Opinion
No. 1:03-cr-146
October 17, 2003
MEMORANDUM AND ORDER
I. Introduction
This case came before the Court on Thursday, October 2, 2003, for an evidentiary hearing on the motion [Court File No. 21] to suppress filed by defendant Ruben Brown in ("Brown").
On June 2, 2003, Lieutenant Bobby Queen ("Lt. Queen" or "Queen") with the 10th Judicial District Drug Task Force made a traffic stop on a southbound vehicle on 1-75 in Bradley County, Tennessee. While on routine patrol, Queen noticed a GMC Yukon as it swerved off of the highway onto the emergency shoulder on two occasions. Queen activated his emergency flashers. Queen approached the passenger side window of the vehicle to ask the driver, Ruben Brown III, for his drivers license and registration. As Queen approached he noticed the overwhelming odor of air freshener and cologne. Queen noticed that Brown was nervous and highly animated as well as being suspiciously overly friendly and cooperative. Queen questioned Brown about his erratic driving, and Brown admitted he had run off the road while joking with the three female occupants of the vehicle.
Queen asked Brown about his travel itinerary and then asked the other occupants the same question. Brown told Queen that the three female occupants were his cousins and one of the female occupants was his girlfriend. He stated that they had traveled to West Virginia to visit their grandmother. However, Brown was unable to provide any specifics about the travel itinerary — he was unable to name the town in West Virginia where the grandmother lived; he was unable to give a telephone number for the grandmother; and he was unable to provide any other information about the visit to the grandmother.
Brown then returned to the vehicle to speak to the three female passengers. One of the three female occupants stated that she was Brown's girlfriend. The three female occupants stated that they were traveling from West Virginia where they had visited their grandmother. However, like Brown, they were unable to state where in West Virginia the grandmother lived, were unable to provide a telephone number where the grandmother could be reached, and were unable to provide directions for reaching the grandmother's home in West Virginia.
When Brown approached the GMC Yukon for the second time to speak with the three female occupants, he was able to detect the odor of marijuana. Brown testified that he was unable to detect the odor of marijuana when he first approached the passenger side window of the vehicle and spoke with Brown because of the overwhelming odor of air freshener and/or cologne. However, Lt. Queen stated that during the period he was speaking with Brown outside the vehicle, the passenger side window of the vehicle remained open, allowing the smell of the air freshener and/or cologne to dissipate.
After the conversation with the three female passengers, Queen asked Brown for permission to search the vehicle. Lt. Queen testified that he asked Brown for consent to search his vehicle and that Brown gave consent to search the vehicle.
In fact, Lt. Queen testified that he asked Brown twice for consent to search the vehicle — he phrased the questions differently each time — and Brown gave consent to search the vehicle in response to both questions.
After receiving consent to search the vehicle, Lt. Queen asked the passengers to exit the vehicle. He entered the vehicle to begin his search. Lt. Queen testified that as he entered the vehicle and approached the rear of the vehicle, the odor of marijuana became stronger. As a result of his search, Queen found a small amount of marijuana residue and seeds on the floor and console of the vehicle. During his search, Lt. Queen also found a hidden compartment in the Yukon. Once opened, the compartment contained roughly 3.4 pounds of suspected heroin. Lt. Queen stated that he tested the suspected heroin with two different field test kits and the results of both tests were positive for the presence of heroin.
Queen also testified that his vehicle was equipped with a videotaping system which automatically activated whenever he turned on the blue lights on his vehicle. Lt. Queen did not activate the blue lights until after he observed the GMC Yukon being driven by defendant Brown twice swerve off the road. Thus, there is no videotape of that portion of the events in question.
Lt. Queen further testified that he was also wearing a microphone. However, the microphone had a "short" in it. Thus, there is very little, if any, audio on the videotape of the traffic stop of Brown's vehicle.
The videotape of the stop of defendant Brown's vehicle was admitted as Exhibit 1, during the October 2, 2003 suppression hearing. As is set forth in greater detail below, the Court reviewed the relevant portion of the videotape during the suppression hearing.
For the sake of clarity and conciseness, the Court has set forth a brief summary of the facts in the introductory portion of this memorandum. The relevant facts and any necessary factual findings are discussed in detail below, as part of the Court's analysis of defendant's motion to suppress.
