Opinion
No. 8:05CR139.
November 1, 2005
MEMORANDUM AND ORDER
This matter is before the court on defendant William Andrews, Jr.'s objection, Filing No. 43, to the report and recommendation ("RR") of the United States Magistrate Judge ("Magistrate") (Filing No. 41), regarding Andrews's motion to suppress evidence or alternatively, to dismiss the indictment (Filing No. 20). Andrews is charged with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of a mixture or substance containing a detectable amount of cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1). Andrews seeks suppression of evidence found in the search of his vehicle during a traffic stop on April 11, 2005. Specifically, he asserts that he was stopped without probable cause or reasonable suspicion to believe that he had committed a crime, in violation of the Fourth Amendment to the United States Constitution. He also asserts that the traffic stop was racially motivated and was a ruse to conduct a criminal investigation in violation of the Fourteenth Amendment See Filing No. 20.
The Magistrate recommends denial of the motion. Filing No. 41, RR at 9. The Magistrate found that the officer had probable cause to stop the vehicle and found insufficient evidence that the arresting officer targeted defendant Andrews solely because of his race. Id. Defendant Andrews objects to the Magistrate's finding. Filing No. 43.
I. BACKGROUND
An evidentiary hearing before the Magistrate was held on August 2, 2005. Filing No. 25, Minutes of Hearing; Filing No. 26, Transcript of Hearing ("Hr'g Tr."). Under 28 U.S.C. § 636(b)(1)(C), the court has conducted a de novo review of those portions of the report or recommendations to which defendant Andrews objects. United States v. Lothridge, 324 F.3d 599, 601 (8th Cir. 2003). The court has reviewed the record, including the transcript of the hearing and a videotape of the traffic stop at issue. See Filing No. 26, Hr'g Tr., Hearing Exhibit ("Hr'g Ex.") 1. For the reasons set forth below, the court finds defendant's objection to the Magistrate's recommendation should be sustained and Andrews's motion to suppress the evidence should be granted.
The court generally accepts the Magistrate's factual findings with certain modifications as outlined below. Deputy Randy Brown of the Seward County Sheriff's Office testified that he was en route from Seward, Nebraska, to his hometown of Milford, Nebraska, on April 5, 2005. Hr'g Tr. at 5. Although he testified that he was "anxious to get home," he stopped at a Shell gas station to check on the attendants there. Id. at 6, 15. He observed a green Oldsmobile Bravada, as well as several other vehicles, at the gas pumps. Id. at 6. Deputy Brown did not park at the gas station, nor leave his vehicle. Id. at 8. He stated that he observed a black male, later identified as William Andrews, standing by the Bravada, although he could not recall whether defendant Andrews was pumping gas, washing his windows, or was under the hood. Id. at 5-6, 15. Deputy Brown admitted that Andrews was not doing anything out of the ordinary. Id. at 6. Deputy Brown testified that he "tried to make eye contact with [Andrews]," but that Andrews "did not give [him] any eye contact." Id. Deputy Brown stated that he turned the vehicle around and again attempted eye contact, but that Andrews still did not make eye contact. Id. Deputy Brown testified that it appeared that "the male was trying to elude [him], not to pay attention to [him]." Id. He did not attempt to approach Andrews or to signal that wanted to talk to Andrews. Id. at 16. Deputy Brown admitted that the only thing that concerned him about Andrews's behavior was the failure to make eye contact. Id. at 17. He further admitted that the failure to make eye contact was the reason that he decided to follow Andrews from the gas station. Id. at 18.
Deputy Brown then stopped his car at the edge of the parking lot near the exit to the highway and called Deputy Bill Maddox of the Seward County Sheriff's Office to tell Maddox his location and to inform Maddox that a male at the gas station had caught his attention due to his actions. Id. at 6-7. Deputy Brown testified that Maddox informed Brown that Maddox was patrolling the interstate at mile marker 366. Id. at 7, 15. The Bravada exited the parking lot and Deputy Brown followed the Bravada onto I-80 eastbound at approximately mile marker 379. Id. at 7, 15, 36. Deputy Brown admitted that he had a desire to have contact with Andrews for other than a traffic stop. Id. at 27.
