UNITED STATES OF AMERICA v. DAYTOVIANE DAPREE MCLEMORE; UNITED STATES OF AMERICA v. JOSHUA ADAM RODE
No. 17-1683; No. 17-1684
United States Court of Appeals For the Eighth Circuit
April 13, 2018
Submittеd: December 15, 2017; Appeals from United States District Court for the Northern District of Iowa - Waterloo
Filed: April 13, 2018
Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
LOKEN, Circuit Judge.
Indicted for possession of a firearm by an unlawful drug user in violation of
At 9:45 p.m. on July 1, 2016, Waterloo, Iowa police officers Kye Richter and Jamie Sullivan, patrolling a high crime neighborhood, observed McLemore standing next to a BMW parked at 820 Logan Avenue, a residence frequented by members of one of two rival gangs. Two days earlier, while investigating reports of a nearby shooting, Sergeant Richter аnd Officer Diana Del Valle had seen Rode exit the BMW after it stopped near Logan Avenue. Del Valle had learned that Rode was affiliated with the gang that frequented 820 Logan and may have been the victim of an
Richter radioed Officer Del Valle, patrolling in a different car, and told her to go to the Logan Avenue area and wait for the BMW to leave. When the BMW departed ten minutes later, Del Valle followed. She saw that the BMW had a dealer advertising plate instead of a rear license plate, which she had noticed two days earlier, and a temporary paper card taped to the inside of the left rear window. Del Valle radioed Richter and Sullivan she had seen “no violations yet.” They asked about the card in thе back window. Del Valle said, “you can see a plate, but you can‘t read what‘s on it.” Officer Sullivan replied, “there you go.” Del Valle activated the lights on her police cruiser and made an “equipment stop.” She testified that she could first read the numbers on the temporary card when “I got tо the trunk area.” She did not examine whether the temporary card was valid (it was) because “I already had the probable cause, which was a temporary tag. I wasn‘t focused on whether that tag was valid or not at that time.” During the stop, Del Valle smelled marijuana, and Sergeant Richter discovered a firearm during his pat-down search of McLemore.
Both defendants moved to suppress the firearm, raising multiple Fourth Amendment issues. After a combined hearing at which Del Valle and Richter testified, the magistrate judge issued a Report and Recommendation recommending both motions be denied, concluding that the temporary tag issue was controlled by our prior decision in United States v. Givens, 763 F.3d 987, 991 (8th Cir. 2014), cert. denied, 135 S. Ct. 1520 (2015), because “Del Valle was unable to read the paper plate until after she stopped and approached the vehicle.” Defendants filed objections; the district court granted their motions tо suppress. The court distinguished Givens because “Del Valle did not state that she suspected Rode or McLemore were violating
On appeal, the gоvernment argues that Officer Del Valle had reasonable suspicion to stop the BMW for an equipment violation because she was unable to read what appeared to be a temporary registration card taped to its rear window. Though the parties argue other issues, the аppeal turns on this question of law that we review de novo. United States v. Ellis, 501 F.3d 958, 961 (8th Cir. 2007).
Absent a valid basis for seizure, a traffic stop requires “at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered.” Delaware v. Prouse, 440 U.S. 648, 663 (1979); see United States v. Hollins, 685 F.3d 703, 705-06 (8th Cir. 2012). However, if an officer has reasonable suspicion or prоbable cause to stop for a traffic violation, “any ulterior motivation on the officer‘s part is irrelevant.” United States v. Fuehrer, 844 F.3d 767, 772 (8th Cir. 2016) (quotation omitted), cert. denied, 137 S. Ct. 2107 (2017); see Whren v. United States, 517 U.S. 806, 813 (1996). Reasonable suspicion is “a particularized and objective basis for suspecting the particular person stopped of breaking the law.” Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (quotation omitted).
