ALAN J. BAVERMAN, Magistrate Judge.
The government has the burden to prove by a preponderance of the evidence that a warrantless search was lawful under the Fourth Amendment. In this case, the government's two witnesses gave testimony that was both internally inconsistent and inconsistent with one another. As a result, the Court concludes that the government did not satisfy its burden.
Jeffrey James Smith ("Smith" or Defendant) is charged in a five-count indictment with possession of a firearm affecting commerce following felony convictions (Count One); possession with intent to distribute cocaine (Count Two), 1-(3-Triflouromethylphenyl) Piperazine (TFMPP) (Count Three), and Marijuana (Count Four); and possession of a firearm in furtherance of at least one of the drug trafficking crimes charged in Counts Two through Four (Count Five). Smith has moved to suppress evidence seized from him and his vehicle on April 30, 2011, which evidence gave rise to the instant charges. [Doc. 13].
The challenged search followed a traffic stop based on a suspended vehicle registration. The government contends that it was reasonable for the police officers to extend the traffic stop because they smelled the scent of marijuana emanating from the vehicle. Smith does not challenge the validity of the traffic stop, but only whether the officers had reasonable suspicion to extend the traffic stop beyond the issuance of a citation, or probable cause to search his vehicle. He also does not challenge the discovery of a firearm and controlled substances on grounds independent of an unlawfully prolonged traffic stop. For the reasons that follow, the Court agrees with Smith that the government has not proven that the police officers smelled marijuana either before the end of the traffic stop or at any time thereafter, and therefore they had no permissible reason to further detain or search him or his vehicle. As a result, the undersigned
The following facts are undisputed, or are found by the Court. At 5:52 p.m. on April 30, 2011, then-DeKalb County Police Department ("DKPD") Officer Courtney Sutherland
Sutherland approached the driver's side of the vehicle, explained to Smith the reason for the stop, and asked for Smith's driver's license, which he produced. T15, 20, 43. The front windows of the Malibu were down. T42. Sutherland saw that Durden was smoking a cigarette. T16.
DKPD Officer D.A. Asberry
Sutherland again approached the Malibu to issue the citation to Smith. T16, 60. Sutherland stood at the driver's side, while Asberry went to the rear passenger window. T27. Sutherland did not lean into the vehicle. T44. By this time, Durden had extinguished the cigarette. T41, 59.
Sutherland testified that at some point shortly thereafter she smelled marijuana coming from the Malibu. However, as detailed below, exactly at what point during the encounter she smelled marijuana—if she did indeed smell marijuana during this encounter—is not clear. Asberry also testified that he smelled marijuana, but, as discussed below, it is unclear when—or if—he did. At some point, the officers switched positions, with Asberry going to Smith's side of the Malibu and Sutherland going to Durden's side. T51. Sutherland testified that Smith was asked if he had any drugs in the vehicle and denied that he had any. T9. Asberry testified that after the officers switched positions, he advised Smith and Durden that they (the officers) smelled marijuana, and that he asked Smith and Durden if there were any drugs or firearms in the Malibu and whether the officers could search the car. T51, 60, 63-64.
Smith and Durden were removed from the Malibu in preparation for the canine to sniff it. T10, 52. Asberry frisked Smith and then Sutherland frisked Durden for weapons. T10, 52-53, 54. Asberry discovered a loaded firearm magazine in Smith's right front pocket. Id. Asberry asked Smith where was the weapon that went with that magazine, and Smith replied that it was in the vehicle between the driver's seat and the console. T11, 53.
DKPD Officer Summe and his dog Rocky
The officers' testimony was internally inconsistent on certain material facts, and on certain other material facts, their testimony conflicted.
1(a). First, and foremost, both officers gave internally inconsistent testimony as to when they first detected the smell of marijuana. Sutherland first testified on direct examination that she was "going to issue the citation, and smelled the smell of marijuana." T16.
