windows.
Officer Hall conceded on cross examination that the defendant did not commit any traffic violations in his presence.
II.
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." The Supreme Court of the United States has found that the stop of an automobile and the temporary detention of individuals during the stop, "even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning of this provision." Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95 (1996) (citations omitted). The Court explained that an automobile stop constitutes a seizure under the Fourth Amendment because it "significantly curtails the freedom of action of the driver and the passengers, if any, of the detained vehicle." Berkemer v. McCarty, 468 U.S. 420, 436, 104 S.Ct. 3138, 3148, 82 L.Ed.2d 317, 332 (1984).
In determining whether an automobile stop is constitutional, the Court must conduct a fact specific inquiry which turns upon whether the stop is reasonable under the circumstances. Id. Where the police have probable cause to believe that a traffic violation has occurred, the Supreme Court has found that the decision to stop an automobile is reasonable. See Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 1399, 59 L.Ed.2d 660, 667 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331, 336 (1977) (per curiam). The Court of Appeals for the Sixth Circuit in United States v. Ferauson, 8 F.3d 385 (6th Cir. 1993) (en banc), cert. denied, 513 U.S. 828, 115 S.Ct. 97, 130 L.Ed.2d 47 (1994), stated that the police could reasonably stop a vehicle for any traffic violation, no matter how slight and no matter whether the hope of finding contraband as the result of the stop was the officer's subjective motvation for making the stop.
The government contends that Officer Cobble had probable cause to stop the defendant because Mr. Sherrill had illegally tinted windows. The defendant argues that Officer Cobble did not have probable cause to stop the defendant because Officer Cobble did not have a valid reason for believing that a traffic violation had in fact occurred.
In support of its assertion that Officer Cobble had probable cause to stop the defendants, the government relies on Tennessee Code Annotated, Section 55-9-107, governing the allowable amount of window tint on motor vehicles. That section states, in relevant part:
(a)(1) It is unlawful for any person to operate, upon a public highway, street or road, any motor vehicle registered in this state, in which any window, which has a visible light transmittance equal to, but not less than, that specified in the Federal Motor Vehicle Safety Standard No. 205, has been altered, treated or replaced by the affixing, application or installation of any material which:
(A) Has a visible light transmittance of less than thirty-five percent (35%); or
(B) With the exception of the manufacturer's standard installed shade band, reduces the visible light transmittance in the windshield below seventy percent (70%)
. . .
(c) It is probable cause for a full-time, salaried police officer of this state to detain a motor vehicle being operated on the public roads, streets or highways of this state when such officer has a reasonable belief that the motor vehicle is in violation of subdivision (a)(1), for the purpose of conducting a field comparison test.
The government maintains that the officers were aware of Tennessee' s prohibition against excessively tinted windows on motor vehicles, were trained to recognize motor vehicles in violation of the statute and observed that the windows on the defendant's vehicle were in violation of this statute.
The law is well-settled that pretextual traffic stops are permissible.Whren, 517 U.S. at 812-13, 116 S.Ct. at 1774, 135 L.Ed.2d at 97; Arkansas v. Sullivan, ___ U.S. ___, 121 S.Ct. 1876, ___ L.Ed.2d ___, (2001);United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999). "That is to say, an officer may stop a vehicle for a traffic violation when his true motivation is to search for contraband, as long as the officer had probable cause to initially stop the vehicle." Hill, 195 F.3d at 264.
Officer Cobble testified that he had seen the defendant's truck shortly before 6:00 p.m. Later, he received information from other agents informing him that there were drugs located in the truck that the defendant was driving. Based on this information, he positioned himself in a place to try to initiate a traffic stop. From his location, he observed the defendant drive by, passing him from his right to his left. The defendant was maneuvering around a sharp curve in the road, and Officer Cobble estimated that the defendant was driving about 25-30 m.p.h. He testified that the driver's window was facing him and he could not see into the truck. He stated that he did not see the back rear window. He further stated that he was familiar with the window tint law and in the past issued citations for violating the statute. Officer Cobble's car suffered mechanical problems, and as a result, he called his office to get another officer to stop the defendant.
