United States v. FreemanUnited States v. Freeman
- Reporters:
- ,
- Before:
- Boyce F. Martin Jr., Clay, Weber
ARGUED: April R. Ferguson, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant in 98-6636. ON BRIEF: April R. Ferguson, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, E. E. Edwards III, EDWARDS, SIMMONS & OLIVER, Nashville, Tennessee, Wesley M. Oliver, TULANE LAW SCHOOL, New Orleans, Louisiana, for Appellants. Paul M. O‘Brien, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
MARTIN, C. J., delivered the opinion of the court, in which WEBER, D. J., joined. CLAY, J. (pp. 6-15), delivered a separate concurring opinion.
OPINION
BOYCE F. MARTIN, JR., Chief Judge. Donald W. Adams and Lance M. Freeman sеek review of the district court‘s order denying their motions to suppress evidence seized during an atypical traffic stop. The issue is whether the police had probable cause to stop and search the vehicle driven by Adams and Freeman. Because we find that the police did not have probable cause, we reverse and direct that the evidence be suppressed.
On the July 4, 1997 holiday, Memphis Police Officer David Tate stopped a motor home traveling eastbound оn heavily traveled Interstate Forty for violating
Freeman and Adams filed motions to suppress the evidence found in the search of their motor home, alleging that Officer Tate lacked probable cause to stop the vehicle and that, even if the stop was lawful, the search was beyond the scope of the initial stop and there was no waiver. The magistrate, whose report was adopted by the district court, concluded that the stop was justified because the motor home‘s partial entry into the emergency lane constituted probable cause that either a traffic violation hаd occurred or that the driver was intoxicated. The district court then denied the motions to suppress the evidence from the search. Freeman and Adams pledged guilty to possession with intent to distribute marijuana in violation of
When reviewing the district court‘s denial of a motion to suppress evidence, this Court applies a clearly erroneous standard to the district court‘s findings of fact while reviewing its conclusions of law de novo. See United States v. Lumpkin, 159 F.3d 983, 986 (6th Cir. 1998). In doing so, we consider the evidence in the light most favorable to the United States. See United States v. Wellman, 185 F.3d 651, 655 (6th Cir. 1999). Stopping a vehicle and detaining its occupants amounts to a seizure under the Fourth Amendment. See Delaware v. Prouse, 440 U.S. 648, 653 (1979). The
It is true that “so long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful.” United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993). We 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 as 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
Just as it does not constitute probable cause that a traffic violation occurred, the motor home‘s brief entry into the emergency lane does not constitute probable cause that Adams was intoxicated. As stated by the Tenth Circuit, “[i]f failure to follow a perfect vector down the highway or keeping one‘s eye on the road were suffiсient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.” Gregory, 79 F.3d at 978-79 (quoting United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993)). Accordingly, Adams‘s failure to follow a perfect vector down
Accordingly, the judgment of the district court is REVERSED. This case is REMANDED for further proceedings.
CLAY, Circuit Judge, concurring. I concur in the majority opiniоn reversing the district court‘s denial of Defendants’ motion to suppress the evidence on the basis that the police officers lacked probable cause to stop the Winnebago. I write separately concerning what may be a troubling pattern or practice by some members of the Shelby County Sheriff‘s Department drug interdiction squad of stopping “target” vehicles on questionable probable cause grounds in this area of Tennessee in order to search for contraband. Although it is true that under Whren v. United States, 517 U.S. 806 (1996) and United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (en banc), a police officer may stop a vehicle for a traffic offense when his or her actual motivation is to search for contraband, it is also true that the officer must still have probable cause to make the initial stop, and must not abuse the Whren principle by using it as a subterfuge to justify the recovery of contraband after an illegal stop and search. Indeed, as the Supreme Court opined long ago, an illegal search cannot be justified by the potent evidence that it produces. See Byars v. United States, 273 U.S. 28, 29 (1927).
A. “Probable Cause” for the Stop
In this case, Officer Tate‘s purported reason for stopping Defendant Adams as he was heading eastbound in a Winnebago motor home along Interstate 40 near the Watkins Road exit northeast of downtown Memphis, Tennessee was because Officer Tate, who was later joined by Officer McCord after the stop occurred, allegedly observed Adams cross the solid white line separating the emergency lane from the right-most lane of travеl, and remain across the line for about twenty to thirty feet. Officer Tate admitted that Adams was traveling at the posted fifty-five miles per hour speed limit. Based upon Tate‘s observation of the Winnebago crossing the white line for a distance of twenty to thirty feet,
On appeal, Defendants argue, and we agree, that the mere passage of their vehicle across the line separating the еmergency lane of a highway from the right lane of travel did not constitute probable cause that Defendants were violating Tennessee law. Based upon Officer Tate‘s testimony that he observed the Winnebago cross over the white line for about twenty to thirty feet and that Defendants were traveling at the posted speed limit, Defendants calculated the period of time that Officer Tate observed the Winnebago cross over the line to be about one-third of a second.1 We agree that such a brief period of time where the Winnebago crossed over the line did not provide Officer Tate probable cause to stop the vehicle for a traffic violation, particularly where the weather conditions on the day in question were windy, Adams was rounding a curve in the road at the time, and Officer Tate admitted that it would not be unusual for a Winnebago to cross over the white line inasmuch as the vehicle is top-heavy and the Memphis area gets a lot of high winds, especially in that area of open highway.