However, on redirect examination, Sutherland testified that "[a]t the same time where I am talking to him and telling him the reason for the ticket and how to take care of it, I'm also able to smell and detect," agreeing that at that point she had not "finally handed him the ticket." T33. Then, on re-cross examination, she testified as she had on direct examination that she smelled marijuana while she was talking to Smith about the citation. T35-36, 36-37 ("I was in the process of issuing it, telling him what he was being cited for, the court date, and if he wanted to take care of the ticket and having him sign," and instead of stopping the citation-issuing process upon smelling marijuana, she continued to complete the issuance of the citation).
In summary then, Sutherland testified that she first smelled marijuana coming from the Malibu (1) when she returned to the Malibu to issue the citation, (2) after she handed Smith his signed copy of the citation, and (3) while she was talking to Smith but prior to handing him the citation. While there might only be a subtle difference between the first and third statements, the first statement implies that Sutherland smelled marijuana earlier in the encounter than the third statement.
1(b). Like Sutherland, Asberry's testimony about when he first smelled the odor of marijuana was not consistent. First, he testified on direct examination that once Durden put out her cigarette,
2. Although both officers testified that Asberry told Sutherland that cigarette smoke was commonly used to mask the odor of marijuana, their testimony about that conversation diverged considerably. Sutherland testified that she was still filling out the citation in her vehicle when Asberry arrived. T23. She stated that Asberry exited his vehicle and came to her vehicle, where she advised him that the reason for the traffic stop was Smith's suspended registration. T16, 23, 56. Sutherland testified that at this time, unsolicited by anything she stated to Asberry and while she was still in her vehicle, Asberry told her that cigarette smoke is commonly used to mask the smell of marijuana. T39-40, 43-44.
Asberry's testimony was different. He testified that while Sutherland was still "issuing the [traffic] citation," she joined him at the rear of the Malibu and told him that when she was issuing the citation she smelled marijuana, and it was at that point he explained to her than in his experience, "people will light cigarettes or cigars, things like that, to try to mask the odor of marijuana from their vehicle." T50. It is not clear from this testimony whether Sutherland took a break from the encounter with Smith involving the citation, or had completed the traffic citation portion of the encounter at the time. See item 6 infra. Regardless, Sutherland's testimony on this point was considerably different from Asberry's.
3. The officers's testimony also significantly differed in their descriptions of Smith's demeanor. Asberry testified that while Sutherland finished her paperwork in her vehicle, he remained on the passenger side of the Malibu, between the front and rear doors, engaging Smith and Durden in general conversation, including about where they were coming from and their destination, in order "to make them feel more at ease." T50, 58-59, 63. By this time, Durden had stopped smoking the cigarette. T59. Asberry was close to the interior of the vehicle, although his head was not inside the Malibu. T58. Asberry observed that Smith appeared "pretty nervous," stating that he saw Smith's chest "rise and fall like he was — actually his heart palpitations, watching them rise and fall, he's becoming extremely nervous." T50.
In contrast, Sutherland described Smith as compliant with her directions. She testified that he did not offer any additional information and made minimal eye contact, but she described it as an "average stop." T43. She did not testify about any nervousness on the part of Smith. See Evidentiary Hearing Transcript. Furthermore, Sutherland described no verbal contact with Asberry after her initial meeting with him at her police car, stating only that subsequent to that, they were not having verbal communication, only "possible eye contact." T27.
5. Sutherland testified that, upon smelling marijuana, she asked Smith whether he had any drugs in the car, but then she acknowledged on cross-examination upon being shown her post-arrest report that it was Asberry who posed that question to Smith. T9, 37. Asberry also testified that he asked Smith whether he had any drugs (and weapons) in the vehicle. T50-51.
6. As noted in item 2 supra, Asberry did not clearly testify about the occurrence and chronology of certain events and conversations with Sutherland, and thus while his testimony was generally more detailed than Sutherland's, his testimony does not satisfy the government's burden either. For example, Asberry testified on re-cross examination that after Sutherland "issued the citation" that Sutherland came to the rear of the Malibu and they concurred about the odor of marijuana. See T71-72. However, earlier he testified on cross-examination that once Sutherland "issued the traffic citation" to Smith and the officers switched positions at the rear of the Malibu, he could not recall whether he and Sutherland had a conversation at the rear of Smith's vehicle. T61. He also testified about conversing with Sutherland after she issued the citation, but he denied that this conversation occurred when the officers crossed paths while going to opposite sides of the Malibu. T73.