As has been stated, Officer Cobble's ulterior motive for stopping the defendant for drug possession does not in itself constitute an impermissible stop. However, the reasonableness of a stop "is ascertained by determining first `whether the officer's action was justified at its inception,' and second `whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'"United States v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000) (citing Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889, 904-05 (1968)).
In Hill, the Sixth Circuit voiced its concern over the potential abuse by officers in stopping vehicles for any alleged traffic violation. The Court stated:
We share in the concern that police officers are using the state of the law in this Circuit as carte blanche permission to stop and search "target" or "profile" vehicles for drugs. of course, the Supreme Court in Whren confirmed that a police officer is legally allowed to stop a vehicle for a traffic violation when there is probable cause for the traffic stop, without regard for the officer's subjective motivation. However, we agree that it is the responsibility of the courts to make sure that police officers act appropriately and not abuse the power legally afforded to them by, among other things, carefully scrutinizing a police officer's testimony as to the purpose of the initial traffic stop.195 F.3d at 267.
Mindful of the concerns articulated by the Sixth circuit in Hill, the Court finds that the stop of the defendant's vehicle was unreasonable at its inception. Officer Cobble testified that he had seen the defendant's truck earlier around 6:00 p.m., but he made no mention in his testimony as to the tint of the windows at that time. He subsequently observed the defendant's truck minutes later, after receiving a call from other agents, traveling approximately 30 m.p.h. and claims he was able to determine, during a 5-10 second interval, that the windows' tint was too dark. However, he stated that he was unable to observe the rear window of the truck. The Court finds this brief observation by Officer Cobble is insufficient to establish probable cause in stopping the defendant's vehicle. As Officer Hall testified that he did not stop the defendant for a traffic violation but in response to a request by Sgt. Markham, the Court finds that the stop of the defendant's vehicle was unreasonable.
The Court does not credit the testimony of Officer Cobble that he could determine the tint of the windows by a fleeting glance in this brief interval.
Evidence seized as the result of an unconstitutional search is the fruit of the poisonous tree and may not be used as proof against the victim of the search. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Accordingly, the ensuing search of Mr. Sherrill's vehicle violated his right to be free of unreasonable searches and seizures. Therefore, the Court concludes that the evidence seized from the defendant's vehicle shall be suppressed.
An appropriate order shall be entered.
ORDER
In accordance with the contemporaneously entered memorandum, the motion (filed February 20, 2001; Docket Entry No. 397) of the defendant, Tim Grover Ledford, to suppress is granted.
It is so ORDERED.
MEMORANDUM
This matter is before the Court on the motion (filed February 20, 2001, Docket Entry No. 397) of the defendant, Tim Grover Ledford, to suppress, to which the government has responded. (Response filed April 16, 2001, Docket Entry No. 567). Defendant Tim Ledford has been charged in count nineteen of the indictment in this action with knowingly, intentionally and unlawfully possessing and attempting to possess with intent to distribute a quantity of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 846, and 18, U.S.C. § 2. He has filed a motion to suppress any mention of a stop and search of his vehicle conducted by law enforcement officers on May 18, 2000, as well as the set of digital scales discovered and seized in that search.
I.
The Court held an evidentiary hearing on this matter on May 31, 2001, at which Monterey Police Officer Tim Murphy and Putnam County Sheriff's Deputy James Gregory Whittaker testified. The Court credits the testimony of these witnesses, which is summarized in pertinent part as follows.
During the afternoon of May 18, 2000, Officer Murphy spoke with Sam Lee, an agent of the drug task force and employee of the Putnam County Sheriff's Department. Information given to Officer Murphy by Mr. Lee was admitted for the purpose of establishing the basis for Officer Murphy's actions, as opposed to proof of the matter asserted. This information was to the effect that a red Chevrolet pick-up truck bearing license plate "PROGUN1" might be traveling through the area, possibly transporting cocaine. Officer Murphy was aware or made aware that the vehicle would likely be traveling toward the community of Crawford, where the defendant resides.
