MEMORANDUM OPINION
In
United States v. Hassan El,
the defendant sought to suppress evidence recovered during a valid traffic stop, arguing that the police “used the minor traffic violation (failing to stop at stop sign) ... as a pretext to conduct a stop of the [car] and to search, without justification, for more serious criminal activity.”
This case presents a slight, but critical variation on the scenario in Hassan El and Whren. The issue before the Court today is whether a traffic stop that is clearly pretext for investigation of unrelated criminal activity may still be upheld as reasonable under the Fourth Amendment when the Government fails to meet its burden of demonstrating probable cause for the pretext. The Court concludes that it may not, and therefore will GRANT the Defendant’s motions to suppress.
I. PROCEDURAL HISTORY
The Defendant, a lawful permanent resident of the United States, has been charged by indictment with one count of making a false statement in an application for a passport in violation of 18 U.S.C. § 1542; two counts of falsely and wilfully representing oneself to be a citizen of the United States in violation of 18 U.S.C. § 911; and one count of identity theft in violation of 18 U.S.C. § 1028A(a)(l). The Defendant was arraigned on August 26, 2008 and has entered pleas of not guilty on all counts. The Defendant filed motions to suppress all tangible and derivative evidence and statements stemming from an allegedly illegal traffic stop on October 19, 2005 in Baltimore, Maryland. [Paper Nos. 11 & 13].
The Court held an evidentiary hearing on the pending motions on November 25, 2008. At that hearing, the Government’s witnesses were unable to articulate their specific basis for believing that there was probable cause to stop Defendant’s car for a traffic infraction. Upon the conclusion of the hearing, at the parties’ request, the Court permitted supplemental briefing on the limited issue of the validity of the
II. FINDINGS OF FACT
Prior to the date of the traffic stop at issue in this case, a confidential source (CS) informed Immigration and Customs Enforcement (ICE) agents that a Jamaican man known as “Blessid” was involved with an organization smuggling cocaine through Baltimore-Washington International (BWI) airport. The CS provided a physical description of Blessid and advised he was living at 3120 Saint Paul Street, Baltimore, Maryland. The CS also identified a vehicle or vehicles used by Blessid. The agents ran a DMV database search on the license plate number of one of the specified vehicles, and discovered it was registered to “Paula Davis” at an address in Silver Spring* Maryland. ICE agents then ran a search of the address associated with the vehicle through the ICE database, and learned that Paul Davis, an ICE fugitive, was living at that address. According to the ICE database, Paul Davis was a Jamaican national with a history of smuggling cocaine into the United States.
Based on this information, ICE agents then set up surveillance at 3120 Saint Paul Street on October 19, 2005. At some point that evening, ICE agents observed the Defendant, who matched the CS’s description of Blessid, enter one of the vehicles identified by the CS. Agents suspected that the Defendant was the fugitive Paul Davis, and/or Blessid. ICE Special Agent Willie Crump then contacted Baltimore police officer Konstantine Passamichalis, who in turn instructed officer Timothy Blasko, also of the Baltimore Police Department, to follow the vehicle and pull it over if he observed a traffic infraction. (Transcript of Evidentiary Hearing held November 25, 2008, at 108) (hereinafter, “Hr’g Tr.”).
Shortly thereafter, Officer Blasko stopped Defendant’s car. Defendant presented a Washington, D.C. driver’s license bearing the name John Marque Pollard. The license listed the individual’s height and weight as 5'6" and 165 pounds, which matched the physical appearance of the Defendant. At some point after the stop, Officer Passamichalis arrived on the scene and requested that dispatch perform a criminal history check on John Marque Pollard. 1 This information indicated that Pollard was 6'3" and 230 pounds.
