BETH PHILLIPS, District Judge.
This case comes before the Court on Defendant Lonnie T. Black's Motion to Suppress Evidence and Statements. (Doc. 18.) United States Magistrate Judge Robert E. Larsen has recommended that this Court enter an Order granting Defendant's Motion. (Doc. 27.) The Government filed objections to the Report and Recommendation. (Doc. 28.)
The Court adopts and incorporates the Background and Evidence included in Magistrate's Report and Recommendation. (Doc. 27, pp. 1-8.) For the reasons stated in the Report and Recommendation, the Court agrees that there was no violation of municipal ordinance 70-849(a), and that it was not objectively reasonable for the officers to believe the ordinance had been violated. Therefore, violation of municipal ordinance 70-849(a) does not create reasonable
In its objections to the Report and Recommendation, the Government argues that Judge Larsen's analysis improperly focuses on whether the officers had a reasonable suspicion to stop Defendant. The Government argues the focus of the analysis should instead be on whether the officers had a reasonable suspicion to stop the vehicle. However, in both of the cases relied on by the Government, the officers had a reasonable suspicion that the driver and/or occupants were engaged in criminal activity, although they didn't know the identity of the driver or see exactly what transpired in the vehicle prior to the stop. Therefore, the Court finds that under Eighth Circuit law, officers must have a reasonable suspicion that the driver is engaged in criminal activity before initiating an investigatory stop, not simply a reasonable suspicion that the car is used for criminal activity. Because the officers in this case did not have a reasonable suspicion that Defendant was engaged in criminal activity at or near the time of the investigatory stop, the stop violated his rights under the Fourth Amendment to the United States Constitution.
In the first case relied upon by the Government, United States v. Bustos-Torres, 396 F.3d 935, 939 (8th Cir.2005), officers witnessed a probable drug deal between a suspected drug dealer and the driver of a vehicle. Shortly thereafter, they saw the suspected drug dealer enter a second vehicle and, after a few minutes, leave the vehicle. Id. at 939-940. Officers used this information to conduct an investigatory stop of the second vehicle. Id. The Government is correct in concluding the Eighth Circuit found the officers had reasonable suspicion to conduct the stop despite the fact they had no information about the vehicle or its occupants and did not know exactly what occurred while the suspect was in the second vehicle. However, there are a number of differences between the facts of Bustos-Torres and the facts of this case. First, the events of the first probable drug deal immediately proceeded the events of the second probable drug deal. Second, events of the first probable drug deal were almost identical to the events of the second probable drug deal. Third, the second vehicle was stopped immediately after the suspected transaction. These facts caused the Eighth Circuit to conclude the officer reasonably believed the vehicle and the occupants of that car were involved in criminal activity. Id. at 943. ("an experienced narcotics officer reasonably would have believed the second car, like the first, was likely on the scene to buy drugs.")
Similarly, in United States v. Coleman, 603 F.3d 496, 500 (8th Cir.2010), officers observed a car stopped illegally and blocking traffic in an area of known drug trafficking. They saw an individual known to engage in drug activity leave his car and enter the defendant's car. Id. An occupant of the defendant's car then exited the car, removed something from the trunk and returned to the car. Id. In finding the officers had a reasonable suspicion to conduct an investigatory stop, the Eighth Circuit held that "[e]ven if an officer cannot see an actual drug exchange, the totality of the circumstances may still give rise to reasonable suspicion of criminal activity." Id. However, similar to the analysis in Bustos-Torres, the Court found it relevant that the officer's observations connected the driver of the vehicle to a drug transaction and supported the officer's reasonable suspicion that criminal activity "was afoot." Id.
After an independent and careful review, the Court
ROBERT E. LARSEN, United States Magistrate Judge.
Before the court is defendant's motion to suppress evidence on the ground that the stop of his vehicle was not supported by reasonable suspicion. I find that (1) air fresheners hanging from a rearview mirror did not constitute a violation of municipal ordinance 70-849(a), (2) the officers' mistake of law was not objectively reasonable, and (3) the stop of defendant's car was not supported by reasonable suspicion that illegal drugs would be found in the car. Therefore, defendant's motion to suppress should be granted.