Based on this information, Officer Murphy set up his patrol on North Chestnut Street near Cleveland Avenue. Officer Murphy subsequently spotted and began to follow the described red pick-up truck on North Chestnut Street, which has several curves at the outskirts of town. Officer Murphy saw the truck cross the double yellow center line of the highway twice, swerving each time to the outside of a curve, as opposed to swerving in to shorten a curve. Both of the driver's side tires were briefly crossing the double yellow center line by approximately a tire's width. This occurred within Monterey, and Officer Murphy testified that crossing the center line was a violation of a Monterey ordinance requiring that drivers stay within marked lanes on laned streets. Officer Murphy activated his blue lights in order to pull the vehicle over. At this time Deputy Whittaker, who had also been looking for the described red truck and had spotted it previously in a grocery store parking lot, was following a few cars behind Officer Murphy.
The driver continued driving and crossed the center line two additional times, at which point Officer Murphy activated his siren to get the driver's attention. The driver then pulled off to the right shoulder of the road. Because Officer Murphy was concerned about safety-on the shoulder of the road, he pulled alongside the truck and requested its driver to pull forward a few hundred yards into a parking lot approximately half a mile outside of Monterey. The driver complied, and Officer Murphy followed him into the parking lot at approximately 5:15 p.m. Officer Whittaker arrived in the parking lot almost immediately thereafter, along with his narcotics detection dog, and at some point a third officer, Deputy Harris also arrived at the scene.
Once in the parking lot, Officer Murphy exited his patrol car, approached the pick-up truck and asked the driver for his driver's license. The license was produced, identifying the driver as Tim Ledford, whom Officer Murphy identified as the defendant in the courtroom. Officer Murphy asked the defendant if he had been drinking alcohol that afternoon, and the defendant responded in the negative, asserting that he had been working in Nashville all day, and that he was tired and trying to get home. Officer Murphy noted that the defendant's hands were shaking quite vigorously, and that he appeared to be overly nervous in comparison to the hundreds or thousands of previous traffic stops Officer Murphy had made.
At some point during the stop, the defendant asked why he had been pulled over, and Officer Murphy told him that he had been stopped for crossing the center line. Officer Murphy did not tell the defendant about the information supplied by the drug task force agent. Officer Murphy radioed for a check on the driver's license, and watched the defendant while he waited approximately one minute for the response that it was valid with no outstanding violations. After speaking with the defendant, Officer Murphy did not suspect that the defendant had been drinking. No traffic citation was issued as a result of the stop.
Officer Murphy asked the defendant if he had any illegal weapons or drugs in the car, to which the defendant responded in the negative. Officer Murphy then asked if he could search the defendant's vehicle. The defendant responded that he would rather the officers did not search his vehicle without a warrant. Officer Murphy then told the defendant that the officers had a narcotics detection dog and could walk it around the vehicle without a warrant and search the vehicle if the dog alerted. At that point, the defendant said "go ahead and search — all you will find is my .22 caliber rifle hanging in the rear window." Although the Monterey Police Department uses search consent forms, Officer Murphy testified that he did not have a form with him on the date in question. He did not ask whether any of the other officers present had such a form, and does not know whether or not they did.
Officer Murphy then told Deputy Whittaker, in the defendant's presence, that they had consent to search. The defendant voiced no objection. Deputy Whittaker then retrieved the dog, Casey, from the kennel in the back of his vehicle, gave her the command to search, and walked her around the truck. The dog alerted at the seam around the driver's door by becoming excited and getting up on her hind legs and lunging at the door. Officer Whittaker praised the dog for alerting, then opened the door and let her in the cab of the truck, where she alerted very aggressively by becoming excited and scratching at the dashboard. The dog did not alert anywhere else in the cab or the bed of the truck. Deputy Whittaker rewarded Casey with a toy, and returned her to the kennel in his vehicle.