Armed with this inconsistency, Agent Crump, who arrived after the traffic stop, approached Defendant and told him they believed he was Paul Davis, a Jamaican wanted for cocaine smuggling. (Hr’g. Tr. 23, 29). Defendant adamantly denied being Paul Davis, and a search of his vehicle did not turn up anything incriminating. Agent Crump contends that he then told the Defendant he was free to go and was not detained in any way, but that Burke voluntarily consented to accompany Agent Crump to the ICE offices to prove that he was not Paul Davis. The entire stop lasted approximately ten to fifteen minutes. (Hr’g Tr. 31). Defendant was never issued a traffic citation for speeding or any other violation. Defendant was then transported in Agent Crump’s car to the ICE offices where he was fingerprinted.
Defendant testified that he was handcuffed at the scene of the traffic stop and
The testimony also differs on what happened when the Defendant arrived at the ICE office. Mr. Burke contends he was placed in a holding cell that was locked from the outside while the agents waited for the results of his fingerprinting. Had he been free to leave, Defendant stated that “I would have left. That’s all I wanted to do.” (Hr’g Tr. 147). In contrast, Agent Crump testified that after Davis submitted his fingerprints, he was free to roam about the office, make telephone calls, drink water and use the restroom facilities.
Ultimately, Defendant’s fingerprint analysis revealed that he was Dennis Egbert Burke, and that there was an outstanding warrant for his arrest for a murder in West Virginia.
III. ANALYSIS
When a consensual search is preceded by a Fourth Amendment violation, the government must prove not only the voluntariness of the consent under the totality of the circumstances,
Schneckloth v. Bustamante,
A. Government Has Failed to Show Probable Cause for Traffic Stop
When police stop a vehicle, they conduct a seizure within the meaning of the Fourth Amendment, and that seizure must be reasonable.
See Whren v. United States,
The evidence at the hearing established that Detective Blasko did not remember the basis for the traffic stop, and there were no contemporaneous documents created that memorialized the reason why Defendant’s car was stopped. The best that Det. Blasko could do was make a blanket statement that his regular practice when following a suspicious vehicle was to wait until the vehicle committed a traffic violation, and that he never pulled vehicles over without probable cause. Essentially, Det. Blasko was asking the Court to simply “trust him” and take him at his word that he would not have stopped the car if he had not observed a traffic violation. This is simply an insufficient legal basis upon which to uphold a traffic stop. A finding of probable cause must be based on articulated facts supporting that conclusion.
Agent Crump, who arrived after the traffic stop had occurred, testified: “From the information I received, [the Defendant] was stopped for speeding.” (Hr’g Tr. 26). Agent Crump never identified the source of this information, and the first time he ever mentioned speeding in connection with this case was nearly three years after the stop, on July 30, 2008, when he drafted — from memory — his affidavit in support of the criminal complaint in this case. (Def. Ex. 4). There was no testimony as to how fast Defendant’s car was allegedly going, what the posted speed limit was, or how the speeding was determined (pace, radar, direct observation, etc.).
Further compounding the Court’s quandary, the evidence that was presented was rife with inconsistencies and leaps of logic. First, witnesses contradicted one another as to the location and time of the stop. In Agent Crump’s affidavit for the criminal complaint in this case, he stated that Defendant’s car was stopped at Saint Paul and North Avenue. (Def. Ex. 4, ¶-4). However, Detective Passamichalis testified that the car was stopped in the 2500 block of North Calvert Street (Hr’g Tr. 107-08), and the towing report for Defendant’s vehicle states that the offense occurred at 2400 Calvert Street, which is approximately six or seven blocks away from the intersection of Saint Paul and North Avenue. (Hr’g Tr. 58-59 & Def. Ex. 9). As for the exact time Defendant’s car was stopped, Agent Crump’s incident report says 8:20 p.m., but he testified at the hearing that it was actually around ten o’clock. (Def. Ex. 5; Hr’g Tr. 17). As if to split the difference, Agent Crump’s affidavit, written in July 2008, states the incident occurred at approximately 2100 hours, or 9:00 p.m. (Def. Ex. 4, ¶ 4). The tow report for Defendant’s vehicle lists the incident time as 10:00 p.m. (Def. Ex. 8).