Interestingly, Deputy Maddox later arrived at the scene of the stop as backup. Hr'g Tr. at 37, Hr'g Ex. 1 at 23:43.
Deputy Brown testified that once he entered the interstate he moved into the left lane because he observed a semi-trailer in the right lane. Id. at 7. The Bravada remained in the right lane. Id. at 7-8. Deputy Brown testified that he observed the Bravada "fastly approaching a tractor-trailer that was also in the right lane." Id. at 8. He stated that the Bravada was following the semi-trailer at a distance that he "believed to not be a reasonable or prudent distance." Id. at 9. He estimated the distance to be thirty feet (or approximately two car lengths. Id. at 24. He stated that thirty feet was not a reasonable and prudent distance. Id.
Deputy Brown performed a reading on his stopwatch to determine the distance between the Bravada and the semi-trailer. Id. at 9. He testified that he chose a reflector post as a stationery marker and timed the period between when the end of the semi-trailer passed the marker and when the front of the Bravada passed the marker. Id. at 9. The time that elapsed was 1.55 seconds. Id. He stated that he normally uses the "two-second rule" to gauge whether a car is following too closely. Id. at 10. He uses a two-second standard because it is referred to in "most driver's manuals," and because he knows from experience that it takes a driver two seconds to react under normal driving conditions. Id. at 11.
This test indicated to Deputy Brown that "the Bravada was not within a reasonable and prudent distance due to [his] opinion of the weather." Id. at 10. He described the weather as "dreary" with "off and on rain." Id. at 8. Deputy Brown acknowledged that the "two-second standard" is not found in the Nebraska statutes. Id. at 10. Deputy Brown admitted that he was not familiar with the Nebraska statute that requires that semi-trailer trucks maintain a distance of 100 feet between them. Id. at 25. The Nebraska driver's manual was not offered into evidence.
Deputy Brown pulled Andrews's vehicle over at approximately mile marker 381. Id. at 11. Deputy Brown testified that his normal practice when issuing a warning for following too closely would be to check that a driver's license is valid; to make sure there are no outstanding warrants for the driver; to check if insurance is valid; and to ensure that the vehicle's registration, insurance and VIN number matched. Id. at 34. A criminal history check is not standard procedure. Id. at 35.
Defendant Andrews also testified at the hearing. He testified that he stopped at the Shell station because he needed gas. Id. at 40. He stated that he did not see the patrol car until he emerged from the building after paying for his gas. Id. He stated that the cruiser was quite a distance away from the gas pump that he was using. Id. at 41. He cleaned the car windows while pumping his gas. Id. He testified that although he could see the location of the police cruiser while pumping the gas, he did not look at it or make any direct eye contact with the driver of the cruiser. Id. at 42. After pumping his gas, Andrews got in his car, put on his seatbelt, and proceeded back to Interstate 80. Id. at 42.
Andrews testified that he noticed that the cruiser followed him from the gas station to the interstate. Id. at 43. Andrews set his cruise control at 74 miles per hour. Id. at 43. When he approached the semi-trailer, he put on his turn signal and moved into the left lane. Id. Andrews testified that he saw no problem with the distance he maintained between his car and the semi-trailer under the driving conditions at the time. Id. Andrews stated that it did not begin to rain until after he was pulled over. Id.
The court's review of the videotape of the traffic stop shows that the weather was overcast and it was beginning to drizzle light rain at the time Andrews was first pulled over. See Hr'g Ex. 1. The videotape begins at the point that the Bravada pulls to the side of the road. Deputy Brown can be heard remarking to someone, via radio or phone, ". . . here following a . . . this guy, this a . . . under a minute or second and a half behind him, a trailer, then it got closer before it actually made a turn. . . . I'm gonna go ahead and do the traffic stop here to see if everything is okay." Id. at 23:25. The videotape shows that when relaying information to the dispatcher in order to check Andrews's driver's license, Deputy Brown described defendant as a "black male." Id. at 32:32. Deputy Brown again refers to Andrews as "black" to Deputy Maddox, who later arrives at the scene as backup to search the vehicle. Id. at 23:43. The videotape also shows that the police dispatcher relayed Andrews's criminal history to Deputy Brown via radio. Id. at 23:38. Also visible in the background of the videotape are numerous vehicles following other vehicles with less than two seconds between them. Id. Defendant also introduced evidence that a vehicle traveling seventy-four miles per hour would travel 170 feet in two seconds.