After the dog's alert, Officer Murphy and Deputy Whittaker conducted a search of the truck, and discovered a set of digital scales that had been hidden from sight under the dashboard. The defendant denied ownership of the scales or knowledge that they were in his truck. No drugs were found in the truck, and the government concedes that examination of the scales has produced no drug residue or fingerprints. The entire stop lasted less than an hour, during which time the defendant never said anything about wanting to leave. Officer Murphy took possession of the scales, but ultimately permitted the defendant to leave in his vehicle without arrest or citation.
Deputy Whittaker testified that he has been handling Casey, his first narcotics dog, since July 1999. He and Casey have received training from Advanced Canine Kennels in Scottsville, Kentucky, as well as the United States Police Canine Association (USPCA). 0nce each year he and Casey are certified and undergo two weeks of training at Advanced Canine Kennels by a certified trainer with thirty years' experience. In addition, he meets with up to fifteen other handlers and their dogs frequently throughout the year for regular training.
Deputy Whittaker testified that narcotics dogs are trained to detect the scent of four specific drugs: cocaine, heroine, marijuana and crystal methamphetamine. During training sessions these drugs and other items that have beer associated with the scent of drugs are hidden, and Casey is called upon to find and "alert" on these drugs or items. What constitutes an alert is determined by the handler, in conjunction with standards set forth by the ASPCA and followed by Advanced Canine Kennels. Handlers receive training on how a dog alerts, and Deputy Whittaker testified that Casey alerts aggressively by getting very excited, shaking and, scratching; she does not bark to alert. Deputy Whittaker puts Casey into work mode by saying to her "show me dope." When she alerts on drugs or drug-scented articles in training, she is rewarded with praise and/or her tennis ball. When she incorrectly alerts during training, she receives pressure, but not enough to cause pain, on her collar.
Deputy Whittaker testified that Casey has been very successful in training and actual performance, which is supported by Exhibit 1, copies of Deputy Whittaker's records of Casey's performance. He testified that there are times when she alerts and no drugs are actually found, but that the scent of drugs can linger according to the type of material involved, and that such an alert to the scent alone is still considered a successful alert. Based on Deputy Whittaker's testimony and the records contained in Exhibit 1, Casey is an appropriately trained, experienced and reliable narcotics detection dog.
The defendant has filed a memorandum (filed June 7, 2001; Docket Entry No. 699) wherein he asserts that because Casey's records include nineteen alerts that produced no drugs or that the defendant otherwise deems improper alerts, Casey's reliability is not sufficient to constitute probable cause. The Court believes that the defendant has misconstrued certain records by including in his count of improper alerts several instances when Casey alerted to property where no drugs were found, but where other evidence clearly corroborated the recent presence of drugs and their lingering odor. See, e.g., search records dated October 18, 1999 (dog alerted on locker of student who admitted having recently possessed drugs); February 6, 2000 (dog alerted on passenger side of car where individual found to be carrying drugs and drug paraphernalia had been sitting); December 8, 2000 (dog alerted on locker wherein Deputy Whittaker noted a strong smell of burnt marijuana, and student admitted marijuana use). However, even using the defendant's own figures of 19 improper alerts out of 179 actual searches results in an accuracy level of almost ninety percent. Casey's low percentage of improper alerts does not prevent her from being considered reliable. See United States v. Diaz, 25 F.3d 392, 395-96 (6th Cir. 1994).
II.
