KIM R. GIBSON, District Judge.
Pending before the Court is Defendant's Motion to Suppress Evidence and Statements. (ECF No. 121.) Defendant seeks to suppress evidence and fruits of evidence obtained during and after a search of his vehicle. Defendant asserts that he was subjected to an unlawful seizure, and that any evidence and statements recovered as a result of the seizure should be suppressed. For the reasons explained below, the Court will
This matter arises from a search of Defendant's vehicle pursuant to a warrant on April 5, 2013, and statements made by Defendant after the seizure of over one kilogram of heroin from his vehicle following that search.
On April 16, 2013, Defendant was indicted on one count of possessing with the intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i). (ECF No. 1.) On May 21, 2013, Defendant made his initial appearance, was arraigned, and pleaded not guilty. (See ECF Nos. 20, 21.)
On July 31, 2015, Defendant filed a Motion to Suppress Evidence and Statements. (ECF No. 121.) On December 3, 2015, the United States filed a response to Defendant's Motion. (ECF No. 132.) On February 24, 2015, Defendant filed a Motion for Leave to Supplement Motion to Suppress Evidence, which the Court granted the following day. (ECF Nos. 140, 141.) The proposed changes included in Defendant's Motion for Leave to Supplement were thereby incorporated in the Motion to Suppress Evidence. (See ECF Nos. 140, 141.)
On March 3, 2016, the Court held a Suppression Hearing regarding Defendant's Motion to Suppress Evidence. (See ECF Nos. 142, 144.) At the Suppression Hearing, the Government presented the testimony of one witness, Trooper First Class Michael Volk (
The Defense cross-examined the Government's witness, but did not offer any additional testimony. The Defense introduced the following exhibits into evidence: (1) A DVD copy of the dash-cam recording of the April 3, 2013, traffic stop of Deon Triplett (Def. Ex. A); (2) A DVD copy of the dash-cam recording of the April 4 Stop (front camera) (Def. Ex. B); (3) A DVD copy of the dash-cam recording of the April 4 Stop (rear camera) (Def. Ex. C); (4) A DVD copy of the dash-cam recording of the April 5 Stop (part one of two) (Def. Ex. D); and (5) A DVD copy of the dash-cam recording of the April 5 Stop (part two of two) (Def. Ex. E).
Following the Suppression Hearing, Defendant filed Proposed Findings of Fact and Conclusions of Law with regard to the Motion to Suppress on April 22, 2016. (ECF No. 147.) The Government filed a Post-Hearing Brief on June 7, 2016. (ECF No. 154.) Defendant filed a Reply in Response to the Government's Post-Hearing Brief on June 9, 2016. (ECF No. 155.)
In support of his Motion to Suppress, Defendant makes four main arguments: (1) the April 5 Stop was not supported by probable cause and therefore violated the Fourth Amendment (ECF No. 147 at 20-24); (2) the continued seizure of Defendant beyond the time necessary to complete the purpose of the traffic stop (Defendant's alleged speeding) violated the Fourth Amendment (Id. at 24-32); (3) the frisk of Defendant was not supported by reasonable suspicion that Defendant was armed and dangerous and thus violated the Fourth Amendment (Id. at 32-35); and (4) these Fourth Amendment violations require suppression of the heroin found in Defendant's car and the statements made by Defendant (Id. at 35).
The Court makes the following findings of fact based on the evidence and testimony presented at the Suppression Hearing:
After reviewing the applicable law, the Court will separately address each of Defendant's arguments in support of his Motion to Suppress: (1) the April 5 Stop was not supported by probable cause (ECF No. 147 at 20-24); (2) the continued seizure of Defendant beyond the time necessary to complete the purpose of the traffic stop (Defendant's alleged speeding) violated the Fourth Amendment (Id. at 24-32); (3) the frisk of Defendant was not supported by reasonable suspicion that Defendant was armed and dangerous and violated the Fourth Amendment (Id. at 32-35); and (4) these Fourth Amendment violations require suppression of the heroin found in Defendant's car and the statements made by Defendant (Id. at 35).
The Fourth Amendment provides
U.S. Const. amend. IV. The protection of the Fourth Amendment is only triggered if the state invades an area in which the individual has a "constitutionally protected reasonable expectation of privacy." New York v. Class, 475 U.S. 106, 112, 106 S.Ct. 960, 89 L.Ed.2d 576 (1986) (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). "It is settled that at a hearing on a motion to suppress, the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge." U.S. v. Kennedy, 2014 WL 6090409, at *6 (W.D. Pa. Nov. 13, 2014) (internal quotations omitted). "Generally, the burden of proof is initially on the defendant who seeks to suppress evidence." Id. (citing United States v. Harris, 2008 WL 3545827, at *6 (W.D.Pa. Aug. 12, 2008)). Once the defendant establishes a basis for the motion and makes a colorable claim, however, the burden shifts to the Government. Id.
Defendant argues that when TFC Volk pulled him over on April 5, 2013, this stop was not supported by probable cause sufficient to believe that a speeding violation had occurred. Therefore, Defendant argues, TFC Volk's April 5, 2013, stop violated the Fourth Amendment. (ECF No. 147 at 21.) Specifically, Defendant argues that "the evidence does not support a finding that Trooper Volk maintained a close enough distance between himself and Mr. Green such that he could determine Mr. Green's speed with sufficiently reliable accuracy." (Id.)