The documentation of the traffic stop is similarly lacking in reliability. Crump testified that he prepared the incident report
A number of other courts, when faced with similar evidentiary records, have found that the Government failed to meet its burden of proof with regard to demonstrating probable cause for the stop. For example, in
United States .v. Murphy,
Similarly,. in
United States v. Morse,
The evidence in this case is not sufficient to establish probable cause for the traffic stop. As in
Murphy
and
Morse,
there is no contemporaneous record of the basis for the stop. There are serious inconsistencies in the record as to facts as fundamental as the time and location of the stop. Notably, in both
Murphy
and
Morse,
the government presented law enforcement witnesses who testified to their
direct observations
of a traffic violation, and the evidence was still found wanting. Here, the Court does not even have that. The Court has been presented with nothing more than an officer who states “there must have been a violation because I pulled him over,” and an Agent who appears to remember for the first time three years after the incident that an unnamed person told him the car was stopped for speeding. This is woefully inadequate, and does not come close to establishing a basis for this Court to find, by a preponderance of the evidence, that the stop was supported by probable cause.
See Rivera v. Murphy,
Therefore, the Court must conclude that the traffic stop was an unlawful seizure in violation of the Fourth Amendment.
B. Independent Source Exception to the Exclusionary Rule Does Not Apply
In Nix v. Williams, the Supreme Court described why an exception to the exclusionary rule exists when the police are able to come by the incriminating evidence via a source independent of the constitutional violation:
[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position that they would have been in absent any error or violation.
Here, all the evidence that resulted in Defendant’s arrest in this case flowed directly from the illegal traffic stop. Had the Fourth Amendment violation not occurred, the police would
not
have been in the same position. The Agents would have
C. Taint of Illegal Seizure Was Not Attenuated
Next, the Government argues that even if the traffic stop was illegal, the evidence is still admissible because Defendant’s voluntary consent to accompany ICE agents and give his fingerprints is an intervening circumstance that purges the taint of the Fourth Amendment violation.
One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.
Schneckloth v. Bustamonte,
1. Whether Defendant Consented As A Matter of Fact
As an initial matter, based on the testimony presented, the Court has serious doubts as to whether the Defendant consented to go to the ICE office at all. On this record, the Court simply cannot conclude by a preponderance of the evidence that the Defendant, if truly given the choice of simply going on his way, would have cheerfully agreed to accompany Agent Crump, in the agent’s car, to the ICE office for the explicit purpose of a deeper investigation into his identity — an identity that, once known, would have resulted in his arrest on a murder charge.
The record as to what transpired between the traffic stop and the Defendant’s transport to the ICE office is as murky as the testimony was on the basis for the stop. The Defendant testified that an officer with his gun out told him to “get the F out of the car.” (Hr’g Tr. 141). According to the Defendant, another officer put him up against the car and handcuffed him, and he remained handcuffed when he was driven to the ICE office in the back of Agent Crump’s car. (Hr’g Tr. 143). Burke testified that Crump did ask him if he would “mind going down and getting my fingerprints,” but that he said no, because he was aware he had pending charges and that he was using a driver’s license that wasn’t really his. (Hr’g Tr. 142-43).
Not surprisingly, the law enforcement officers’ testimony is quite different. Crump, Blasko, and Passamichalis all testified that no guns were drawn during the stop and that Defendant was not handcuffed at the scene. Crump testified that at the conclusion of the traffic stop, he informed Burke that he was free to go, but asked him if he would “come back with us to our office so that we could prove that he was not Paul Davis,” and that the Defendant indicated he was willing to have his fingerprints taken. (Hr’g Tr. 31-33). However, one must question, if the trip to the ICE office was truly voluntary, why the Defendant did not drive his own car, but rather was transported in the back seat of Agent Crump’s car while his own vehicle was left behind to be towed away by the police.