On June 14, 2013, Officer Whetro pulled defendant over for having an object hanging from his rear view mirror. Officer Whetro believed this was a violation of a municipal ordinance. Once defendant had been pulled over, Officer Whetro smelled marijuana coming from defendant's car
On February 13, 2014, an indictment was returned charging defendant with one count of possessing a firearm after having been convicted of a felony and one count of possessing a firearm while an unlawful user of a controlled substance. Defendant filed the instant motion to suppress on January 15, 2015. On January 26, 2015, the government filed a response, arguing that it was objectively reasonable for Officer Whetro to believe that the air fresheners he saw hanging from defendant's rear view mirror constituted a violation of the ordinance, and alternatively arguing that the stop was supported by reasonable suspicion that illegal drugs would be found in the car.
On January 28, 2015, I held an evidentiary hearing on defendant's motion to suppress. The government appeared by Assistant United States Attorney Jess Michaelsen. The defendant was present, represented by Assistant Federal Public Defender Travis Poindexter. The following witnesses testified:
1. Officer Slade Whetro, Kansas City, Missouri, Police Department
2. Officer Dain Apple, Kansas City, Missouri, Police Department In addition, the following exhibits were admitted:
On the basis of the evidence presented at the suppression hearing, I submit the following findings of fact:
1. In June 2013, Officer Slade Whetro had been on the job for approximately two months and was still on patrol with a field training officer (Tr. at 6, 37). His patrol area included the intersection of 57th Street and Prospect Avenue in Kansas City (Tr. at 6). At that intersection is an auto detailing shop (Tr. at 8-9). The shop would wash and detail cars as opposed to performing body or mechanical work (Tr. at 9).
2. Officer Whetro had been told by several sources that someone at the auto detailing shop was selling PCP, cocaine, marijuana and guns out of the shop (Tr. at 9, 67). Two of the individuals providing this information had just left the auto detailing shop prior to providing the information (Tr. at 10). They had been stopped by Officer Whetro for traffic violations after leaving the shop, and the individuals were found to be in possession of illegal drugs (Tr. at 10, 54). A third person was in a car wreck and told Officer Whetro about the car detailing shop (Tr. at 10). Two other individuals who had small traffic
3. Officer Whetro began watching the shop with a pair of binoculars (Tr. at 11). He would park his car near the shop and watch it, and also watch vehicles coming and going from the shop (Tr. at 11, 68). He observed that vehicles would sometimes back into the shop, the garage door would be pulled down, and 5 to 15 minutes later the cars would leave and head southbound on Highway 71, which is about a block east of the shop (Tr. at 11, 55).
4. On several occasions, Officer Whetro drove by the auto detailing shop while a vehicle was inside the garage (Tr. at 12). Immediately upon seeing the patrol car, the individuals inside would run to the garage door and pull it down, or they would quickly go inside the business, providing the impression they did not want to be seen by the police (Tr. at 12, 69).
5. Officer Whetro ran the license plates of some of the cars that had gone in and out of the auto detailing shop (Tr. at 12). He learned that several of the vehicles were rental cars, and they too would stay at the shop only 5 to 15 minutes (Tr. at 13, 54, 68). Officer Dain Apple (Officer Whetro's field training officer) is aware that people sometimes use rental cars when conducting illegal drug transactions (Tr. at 85-86). Officer Apple observed cars parked along the streets by the shop as well as in parking lots on the north side and southeast of the shop, and the occupants of those cars would walk to the detail shop (Tr. at 69). Pedestrians were observed going into the auto detail shop (Tr. at 68).
6. Defendant's car, a Dodge Magnum, had been seen at the auto detailing shop on each of three days prior to his arrest (Tr. at 12, 22). On those days, Officer Whetro observed defendant's car at the shop, then he observed that the car was gone, and then he would observe the car at the shop again (Tr. at 12). He actually saw defendant's car coming and going from the shop (Tr. at 15). In weeks leading up to defendant's arrest, Officer Whetro had seen defendant's car at the shop, either parked across the street or parked in front of the shop, at least every other day (Tr. at 12-13, 14, 22). Officer Whetro never saw any difference in the car — "there was never any damage or any repairs made on the outside" (Tr. at 15). During the week before defendant's arrest, Officer Apple, Officer Whetro's field training officer, had observed defendant's car parked on the streets or in the parking lots around the auto detail shop, and he had observed defendant in the shop and coming and going from the shop (Tr. at 70-71).