Further facts will be discussed where necessary in the Discussion section.
Since the government bore the burden of proof, the Court assigned it the opening brief. The government argues that the stop was not impermissibly prolonged because in the course of Sutherland issuing the traffic citation, Sutherland and Asberry both smelled marijuana emanating from inside the vehicle. [Doc. 24 at 9]. Therefore, it argues, because the officers had reasonable suspicion that marijuana was in the vehicle, they officers properly (1) asked Smith if he had any weapons or drugs; (2) asked for consent to search the vehicle; (3) requested a narcotics detection canine to come the scene; (4) had the canine conduct a sniff of the vehicle which resulted in the canine alerting to the driver's side door and the driver's seat; and (5) searched the vehicle and recovered the drugs. [Id.]. It also contends that the duration of the stop (twenty-five minutes according to the government, thirty-to-forty-one minutes according to Smith) was reasonable since the Eleventh Circuit has upheld even longer stops. [Id. at 10 (citations omitted)].
The government next argues that Asberry had reasonable suspicion that permitted him to frisk Smith for weapons, given that the officers smelled marijuana and Smith appeared overly nervous. [Id.]. It then argues that the vehicle was properly searched because the officers' detection of the smell of marijuana gave rise to probable cause sufficient to justify the search of the vehicle. [Id. at 10-14]. Alternatively, the government argues that even if the frisk was unlawful and the Court concludes that the officers' smelling marijuana did not give rise to probable cause to search the vehicle, the firearm and controlled substances inevitably would have been found once the drug-detecting canine alerted, and the firearm magazine would have been found during a search of Smith incident to his lawful arrest. [Id. at 15-16].
In his response, Smith argues that the police officers' testimony about smelling marijuana lacked credibility and trustworthiness, and as a result, they were not authorized to extend the traffic stop beyond the investigation of and citation for the suspended registration. Therefore, he argues, the discovery of the firearm and controlled substances is tainted and must be suppressed from his trial. [Doc. 27 at 1-2].
In support, amongst arguments about inconsistencies that either do not exist or are irrelevant,
Next, Smith contends that Sutherland's testimony about when she first detected the marijuana smell is not credible because although she testified she smelled it before she issued the traffic citation to Smith, she did not question Smith about the marijuana smell until after she issued the citation. [Id. at 4-5]. He also submits that Sutherland testified inconsistently about when Asberry offered advice about the use of cigarette smoke to mask marijuana odor. [Id. at 5-6]. Finally, he argues that contrary to Asberry's testimony, Sutherland did not testify as to Smith's nervousness (describing him as compliant, and not offering much eye contact but describing the stop as average), nor did she relate being advised by Asberry to keep an eye on him because of his nervousness, as Asberry testified he told her. [Id. at 7].
Smith also argues that Asberry testified inconsistently and contrary to Sutherland on critical events. First, he points out that Asberry testified that when he arrived, Sutherland was speaking with Smith, so Asberry took up his position near the passenger side of the Malibu, but that Sutherland testified that Asberry appeared when she was writing out the citation in her patrol vehicle. [Id. at 8].
Second, he notes that Asberry testified that Sutherland interrupted her interaction with Smith and conferred with Asberry at the rear of the Malibu, and that at that time Sutherland told Asberry that she smelled marijuana and he explained to her that cigarettes are used to mask the odor of marijuana. However, Sutherland described Asberry's cigarette-smoke statement as being made upon Asberry's arrival and without any prompting and comments by her. In addition, Sutherland did not testify as to any further conversations with Asberry about marijuana smell even after she detected it. [Id. at 9, 17 (citing T43)].