Although the Defendant is far from a perfect witness, having admitted to lying about his identity and evading law enforcement for many years, the Court finds that his account of events is at least partially credible. First, while for the police officers this was but one of the hundreds of traffic stops they conduct each year, for the Defendant, this was a defining moment, one that led to his prosecution on the outstanding West Virginia charge and his continuing detention. The evening of October 19, 2005, effectively ended the Defendant’s life in this country, as he will ultimately be deported. The Defendant is therefore more likely to correctly remember details of that evening because it was of such greater significance to him personally. Next, it simply strains credulity to believe that if Burke was informed that he was free to go, he would not have jumped at the chance and disappeared into the sunset. Any sane person in his position would have tried to distance himself from immigration and police officials as much as humanly possible. It is also more than a little difficult to accept the proposition that Defendant “voluntarily” went with Agent Crump in Crump’s car, willingly leaving his car behind ultimately to be towed by police. A finding of consent would be far easier to reach if Defendant had driven his own car to the ICE office.
See United States v. Boone,
When the Government relies on consent to justify a search or seizure, it must prove by a preponderance of the evidence that the individual did, in fact, consent. In this case, the Court finds that the Government has not done so. That alone would require suppression of all the evidence in this case. However, even if the Court were to conclude that Defendant did consent, that consent would not be a sufficient basis for the Court to admit the evidence in this case, for the reasons below.
2. Voluntariness Inquiry
Several courts of appeals, including the Fourth Circuit, have held that consent can be voluntary even if it is procured during an illegal detention, provided that the totality of the circumstances confirms that the consent was not coerced.
See Boone,
In
Boone,
the court concluded that the defendant’s consent to search his home was voluntary because,
inter alia,
he was given
Miranda
warnings,
drove his own car to his home,
and signed a consent form that limited the scope of the search, indicating that he knew he had a right to refuse. In this case, giving credit to the officers’ testimony for the limited purpose of this analysis, Defendant was cooperative throughout the encounter, he was not handcuffed, no weapons were displayed, and he was told he was free to leave before Agent Crump requested his consent to accompany ICE agents to their office to prove he was not Paul Davis. Although certainly there would have been some element of coercion by virtue of the number of officers present on the scene and the insinuation that those officers believed him to be someone else, there is no basis for the Court to conclude that the Defendant’s “will was overborne” under
Schneckloth,
and thus the Court finds that the consent was voluntary, assuming that the above testimony of the officers is accepted. But, this is not the end of the analysis, because the fruit of the poisonous tree doctrine invalidates even voluntary consents if the consent cannot be said to be “sufficiently an act of free will to purge the primary taint.”
Wong Sun v. United States,
S. Attenuation of the Taint Inquiry
As a general rule, evidence obtained as a result of a Fourth Amendment violation is inadmissible. However, in
Wong Sun v. United States,
the Supreme Court noted that an intervening “act of free will [may] purge the primary taint of the unlawful invasion.”
In
Brown v. Illinois,
a) Elapsed Time Between Illegal Stop and Consent
The first Brown factor weighs in favor of suppression. Only ten to fifteen minutes elapsed between the time Defendant was initially stopped and when he was transported to the ICE office. The testimony indicates that there was an uninterrupted chain of events beginning with the traffic stop and culminating in the taking of Defendant’s fingerprints. The close temporal proximity, therefore, does not support a finding of attenuation.
The Government argues that there are two different intervening circumstances in this case, either of which would dissipate the taint of an illegal traffic stop. For the following reasons, the Court disagrees, and concludes that this factor also weighs in favor of suppression.
i) Alleged New, Distinct Crime Justifying Detention
First, the Government argues that even if the traffic stop was unlawful, the Defendant’s criminal conduct
after
the stop (i.e., presenting fraudulent identification and lying to officers) constituted a new and distinct crime that was an intervening act of free will that justified further limited detention and questioning. On this point, the Government relies only on
United States v. Sprinkle,
In
Sprinkle,
the court concluded that the investigative stop of defendant’s vehicle was illegal because it was not supported by a reasonable and articulable suspicion that the persons in the car were engaged in criminal activity.
Sprinkle,
Presenting a fraudulent driver’s license is clearly a far cry from shooting at a police officer. In addition, it is not even clear from the record that officers would have had enough information at that time to arrest the Defendant for any crime based solely on the inconsistency between Defendant’s appearance and the height/ weight listed on his license on the one hand, and the NCIC height/weight data for John Marque Pollard on the other. In fact, Defendant was not arrested at the scene of the traffic stop, and Agent Crump testified that Defendant was given his license back prior to leaving the scene and that no one read him his Miranda rights during that portion of the encounter.