In his motion to suppress filed on August 12, 2003, defendant Brown claims that the traffic stop of his vehicle was pretextual. Brown's brief in support of his motion to suppress states in relevant part:
In the instant case, although the officers had technology at their disposal, they chose not to preserve evidence of reasonable suspicion to detain. This in and of itself casts doubt on the officer's credibility. The stopped [sic] was obviously pretextual for two reasons. First, if the officers had actually stopped the defendant for swerving, especially if he had smelled marijuana on the breath of the driver as he claims, he would have logically performed field sobriety tests. This was not done. The officer did not video tape the alleged swerving. The officer did not even issue a ticket for this offense. Second, from the beginning it is apparent that officer is looking for a hidden compartment. . . .
Although the officer claimed to have found marijuana residue that led him to ask the driver if he could search the vehicle, that evidence was never shown on the video tape or preserved for testing. While the defendant consented to a reasonable search, the consent was given under duress and the search undertaken was anything but reasonable. Assuming the officers actually believed that ashes on the floorboard next to the pack of cigarettes was marijuana residue — he would of have the reasonable belief that it was a small amount of marijuana for personal use. Ashes on the floorboard does not justify the officers breaking out the power tools and dismantling the vehicle. This was not a detention but an arrest — an arrest that clearly was not supported by probable cause. In the instant case, regardless of whether the search was voluntary, it would have never occurred had the deputies released the defendant when they realized he was not intoxicated. Given the questionable nature of the defendant's detention, the defendant's consent was not sufficient to purge the taint of the illegal detention. The heroin discovered in the defendant's car is fruit of the poisonous tree, and the evidence should be suppressed as such.
[Court File No. 21, pp. 2, 4].
II. Defendant's Motion to Suppress A. Traffic Stop
A "decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." United States v. Jackson, 63 Fed. Appx. 839, 841, 2003 WL 1984697, **2 (6th Cir. 2003)(unpub.) (quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769 (1996). Further, as the Sixth Circuit has observed in United States v. Herbin, __ F.3d __, 2003 WL 22118350 (6th Cir. 2003):
In Whren v. United States, 517 U.S. 806, 812-13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the Supreme Court held that the legality of a traffic stop turns on the validity of the officers' objective explanation for making the stop, not on the subjective intentions of the officers in initiating the stop. A traffic stop supported by probable cause, Whren makes clear may not be invalidated under the Fourth (and Fourteenth) Amendment on the ground that the officers stopped the car for "pretextual" reasons which is to say, acted upon a violation of one set of laws (e.g., run-of the mill traffic laws) in order subjectively to enforce another set of laws (e.g., drug-trafficking laws). In the words of Whren: "Subjective intentions play no role in ordinary probable-cause Fourth Amendment analysis." Id. at 813, 116 So. Ct. 1769.Id., 2003 WL 22118350, at *2.
In his supplemental brief in support of his motion to suppress [Court File No. 26], however, Brown, relying on the Sixth Circuit's decision in United States v. Freeman, 209 F.3d 464 (6th Cir. 2000), argues that Queen's observations in this matter were insufficient to give rise to probable cause to believe a traffic violation had been committed.
In Freeman, the relevant facts were that:
On the July 4, 1997 holiday, Memphis Police Officer David Tate stopped a motor home traveling eastbound on heavily traveled Interstate Forty for violating Section 55-8-123 of the Tennessee Code after he allegedly observed the vehicle cross the white line separating the emergency lane from the right-hand lane of traffic for an estimated twenty to thirty feet. Section 55-8-123 provides that a vehicle "shall be driven as nearly as practicable entirely within a single lane."Id. at 465.
The Sixth Circuit held based upon these facts that:
[w]e can not, however, agree that one isolated incident of a large motor home partially weaving into the emergency lane for a few feet and an instant in time constitutes a failure to keep the vehicle within a single lane "as nearly a practicable." See United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (holding that a similar one-time entry into the emergency lane failed to constitute a violation of a Utah statute nearly identical to Tennessee Code Section 55-8-123). We therefore find that Officer Tate's observation of the motor home briefly entering the emergency lane is insufficient to give rise to probable cause of a traffic violation and warrant an invasion of . . . Fourth Amendment rights.Id. at 466.
Brown asserts that the "vehicle which [he] was driving at the time of the stop was a Yukon, which is a large sports utility vehicle." [Court File No. 26, p. 1]. Accordingly, he asserts that pursuant to Freeman, Queen's observation was insufficient to give rise to probable cause of a traffic violation.
At the October 2, 2003 suppression hearing, Lt. Queen testified that on June 2, 2003, he was in his police vehicle on Interstate 75 at mile marker 29. At approximately 9:00 P.M. Eastern time, he observed a vehicle, a GMC Yukon, with out-of-state license plates (Louisiana). Queen testified he observed the vehicle twice swerve onto the shoulder of the interstate. He stated the vehicle was being driven in an erratic manner at 68 to 69 miles per hour. Lt. Queen stated that the vehicle twice drove onto the shoulder; and, also he could not see the expiration date on the Yukon's license plate.