7. Defendant was never seen in his car — his windows were tinted and Officer Whetro could only observe that he was male (Tr. at 14, 60). Officer Apple testified that he did not know who was operating the vehicle, that "we weren't able to tell who was the driver" (Tr. at 72). The license plate on the car was registered to a woman (Tr. at 16). Police use the REJIS system to run license plates and individuals — it can indicate whether license plates are registered to the car on which they are displayed, it can pull up Department of Revenue information about a vehicle and its owner, and it can pull up warrants (Tr. at 16-17). REJIS can be accessed from patrol cars (Tr. at 16).
8. Officer Whetro ran the license plate for defendant's car on June 11, 2013, at 4:08 p.m. (Tr. at 18-19). There were no active warrants for anyone associated with the car (Tr. at 19). Officer Whetro ran the license plate again that same day at 8:55
9. Officer Whetro had come to suspect that the person in the Dodge Magnum was involved in some illegal activity associated with the auto detailing shop (Tr. at 59).
10. At approximately 8:00 p.m., on June 14, 2013, Officers Apple and Whetro were traveling southbound on Highway 71 and then turned westbound onto 53rd Street (Tr. at 22, 34, 73). They saw the Dodge Magnum facing eastbound on 53rd Street, preparing to turn southbound onto Highway 71 (Tr. at 22, 44, 73). The officers saw "a bunch of air fresheners" hanging from defendant's rear view mirror (Tr. at 23, 44, 73). This was the first time Officer Whetro had seen air fresheners hanging from defendant's rear view mirror (Tr. at 23-24). He could not tell how many air fresheners were hanging from the mirror, but the group of them was approximately three to four inches thick (Tr. at 24). The air fresheners were shaped like trees (Tr. at 24).
11. In Officer Apple's experience, people who use drugs in their cars often have one or more air fresheners in their cars to mask the smell of drugs (Tr. at 70). When one air freshener becomes weak, they add more fresheners (Tr. at 70). Officer Apple was driving the patrol car on this day with Officer Whetro as a passenger (Tr. at 34). Based on his training and experience to date, Officer Whetro believed that the stack of air fresheners interfered with defendant's view of the street (Tr. at 25). Officer Apple also believed that the air fresheners constituted a violation of a Kansas City ordinance because it constitutes vision blocking material on the windshield or windows of the vehicle (Tr. at 74). Officer Apple drove south to 55th Street and they sat there for a little bit waiting for defendant's car to pass that street (Tr. at 23). Officer Whetro eventually observed defendant pass 55th Street on Highway 71 (Tr. at 23). Officer Apple drove the patrol car out onto Highway 71 and attempted to catch up with defendant's car which took a while because of all the traffic (Tr. at 23). He stopped defendant's car on Highway 71 southbound at approximately Gregory
12. Officer Whetro approached defendant's car and, as he was speaking with defendant, smelled the odor of marijuana emanating from the car (Tr. at 34, 35, 52-53). Officer Whetro got defendant's driver's license and gave it to Officer Apple who returned to the patrol car to run the license through REJIS (Tr. at 34, 78). He learned that defendant had several active arrest warrants and that his driver's license had been suspended (Tr. at 36, 79). Defendant was removed from his car and placed in handcuffs (Tr. at 36). A search of defendant's person produced a bag of cocaine, found in his left front pocket (Tr. at 36-37, 79). A drug dog was called; and when the dog performed a sniff search of the car, it alerted positively to the front windshield area of defendant's car (Tr. at 36, 79). A bag of marijuana was found in the headliner area of the vehicle right above the driver's seat (Tr. at 36, 80). During a search of the vehicle, officers recovered a gun from under the back seat (Tr. at 37, 80).
14. Officer Whetro had not received any instruction on writing tickets for air fresheners as violations of that ordinance, but his field training officer indicated that it was fine to write the ticket and said that he had written several such tickets prior to that day (Tr. at 26, 76). Officer Whetro had issued one ticket prior to that day for another individual who had an air freshener hanging from a rear view mirror (Tr. at 26, 47).