Third, he points out that Asberry testified about telling Sutherland to be wary of Smith because of his nervousness, but Sutherland did not testify about any such nervousness or warning from Asberry. [Id. at 9-10, 17-18, 19].
Besides arguing that Asberry's testimony contradicted Sutherland, Smith also argued that Asberry's testimony contradicted Asberry's own testimony. Specifically, Smith points out that on re-cross-examination, Asberry testified that he did not smell marijuana until he went to Defendant's side of the Malibu, contradicting his direct and re-direct examination testimony that he first smelled marijuana while at Durden's side of the Malibu. [Id. at 12]. Smith also notes that Asberry's testimony is further suspect because he claimed that after being given the citation, Smith was free to leave the scene and no contrary instructions were given to him (see T72-73), even though by that point, at least one of the officers claimed to have smelled marijuana. [Doc. 27 at 11, 22].
Smith also argues that the Court should credit Durden's testimony as accurately reflecting the encounter between the officers and Smith. [Id. at 23]. Specifically, Durden testified that, without the officers switching sides, Asberry asked Smith if he had any drugs or weapons in the car, and when Smith stated there were none, Asberry asked if he was sure and would he mind, then, if Asberry checked since he was saying that nothing was in the car. T81, 87. Smith responded that he did not consent to a search, after which Asberry stated "I think I smell some marijuana, so you sure I can't search? You sure you don't want me to search?" T82; see also T87-88. Durden testified that after that, Asberry stated that if Smith did not consent, he would call a drug dog. T82.
In reply, the government argues that despite some differences in the officers' testimony, which the government argues is to be expected, the totality of circumstances supports a conclusion that the officers smelled marijuana and thus had probable cause to search the vehicle. [Doc. 28 at 1-2]. It points to several cases where judges' credibility determinations were upheld against arguments that the officers' testimony lacked credibility, [id. at 4-5 (citations omitted)], and cites to this Court's R&R in United States v. Gonzalez, Criminal Action File No. 1:09-CR-00371-TWT/AJB, 2010 WL 2721882, at *6-8 (N.D. Ga. May 25, 2010) (R&R), adopted 2010 WL 2721540 (N.D. Ga. July 7, 2010), where the police officer's testimony was found credible although it contained inconsistencies. [Doc. 28 at 5]. It argues that despite the inconsistencies, among the uncontroverted facts is the officers' smelling of marijuana, which gave rise to probable cause. [Id. at 6 (citing T8, 16, 21, 28, 33, 35-36, 38, 49-50, 72) & n.3].
The Fourth Amendment protects people against unreasonable government searches and seizures that intrude on their reasonable expectations of privacy. U.S. Const. amend. IV; Florida v. Jimeno, 500 U.S. 248, 250 (1991); United States v. Place, 462 U.S. 696, 706-07 (1983). Accordingly, a search or seizure must normally be conducted under the authority of a court-issued warrant, supported by a finding of probable cause to believe that evidence of a crime will be found in the targeted location. Skinner v. Ry. Labor Execs' Ass'n, 489 U.S. 602, 619 (1989); Mincey v. Arizona, 437 U.S. 385, 390 (1978). "`[S]earches conducted outside the judicial process . . . are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.'" Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted)); see also United States v. Campbell, 920 F.2d 793, 795 (11
"Upon a motion to suppress evidence garnered through a warrantless search and seizure, the burden of proof as to the reasonableness of the search rests with the prosecution. The [g]overnment must demonstrate that the challenged action falls within one of the recognized exceptions to the warrant requirement, thereby rendering it reasonable within the meaning of the fourth amendment." United States v. Freire, 710 F.2d 1515, 1519 (11
In Carroll v. United States, 267 U.S. 132, 153 (1925), the Supreme Court established an exception to the warrant requirement for searches of automobiles and other moving vehicles. Under the "automobile exception,"
A traffic stop must last "no longer than is necessary to effectuate the purpose of the stop," and "the scope of the detention must be carefully tailored to its underlying justification." United States v. Pruitt, 174 F.3d 1215, 1220 (11
Moreover, while "`[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment,'" Gonzalez, 275 Fed. Appx. at 933 (quoting Illinois v. Caballes, 543 U.S. 405, 410 (2005)), "a Fourth Amendment violation would occur if police conducted a dog sniff and uncovered contraband while an individual was unlawfully detained, e.g. `during an unreasonably prolonged traffic stop[.]'" See Gonzalez, id. (quoting Caballes, 543 U.S. at 407-08) (emphasis in Gonzalez).