Lt. Queen testified that at that point he activated his blue lights, which automatically activated a video camera. Queen further testified he was also wearing a microphone; however, the microphone had a "short" in it; and, therefore, although a video of the stop exists, there is no audio recording of the stop.
After the blue lights had been activated, the vehicles pulled over to the side of the road. Queen parked his police vehicle a short distance behind the Yukon, exited the car, and approached the Yukon from the passenger side. He saw that defendant Brown was the driver of the Yukon.
Lt. Queen asked Brown to step out of the vehicle; and he and the defendant stood between the two vehicles. Queen stated that Brown admitted he had run off the road, saying that he was joking and carrying on with the three female passengers in the vehicle.
Here, the Court finds that: (1) the situation is distinguishable from Freeman; and (2) Queen did have probable cause to believe a traffic violation had occurred. First, a GMC Yukon is not as large, nor especially as wide, as the "large motor home" which was being driven by the defendant in Freeman. Id., 209 F.3d at 466. Thus, it is not as likely that a GMC Yukon would inadvertently cross into the next lane of traffic as would a large motor home. Further, although the motor home in Freeman, crossed the white line between the right-hand lane of traffic for an estimated twenty to thirty feet, Lt. Queen twice observed the Yukon swerve into the emergency lane of Interstate 75 and make erratic maneuvers at a speed of 68 to 69 miles per hour.
In United States v. Page, 154 F. Supp.2d 1320 (M.D. Tenn. 2001), "the officer spotted a red-pickup truck . . . cross the double yellow center line of the highway twice, swerving each time to the outside of a curve. Both of the driver's side tires were briefly crossing the double yellow center line by approximately a tire's width . . . Officer Murphy activated his blue lights in order to pull the vehicle over . . . 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. . . ." Id. at 1323. The Page court noted that:
[T]he 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(a). 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").
Further, in United States v. Pino, 855 F.2d 357 (6th Cir. 1988), cert. denied, 493 U.S. 1090 (1990) the relevant facts are that:
While traveling westward on Interstate 24, [Trooper] Thomas came upon a station wagon bearing Florida plates driven by defendant Pino with defendant Llera in the front passenger seat. Thomas recognized the vehicle as a possible rental car due to a "Z" on the license plate.
Thomas pulled alongside the station wagon. When the driver, Pino, glanced over and saw Thomas to his left, he immediately braked and swerved onto the interstate's shoulder almost hitting the guardrail. In his rearview mirror, Thomas saw Pino swerve back onto the freeway, without signaling, drifting partially into the left lane. Thomas slowed his squad car to thirty-five miles per hour and waited for Pino to pass . . . When Pino did overtake Thomas, Thomas turned on his blue lights, signaling Pino to stop.Id. at 359.
In Pino, the Sixth Circuit stated:
In the instant case, on the other hand, the district court found that Thomas's observation of the swerving of Pino's vehicle gave him probable cause to believe that Pino had violated one or more of the following Tennessee motor vehicle statutes: T.C.A. § 55-8-118(b) (overtaking a vehicle on the right), T.C.A. § 55-8-123(1) (failing to drive within a single lane), T.C.A. § 55-8-136 (failing to drive with due care to avoid colliding with a pedestrian), T.C.A. § 55-8-143 (failing to signal before changing lanes).
There is nothing in the record before us to indicate that the district court's factual finding that Thomas's observations gave him probable cause to believe that Pino had committed a traffic offense and that this was the reason for the stop is clearly erroneous.Id. at 363.
Thus, the Court concludes that Lt. Queen's observations did give him probable cause to believe that Brown had committed a traffic offense. Lt. Queen testified that he observed the GMC Yukon swerve from the right-hand lane of the Interstate into the emergency stopping lane on two occasions as well as maneuvering erratically at a high rate of speed, 68 to 69 miles per hour, on Interstate 75. This was not a situation where an exceedingly large vehicle, such as a large motor home, simply crossed over the white line for a distance of a few feet as in Freeman. Moreover, here Brown admitted that he had run off the road. Accordingly, the Court finds that the facts presented in this situation are distinguishable from the situation in Freeman; and, probable cause for a stop based on a traffic violation did exist. B. Consent to Search
At the suppression hearing, counsel for the defendant questioned Lt. Queen about the fact that the videotape of the traffic stop did not include footage of the Yukon swerving into the emergency stopping lane. Queen testified that the video camera in his vehicle came on automatically when he activated the blue lights on his vehicle. He also testified that although he pulled out onto the Interstate and followed the Yukon, he did not activate the blue lights on his vehicle until after he had observed the Yukon twice swerve into the emergency stopping lane and maneuver erratically.