15. Prior to June 14, 2013, it was Officer Whetro's understanding that section 70-850 dealt with windshields being obstructed with things such as dark tint (Tr. at 30, 46). He believed that Section 70-849 precludes not only air fresheners but things on the dash of a car (Tr. at 45). While at the police academy, he was advised to become familiar with municipal ordinances but was not specifically taught them and was not tested on them (Tr. at 38-39, 61-62). Prior to June 14, 2013, Officer Whetro had never had any instruction or training about Section 70-849 (Tr. at 46-47). He is aware of no particular code that indicates it is improper to hang something from a rear view mirror (Tr. at 46).
The Fourth Amendment prohibits "unreasonable searches and seizures" by the government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A traffic stop constitutes a "seizure" within the meaning of the Fourth Amendment, Breudlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007), and must be reasonable under Terry v. Ohio. In general, "a traffic stop must be supported by at least a reasonable, articulable suspicion that criminal activity has occurred or is occurring." United States v. Salazar, 454 F.3d 843, 847 n. 3 (8th Cir. 2006); United States v. Ehrmann, 421 F.3d 774, 780 (8th Cir.2005), cert. denied, 546 U.S. 1122, 126 S.Ct. 1099, 163 L.Ed.2d 912 (2006). Traffic violations, however minor, create probable cause to stop a vehicle. Id.
The totality of the circumstances determines whether officers have reasonable suspicion to justify a stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). "Reasonable suspicion is a lower threshold than probable cause, and it requires considerably less than proof of wrongdoing by a preponderance of the evidence." Williams v. Decker, 767 F.3d 734, 739 (8th Cir.2014) (internal citation omitted); United States a Carpenter, 462 F.3d 981, 986 (8th Cir. 2006).
In this case, Officers Whetro and Apple testified that defendant was stopped because he had a stack of air fresheners hanging from his rear view mirror which,
(P.Ex. 6).
Although the government does not explicitly concede in its response that defendant's alleged conduct was not a violation of Section 70-849(a) ("the ordinance"), it makes no argument that the conduct does violate that ordinance. Instead, the government argues that the officers' mistaken belief that defendant was violating that ordinance was an objectively reasonable mistake.
"The Fourth Amendment tolerates only reasonable mistakes, and those mistakes — whether of fact or of law — must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved." Heien v. North Carolina, ___ U.S. ___, 135 S.Ct. 530, 539, 190 L.Ed.2d 475 (2014).
At the time defendant was stopped, Officer Whetro had been on the job for two months. Although Officer Whetro had been watching defendant's car for several weeks, defendant had never been seen in his car — his windows were tinted. Officer Whetro could only observe that the driver was male. Officer Apple did not observe defendant either: "We weren't able to tell who was the driver." On the day of defendant's arrest, the officers were turning westbound onto 53rd Street when they saw defendant's car facing eastbound on 53rd Street. The officers saw "a bunch of air fresheners" hanging from defendant's rear view mirror, approximately three to four inches thick and shaped like trees. Based on his training and experience to date, Officer Whetro believed that the stack of air fresheners interfered with defendant's view of the street.
Although defendant was issued a ticket for a violation of the ordinance, in no police report was the "obstructive material" identified or described. No pictures were taken. There is no evidence that the air fresheners were removed from defendant's rear view mirror at any time by the police. Officer Whetro was unable to recall during the hearing precisely what the obstructive material was except that he remembered it was a stack of pine-shaped air fresheners and perhaps something else (Tr. at 24).
At the outset, I find that the air fresheners hanging from the rear view mirror do not constitute a violation of the ordinance.
There are no cases in Missouri
In United States v. Murillo-Figueroa, 862 F.Supp.2d 863 (N.D.Iowa 2012), the defendant was stopped for having air fresheners shaped like trees hanging from the rear view mirror. The deputy in that case believed that the air fresheners constituted a violation of I.C.A. § 321.438.1 which states that, "A person shall not drive a motor vehicle equipped with a windshield, sidewings, or side or rear windows which do not permit clear vision." The court found that the air fresheners hanging from the rear view mirror did not constitute a violation of this ordinance and that the officer's belief that they did was not objectively reasonable:
People v. Moffitt, 2012 WL 7105557 (Ill. App., April 6, 2012), dealt with 625 ILCS 5/12-503(c) which reads:
Moffitt had been stopped for having air fresheners hanging from his rear view mirror, and he subsequently was arrested for possession of marijuana found in the car. After Moffitt challenged the reasonableness of the initial stop, the court granted his motion to suppress.
