ORDER
This matter comes before the court on defendant’s motion to suppress (DE # 21). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge William A. Webb entered memorandum and recommendation (“M & R”) wherein he recommends that the court grant defendant’s motion to suppress. The government timely filed objection to the M & R, and defendant responded. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the recommendation of the magistrate judge and grants defendant’s motion to suppress.
BACKGROUND
Defendant was indicted on October 7, 2010, on charges of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924, and possession of a stolen firearm in violation of 18 U.S.C. § 922(j). On November 30, 3011, defendant filed the instant motion to suppress. The suppression motion seeks to suppress all evidence resulting from the traffic stop and frisk that occurred on June 8, 2010, as well as all statements attributed to him as a direct result of the search and seizure.
The magistrate judge conducted an evidentiary hearing on January 10, 2012. At hearing, the government presented the testimony of two officers with the Fayetteville Police Department involved in the events in question, Officer Charles Cochran and Officer Brian Wollard. Defendant offered the testimony of Shawn Collins.
STATEMENT OF THE FACTS
The magistrate judge engaged in lengthy description of the facts, particularly the testimony of officers Cochran and Wollard. (See M & R 2-5.) The government has lodged specific factual objections to the facts as laid out in the M & R, with specific citations to the hearing transcript. The government seeks to supplement the facts as laid out in the M & R, or, in the alternative, asks the court to receive further evidence.
DISCUSSION
A. Standard of Review
The district court reviews de novo those portions of a magistrate judge’s M & R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson,
The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. U.S. Const., Amend. IV. In Terry v. Ohio, the Supreme Court held that an officer may, consistent with the Fourth Amendment, conduct a “brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is underfoot.” Illinois v. Wardlow,
As noted by the magistrate judge, the Supreme Court has held that in a traffic-stop setting, the first Terry condition — a lawful investigatory stop — is met “whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation.” Arizona v. Johnson,
Reasonable suspicion is a “particularized and objective basis for suspecting that the person to be frisked is armed and dangerous.” United States v. Powell,
The law is well settled in the Fourth Circuit that in order to conduct a lawful protective search of a stopped vehicle, “an officer must possess a reasonable belief of both (1) the suspect’s dangerousness and (2) the possibility that the suspect might gain immediate control of any weapons inside the vehicle.” United States v. Griffin,
The government first raises an argument regarding the law to be applied to the facts of this case, suggesting that much of the case law quoted above is irrelevant because it deals with whether officers had reasonable suspicion to initiate Terry stops instead of whether after a lawful stop, an officer had reasonable suspicion to initiate a Terry frisk, as was the case here. However, as noted by the Fourth Circuit in Powell, “reasonable suspicion” is the standard for both Terry stops and frisks, and while the determination of the lawfulness of a Terry stop is different from that of a
B. Analysis
The government does not object to the issue to be determined here, which, as framed by the magistrate judge, is whether after the valid, initial traffic stop, Officer Cochran had a reasonable suspicion that the occupants of the car were dangerous, making his protective search of the center console proper under the Fourth Amendment. The government’s legal objections include a recasting of several facts, almost all considered by the magistrate judge in some capacity, and the argument that these facts establish reasonable suspicion, contrary to the magistrate judge’s conclusion. The court considers each in turn.
I. Officer Cochran’s Law Enforcement Experience
The government argues that the magistrate judge did not give sufficient weight to Officer Cochran’s law enforcement experience when analyzing whether reasonable suspicion existed at the time of the search. A determination of reasonable suspicion must give “due weight to our common sense judgments reached by officers in light of their experience and training.” United States v. Perkins,
Even in cases where the officer’s experience was a significant factor in establishing reasonable suspicion, the Fourth Circuit has noted that “a wealth of experience will [not] overcome a complete absence of articulable facts ... which, taken together with rational inferences from those facts,
The government argues that Officer Cochran’s training, which is certainly extensive as it relates to drug investigations, in conjunction with the general likelihood that drugs and guns are likely to be found together, is a factor that supports reasonable suspicion in this case. While the court acknowledges Officer Cochran’s training, as did the magistrate judge, (M & R 2), upon close review of the record, the court is unconvinced that it was objectively reasonable to believe that there was a firearm in the car that justified a Terry frisk of Jones and a search of the center console. At hearing, counsel for the government asked Officer Cochran, “Is it safe to say, based on your training and experience, that firearms and drugs typically go together?” (Tr. 13:16-19.) Officer Cochran answered affirmatively. (Id.) Aside from the fact that the form of this leading question suggests what the answer should be, the evidence of record suggests that Officer Cochran believed there was a drug transaction occurring (Tr. 43:10-12, 54:6-25-55:1-21), and little else existed to support an inference that the occupants of the ear were dangerous and could access weapons after the traffic stop occurred. Without more than an affirmative answer at the suppression hearing to connect Officer Cochran’s experience in drug investigations with the conclusion that the car’s occupants were dangerous because of accessibility to weapons, the court overrules the objection.