Queen testified that immediately following his valid traffic stop of the GMC Yukon driven by defendant Brown, he first approached the passenger side window of the Yukon. Lt. Queen testified that when the passenger side window of the Yukon was opened he was met by the overwhelming odor/fragrance of air freshener and cologne. According to Lt. Queen, this concerned him because based upon his law enforcement experience, air freshener and cologne are often used to mask the odor of narcotics.
At that point, Queen asked defendant, Ruben Brown, III, to step out of the vehicle. Defendant Brown and Lt. Queen stood between the two vehicles and talked. Lt. Queen testified that Brown admitted that he ran off the road, stating that he was carrying on and joking with the three female passengers in his vehicle.
Lt. Queen then asked Brown where he and his passengers were coming from. Brown told Lt. Queen that the three females were his cousins and that one of them was his girlfriend. He stated that they were returning from a visit to their grandmother in West Virginia. Lt. Queen testified that although Brown told him that they had been visiting his their grandmother in West Virginia, Brown could provide no other details. He did not know the name of the town where their grandmother lived; did not know a telephone number for her; and could not give directions as to how to reach the grandmother's home. Lt. Queen testified that this aroused his suspicions. He stated that defendant Brown was acting way too friendly, and was too nervous and animated when he spoke to him. Queen stated that this also aroused his suspicions.
At that point, Lt. Queen walked back to the passenger side of the Yukon to ask the female passengers the same questions he had just asked defendant Brown. Lt. Queen stated that as he stuck his head near the passenger window of the Yukon, which had remained open while he spoke with the defendant, the odor of air freshener/cologne had dissipated and he could smell the faint odor of burnt marijuana.
At that point, Lieutenant Queen spoke with the three female passengers. They said they and defendant Brown were all cousins and that one of them was Brown's girlfriend. Like Brown, they stated they were returning from a visit to the grandmother of Brown's girlfriend. However, also like Brown, they were unable to tell Lt. Queen the name of the town where their grandmother lived, the grandmother's phone number, or anything else about the grandmother. Lt. Queen testified that his further aroused his suspicions, particularly, because he frequently runs into this when he talks to drug traffickers. More specifically, Lt. Queen stated that he thought the responses to his question were an obvious deception and that he frequently ran into such deception when he spoke to drug traffickers because they try to conceal their itinerary.
Lt. Queen walked back to the front of his vehicle to again speak with the defendant. Lt. Queen testified that he checked Brown's driver's license and the license plate number through the HIDTA — the high intensity drug trafficking area — computers. According to Lt. Queen, HIDTA would run Brown's driver's license information and the license plate number through various law enforcement computer systems. Queen stated that it generally took some time for HIDTA to run the information through the computers and he was not sure exactly at what point in time he received information back from HIDTA. However, when Lt. Queen did received the information back from HIDTA he learned that Brown had an extensive criminal record including arrests for possession of marijuana and heroin and for theft.
Lt. Queen testified that when he returned to speak with defendant Brown, he asked him a number of questions, to which Brown responded. Lt. Queen stated that the only question which seemed to trouble Brown was when he asked Brown whether there were any hidden compartments in the vehicle. He stated that when he asked Brown that question, Brown seemed startled and stated that he did not know what a hidden compartment was.
At that point, Lt. Queen asked defendant Brown for consent to search the his vehicle. In fact, Lt. Queen stated that he twice asked Brown for consent and each time Brown gave consent to search the vehicle.
Lt. Queen stated that at that point, he asked the three female passengers to exit the vehicle. Lt. Queen did not perform a pat down search of the three passengers, because he was male officer and they were female. Rather, he stated that he asked the three passengers to show him the contents of their pockets. Further, at that point, neither defendant Ruben Brown, III, nor any of the three passengers were handcuffed.
Lt. Queen then began the search. He stated that when he entered the vehicle, and particularly, when he approached the rear of the vehicle, the smell/odor of marijuana became stronger. Lt. Queen then found a small amount of marijuana seeds and residue in the vehicle.
He continued his search and under the vehicle he observed a metal box. The box was two feet wide and ran the entire length of the vehicle. Lt. Queen stated that he was very familiar with the GMC Yukon and the Chevrolet Tahoe and he was aware that the box did not belong there.
He continued his search of the vehicle and when he got to the floor area, he found the hidden compartment. At that point, Lt. Queen called for backup. He also handcuffed and gave Miranda warnings to defendant Brown.