To accept Officer Tate‘s purported reason for stopping the Winnebago as constituting probable cause for an alleged
Considering the facts of this case along with what can be learned from other cases arising out of this area of Tennessee and all reasonable inferences derived therеfrom, Officer Tate did not have probable cause to stop the Winnebago, and may have been using the Tennessee statute and the authority provided to him under Whren as a subterfuge to search this target vehicle for contraband. See Hill, 195 F.3d at 165-67 (noting that an officer‘s credibility in making the initial traffic stop must be scrutinized, particularly when a target vehicle such as a U-Haul is involved); Ferguson, 8 F.3d at 388 (holding that traffic stop cases must be evaluated by undertaking an objective assessment of an officer‘s actions in light of the facts and circumstances then known to him to determine whether they were reasonable). The subjective way
B. Cases Suggesting a Possible Pattern or Practice by Officers of the Shelby County Sheriff‘s Department of Stоpping and Searching “Target” Vehicles
The following cases, presented in reverse chronological order as decided by this Court, represent a sampling of what may constitute an apparent pattern or practice of some drug interdiction officers in this area of Tennessee where the defendants involved have brought motions to suppress the evidence. That is to say, the following cases involving defendants’ motions to suppress are those in which the interdiction offiсers stationed along Interstate 40 near Memphis have stopped a target vehicle, often on questionable or subjective probable cause grounds, and where the subsequent sequence of events repeat in a manner apparently crafted to justify a resulting detention and search.
The list of cases begins with those very recently decided. See United States v. Atkins, Nos. 98-5827; 98-5828, 1999 WL 1045942, at *1 (6th Cir. Nov. 8, 1999) (involving a Chevrolet Blazer and a van both bearing Texas license plates stopped for “speeding” by Officer Tate and Officer McCord, respectively, wherein officers’ suspicion to detain and search was based on smell of marijuana emanating from each vehicle; at suppression hearing, evidence offered by the defendant as to Tate‘s untruthfulness); United States v. Hill, 195 F.3d 258 (6th Cir. 1999) (involving U-Haul stopped for traveling 63 in 55 zone along Interstate 40 by Shelby County Sheriff‘s Deputy Officer Whitlock who was later joined by Officer Kellerhall, wherein suspicion to detain was based on inconsistent stories allegedly provided by driver and passenger after two had been separated when Whitlock placed driver in patrol car, along with nervousness of driver and used tissue on floorboard of U-Haul; “courtesy” citation issued;
The cases bearing similar scenarios have further arisen before the Court. See United States v. Palomino, 100 F.3d 446 (6th Cir. 1996) (involving car bearing Texas license plates stopped for traveling 42 in a 55 zone and for changing lanes without signaling along Interstate 40 by Shelby County Sheriff‘s Deputy Officer Kellerhall, wherein suspicion to detain was based on chemical smell associated with ether-based cocaine emanating from car; Kellerhall asked the defendant to sign consent to search form while issuing “cоurtesy citation“); United States v. Gonzalez, No. 94-6503, 1996 WL 626286 (6th Cir. Oct. 24, 1995) (per curiam) (involving motor home stopped for “weaving over the left and right hand lane markers” while traveling on Interstate 40 by Officer Kellerhall who was later joined by backup officers, wherein suspicion to detain was based on smell of “raw” marijuana; consent to search obtained while officer issued “courtesy” citation); United States v. Mendoza, Nos. 93-6228; 93-6356, 1994 WL 526711 (6th Cir. Sept. 27, 1994) (per curiam) (involving truck stopped for traveling 63 in 55 zone along Interstate 40 by Officer Kellerhall, wherein suspicion to detain was based on smell of “raw” marijuana emanating from the truck and alleged inconsistent stories provided by driver and passenger; obtained consent to search, but twice advised the driver that if he did not consent, Kellerhall would send for canine unit to conduct narcotics sniff); United States v. Ledezma, 26 F.3d 636 (6th Cir. 1994) (involving van stopped for “speeding” along Interstate 40 by Shelby County Sheriff‘s Deputy Officer Edmonds who was later joined by Officer Lane, wherein suspicion to detain was based on “nervousness” and “evasiveness” of the driver; consent to search obtained); United States v. Barnes, No. 93-5060, 1994 WL 75932 (6th Cir. Mar. 8, 1994) (involving car bearing Texas license plates stopped along Interstate 40 by Shelby County Sheriff‘s Deputy Officer Tate for “following too close on a small compact car,” wherein this Court remanded the case back to the district court for further fact finding regarding Officer Tate‘s purported reason for initially stopping the vehicle, while noting its concern with the “subjective rule of reason in Tennessee on following too closely“).