Sprinkle
relied upon
United States v. Bailey,
in which the Eleventh Circuit explained that in cases such as this one, “the fruits doctrine generally involves a pragmatic evaluation of the extent to which the illegal police conduct caused defendant’s response.”
Bailey,
In this case, the Court finds it would be “sheer fiction” to find that Defendant’s presentation of fraudulent identification to police was caused by anything other than the illegal traffic stop. Providing one’s name and license is the most fundamental element of a traffic stop. There were absolutely no intervening circumstances, and no lapsé of time between the stop and the alleged “new crime.” In any event, “[t]he ‘new crime’ exception is inapplicable when the defendant’s response to the police illegality is not itself criminal but merely exposes an ongoing crime,” such as possession of an illegal substance or other contraband. 6 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment
§ 11.4(j) (4th ed. 2004);
see also United States v. Ramirez,
The Court concludes that Defendant’s presentation of a fraudulent driver’s license is dramatically different in kind from the types of criminal behaviors that courts have found to constitute intervening circumstances. Furthermore, the presentation of the license was a direct and inevitable result of the illegal stop, and cannot be considered untainted by the constitutional violation. Therefore, the Defendant’s conduct after the stop did not purge the taint of the illegal seizure.
ii) Defendant’s Alleged Consent
In some circumstances, a defendant’s consent may be sufficiently independent of a constitutional violation so as to dissipate the taint. - However, when courts find that to be the case, there are generally much stronger indicia that the consent was truly an act of free will, as opposed to a product of the prior- illegality. For example, in
United States v. Seidman,
a confidential informant (Cl) went to the' defendant’s house wearing a wire and knocked on the door about 90 times. The Cl, who was á co-worker of the defendant, eventually opened the unlocked door and stepped inside without a ‘warrant. The defendant was inside in the hallway and told the Cl that he-had been riding an exercise bike in the basement and hadn’t heard the knocking. The defendant then led the Cl to the kitchen where they proceeded to have a 45-minute conversation in which Seidman made incriminating statements.
Seidman,
The court found that the statements defendant made to the Cl were not obtained by exploitation of the Fourth Amendment violation, stating that the entry was “at worst a minor and technical invasion of Seidman’s rights.” The court then proceeded to evaluate the facts under the tripartite
Brown
attenuation test, and found that the second and third factors weighed in favor of admitting the evidence. Specifically, Seidman shut the door behind the Cl, motioned him into the kitchen, sat
Conversely, in cases bearing stronger factual similarities to those presented here, many courts have concluded that a consent to search given shortly after, an illegal vehicle stop is
not
an intervening circumstance that can purge the taint of the violation. In
United States v. Valdez,
In support of its argument on this point, the Government points the Court to
United States v. Calhoun,
Liss
is even further afield from prevailing law in this area. In that case, police conducted an illegal search of the defendant’s barn, finding marijuana and other contraband. They then requested that the defendant give written consent to further search the property, which he did.
The concurring opinion in
Liss
categorized the majority’s holding as a “frontal assault on the precedents of the Supreme Court of the United States and this court.... A voluntary consent ... standing alone, does not purge the evidence of the taint of an antecedent illegal search.”
Id.
at 622 (Ripple, J., concurring). Judge Ripple went on to note that the Tenth Circuit had “experimented” with the rule propounded by the majority in
United States v. Carson,
Therefore, as with Calhoun, the Court concludes that Liss is against the weight of authority in this area, and quite possibly inconsistent with Supreme Court precedent, and declines to follow it.
In this case, the Court finds that there was no break in the causal chain of events between the illegal stop and Defendant’s alleged consent to be fingerprinted. Therefore, his alleged consent was tainted by the violation, and cannot serve as an intervening circumstance -that would permit the admission of evidence obtained thereafter.
c) Purpose and Flagrancy of Official Misconduct.