When his backup arrived, Lt. Queen began to unload the Yukon to get to the hidden compartment. He pulled the carpet up and found an aluminum diamond plate, which was black with gold hinges. Lt. Queen stated that he was aware from his observation as well as his knowledge of the Yukon/Tahoe that the hidden compartment was not factory installed on the vehicle.
Lt. Queen stated that he tried to open the hidden compartment. He stated that there were four or five relay wires from the dashboard of the Yukon to the door of the hidden compartment. According to Lt. Queen this meant that a number of the switches, such as the switch to turn on the headlights or the windshield wipers, on the dashboard had be pushed/pulled in a certain sequence to open the door of the hidden compartment. Although he tried for a time to open the hidden compartment using the switches on the dashboard, Lt. Queen was unable to do so because he did not know the code, i.e., the sequence in which the switches had to be thrown.
Eventually, Lt. Queen gave up trying to open the hidden compartment using the switches and he used a crowbar to open it. Inside the hidden compartment, Lt. Queen found a black plastic bag containing smaller plastic bags with heroin inside. Lt. Queen testified that he tested the substance inside the black plastic bag with two different field kits and both tests were positive for the presence of heroin. At that point, all of the occupants of the vehicle were placed under arrest.
Based upon the testimony of Lt. Queen, the Court finds that he received consent to search the GMC Yukon from defendant Ruben Brown III. In this instance, the Court had the opportunity to hear Lt. Queen's testimony during the October 2, 2003 suppression hearing. Moreover, not only did the Court have the opportunity to hearing Lt. Queen's testimony, it also had the opportunity to observe his demeanor both during the government's presentation and on cross-examination; and, the Court finds that Lt. Queen's testimony, including his testimony that he received consent to search the vehicle from defendant Brown, is highly credible.
Although the "Fourth Amendment protects citizens against unreasonable searches and seizures, a search is not unreasonable if a person with a privacy interest in the item to be searched gives free and voluntary consent." United States v. Ivy, 165 F.3d 397, 402 (6th Cir. 1998) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). It is the government's burden to prove that consent to search was voluntarily given, through "clear and positive testimony." Id. (citing Bustamonte, 412 U.S. at 248). "Consent is voluntary when it is `unequivocal, specific and intelligently given, uncontaminated by any duress or coercion.'"/vy, 165 F.3d at 402(quoting United States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977)).
Voluntariness is determined based upon the "totality of the circumstances." Id. (quoting Bustamonte, 412 U.S. at 227, 93 S. Ct 2041; McCaleb, 552 F.2d at 720). Furthermore:
[s]everal factors should be examined in this determination. First, a court should examine the characteristics of the accused, including the age, intelligence, and education of the individual; whether the individual understands the right to refuse consent; and whether the individual understands his or her constitutional rights. See United States v. Jones, 846 F.2d 358, 360 (6th Cir. 1988). Second, a court should consider the details of the detention, including the length and nature of the detention; the use of coercive or punishing conduct by the police, see Bustamonte, 412 U.S. at 226, 93 SI Ct. at 2059; and indications of "more subtle forms of coercion that might flaw [an individual's judgment]." United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).Ivy, 165 F.3d at 402.
Based upon the facts of this action, it is clear that the defendant was not coerced into consenting to the search of the vehicle; and that his consent was voluntary, unequivocal, specific and intelligently given. More specifically, there is simply no evidence that the defendant's consent to search the vehicle was anything but voluntary. Based upon Lt. Queen's testimony and in the absence of any evidence to the contrary, the defendant was plainly asked if he would consent to the search of the vehicle. Further, again based upon Lt. Queen's testimony and in the absence of any evidence to the contrary, Brown was not tricked, deceived, coerced or threatened into giving consent. Moreover, the giving of voluntary consent is entirely consistent with Brown's friendly and cooperative attitude. Lastly, there is an absence of any evidence suggesting that defendant had minimal education or low intelligence which might have rendered his consent involuntary. Accordingly, the Court concludes that under the totality of the circumstances, the consent of defendant Ruben Brown, III, to search the GMC Yukon on the night of June 2, 2003 was voluntarily given.
At the October 2, 2003 suppression hearing, counsel for the defendant argued the detention for the traffic stop was overly long and that lengthy detention constituted "duress," which invalidated the consent to search the vehicle. Defendant's counsel, Thomas Calogero, also asserted that if the Court reviewed the videotape of the traffic stop, the Court would find that at some point, defendant Brown withdrew his consent to search the vehicle.
Based upon this representation, the Court reviewed a considerable portion, but not all of the videotape of the June 2, 2003 traffic stop of the GMC Yukon. As the Court was viewing the videotape of the relevant events of June 2, 2003, Lt. Queen returned to the witness stand and testified as to the events shown/depicted on the videotape.