A search conducted without a warrant and probable cause is unreasonable for the purposes of the Fourth Amendment, subject to very few exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). One such exception provides for the warrantless search of a vehicle when the vehicle has been lawfully stopped and there is probable cause for the search. United States v. Ross, 456 U.S. 798, 825 (1982); United States v. Crotinger, 928 F.2d 203, 205 (6th Cir. 1991). Regardless of probable cause, another exception to the search warrant requirement is the consent of the person whose property is subjected to the search. Schneckloth at 219. Justification for a search in this case under either exception requires a two-step analysis. First, the Court must consider whether the vehicle was lawfully stopped. If so, the Court must determine whether, after the stop, the officers lawfully developed either probable cause or consent for a search.A. The Stop
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." The Supreme Court of the United States has found that the stop of an automobile and the temporary detention of individuals during the stop, "even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning of this provision." Whren v. United States, 517 U.S. 806, 810 (1996). Where the police have probable cause to believe that a traffic violation has occurred, the Supreme Court has found that the decision to stop an automobile is reasonable. See Delaware v. Prouse, 440 U.S. 648, 659 (1979). Further, as long as a traffic stop is supported by probable cause Lo believe that a traffic violation has occurred, the fact that the stop is in fact a pretext for other investigation is constitutionally irrelevant. Whren; United States v. Bradshaw, 102 F.3d 204, 210 (6th Cir. 1996)
In this instance Officer Murphy's superficial reason, although not his genuine motive, for the traffic stop was the defendant's crossing the double yellow center line of the highway several times in a short distance. The Court concludes that this was sufficient cause for the stop. In addition to Officer Murphy's testimony that the manner in which the defendant was driving violated a Monterey ordinance, crossing a solid yellow center line constitutes a statutory traffic violation on any Tennessee highway. See Tenn. Code Ann. § 55-8-121 (authorizing department of transportation to designate no-passing zones); Kelley v. Johnson, 796 S.W.2d 155, 157, 158 (Tenn.Ct.App. 1990) (noting that solid yellow line designates no-passing zone, crossing of which is violation of § 55-8-121)
Moreover, the defendant's driving appears to have violated Tenn. Code Ann. § 55-8-123, which requires that "[w]henever any roadway has been divided into two (2) or more clearly marked lanes for traffic, . . . [a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." Tenn. Code Ann. § 55-8-123(1). The fact that the defendant partially left his lane several times in a short distance, and in doing so crossed the center line into the lane of on-coming traffic, readily distinguishes this case from United States v. Freeman, 209 F.3d 464 (6th Cir. 2000), wherein the Sixth Circuit held that observing a motor home briefly enter the outside emergency lane once did not constitute probable cause for a stop. Id. at 466 (isolated incident of partially weaving into emergency lane for a few feet did not constitute failure to keep within a single lane "as nearly as practicable").
Accordingly, the Court determines that Officer Murphy made a lawful traffic stop of the defendant's vehicle on the date in question.
B. The Search
i. Probable Cause
It is well settled that a narcotics detection dog's alert to the presence of contraband within a vehicle establishes probable cause justifying a search of the vehicle for contraband. See United States v. Diaz, 25 F.3d 392, 393-94 (6th Cir. 1994); United States v. Knox, 839 F.2d 285, 294 n. 4 (6th Cir. 1988), cert. denied, 409 U.S. 1019 (1989). Although the exterior drug sniff itself is not a search for the purposes of the Fourth Amendment, see United States v. Place, 462 U.S. 696, 707 (1983), the Fourth Amendment does prohibit the unreasonable detention of an individual or vehicle in order to conduct such a sniff.
When a lawful traffic stop has been made, an officer may properly detain the driver while making radio checks and issuing citations, which are "well within the bounds of the initial stop." United States v. Wellman, 185 F.3d 651, 656 (6th Cir. 1999) (quoting Bradshaw at 212). Officers may lawfully question drivers about contraband and seek consent to search while these initial purposes are on-going. United States v. Palomino, 100 F.3d 446, 449-50 (6th Cir. 1996). Officers may even conduct exterior canine drug sniffs during this period of time, regardless of reasonable suspicion, so long as doing so does not prolong the detention any longer than is necessary for the purposes of the traffic stop:
There is no need to find "illegal action or evidence of illegality" [in order to conduct a drug sniff I unless there is also a need to justify continued detention of a vehicle. Although it is true that no independent "cause" or "suspicion" of illegality was testified to herein, none was needed because there was no undue or extended detention. There was, in fact, not only no undue detention, there was no detention at all other than that which was inextricably tied to the legitimate traffic stop and its aftermath.United States v. Taylor, 955 F. Supp. 763, 768 (E.D.Mich. 1997) (emphasis in original). Whether a drug sniff can be conducted without reasonable suspicion is therefore largely a question of timing.