It is not difficult to imagine, based upon the prodigious sampling of cases provided above, that innocent persons traveling along Interstate 40 in Tennessee have been stopped and subsequently searched simply because they were traveling in a “target” vehicle. However, because the questionable stops and searches of innocent persons’ vehicles are usually not brought to the court‘s attention – inasmuch as no contraband is recovered and no court case results – we may never know the true extent of this apparent problem.
C. The Apparent Pattern or Practice of Stopping and Searching “Target” Vehicles as an Abuse of Authority Under Whren and Ferguson
This Court has previously expressed its concern regarding the potential for abusive police practices under Whren and Ferguson, particularly as it relates to the actions of officers in this area. For example, in United States v. Mesa, a case involving an illegal search and seizure which took place pursuant to a traffic stop along this very stretch of highway in Tennessee, this Court warned against allowing police officers to use the authority provided to them under Ferguson to conduct “fishing expeditions” to search for contraband. See 62 F.3d at 162. The Mesa Court cautioned that because “we [have given] the green light to police officers to stop vehicles for any infraction, no matter how slight, even if the officer‘s real purpose was to hope that narcotics or other contraband would be found as a result of the stop[, and because] . . . we have extended this authority to the broadest extent possible, . . . we have a duty to see that the authority is not abused.” See id. The Court further cautioned as follows:
Although there is always temptation in cases of this nature when a substantial quantity of drugs and firearms are found to let the end justify the means, it must be remembered that the courts only see cases in which the conduct of the officer resulted in contraband being found. If the officers had found no drugs in the defendant‘s car, obviously we would not even know that this traffic stop had ever occurred. Therefore, we must accept that courts will always be “thwarting” what some may view as a good piece of police work when a motion to suppress is granted in cases of this nature. Notwithstanding the importance of drug interdiction, however, we are still charged with the responsibility of seeing that the intеrdiction occurs without the Constitution being violated.
Id. at 163 (footnote omitted). Moreover, in Hill, a case brought on a motion to suppress from a stop and search which
Based upon the stream of cases reaching this Court since Mesa, in which the defendants have specifically challenged the search of their vehicles subsequent to a traffic stop along Interstate 40 near Memphis, it appears that shеriffs of drug interdiction units in this area may be doing precisely what Mesa cautioned against – using the authority vested in them under Whren and Ferguson as carte blanche to conduct “fishing expeditions” to search for contraband, particularly when a “target” vehicle such as a van, motor home, U-Haul, truck, or automobile with an out-of-state license plate is involved.2 See Mesa, 62 F.3d at 162-63; see also Hill, 195 F.3d at 266.
It also appears that, in effect, some of these officers may be attempting to use the authority vested in them by Whren and Ferguson to accomplish what this Court found to be an unconstitutional practice by the State of Tennessee in United States v. Huguenin, 154 F.3d 547 (6th Cir. 1998). In other words, the Tennessee vehicle checkpoints we found unconstitutional in Huguenin on the basis that they were being operated not to detect intoxicated drivers, but as a pretext to stop drivers who had violated no traffic laws in order to gain reasonable suspicion to search for narcotics,
D. Conclusion
While I have focused on what may appear to be the tactics of the drug interdiction officers in Shelby County based upon the cases reaching our Court from this area, cases have also appeared from other areas within this Circuit in which challenges to stops and searches are based on similar factual scenarios. See, e.g., United States v. Akram, 165 F.3d 452 (6th Cir. 1999). The officers of Shelby County, Tennessee, and drug interdiction officers everywhere in this Circuit should understand that they are not to abuse the authority provided to them to under Whren and Ferguson. Although illegal narcotics have a widespread and devastating effect on our country, the answer in controlling drug use does not lie in sacrificing our precious Fourth Amendment constitutional guarantees. The result of overzealous or even arrogant police conduct that rises to the level of a Fourth Amendment violation may be counterproductive where those individuals actually transporting illicit narcotics may have the evidence recovered against them suppressed – and charges subsequently dismissed – as a result of an illegal stop.
Notes
Defendants calculations are as follows:
Twenty to thirty feet equates to a distance between 0.0379 tenths of a mile and 0.0568 tenths of a mile.
(20 feet) x (1 mile/5280 feet) = 0.00379 miles = 0.0379 tenths of a mile
(30 feet) x (1 mile/5280 feet) = 0.00568 miles = 0.0568 tenths of a mile
The amount of time that the Winnebago actually crossed the white line based upon the fifty-five mile per hour speed limit at which the Winnebago was traveling is calculated as follows:
(0.00379 miles) x (1 hour/55 miles) x (3600 seconds/hour) = 0.248 seconds
(0.00568 miles) x (1 hour/55 miles) x (3600 seconds/hour) = 0.372 seconds