"Credibility determinations are typically the province of the fact finder because the fact finder personally observes the testimony and is thus in a better position than a reviewing court to assess the credibility of witnesses." Ramirez-Chilel, 289 F.3d at 749. A court, as fact finder, evaluates the credibility of a witness by considering, inter alia, the internal consistency of the witness's testimony, the witness's candor, the witness's demeanor on the stand, and the interests of the witness. See id.; see also Gallego v. United States, 174 F.3d 1196, 1198 (11
The issue in this case is whether the government proved that the officers smelled marijuana emanating from Defendant's automobile either during or immediately after detaining him for a traffic violation, sufficient to prolong the stop in order (1) for a drug detection canine to be dispatched to the scene, and (2) to remove Smith from his vehicle, which actions resulted in discovery of the firearm and, ultimately, the controlled substances which form the bases of the charges in this case. The Court concludes that the government has not satisfied its burden.
As noted, the government bears the burden of showing that it is more likely than not that the officers smelled marijuana. However, each government witness testified inconsistently as to when marijuana was first smelled. First, Sutherland went back and forth about when she first smelled marijuana. Although she mainly stated that it was during the course of speaking with Smith prior to the conclusion of the citation process, she also testified that she did not smell marijuana until she had completed the traffic citation process and had given Smith his copy of the citation. The government did not attempt to explain this direct inconsistency, except by arguing that inconsistencies between the two officers' testimony could be expected. However, in this case, it is not just Sutherland's testimony differing with Asberry's; it is Sutherland's testimony differing with other portions of Sutherland's testimony. Obviously, if Sutherland smelled marijuana while the traffic stop was ongoing, then she was justified in continuing the initial detention at least temporarily until her suspicions were either confirmed or dispelled. United States v. Garcia-Aleman, No. 1:10-CR-29, 2010 WL 2635071, at *1 (E.D. Tex. June 9, 2010), adopted by 2010 WL 2635073, at *1 (E.D. Tex. June 30, 2010) ("[I]f additional reasonable suspicion arises in the course of the stop and before the initial purpose of the stop has been fulfilled, the detention may continue until the new reasonable suspicion has been dispelled or confirmed.") (citations omitted). If, on the other hand, she smelled it after the traffic stop was concluded, i.e., after she handed the signed citation to Smith, then the Court would employ different analysis, that is, whether there was reasonable suspicion justifying the additional detention. The government essentially asks the Court to pick one, because under either scenario the officer could continue to detain Smith, but it does not offer an explanation for the inconsistency in Sutherland's testimony. Thus, the Court is left wondering whether Sutherland smelled marijuana at all. Since the government has the burden of establishing the facts and establishing that the warrant exception applies, the Court is unwilling to accept such inconsistencies as satisfying the government's burden.
A number of other facts also support the Court's rejection of Sutherland's testimony. First, she testified that Asberry told her, unprompted by any other discussion with him or comment she made, that cigarette smoke is commonly used to mask the odor of marijuana. Simply stated, that testimony did not make sense. While Asberry testified that he told Sutherland about the odor-masking effect of cigarette smoke after he claimed to have smelled marijuana, he did not testify that his comment to Sutherland was unprompted. Sutherland's testimony on this point leads the Court to skeptically evaluate other portions of Sutherland's testimony, which was based on her memory of the sequence of important events during the traffic stop. While the Court can, as argued by the government, expect certain inconsistencies to occur between even the most trustworthy and straightforward witnesses, Sutherland's recollection of the circumstances of when Asberry told her about the use of cigarette smoke to mask marijuana odors simply did not ring true.