In this case, Officer Murphy's testimony indicates, and the government acknowledges, that Officer Murphy's radio check was completed before he ordered the drug sniff by the narcotics dog. (See Government's Proposed Findings of Fact and Conclusions of Law 11-14, filed May 30, 2001). Officer Murphy testified that upon speaking with the defendant he did not suspect that the defendant had been drinking, and there is no indication that the officer intended to make an arrest or issue a traffic citation after receiving the response to the license check; at any rate, none was issued. The Court can only conclude, therefore, that any legitimate purpose of the initial traffic stop was completed when Officer Murphy received the negative response to the radio license check.
Once the purposes of the initial traffic stop are completed, an officer may not continue to detain a vehicle or its driver in the absence of reasonable suspicion of criminal activity warranting further investigation. United States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995). Although courts in other circuits have concluded that suspicionless exterior canine sniffs are constitutionally permissible when they occur within very few minutes of the conclusion of a traffic stop, see United States v. $404,905.00 in U.S. Currency, 182 F.3d 643 (8th Cir. 1999), the United States Court of Appeals for the Sixth Circuit has held that such continued detention is only lawful where "something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention." Mesa at 162.
Reasonable suspicion must be supported by specific, articulable facts, and the Court considers the totality of the circumstances in determining whether reasonable suspicion exists. United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998); Palomino at 449. In this case the only suspicious Post-stop fact cited by the government is that the defendant appeared overly nervous in comparison with the individuals involved in Officer Murphy's other traffic stops. The defendant indicated at the time of the stop that he had been working in Nashville all day, and that he was tired and trying to get home. At least in the context of this case, the defendant's nervousness alone is not sufficient to give rise to reasonable suspicion justifying additional detention for the drug sniff.See Palomino at 450 ("nervousness alone is not a sufficient ground upon which to base a finding of reasonable suspicion") (construing Mesa at 162-163 (noting that "nervousness is generally included as one of several grounds for finding reasonable suspicion and not a ground sufficient in and of itself," but not ruling out the possibility that in some circumstance nervousness might support reasonable suspicion)).
Information in the tip from the drug task force agent was admitted at the hearing for the limited purpose of explaining Officer Murphy's actions, not for its truth. There is no evidence in the record detailing the information provided, its original source, or reliability of the information, which would be required to establish reasonable suspicion on the basis of that information. See United States v. Payne, 181 F.3d 781, 790 (6th Cir. 1999). The Government's Proposed Findings of Fact, unsupported by any proof, do not constitute evidence.
The Court concludes that because the purposes of the initial stop were concluded, and the officers lacked any reasonable suspicion of criminal activity at the time of the drug sniff, the defendant's continued detention and drug sniff were unreasonable for the purposes of the Fourth Amendment. "When a canine narcotics sniff is performed as the result of the exploitation of [an illegal detention], the fruits of that canine sniff must be suppressed." United States v. Buchanon, 72 F.3d 1217, 1226 (6th Cir. 1995) Accordingly, the search that occurred as a result of the unlawful drug sniff, and produced the evidence at issue, was also unreasonable.
ii. Consent
Where the prosecution relies on the consent of the defendant to justify a search, it bears the burden of proving by clear and convincing evidence that the consent was given freely and voluntarily. Schneckloth at 222;United States v. French, 974 F.2d 687, 693 (6th Cir. 1992). Voluntariness of a consent to search is determined by the Court, based upon the totality of the circumstances. Schneckloth at 248-49; United States v. Scott, 578 F.2d 1186, 1189 (6th Cir. 1978), cert. denied, 439 U.S. 870 (1978)
In examining a consent, the Court must consider factors including "the age, intelligence, and education of the individual; whether the individual understands the right to refuse consent; whether the individual understands his or her constitutional rights; the length and nature of detention; and the use of coercive or punishing conduct by the police." United States v. RiascosSuarez, 73 F.3d 616, 625 (6th Cir. 1996). On the evidence before it, the Court finds nothing with respect to the defendant's characteristics or the length of his detention that would render his consent invalid. However, the Court must also consider the lawfulness of his detention, and whether the defendant understood his constitutional rights and his right to refuse consent.