Because there were no facts explaining why the air fresheners were a material obstruction, and because the photographs of the car and the air fresheners did not appear to the court to constitute a material obstruction, the stop was found not to be objectively reasonable.
An ambiguity in the ordinance can result in a finding that a mistaken interpretation of the ordinance was objectively reasonable. For example in United States v. Martin, 411 F.3d 998, 1001 (8th Cir.2005), the ordinance (a tribal ordinance) at issue reads as follows:
Officer Keith Grube stopped Martin's car for having one non-functioning brake light. Subsequent to that traffic stop, marijuana was discovered and Martin was charged with a drug crime. He argued that because the Oglala Sioux Tribal Ordinance only requires "a" stop light and his car had one functioning brake light, he had not violated the ordinance and the officer had no objectively reasonable basis for believing the ordinance had been violated. The court disagreed:
United States v. Martin, 411 F.3d at 1001-1002 (internal citations omitted) (emphasis in the original).
In this case, there is no such ambiguity. The ordinance in this case can be violated only by something being "upon" the car window. There are myriad other jurisdictions which prohibit items between the driver and the windshield which would block the driver's view. There are also myriad other jurisdiction with ordinances worded just like the one at issue here (many of these are cited in defendant's motion). None of those jurisdictions have found the ordinances to be confusing or ambiguous. One would be hard pressed to present a plausible argument that "upon the front windshield, side wings or side or rear windows" means anything other than upon the front windshield, side wings or side or rear windows. See United States v. King, 244 F.3d 736, 740 (9th Cir.2001), interpreting an ordinance nearly identical to the ordinance at issue here: "[T]he ordinance's use of `upon' the front windshield requires placement on or in direct contact with the windshield. An object hanging elsewhere, even if in close proximity, does not trigger a violation of the ordinance."
Based on the above, I find that the air fresheners hanging from the rear view mirror did not constitute a violation of municipal ordinance 70-849(a). I further find that it was not objectively reasonable for the officers to believe that the air fresheners constituted a violation of municipal ordinance 70-849(a).
Alternatively the government argues that the police had reasonable suspicion that defendant was involved in a drug crime, which justified the stop. In fact, the bulk of the testimony at the suppression hearing dealt with the officers' suspicions that drugs and guns were being sold out of the auto detailing shop where defendant's car had been observed. The government argues that
The totality of the circumstances determines whether officers have reasonable suspicion to justify a stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). "Reasonable suspicion is a lower threshold than probable cause, and it requires considerably less than proof of wrongdoing by a preponderance of the evidence." Williams v. Decker, 767 F.3d 734, 739 (8th Cir.2014) (internal citation omitted); United States v. Carpenter, 462 F.3d 981, 986 (8th Cir. 2006).
Articulating precisely what "reasonable suspicion" means is not possible. Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). It is a commonsense, nontechnical conception that deals with "`the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). See also United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). As such, the standards are "not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. at 232, 103 S.Ct. 2317. "The Supreme Court has described reasonable suspicion simply as "a particularized and objective basis" for suspecting the person stopped of criminal activity." Ornelas v. United States, 517 U.S. at 696, 116 S.Ct. 1657 (quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Reasonable suspicion is a fluid concept that takes its substantive content from the particular context in which the standard is being assessed. Ornelas v. United States, 517 U.S. at 696, 116 S.Ct. 1657; Illinois v. Gates, 462 U.S. at 232, 103 S.Ct. 2317; Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) ("This Cour[t] [has a] long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible to Procrustean application"; "[e]ach case is to be decided on its own facts and circumstances." (internal citations omitted)). See also Terry v. Ohio, 392 U.S. at 29, 88 S.Ct. 1868 (the limitations imposed by the Fourth Amendment "will have to be developed in the concrete factual circumstances of individual cases").
The principal components of a determination of reasonable suspicion will be the events which occurred leading up to the stop, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police
The government argues that the police had reasonable suspicion to believe that defendant had participated in an illegal drug transaction and "may be in unlawful possession of a controlled substance." I disagree. Although an argument can be made that police had reasonable suspicion that illegal drug activity was going on at the auto detailing shop, they did not have reasonable suspicion to believe that defendant would be in possession of illegal drugs at the time he was stopped.