2. High Crime Area
The government argues that the magistrate judge incorrectly concluded the government failed to support the defendant’s presence in a high crime area with other particularized factors sufficient to establish reasonable suspicion. There is no dispute that the Fourth Circuit has held that the “high crime nature of the area” is a relevant factor in a Terry analysis. United States v. Glover,
This argument is unavailing. Notably, the government cites no authority for its assertion that defendant’s presence in a high crime area is itself a particularized factor because such a conclusion is inconsistent with the relevant case law. See Wardlow,
3. Lawncare Equipment
This objection asserts that Officer Cochran’s observation of lawncare equipment in
As the magistrate judge noted, if Officer Cochran had “seen any number of things” in the Impala’s trunk, it would have piqued his interest. Tr. (51:25-52:1-2.) Likewise, Officer Cochran’s response to the magistrate judge’s question regarding the out-of-state tags, that “to a degree” any out of state tag in North Carolina would be out of place, is not compelling as to how these two factors, the lawncare equipment and the out of state tags, added much, if anything, to a finding of reasonable suspicion. The court agrees with the magistrate judge that without more, these factors appear to be fairly innocent facts painted as suspicious activity in hindsight. See Foster,
4. Suspicion of Drug Sale
The government argues that the magistrate judge erroneously failed to consider in the M & R Officer Cochran’s observation of possible illegal drag activity. Upon review, the court finds that the magistrate judge did in fact address Officer Cochran’s belief that he thought a hand-to-hand drug sale was occurring. (See M & R 4, 9-10). In fact, the magistrate judge specifically pointed out that “Officer Cochran’s suspicion of drug activity was the lens through which he viewed Defendant’s activity and it colored his perception of events.” (Id. at 10.) The connection between Officer Cochran’s belief that a drug sale was occurring and the requirement of indicia of dangerousness in the occupants of the car has already been explored in this order. Furthermore, the government acknowledges that Officer Cochran did not see any drugs or related items change hands, and the record affirms this. (Tr. 54:19-20.) Even taken with the other factors the government contends support reasonable suspicion, Officer Cochran’s belief that illegal drug activity was occurring is not enough to create reasonable suspicion, and the objection is overruled.
5. Evasive Actions
The government contends that the actions of defendant and the other occupants of the Impala were evasive, and that this is a factor supporting reasonable suspicion. Specifically, the government argues that when the Impala that Officers Wollard and Cochran was watching began to back down the street for what seemed like an unreasonably long time “in the opposite direction of [Detective Wollard’s] car,” that behavior constituted evasive action that would be a pertinent factor in determining reasonable suspicion, Wardlow,
However, the government’s inference of evasive activity does not line up with the facts of record. While the backing up is arguably strange driving behavior, no facts exist to suggest that it was actually evasive. The government suggests implicitly that because the Impala backed away from Officer Wollard, its occupants were evading law enforcement. Yet, this inference is belied by the fact that while the Impala was backing away from Officer Wollard, it was backing towards Officer Cochran. (Tr. 23:18) (Officer Cochran’s statement “[The Impala] continued back toward me,”). Officer Cochran testified that both officers were driving unmarked vehicles that night (Tr. 14:15-21, 16:22-25), and Officer Cochran was in uniform. The
6. Driver Movement
The government objects to the magistrate judge’s analysis of the driver Jones’ movement toward the center console and “reluctance” to place his hands on the steering wheel when Officer Cochran ordered him to do so, arguing that the magistrate judge did not consider these factors in totality with the other factors supporting reasonable suspicion.