II. DISCUSSION
A. Fourth Amendment
The Fourth Amendment "protects two types of expectations, one involving `searches,' the other `seizures,'" United States v. Jacobsen, 466 U.S. 109, 121 (1984), and requires that both be reasonable. City of Indianapolis v. Edmond, 531 U.S. 32, 36 (2000). The Fourth Amendment is applied to the states, and to state actors, through the Fourteenth Amendment. Elkins v. United States, 364 U.S. 206, 213 (1960). The temporary detention of an individual during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, is a "seizure" of a "person" within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809 (1996). A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Edmond, 531 U.S. at 36.
The requirement of individualized suspicion is relaxed only in limited circumstances that involve important governmental interests or immediate hazards. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 562 (approving brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 455 (1990) (approving a sobriety checkpoint aimed at removing drunk drivers from the road); Delaware v. Prouse, 440 U.S. 648, 663 (1979) (suggesting that a roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible). The government's "general interest in crime control" and its desire to "detect evidence of ordinary criminal wrongdoing" will not, however, justify a regime of suspicionless stops. Edmond, 531 U.S. at 41-42 (refusing to recognize an exception to the general rule of individualized suspicion for government pursuit of general crime control, including narcotics-interdiction). Cf. Illinois v. Caballes, 543 U.S. ___, ___, 125 S. Ct. 834, 836-38 (2005) (finding that, although a lawful seizure "can become unlawful if it is prolonged beyond the time reasonably required to complete that mission," a dog sniff performed during a traffic stop will not violate the Fourth Amendment if it does not extend the duration of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner).
Determination of the reasonableness of a seizure is a question of law. Muehler v. Mena, ___ U.S. ___, ___, 125 S. Ct. 1465, 1470 n. 1 (2005). The reasonableness of a seizure depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers. Terry v. Ohio, 392 U.S. 1, 16-19 (1968). As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Whren, 517 U.S. at 809. Thus, any traffic violation, regardless of its perceived severity, provides an officer with probable cause to stop the driver. United States v. Mallari, 334 F.3d 765, 766 (8th Cir. 2003). However, courts nonetheless apply an objective reasonableness standard to determine "whether a traffic stop was based on probable cause or was merely pretextual." United States v. Jones, 275 F.3d 673, 680 (8th Cir. 2001). An officer has an objectively reasonable basis for stopping a motorist where the officer has a reasonable basis for believing that the driver has breached a traffic law. Mallari, 334 F.3d at 766. As long as the stop is supported by probable cause, the subjective intentions of an officer "play no role in ordinary, probable-cause Fourth Amendment analysis." Whren, 517 U.S. at 813.
In connection with a legitimate traffic stop, an officer may detain a motorist while the officer completes certain routine tasks, such as writing a citation and completing computerized checks of a driver's license, vehicle registration, and criminal history. See United States v. Fuse, 391 F.3d 924, 927 (8th Cir. 2004), cert. denied, 125 S. Ct. 1879 (2005). Also, as long as a legitimate detention is not prolonged by additional questioning, that questioning will not amount to an additional seizure within the meaning of the Fourth Amendment, and officers will not need reasonable suspicion to ask a citizen being lawfully detained for his or her name, date and place of birth, or immigration status. Muehler v. Mena, ___ U.S. at ___, 125 S. Ct. at 1471.