In United States v. Robinson, 119 F.3d 663, 667 (8th Cir.1997), police stopped Robinson's car as he was driving away from a known crack house. The police had an arrest warrant for one of the residents and warrants to search the house itself. The police also observed apparent drug sales on the premises: cars pulled up briefly in front of the house, exchanged something with one of the residents, and left. Police observed Robinson drive up to the suspect house, leave his car, and walk toward the residence, though the police could not see whether he entered it. Police recognized Robinson as a past drug offender with a criminal history. A reliable informant had also informed them that Robinson had recently made a large drug purchase. Two minutes later Robinson returned to his car and left. Police stopped Robinson in his car shortly after he left and found crack cocaine on his person. The court in that case held that "[a]ll of this information created a reasonable and articulable suspicion that [Robinson] had just engaged in a drug transaction" and the stop was therefore found to be lawful.
In United States v. Spotts, 275 F.3d 714 (8th Cir.2002), police had received several intelligence reports stating that Spotts was distributing methamphetamine and that he carried a 9mm handgun. Spotts was seen arriving at a drug house, getting out of his Blazer, looking under his vehicle with a flashlight, and then getting back inside and driving away. He was not seen entering the residence or speaking with anyone there. The next clay police executed a search warrant at the residence. About three hours after the search began, Spotts's Blazer returned to the scene, drove slowly past the residence, and was waved over by two uniformed troopers standing on the front lawn of the residence. Officers observed in plain view inside Spotts's vehicle a 9mm handgun and plastic bag of what appeared to be methamphetamine. In upholding that stop, the court noted that Spotts had been seen driving to and by the residence twice while it was under surveillance for suspected drug activity, police had previously witnessed at least one apparent drug sale at the residence, Spotts had been observed near the residence (although not inside) for only a short period of time which is consistent with a drug transaction, police had obtained a search warrant for the residence, and police had information from
In both of these cases, men who had been seen at places suspected of drug dealing were stopped near those residences. In this case, defendant had been seen at a place suspected of drug dealing and was stopped near that location. This, however, is where the similarities end. In Robinson and Spotts, police had obtained search warrants, requiring a probable cause determination by a judge. In this case, police had not obtained a warrant to search the auto detail shop and no judicial probable cause finding had been made. In Robinson police knew Robinson had a history of drug dealing and had been told that he recently had made a large drug purchase, and in Spotts police had received intelligence information that Spotts was distributing methamphetamine and carried a 9mm handgun. In this case, police had received intelligence information about the auto detailing shop, but none regarding defendant. Police not only had no incriminating information about defendant, they could not even say whether defendant was the person who had been driving the car on the clays when the car had been observed at or near the auto detailing shop. The uncontradicted evidence is that one officer could not see the person driving and the other officer could only tell that it was a male. There is no evidence that the same male was driving the car each time it was seen.
The evidence presented at the hearing establishes that the auto detail shop was located at 57th and Prospect. Defendant was observed by police on the day of his arrest at 53rd Street, which is north of 57th Street, and a few feet east of Prospect (P.Ex. 2). Police observed defendant head south on Highway 71. Therefore, it is not reasonable to assume that defendant had just come from the auto detail shop, for if he had, he would have then traveled four blocks north in order to turn around and head south again on the highway. Finally, defendant's car had last been seen near the auto detailing shop at 2:42 p.m. that day — well over five hours before the officers pulled defendant over for having air fresheners hanging from his rearview mirror.
Based on the totality of the circumstances, I find that the police did not have reasonable suspicion to believe that criminal activity had occurred or was occurring at the time they stopped defendant's car.
Based on all of the above, I find that (1) air fresheners hanging from a rearview mirror did not constitute a violation of municipal ordinance 70-849(a), (2) the officers' mistake of law was not objectively reasonable, and (3) the stop of defendant's car was not supported by reasonable suspicion that illegal drugs would be found in the car. Therefore, it is
RECOMMENDED that the court, after making an independent review of the record and the applicable law, enter an order granting defendant's motion to suppress.
Counsel are advised that, pursuant to 28 U.S.C. § 636(b)(1), each has 14 days from the date of this report and recommendation to file and serve specific objections.
Filed Feb. 13, 2015.