A number of prior cases have considered the Fourth Amendment validity of traffic stops to investigate whether a vehicle was being operated in violation of state registration laws. For example, in United States v. Geelan, 509 F.2d 737, 743-44 (8th Cir. 1974), cert. denied, 421 U.S. 999 (1975), and in United States v. Smart, 393 F.3d 767, 770-71 (8th Cir.), cert. denied, 545 U.S. 1121 (2005), we upheld stops of vehicles that had no front license plates, as Iowa requires, because, when the officer followed the vehicle, he could see an out-of-state rear plate but could not determine until the car was stopped whether the plate had been issued by a State that did not
Three prior cases involved temporary registration documents. In United States v. Sanchez, 572 F.3d 475, 478-79 (8th Cir. 2009), the officer knew that a piece of paper taped to where the rear license plate should be was not a Nebraska “In Transit” sticker and could not see the name of another issuing jurisdiction; we concluded the officer had reasonable suspicion that the vehicle did not display valid proof of registration, as Nebraska law required. In United States v. Mendoza, 691 F.3d 954, 959 (8th Cir. 2012), cert. denied, 568 U.S. 1137 (2013), the officer knew that the paper tag in the vehicle‘s rear window was not an Iowa temporаry tag; she could not identify an issuing State from fifteen to twenty feet away and thought the paper resembled fraudulent tags she had previously encountered. We concluded there was reasonable suspicion to stop the vehicle because the officer “gave particularized rеasons why she suspected that this particular tag may have been fraudulently created on a printer rather than issued by an official authority.” Likewise, in Givens, an Iowa officer stopped a vehicle displaying what appeared to be a paper registration card, but the officer could not read the card because of darkness and the angle of the windshield. The officer had been able to read other temporary cards at night, and had prior experience with invalid and fraudulent registration cards. 763 F.3d at 988. We concluded the officer had reasonable suspicion to stop the vehicle for lack of a valid registration card, noting it was “critical” that the officer “could only see what appeared to be a temporary paper registration card in the rear window, but did not know whether the paper was in fact a registration card.” Id. at 990-91.
These cases illustrate, as the Supreme Court‘s governing standard demands, that the determination of reasonable suspicion is fact specific, requiring the government to establish that the officer had “a particularized and objective basis for
Relying on Givens, 763 F.3d 987, the government argues that Officer Del Valle‘s inability to read the temporary registration card from her police cruiser gave her, without more, reasonable suspicion to stop the BMW. We disagree. First, the government‘s witnesses failed to identify what violation of state law the BMW operator was suspected of committing. The statute primarily at issue,
A vehicle mаy be operated upon the highways of [Iowa] without registration plates for a period of forty-five days after the date of delivery of the vehicle to the purchaser from a dealer if a card bearing the words “registration applied for” is attached on the rear of the vehicle. The card shall have plainly stamped or stenciled the registration number of the dealer from whom the vehicle was purchased and the date of delivery of the vehicle.2
Officer Del Valle, who made the stop, testified that she stopped the BMW for an equipment violation based on the opinion of Officer Sullivan (“there you go“), who could not see the BMW and did not testify at the hearing. Del Valle justified the stop because she “could not see the numbers or letters on [the] temporary registration tag which the DOT requires” from her police cruiser. However, she knew the BMW had a cаr dealer‘s advertising plate where the rear license plate is customarily attached, and she knew the piece of paper taped to the rear window was a temporary Iowa
Del Valle also did not identify what information she could not see that gave her (or Officer Sullivan) reasonable suspicion of a violation. If her reference to “letters or numbers” meant the unique vehicle registration letters and numbers on a license plate, which law enforcement officers оften use to identify specific vehicles, then she had no reasonable suspicion at all, because
Second, the government did not introduce into evidence either the temporary registration card tapеd to the rear window when the BMW was seized, or a copy of the standard-form Iowa DOT temporary card to which Del Valle referred in her testimony. Thus, the only evidence of record is Del Valle‘s contemporaneous opinion that the paper card she saw was a form of card that complied with
As the district court recognized, the government‘s position in this case would mean that an Iowa police officer may stop a vehicle displaying a proper form of temporary registration card whenever the officer cannot read the dealer registration number and the card‘s expiration date from inside the officer‘s following police cruiser. The Fourth Circuit rejected this contention in United States v. Wilson, 205 F.3d 720 (4th Cir. 2000) (en banc), a decision we factually distinguished in Givens, 763 F.3d at 991. In Wilson, a South Carolina officer stopped the defendant‘s car to determine if its North Carolina temporary paper tag wаs valid, because the officer was unable to read the expiration date in the darkness and “the small space provided for writing in the date.” 205 F.3d at 722-23. The court concluded the officer “had no suspicion at all” that the defendant was breaking the law; it was dark, both cars were moving, and there was no evidence the “tag was illegible or in any way obliterated, smudged, or faded.” Id. at 723. The court noted that permitting a traffic stop under such circumstances would permit police officers to randomly stop any car with a temporary tag. “The Fourth Amendment does not allow a policeman tо stop a car just because it has temporary tags.” Id. at 724. Likewise, in State v. Carmody, the Iowa Court of Appeals reversed the denial of a motion to suppress where the officer following defendant‘s car could see it had a temporary tag but “couldn‘t make out the markings on it.” 2013 WL 5949621 at *2, 841 N.W.2d 356 (Table) (Iowa App. 2013) (“our jurisprudence does not recognize an unbridled cart blanche authority on the part of officers to make random investigatory traffic stops,” citing Prouse, 440 U.S. at 661). We agree with these decisions and conclude, like the district court, that Wilson, not Givens, is the governing authority.
We affirm the Order of the district court in the consolidated criminal cases dated February 28, 2017.