The videotape showed that Lt. Queen approached the passenger window of the GMC Yukon at approximately 9:03 P.M. on June 2, 2003. At approximately, 9:06 P.M., the videotape showed that Lt. Queen approached the passenger side window of the GMC Yukon for the second time — the point in time when Lt Queen first smelled the odor of burnt marijuana.
Lt. Queen returned to speak with defendant Brown for the second time at approximately 9:09 P.M.; and, according to Lt. Queen's testimony he ran defendant Brown's drivers license through HIDTA at approximately 9:12 P.M. Based upon his observation of the videotape, Lt. Queen estimated that he asked defendant Brown about marijuana and the presence of a hidden compartment at about 9:18 P.M.
It was apparently at this time that Lt. Queen received consent to search the vehicle because the videotape showed the three females being removed from the vehicle, preparatory to a search of the vehicle at approximately 9:19 P.M. Queen can be seen entering the vehicle at about 9:20 P.M.; and he testified that he found the small amount of marijuana seeds and residue at approximately 9:29 P.M.
At 9:38 P.M., Lt. Queen can be seen searching the underside of the vehicle for the first time — this is the point at which Lt. Queen first saw the box which comprised the hidden compartment. Further, at 9:45 P.M., Lt. Queen can be seen performing apat-down search of Ruben Brown's person, at which time he found $1067 in cash. At this point, Ruben Brown was also placed in handcuffs. Lt. Queen stated that Brown was placed in handcuffs because he was preparing to open the hidden compartment, and Brown was handcuffed because Queen was concerned that there might be a firearm(s) in the hidden compartment and he wanted to ensure that Brown couldn't get his hands on a gun(s) once the compartment was opened.
Lt. Queen's backup arrived on the scene at 9:46 P.M. At 9:47 P.M., Lt. Queen and the other officers began removing materials from the vehicle so that they could reach the floorboard of the vehicle and the hidden compartment. It can be clearly seen from the videotape that as objects were removed from the vehicle in order to afford access to the hidden compartment, they were being searched.
At 9:52 P.M., another officer can been seen entering the vehicle. Lt. Queen testified that at this point he had uncovered, but not opened, the hidden compartment; and, he asked Officer David O'Bull to look at the cover of the hidden compartment.
Lt. Queen testified that he attempted to open the hidden compartment by manipulating the switches on the dashboard for a period of time. At 10:21 P.M., Lt. Queen can be seen using a crowbar to open the hidden compartment; and, at 10:22 P.M., Lt Queen can be seen leaving the vehicle to get the two heroin test kits.
First, the Court has reviewed that portion of the video tape which covers the period from the time Lt. Queen first activated the blue lights on his vehicle — and the video tape was activated — through the period when Lt. Queen having opened the hidden compartment, found the alleged heroin and reentered the vehicle with the two field test kits. This portion of the videotape covers the period from approximately 9:02 P.M through about 10:22 P.M. on the night of June 2, 2003. There is no audio during this portion of the videotape. However, despite the lack of sound, there is no action on the part of defendant Brown during this portion of the videotape which manifests a withdrawal of consent to search the vehicle.
Furthermore, in his supplemental brief in support of his motion to suppress, Brown alleges that:
The earliest Officer Queen may have developed probable cause to search for a hidden compartment containing drugs was 9:38 PM, when he evidently saw something suspicious on the vehicle's undercarriage. He then awaited backup, and broke into a hidden compartment in the vehicle, using a power drill, through the back interior, at 10:13 P.M. The defense contends the detention was over-long and invalidated the probable cause that may have been developed by discovery of the hidden compartment.
[Court File No. 26, p. 4].
However, defendant's argument misses the point; and, as will be explained below, Lt. Queen developed both a reasonable suspicion and probable cause, to continue the detention of the defendant and the passengers at 9:06 P.M. when he approached the passenger side window of the GMC Yukon for a second time and noticed the odor of marijuana.
C. Probable Cause
Before seeking consent for the defendant to search the vehicle, Lt. Queen talked to each of the occupants concerning their trip. Queen received vague and questionable responses concerning their trip. The driver and all the passengers claimed they were coming from West Virginia, but none could state where they had been in West Virginia, or provide any other details about their trip. Furthermore, Queen noticed the overwhelming odor of air freshener and cologne in the vehicle upon initially stopping it. Based upon his training and experience, Queen is aware that transporters of narcotics frequently use "masking" agents, such as cologne and air freshener, to hide the odor of narcotics. In addition and also based upon his training and experience, Queen was aware that transporters of narcotics frequently try to conceal their itinerary. Further, Queen was also concerned because as he spoke with the defendant, once Brown had exited his vehicle, Queen noted that Brown was being too friendly as well as being animated and nervous. Finally, when Lt. Queen approached the passenger side window of the vehicle for the second time, he detected the odor of marijuana. "[T]he odor of an illegal drug can be highly probative in establishing probable cause for a search." United States v. Caves, 890 F.2d 87, 90 (8th Cir. 1989) (citmg Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 368-69 (1948)).