Second, a number of direct questions to Sutherland were answered in an unnecessarily indirect manner, causing the Court to suspect that she was giving evasive answers. For example, the Court tried to determine whether Sutherland's reason for performing the traffic stop on the Malibu was limited to the suspended registration, which called for a "yes" or "no" answer. The Court received a "no" answer only after asking three questions:
T42 (emphasis added). The italicized answers were deemed by the Court at the time they were given as not forthcoming, at best. The first two questions called for "yes" or "no" answers, and giving due regard to the stilted formalistic way some police officers testify, the Court formed the distinct impression that the whole truth was not being asserted.
Third, while the above example suggests that Sutherland was giving hypertechnical nuanced responses to direct questions, the Court is also concerned by other instances in Sutherland's testimony that reflect a lackadaisical approach to accuracy. Besides her inconsistent testimony about when she first smelled marijuana, Sutherland appeared not to be bothered at all by first testifying that she asked Smith for consent, but then, upon being shown her report, acknowledging that Asberry asked Smith for consent. T9, 37. The Court is aware that it is not uncommon for witnesses to be impeached by their earlier written statements or prior testimony due to either the passage of time, a simple mistake or confusion. Like Sutherland's inconsistent testimony about when she first smelled the marijuana, however, her manner of testifying on this point struck the Court as not trying to offer accurate and truthful testimony despite the passage of time, but simply casually throwing out answers and not giving her testimony, and the oath that preceded it, the sanctity its deserved.
Fourth, as noted supra n.5, Sutherland wrote in her post-arrest report that she observed a scale in the Malibu when she first approached it. See Govt. Ex. 8. While the Court initially viewed Sutherland's failure to describe that critical piece of evidence as an oversight either of the witness or government counsel, on cross-examination, Sutherland acknowledged that she looked in the vehicle for contraband in plain view and denied seeing any. This significant omission from her testimony after being included in her post-arrest narrative also causes the Court to question the accuracy of her recollection and her post-arrest report.
Fifth, Sutherland did not testify either that Smith exhibited any level of nervousness (slight, mild, extreme), nor did she recount that Asberry told her to be wary of him because he was nervous. The events as proffered by the government's theory of the case certainly would have given Sutherland a much greater opportunity to observe Smith's demeanor and attitude, but she described Smith as compliant and the traffic stop as average.
Thus, the Court cannot state that the government established when, or if, Sutherland smelled marijuana sufficient to prolong the traffic stop.
The Court now turns to Asberry's testimony. Like Sutherland, his testimony about when he first smelled marijuana was inconsistent. He testified—the majority of the time—that he smelled marijuana for the first time while at Durden's side of the Malibu after her cigarette was extinguished. However, he also clearly and unambiguously testified that he smelled marijuana the first time when he switched sides with Sutherland and was on Smith's side of the car, only to take it back when shown his post-arrest written narrative. T69-70. Again, the government attempts to justify this inconsistency as one to be expected, but its argument goes to inconsistencies in testimony between multiple witnesses, not a single witness. Further, the government did not seek to have Asberry explain this inconsistency, nor does the government offer a compelling argument why the Court should ignore it. Moreover, Asberry did not clearly describe for the Court conversations that he had with Sutherland. See infra at 14.
In addition, the Court views the officers' testimony skeptically due to the differences in the way they describe Smith's demeanor. As noted, Sutherland did not testify that Smith was overly nervous or that Asberry warned her of Smith's nervousness, contrary to Asberry's testimony. Instead, Sutherland described Defendant as compliant and the stop as average. The Court recognizes that two witnesses can have different perspectives even from the same vantage point, but the government did not explain this inconsistency in its witnesses' testimony.
The government's citation to Eleventh Circuit cases upholding magistrate judge or district judge credibility determinations are not instructive here. The undersigned's Report and Recommendation in Gonzalez, 2010 WL 2721882, is helpful, but not in the manner in which the government seeks. In Gonzalez, the defendant attacked a search warrant affiant's credibility. Id. at *6. The Court found the affiant officer to be credible because the information he relayed in his affidavit, as well as his testimony at the hearing, was based on information conveyed to him through officers at the scene of the investigation, through an intermediate officer, resulting in the "real life counterpart to the telephone game." Id. at *7-9.