The Court finds that the final
Brown
factor also weighs in favor of suppressing the evidence in this case. The only conclusion the Court may draw based on the evidence presented is that police stopped Defendant’s vehicle without probable cause, most likely because they wanted to ascertain his identity. Though this behavior does not seem outrageous or patently offensive, a finding of “ ‘purposeful and flagrant’ misconduct is not limited to situations where the police act in an outright threatening or coercive manner similar to what occurred in
Brown.” United States v. Reed,
Without probable cause to believe that a crime has been committed, the police may not simply seize a person and hope that over time and after ‘reflection’ the person decides to cooperate.... Therefore, in addition to examining whether the officer’s actions were coercive or calculated to cause surprise, fright or confusion, the district court also must examine whether the actions were undertaken in an effort to advance the investigation or to embark on a fishing expedition in the hopes that it would lead to a confession or other useful evidence. Such actions would undermine the purpose of the Fourth Amendment, and therefore are relevant to this analysis that ultimately examines whether suppression is necessary for. purposes of deterrence or judicial integrity.
The Government argued at the hearing that the evidentiary deficiencies in this case were likely due to inadvertent omissions or sloppy record-keeping by law enforcement rather than an overt flouting of the Fourth Amendment, and therefore the third factor should weigh in favor of admitting the evidence. In essence, this would require the Court to find that, in spite of its conclusion that the Government has not met its burden of establishing probable cause for the traffic stop, there was, in actuality, probable cause for the stop that just could not be demonstrated on the record three years after the fact. This is a leap of logic that the Court cannot, and will not, make.
Furthermore, even if the Court were to find that the officer’s conduct in stopping Defendant’s car was not a flagrant or purposeful Fourth Amendment violation, this would not change the outcome because “the lack of such misconduct is of no moment because there was no intervening event to break the connection to the initial arrest.”
United States v. Ienco,
IV. CONCLUSION
This Court does not make its decision in this matter lightly. The application of the exclusionary rule, which was conceived for the purpose of protecting individual rights guaranteed under our Constitution, is in another sense contrary to the public interest, in that it prevents a jury from considering relevant, probative evidence, and in circumstances such as this one, may allow the guilty to escape prosecution entirely. The Court recognizes that “suppression is not an automatic consequence of a Fourth Amendment violation” and that the “question turns on the culpability of the police and the potential to deter wrongful police conduct.”
Herring v. United States,
— U.S. —,
Therefore, the Court will GRANT the Defendant’s motions to suppress statements and tangible and derivative evidence flowing from the illegal traffic stop by separate Order.
ORDER
Upon consideration of Defendant’s Motion To Suppress Statements [Paper No. 11], Defendant’s Motion To Suppress Tangible and Derivative Evidence [Paper No. 13], Defendant’s Motion For Disclosure of Confidential Informants [Paper No. 12], Defendant’s Motion for Leave To
ORDERED, that Defendant’s Motion To Suppress Statements [Paper No. 11] is GRANTED; and it is further
ORDERED, that Defendant’s Motion To Suppress Tangible and Derivative Evidence [Paper No. 13] is GRANTED; and it is further
ORDERED, that Defendant’s Motion For Disclosure of Confidential Informants [Paper No. 12] is DENIED AS MOOT; and it is further
ORDERED, that Defendant’s Motion for Leave To File Additional Motions [Paper No. 14] is DENIED WITHOUT PREJUDICE.
Notes
. It is unclear from the record whether the record requested for John Marque Pollard was a criminal history (NCIC) record, or a driving record. Agent Crump testified that a “criminal record check” was performed (Hr'g Tr. 28); Det. Passamichalis testified that he performed a traffic check, but not a criminal record check (Hr’g Tr. 114, 116, 118). For the purposes of this motion, it is a distinction without a difference.
. The court noted that the defendant’s explanation of the $1,000 cash he was carrying at the time of the stop as proceeds from his landscaping business was suspicious, but did not bear on the issue of the validity of the traffic stop. Id. at 570 n. 7.