The government again argues that the magistrate judge’s citation of Sprinkle to find that Jones’ reaching toward the center console established little in the way of reasonable suspicion is erroneous because that case dealt with a Terry stop instead of a frisk. See United States v. Sprinkle,
The government also asks the court to reach a different conclusion with respect to facts considered by the magistrate judge regarding Officer Cochran’s request for Jones to put his hands on the wheel, as well as the position of Jones’ body, which Officer Cochran found to be unreasonable, (M & R 4-5, 9.) As the government notes, the magistrate judge did not find Jones’ delay of three seconds in putting his hands on the steering wheel to be “reluctant or slow.” (M & R 9.) The government suggests that the court should not accept the magistrate judge’s conclusion, but rather should evaluate the three-second delay “through [sic] the lens of an objective officer, based on his training and experience, and in totality with the other observations” to determine whether Officer Cochran had a reasonable suspicion to frisk Jones. (Govt. Obj. 18.) Considering the facts of an objective officer, the court agrees with the magistrate judge that a mere three seconds is not long enough of a delay to constitute a factor supporting reasonable suspicion. The government cites no authority suggesting that such a brief delay is significant; nor does the government offer an example of why Officer Cochran’s reason and experience would lead him to believe three seconds was an unreasonably long time. Without more, the court declines to deviate from the magistrate judge’s conclusions. The objection is overruled.
The government’s final arguments restate the relevant case law, cited herein, and argue that considering the totality of
The government cites Ryburn v. Huff, — U.S. -,
Instead, the court relies on the same authority cited by the magistrate judge and not addressed by the government, specifically the Foster decision, and the Fourth Circuit’s concern about using whatever facts are present to paint a picture of suspicious activity that is not warranted.
CONCLUSION
Upon de novo review of those portions of the magistrate judge’s M & R to which specific objections have been filed, and upon considered review of those portions of the M & R to which no such objection has been made, the court ADOPTS the findings and recommendations of the magistrate judge in full and GRANTS defendant’s motion to suppress (DE # 21). Evidence obtained during the traffic stop that occurred on June 8, 2010, is to be excluded from use at trial in the government’s case in chief.
SO ORDERED.
MEMORANDUM AND RECOMMENDATION
This cause comes before the Court upon Defendant’s motion to suppress, in which he seeks the suppression of all evidence and statements obtained from him on June 8, 2010. (DE-21). The Government responded to this motion (DE-24), and a hearing was conducted on January 11, 2012. (DE’s-29-31). Both parties filed supplemental memoranda after the hearing. (DE’s-32-33). Accordingly, the matter is now ripe for adjudication. Pursuant to 28 U.S.C. § 636(b)(1), this matter has been referred to the undersigned for the entry of a Memorandum and Recommendation.
Ultimately, the disposition of Defendant’s motion to suppress hinges on a single issue: whether the protective search of the center console of the vehicle in which Defendant was a passenger was supported by a reasonable suspicion that the occupants were dangerous. Arizona v. Johnson,
I. Background
Defendant is charged in a two count indictment with: 1) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1); and 2) possession of a stolen firearm in violation of 18 U.S.C. § 922Q). (DE-1).
Officer Charles Cochran of the Fayetteville Police Department (“FPD”) testified that on June 8, 2010 at approximately 1:00 p.m. he was patrolling the “Massey Hill area in Fayetteville”, which is a high crime neighborhood. (Tr. 11-12, 60). He was working with Officer Brian Wollard, who was in a separate car. On previous occasions, Officer Cochran executed several search and arrest warrants in this area. Id. at 12-13. He specifically recalled executing a search warrant relating to crack cocaine at 1919 Powell Street, which is located in Massey Hill. Id. at 11-13. One search warrant executed at 1919 Powell Street involved Charles McCrae, who Officer Cochran testified-was “known for assaulting police officers.” Id. at 14, 26. However, Officer Cochran was not certain Charles McCrae still lived at the residence, nor was he looking for Mr. McCrae on June 8, 2010. Id. at 31.
At the time of his patrol, Officer Cochran was in uniform and driving an unmarked vehicle. Id. at 14. Officer Wollard, who was about 100 yards ahead of Officer Cochran, turned from Cude Street onto Powell Street. Id. at 16, 62. He instructed Officer Cochran to observe a vehicle near 1919 Powell Street, and then turned onto Craven Street. Id. at 17, 22. Officer Wollard instructed Officer Cochran to do so because he “felt it was very odd ... a new vehicle, with a custom paint job, having a lawnmower sticking out in a high crime narcotic area with someone standing outside the vehicle near a narcotic residence ...” Id. at 63. However, Officer Wollard did not personally observe a drug transaction. Id. at 70.