Queen testified at the October 2, 2003 suppression hearing that he had been a police officer since 1987. He had been employed with the Cleveland (Tennessee) Police Department for 10 years, including being a detective on the drug task force of the Cleveland Police Department since 1998. Prior to that time, Lt. Queen had been employed with the McMinn County (Tennessee) Sheriffs Department. Since July 2000, Lt. Queen had been employed by the 10th Judicial District Drug Task Force. In addition, Queen said he was also a K-9 handler for a narcotics (drug-sniffing) dog. Lt. Queen further testified that during his law enforcement career he had many occasions to investigate drug cases. Furthermore, Queen testified that he was very familiar with the odor of marijuana; he estimated that during his career in law enforcement, he had experienced/come in contact with the odor of marijuana on at least a weekly basis since 1987. Finally, Lt. Queen testified that when he approached the passenger side window of the GMC Yukon for the second time there was no doubt in his mind that he smelled marijuana.
In this action, the observation of the swerving, the odor of cologne/air freshener, the evasive answers by the car's occupants, the overly friendly attitude of defendant Brown, and the faint odor of marijuana gave Lt. Queen at least the reasonable suspicion that "criminal activity maybe afoot," if not probable cause. As has been noted previously, the Court has already found based upon his demeanor, that Lt. Queen was a highly credible witness. Based upon Lt. Queen's testimony concerning his lengthy experience in investigating drug cases, the Court concludes that the detection of the smell of marijuana by a highly experienced law enforcement officer did constitute probable cause.
Furthermore, once Queen entered the vehicle, based upon valid consent from defendant Brown, he noticed a much stronger smell of marijuana and he found a small amount of marijuana residue and seeds. Assuming arguendo that Lt. Queen did not have probable cause based upon the prior circumstances, the stronger smell of marijuana coupled with the findings of marijuana residue and seeds, would have caused Lt. Queen's reasonable suspicion to ripen into probable cause as of that point in time. See, e.g., United States v. Burnett, 19 F.2d 64, 67 (6th Cir. 1986) (police officer's observation of marijuana on floorboard of lawfully stopped car constituted probable cause to search the entire car).
Furthermore, the case of United States v. Townsend, 305 F.3d 537 (6th Cir. 2002), which is relied upon by the defendant is distinguishable from the instant action. In Townsend, the traffic stop itself was valid, but the continued detention was held to be invalid because the court held that the officers lacked a reasonable suspicion to detain the defendants. Id. at 545.
In Townsend the government argued that the presence often suspicious factors justified the officer's continued detention of the defendants. The ten factors were: (1) the driver's behavior at the car was unusual — he immediately raised his hands in the air as the officers approached his car and he was unusually cooperative; (2) defendants produced dubious travel plans; (3) the defendants were traveling from a source city for narcotics to a destination city for narcotics; (4) there were three cellular telephones in the passenger compartment of the car; (5) there was a Bible in the car; (6) when frisked the defendants appeared to have rolls of currency in each of their pockets;, (7) one of the defendants had previously been arrested on a weapons charge; (8) the defendants appeared nervous; (9) the interior of the car was cluttered with food wrappers and clothing; and (10) the driver was not the registered owner of the car. Townsend, 305 F.3d at 542-545.
The Townsend case is readily distinguishable from the facts of this case based upon two factors which are present in this case that were not present in Townsend — namely, Lt. Queen's detection of the odor of marijuana and his finding of a small amount of marijuana seeds and residue. As the Court has already noted, the Court has found that Lt. Queen was a credible witness. Lt. Queen testified that: (1) there was no doubt in his mind that he smelled marijuana both when he approached the passenger side window of the vehicle for the second time and also when he entered the vehicle as he was beginning his consent search of the vehicle; and (2) that he found a small amount of marijuana residue and seeds.
During the October 2, 2003 suppression hearing, defendant's counsel argued that Lt. Queen was not credible when he claimed to have found a small amount of marijuana residue and seeds because he never preserved that evidence. Lt. Queen testified that he never preserved that evidence due to the fact: (1) that it was a very small amount and (2) once he opened the hidden compartment and found a very large amount of heroin, it was unnecessary to preserve the marijuana because the defendant was not going to be charged with an offense connected to the small amount of marijuana. The Court finds Lt. Queen's testimony in this regard to be highly credible.