While a person's knowledge of the right to refuse consent is not an absolute prerequisite to establishing a voluntary consent, Schneckloth at 249, consent is not voluntary when it is merely an acquiescence to a claim of lawful authority. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). As the Sixth Circuit has held, the prosecution must prove that the defendant's statement "was an unequivocal statement of free and voluntary consent, not merely a response conveying an expression of futility in resistance to authority or acquiescing in the officers' request." United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999)
In this case it is undisputed that when first asked for consent to search his vehicle, the defendant refused. Had he consented at that time, his consent and the subsequent search would clearly have been valid under Erwin. To the contrary, it was only after Officer Murphy indicated to the defendant that he could and would run a narcotics dog around his truck without a warrant — an act which, as discussed above, Officer Murphy no longer had the constitutional authority to do at that point — and then search the truck if the dog alerted, that the defendant responded "go ahead."
The Court does not suggest that the officer's conduct in this case amounted to outright coercion. However, it is apparent that Officer Murphy clearly conveyed to the defendant Murphy's erroneous belief that he had the legal authority to order a drug sniff of the vehicle after the conclusion of the traffic stop, and that he intended to do so. Under these circumstances, the government has not carried its burden of establishing that the defendant's response, "go ahead," particularly following his initial refusal to consent, was anything other than an "expression of futility in resistance to authority." Accordingly, the Court concludes that the defendant's statement did not amount to an unequivocal voluntary consent, and cannot justify either the continued detention for the drug sniff or the search that followed.
At the conclusion of a traffic stop, when an individual is constitutionally free to leave, it is generally not a violation of the Fourth Amendment to ask permission to search a vehicle, regardless of whether an officer continues to have a reasonable suspicion of criminal activity. Erwin, 155 F.3d at 822-23. The Constitution does not require that the individual in this circumstance be affirmatively informed that he is free to leave before he is asked for consent to search. Ohio v. Robinette, 519 U.S. 33 (1996) However, consent is not valid when it is obtained during an unconstitutional seizure of the person. United States v. Jenkins, 92 F.3d 430, 436 n. 1 (6th Cir. 1996); see also Mesa (continued detention without reasonable suspicion after traffic stop rendered drug sniff and search unconstitutional, despite defendant's verbal and written consent obtained during period of unlawful detention).
The Supreme Court has held that "a person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980). In this case, there is no evidence that the defendant was ever confined in an officer's vehicle or otherwise physically restrained. However, the fact that three law enforcement officers arrived quickly at the scene of what was purportedly a minor traffic stop could have caused a reasonable person in the defendant's position to feel intimidated or threatened, and is a factor weighing in favor of a finding that the defendant had been seized. See id. (listing the threatening presence of several officers among factors to be considered); Buchanon at 1224 (swift arrival of four troopers with pursuit lights flashing would cause reasonable person to feel intimidated or threatened). More importantly, the very act of producing a narcotics dog with the obvious and stated intent of conducting a drug sniff is tantamount to a seizure:
The very act of bringing [the narcotics dog] out to sniff vehicles tells a reasonable person `we are investigating you for drugs and you may not move [this] vehicle until we are through.'Buchanon, 72 F.3d at 1225. In the absence of probable cause, or even reasonable suspicion, this seizure at the conclusion of the traffic stop was unlawful.
Because the purported consent by the defendant to the search in this case was obtained during a period of unlawful seizure, and appears to have been simple concession to actions Officer Murphy asserted he had the authority to take, it was not voluntarily and freely given. Accordingly, it cannot justify the otherwise unreasonable search.
CONCLUSION
Based upon the foregoing, the motion to suppress will be granted.
An appropriate order will be entered.