After receiving Officer Wollard’s instruction, Officer Cochran turned onto Powell Street and slowly drove past the vehicle in question. Id. at 19. At this time, Defendant was outside the vehicle. Id. Specifically, Officer Cochran “saw [Defendant] in the general vicinity of the vehicle.” Id. at 35. He then “lost him for just a small area of time and then saw him return to the vehicle.” Id. Officer Cochran assumed Defendant walked from the vehicle to 1919 Powell Street and back, although he did not see this because his vision was obstructed. Id. He did not see Defendant exchange money with anyone in the vehicle. Id. at 40. Nor did he personally observe any other form of hand-to-hand drug purchase. Id. at 54.
A lawnmower and a weed eater were “hanging out of’ the vehicle’s open trunk. Id. at 20. This concerned Officer Cochran because he had “investigated multiple cases ... where people commonly steal lawnmowers ... [and] weed eaters ... for the purpose of selling them ... for narcotics.” Id. For this reason, Officer Cochran believed “that there was the potential that there could have been a hand-to-hand buy or purchase of narcotics.” Id. at 21. In addition, the vehicle had Maryland license plates. Id. at 20-21. This also “piqued [Officer Cochran’s] interest” because the vehicle might not “belong in this neighborhood other than ... for the purpose of buying narcotics ...” Id. at 21.
Eventually, Defendant got in the back seat of the vehicle, which drove in reverse toward Officer Cochran’s car. Id. at 22. Officer Cochran felt this was “unreasonable”, because it would have been easier for the vehicle to drive forward and turn around. Id. at 22-23. Furthermore, the
As Officer Cochran approached the vehicle, he noticed the driver, Victor Jones, “doing something over ... in the console area.” (Tr. at 25). Specifically, Mr. Jones’ “lower body ... was targeting the center console.” Id. at 26. Officer Cochran believed Mr. Jones “was reaching for the center console for a purpose.” Id. At this point, Officer Cochran was within 10 feet of the vehicle. Id. at 53. Mr. Jones was instructed to put his hands on the steering wheel, and he did so within three seconds. Id. at 27. Nonetheless, Officer Cochran described his compliance as “reluctant!].” Id. After Officer Wollard arrived at the scene, Mr. Jones was ordered out of the car and frisked for weapons by Officer Cochran. Id. at 27. After searching Mr. Jones, Officer Cochran conducted a protective search of the passenger compartment of the vehicle. Id. at pg. 27-28. The front seat, passenger and Defendant remained in the vehicle. Id. During this search, Officer Cochran opened the center console and “found a clear plastic baggie with what appeared to be marijuana.” Id. at 29.
Thereafter, Officer Cochran and Officer Wollard conducted “[a] complete search of all three defendants as well as the vehicle based on probable cause.” Id. at 29, 67. Prior to the complete search, Officer Wollard removed Defendant and the front seat passenger from the vehicle. Id. at 66-67. While doing so, he noticed that he had previously arrested the passenger for selling narcotics in the area. Id. at 66. During the search of the vehicle, Officer Cochran and Office Wollard discovered a handgun. Id. at 30, 68. Defendant admitted that the handgun was his. Id. at 31, 68. This was a spontaneous utterance and not in response to a question. Id. at 68-69.
II. Analysis
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “[T]he underlying command of the Fourth Amendment is always that searches and seizures be reasonable.” Wilson v. Arkansas,
However, “[bjefore an officer can stop and frisk a citizen, she must have ‘reasonable and articulable suspicion that the person seized is engaged in criminal activity.’ ” United States v. Massenburg,
“The determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior ... and it is measured by the totality of the circumstances.” Powell,
Recently, the Fourth Circuit has expressed “concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.” United States v. Foster,
Here, the undersigned finds that the initial traffic stop was valid. Officer Cochran personally observed a traffic violation, and any ulterior motive he had for making the stop is irrelevant. Digiovanni,
In support of its argument that there was reasonable suspicion to believe that the occupants of the vehicle were dangerous, the Government highlights the following facts: 1) the incident occurred in a high crime area, and indeed, near a residence where Officer Cochran had executed a narcotics related search warrant; 2) that the driver “reach[ed] toward the center console”; and 3) that the driver “hesitated for several seconds” before placing his hands on the steering wheel as instructed. (DE-33, pg. 4-5). These facts do not establish reasonable suspicion that the occupants of the vehicle were dangerous.