Further, the Court finds the defendant's assertion that his detention was overly long to be meritless. Once the purpose of an initial traffic stop has been completed, "a police officer may not continue to detain the vehicle or its occupants unless `something that occurred during the traffic stop generated the necessary suspicion to justify a further detention.'" United States v. Moxley, 229 F.3d 1154 (Table), 2000 WL 1234320, **2 (6th Cir. Aug. 23, 2000)(unpub.) (per curiam) (quoting United States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995). In this case, however, such an event did occur; namely, Lt. Queen detected the odor of marijuana, a fact which gave him a "reasonable suspicion" if not probable cause prior to the termination of the traffic stop. An officer who has made a valid traffic stop can lawfully detain the driver of the stopped vehicle until he has finished performing the radio checks and issued a citation, as these are "well within the bounds of the initial [traffic] stop." United States v. Bradshaw, 102 F.3d 204, 212 (6th Cir. 1996), cert. denied, 520 U.S. 1178, 117 S.Ct. 1453 (1997).
As noted previously during the Court's discussion of its review of the videotape of the traffic stop, Lt. Queen approached the passenger side window of the GMC Yukon for the second time, to speak with the three female passengers, at 9:06 P.M. Lt. Queen credibly testified that it was at this point that he first smelled/detected the odor of marijuana. Lt. Queen also testified that the videotape showed him running defendant's driver's license through HIDTA — i.e., performing the radio check of defendant's driver's license — which was part of the initial stop of defendant's vehicle at 9:12 P.M. Lt. Queen further testified that it took some time — he could not recall exactly how much — for the information to come back from HIDTA. Thus, Lt. Queen had developed a reasonable suspicion/probable cause well before he completed all the acts which are a standard part of police procedure in the valid stop of a vehicle for a traffic violation.
Lastly, defendant argues that the scope of Lt. Queen's search exceeded the consent. More specifically, he states:
In Mr. Brown's case, Officer Queen purportedly had consent for his initial search, and he had already smelled the odor of burnt marijuana. Upon checking the front passenger compartment he found a very small quantity of what appeared to be marijuana residue and seed on the floor. At this point, Officer Queen had probable cause to search for a user amount of marijuana. He had no evidence amounting to probable cause for a search that exceeded the scope of looking where user amounts of marijuana might be found. When Officer Queen checked the back passenger area, he still smelled marijuana, but he never located any additional amounts of marijuana in any area where he might had expected to find user amounts (the driver's and passengers' clothing, their luggage, under the seats, for instance). Having exhausted the areas he could validly search based upon the probable cause he had, Officer Queen should have quit searched and let Mr. Brown and the passengers go.
[Court File No. 26, p. 3]. This argument is meritless. As the Court has previously stated, Lt. Queen had probable cause before he started his consent search of the vehicle, based upon the fact that he detected/smelled the odor of marijuana when he approached the passenger window of the vehicle for the second time. Moreover, during his consent search, Lt. Queen found a small amount of marijuana residue and seeds. Assuming arguendo that Queen did not have probable cause prior to this point in time, at the time he found the marijuana residue and seeds, his "reasonable suspicion" would have ripened into probable cause.
In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157 (1982), the Supreme Court addressed the scope of the "automobile exception" to the Fourth Amendment's warrant requirement established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280 (1925). The Ross Court stated:
The exception recognized in Carroll is unquestionably one that is "specifically established and well delineated." We hold that the scope of the warrantless search authorized by that exception is no broader and no narrower than a magistrate could legitimately authorize by warrant. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.Ross, 267 U.S. at 827, 102 S.Ct. at 2173.
Here as noted, Lt. Queen not only had consent to search the vehicle, based upon his detection/smell of the odor of marijuana and the finding of the marijuana residue and seeds, he had probable cause for a warrantless search of the vehicle. Pursuant to Ross, Lt. Queen was justified in searching every part of the vehicle and its contents that may conceal the object of the search — in this instance marijuana. It is beyond peradventure that the hidden compartment in the GMC Yukon could have concealed an unknown quantity of marijuana. In this case, it did not contain marijuana, it contained a large quantity of heroin. However, the fact that the hidden compartment concealed heroin rather than marijuana did not render unlawful the scope of Lt. Queen's search of the GMC Yukon on the night of June 2, 2003.
III. Conclusion
For the reasons set forth in detail above, defendant Brown's motion to suppress [Court File No. 21] is DENIED.
SO ORDERED.