In the current case, the Court is not entirely discounting the officers' credibility based on inconsistencies between their respective testimony. With the exception of the contradiction between Sutherland and Asberry as to Smith's nervousness and when Asberry commented about the masking effect of cigarette smoke, the Court's overarching concerns are the internal inconsistencies in each officer's own testimony, and the lack of any explanation as to the reasons for those inconsistencies.
The Court recognizes that Durden acknowledges that Asberry stated to Smith and her that he smelled marijuana and that was why he wanted to search the vehicle. That testimony offers some corroboration that the officers did in fact smell marijuana at the time, but Durden also testifies that the marijuana smell was not brought up until after Smith was asked whether there were drugs in the car and denied consent to search it. T81-82. Given the inconsistencies in Sutherland and Asberry's testimony noted above, this testimony is not sufficient to satisfy the government's burden. Moreover, the fact that Asberry may have made this statement to Smith and Durden does not necessarily mean that he in fact smelled the marijuana.
As a result, the Court concludes that the government did not satisfy its burden to show that the officers has reasonable suspicion to prolong the traffic stop beyond the time necessary to deal with investigating the suspended registration, because the Court does not find credible the officers' testimony about smelling marijuana.
The government proffers no reason other than the preparation for the drug detection dog's arrival in support of removing Smith from the vehicle and frisking him. Thus, since the government did not satisfy its burden of showing reasonable suspicion that the officers smelled marijuana sufficient to continue to detain Smith for the drug detection dog's arrival, Smith's removal from the vehicle, his pat down and the discovery of the firearm do not provide independent grounds for the search of the Malibu.
"To justify a patdown of the driver or a passenger during a traffic stop, . . ., just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." Arizona v. Johnson, 555 U.S. 323, 327 (2009). Even if the Court credits the evidence that Smith was overly nervous, courts have found that mere nervousness is insufficient to justify a Terry detention, much less a frisk for weapons. United States v. Spinner, 475 F.3d 356, 360 (D.C. Cir. 2007) ("[T]he suspicion that someone is armed . . . must be based upon something more than his mere nervousness. A person stopped by the police is entitled to be nervous without thereby suggesting he is armed and dangerous."); United States v. McKoy, 428 F.3d 38, 41 (1st Cir. 2005) ("It is simply not reasonable to infer that a driver is armed and dangerous because the officers believe that he appears nervous and reaches toward the car's console when approached by police, even in a high-crime neighborhood."); United States v. Mesa, 62 F.3d 159, 162 (6
For all the reasons stated above, the undersigned
Further, Smith argues that Sutherland's credibility is somehow compromised because she testified that she could not recall exactly what Asberry asked Smith. [Id. at 8]. The Court does not agree that Sutherland's testimony (or lack thereof) about the conversation between Smith and Asberry implicates her credibility. Since he does not make any argument as to how this example reflects on Asberry's credibility, the Court will not further address this claim.
Smith also argues that Sutherland's credibility is suspect because she testified on cross-examination that the odor of marijuana was "strong," a description she did not use at any other time during her testimony. [Id. at 4]. However, the Court observes that Sutherland described the marijuana odor as "strong" in her post-arrest report. Govt. Ex. 8. The Court does not find that this contention undermines Sutherland's credibility.
Second, Defendant's argument relies on what ultimately was discovered, which is an improper basis for resolving Fourth Amendment issues. Bumper, 391 U.S. at 548 n.10 (search not justified by what it turns up); Di Re, 332 U.S. 581, 595 (1948) (same); Byars v. United States, 273 U.S. 28, 29 (1927) ("A search prosecuted in violation of the Constitution is not made lawful by what it brings to light[.]"); Pace v. Beto, 469 F.2d 1389, 1391 (5