Absent a traffic violation, police may conduct an investigative stop of a vehicle (a so-called " Terry stop") without violating the Fourth Amendment as long as the officer has "a reasonable suspicion that the occupant of the vehicle is engaged in criminal activity." United States v. Briley, 319 F.3d 360, 364 (8th Cir. 2003); United States v. Mora-Higuera, 269 F.3d 905, 909 (8th Cir. 2001) (noting that "[t]here is no requirement that there be a traffic violation" with reference to an investigative stop). Such a seizure, of limited scope and duration, can be justified by the showing of a reasonable, articulable suspicion of criminal activity. Terry, 392 U.S. at 21 (1968); United States v. Jacobsen, 391 F.3d 904, 906 (8th Cir. 2004) ("To detain a person, law enforcement agents must have a reasonable suspicion that criminal activity is afoot"); United States v. Maltais, 403 F.3d 550, 553 (8th Cir. 2005) (same). The level of suspicion necessary to constitute "reasonable suspicion" sufficient to justify a limited detention "is considerably less than proof of wrongdoing by a preponderance of the evidence" and "is obviously less demanding than that for probable cause." United States v. Sokolow, 490 U.S. 1, 7 (1989). Probable cause equates to a fair probability that contraband or evidence of a crime will be found. Id. (noting that "[t]he reasonable-suspicion standard is a derivation of the probable-cause command, applicable only to those brief detentions which fall short of being full-scale searches and seizures and which are necessitated by law enforcement exigencies such as the need to stop ongoing crimes, to prevent imminent crimes, and to protect law enforcement officers in highly charged situations."). Conduct that is typical of a broad category of innocent people provides a weak basis for suspicion. United States v. Tillman, 81 F. 3d 773, 775 (1996). Moreover, "failing to make eye contact with a questioning police officer . . . does not indicate that criminal activity is afoot." United States v. Rodriguez-Arreola, 270 F.3d 611 (8th Cir. 2001).
"To be reasonable, suspicion must be supported by `specific and articulable facts.'" Id. "The officer [making a Terry stop] . . . must be able to articulate something more than an "inchoate and unparticularized suspicion or `hunch.'" Terry, 392 U.S. at 27. The Fourth Amendment requires "some minimal level of objective justification" for making the stop. INS v. Delgado, 466 U.S. 210, 217 (1984). The court considers the totality of the circumstances to determine whether police officers had reasonable suspicion to stop a vehicle. United States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Bell, 183 F.3d 746, 749 (8th Cir. 1999). Generally, the absence of reasonable suspicion renders a stop unlawful, Alabama v. White, 496 U.S. 325, 329-30 (1990), and evidence obtained from that unlawful stop is excludable. Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).
In the present case, Deputy Brown's own testimony establishes that he decided to follow Andrews because of Andrews's conduct at the gas station. In view of Deputy Brown's admissions, in conjunction with the other circumstances of the traffic stop, the court is unable to find any objective basis for concluding that Deputy Brown had a reasonable belief that Andrews was following a vehicle too closely. Deputy Brown's testimony with respect to the distance between the vehicles is contradictory. He first testified that he estimated the distance between the two vehicles to be thirty feet, but later acknowledged that the two-second analysis would have indicated the two vehicles were much further apart. The court is unable to afford much, if any, credence to the two-second rule. There is no evidence as to its scientific basis or reliability, or to Deputy Brown's training or instruction in the technique. There is no testimony concerning the speed of the semi-trailer truck at the time. There is no evidence to support the Magistrate's conclusion that the "two-second" rule is widely accepted or reliable in any way. Moreover, the two-second rule is not found in Nebraska rules of the road, which provide only that a following distance must be reasonable and prudent. There has been no showing of any objective basis for belief that Andrews was following too closely. There is no competent evidence with respect to either the distance between the two vehicles or the distance that would have been reasonable and prudent under the circumstances.
The facts here do not support a finding that Andrews had breached a traffic law. Furthermore, Deputy Brown's testimony that his suspicion was aroused by Andrews's failure to make eye contact at the gas station does not provide a reasonable, articulable basis for believing Andrews was engaged in criminal activity. Accordingly, the court finds defendant's objection to the Magistrate's RR should be sustained.
B. Fourteenth Amendment
Because the court finds the traffic stop at issue violated Andrews's rights, the court need not address the defendant's Equal Protection Clause claim. However, for the sake of completeness, the court notes it would find as follows if it were to address the claim.