First, “an area’s disposition toward criminal activity is an articulable fact ... that may be considered along with more particularized factors to support a reasonable suspicion.” United States v. Sprinkle,
For example, Mr. Jones’ reaching toward the center console establishes little. Officer Cochran’s description of this activity was relatively vague, consisting of little more than an observation that he was reaching in that direction “for a purpose.” (Tr. 26). He did not see any drugs, money, weapons, or drug paraphernalia, and he was approximately 10 feet away when he saw this movement. Once again, this activity is generic and susceptible to innocent explanation. See, Sprinkle,
Next, the Government notes that Mr. Jones did not immediately comply with Officer Cochran’s instruction to put his hands on the steering wheel. Officer Cochran initially testified that Mr. Jones’ compliance was “reluctant! ].” (Tr. 27). Later, when pressed, he testified “[s]lowly may have actually been — reluctantly probably tries to get in his mind too much, but certainly slowly was probably maybe a better word.” Id. at 53. His actual testimony was that Mr. Jones complied within three seconds. Id. at 27. The undersigned would not describe this as either reluctant or slow. When given an opportunity to elaborate on the reluctance or slowness of Mr. Jones’ compliance, Officer Cochran added little to his initial testimony. Id. at 52-53. Thus, the undersigned finds that Mr. Jones’ compliance was neither “reluctant” nor “slow.” Therefore, this factor does not support a finding of reasonable suspicion.
Finally, in its initial response the Government noted the presence of the lawnmower and weed eater in the vehicle’s trunk, arguing that “it is not uncommon for drug users to trade stolen lawn equipment for drugs.” (DE-24, pg. 7). This argument is abandoned in the Government’s supplemental memorandum. (DE-
In short, the none of the factors cited by the Government support a finding of reasonable suspicion individually. Likewise, these factors gain little, if any, strength when considered in combination. Officer Cochran’s suspicion of drug activity was the lens through which he viewed Defendant’s activity and it colored his perception of events. Therefore, the undersigned finds that Officer Cochran’s search of the vehicle’s center console was unreasonable, and the alleged marijuana discovered during that search must be suppressed.
Having determined that the search of the center console was unreasonable, the undersigned must now determine whether the discovery of the handgun and Defendant’s statement regarding the handgun must be suppressed. Generally, courts will also suppress evidence that is the indirect product of the illegal police activity as “fruit of the poisonous tree.” See, Wong Sun v. United States,
III. Conclusion
For the aforementioned reasons, the undersigned RECOMMENDS that Defendant’s motion to suppress (DE-21) be GRANTED in all respects. Specifically, it is RECOMMENDED that all evidence and statements obtained during the traffic stop conducted on June 8, 2010 be suppressed.
SO RECOMMENDED in Chambers at Raleigh, North Carolina on Thursday, January 19, 2012.
Notes
. Mr. Collins is also a detective with the City of Fayetteville Police Department. (Tr. 75; 12-13.)
. Having supplemented the facts as requested by the government, the court finds it unnecessary to reopen the record for the introduction of additional evidence. Additionally, the court notes that while it supplements the record with the facts as noted in the government’s objections, the facts described in objection 10 were referenced in the M & R. (See M & R 3). The court also makes note of the minor factual discrepancy in the M & R noted by the government at objection 9; while the M & R noted that Officer Cochran drove past the vehicle in question, the government points to Cochran's statement that he was "more or less idling.” (Tr. 18:8-9.) Review of the record reveals that Cochran mentioned that "I kept going. I can't recall how far I did get, but I continued to travel in that direction, slowly,” after being asked if he actually went down the street or stopped. (Tr. 19:10-13.) Thus, the M & R and the government's objection 9 reveal a slight factual discrepancy in Cochran’s testimony that, upon review, does not alter the decisions reached herein.
. The government cites to Florida v. J.L.,
. This was confirmed by Detective Shawn Collins of the FPD in both his written report (DE-32-3, pg. 1), and his testimony: "[a]s explained to me by Officer Cochran, it was a pretextual stop ... [h]e made the basis of the stop because he wanted to investigate narcotic activity.” (Tr. 84.)