The Constitution prohibits selective enforcement of the law based on considerations such as race. Whren, 517 U.S. at 813 (noting that "[t]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause"). It has long been a well-settled principle that the state may not selectively enforce the law against racial minorities. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Thus, a claim that law enforcement officers "utilize impermissible racial classifications in determining whom to stop, detain, and search," if proven, amounts to a violation of the Equal Protection Clause of the Fourteenth Amendment. Chavez v. Illinois State Police, 251 F.3d 612, 635 (7th Cir. 2001). An investigation of a person based solely upon that person's race violates the Equal Protection Clause. United States v. Frazier, 408n F.3d 1102, 1108 (8th Cir. 2005) (recognizing that "encounters with officers may violate the Equal Protection Clause when initiated solely based on racial considerations"); United States v. Avery, 137 F.3d 343 (6th Cir. 1997) (stating that "[i]f law enforcement . . . takes steps to initiate an investigation of a citizen based solely upon that citizen's race, without more, then a violation of the Equal Protection Clause has occurred.").
The claim that a defendant was subjected to a racially selective law enforcement practice in violation of the Equal Protection Clause of the Fourteenth Amendment would require a wholly different analysis than the Fourth Amendment claim. See Gibson v. Superintendent of New Jersey Dept. of Law and Pub. Safety-Div. of State Police, 411 F.3d 427, 440 (3d Cir. 2005); Carrasca v. Pomeroy, 313 F.3d 828, 836 (3d Cir. 2002) (stating "[t]he fact that there was no Fourth Amendment violation does not mean that one was not discriminatorily selected for enforcement of a law"); Avery, 137 F.3d at 352 (noting that "[t]he Equal Protection Clause of the Fourteenth Amendment provides citizens a degree of protection independent of the Fourth Amendment protection against unreasonable searches and seizures"). Though the Fourth Amendment reasonableness standard is not influenced by the subjective intentions of the person making the seizure, a demonstration of selective enforcement in violation of Equal Protection rights may invalidate a conviction. Gibson, 411 F3d at 440-41; United States v. Berrigan, 482 F.2d 171, 174 (3d Cir. 1973) ("[A]ny `systematic discrimination' in enforcement . . ., or `njust and illegal discrimination between persons in similar circumstances,' . . . violates the equal protection clause and renders the prosecution invalid."). Thus, if "an officer intentionally targets someone solely because of race, without additional factors, and because of the person's race the officer follows and investigates that person for drug trafficking, such actions would be violative of the Equal Protection Clause, independent of any Fourth Amendment violation." Avery, at 353-54.
In a pre-contact context, that is, at the stage at which an officer decides to target someone for surveillance, a defendant can prove a prima facie equal protection claim with direct evidence that the officer's decision to stop or to investigate the defendant was motivated by race. Frazier, 408 F.3d at 1108. Although a finding that there was no probable cause for Fourth Amendment purposes does not afford a presumption that officers were acting on the basis of race, see United States v. Woods, 213 F.3d 1021, 1023 (8th Cir. 2000), it is evidence that can be considered, along with evidence of an officer's behavior during the events in question and the officer's own testimony. See, e.g., Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1168-69 (10th Cir. 2003); Farm Labor Org. Comm. Ohio State Highway Patrol, 308 F.3d 523, 533-34 (6th Cir. 2002). An admitted lack of suspicion by an officer may properly be considered in a selective-enforcement claim. Bennett v. City of Eastpointe, 410 F.3d 810, 822 n. 1 (6th Cir 2005).
Deputy Brown essentially admits that he decided while at the gas station to further investigate Andrews. That decision was based only on Andrews's lack of eye contact. Deputy Brown testified that he tried to make eye contact with Andrews. There was no explanation of or elaboration upon Deputy Brown's attempt to make eye contact. The court cannot conceive of a way for someone to make eye contact with an individual who is not looking in his or her direction. The absence of any other articulated reason for suspicion would lead to the inference that Andrews's race may have been a factor in the decision. Deputy Brown's repeated and unnecessary references to Andrews as "black" would support this inference, as do the facts that Brown did not follow ordinary procedure with respect to criminal history checks, that he conferred with Deputy Maddox in advance of the stop, and that he made a wholly subjective stop. These circumstantial bits of evidence, in combination, and in the context of Deputy Brown's admissions as to his purpose, would create at least a prima facie case of discriminatory enforcement. The government has presented nothing that would dispel the inference.
IT IS ORDERED:
1. Defendant Andrews's objection (Filing No. 43) to the RR of the Magistrate (Filing No. 41) is sustained.
2. Defendant Andrews's motion to suppress (Filing No. 20) is granted.