In support of this argument, Defendant notes the fact that TFC Volk did not testify that Defendant was traveling faster than the rate of traffic, or that he was passing other vehicles on the road, and that in fact, TFC Volk testified that just before he pulled Defendant over, he had been traveling at the front of a line of vehicles, all traveling at approximately the same rate of speed. (Id. (Citing Def. Ex. D).) In addition, Defendant contends that TFC Volk could not possibly have maintained a constant distance between himself and Defendant when he was traveling "the length of two to three football fields behind Defendant's vehicle." (Id. at 22.)
The stop of an automobile, "even if only for a brief period of time and for a limited purpose," constitutes a seizure within the meaning of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10 (1996). Accordingly, such stops are subject to the constitutional imperative that they are not unreasonable under the circumstances. Generally, this means that an automobile stop must be justified by "probable cause to believe that a traffic violation has occurred." See U.S. v. Sanders, 1998 WL 67547, at *1-2 (E.D.Pa. Feb. 18, 1998) (quoting Whren, 517 U.S. 806 (1996)). See also U.S. v. Davenport, 134 Fed.Appx. 523, 525 (3d Cir. 2005) ("Under Pennsylvania law, an officer may stop a car when there are articulable and reasonable grounds to suspect a violation of the Vehicle Code . . . Courts have held that this standard is analogous to a probable cause standard) (quotations and citations omitted).
The Court first notes that the fact that TFC Volk wanted to pull Defendant over before he knew that Defendant was speeding is not a ground for finding that there was a Fourth Amendment violation. Rather, "[a]ny violation of the traffic code provides a ground for a legitimate traffic stop, `even if the stop is merely pretext for an investigation of some other crime.'" U.S. v. Thach, 411 Fed. Appx. 485, 488 (3d Cir. 2011) (quoting United States v. Mosley, 454 F.3d 249 (3d Cir. 2006)).
Pursuant to Pennsylvania law, the rate of speed of a vehicle may be timed by a police officer using a cruiser equipped with a speedometer. See 75 Pa.C.S.A. 3368. Pennsylvania law requires that, in ascertaining the speed through the use of a speedometer, the officer clock the individual for no less than three-tenths of a mile. See id. The statute also requires that the speedometer used for clocking have been tested for accuracy within one year prior to the alleged violation. Id.
Here, the Court has found that TFC Volk saw Defendant's vehicle on April 5, 2013, and recognized the vehicle as being Defendant's. TFC Volk then sped up to the point at which he was approximately one-tenth to two-tenths of a mile away from Defendant's vehicle, and clocked his vehicle for approximately six-tenths of a mile. TFC Volk clocked Defendant's speed as 79 miles per hour, which was well over the posted speed limit of 65 miles per hour, in violation of the Pennsylvania Motor Vehicle Code.
There is no dispute that TFC Volk clocked Defendant for well over the requisite three-tenths of a mile. It is also undisputed that his speedometer was working accurately and had been tested for accuracy in March of 2013, approximately one month before the stop in question. (ECF No. 144 at 11-12; Gov't Ex. 1.) TFC Volk thus complied with the explicit requirements of Pennsylvania law when clocking Defendant and determining that he had committed a speeding violation.
Defendant nonetheless takes issue with the distance of approximately one-tenth to two-tenths of a mile that existed between TFC Volk's cruiser and Defendant's vehicle while TFC Volk clocked Defendant. In support of this argument, Defendant cites cases in which courts have held that an officer's clocking of speed supported a finding of probable cause, but notes that in each of these cases, the officers were closer to the vehicles they clocked than TFC Volk was to Defendant's vehicle. These cases, however, do not stand for the proposition that there is some minimum distance at which an officer must follow a defendant's vehicle to determine his speed with accuracy, and Defendant cites no case in which the court held that an officer followed the defendant from so far away that his clocking could not support a finding of probable cause. (See ECF No. 147 at 22-23; ECF No. 155 at 2.)
Therefore, the Court must assess whether TFC Volk had probable cause based on the facts and circumstances specific to this case, including the dash cam video, the beginning of which shows the approximate distance at which TFC Volk clocked Defendant, as well as TFC Volk's testimony. The Court credits TFC Volk's testimony that he was able to follow Defendant for approximately six-tenths of a mile, while maintaining a consistent distance between himself and Defendant that allowed him to determine that Defendant was traveling at approximately 79 miles per hour. In crediting this testimony, the Court gives weight to the fact that TFC Volk has been a Pennsylvania State Trooper for over 24 years, and has patrolled eastbound and westbound traffic on the Pennsylvania Turnpike for much of that time. (See ECF No. 144 at 5-6.) There is no video recording of the approximately six-tenths of a mile during which TFC Volk clocked Defendant prior to pulling him over. (See id. at 93:5-8.) TFC Volk testified, however, that at the point that his dash cam began recording on April 5, 2013, he was approximately the same distance from Defendant's vehicle as he had been while clocking Defendant. The parties have agreed that this distance was between one-tenth to two-tenths of a mile. (See id. at 94:20-23; Gov't Ex. 2; Def. Ex. D.)
The Court has reviewed this video, and concludes that, at the distance depicted between Defendant's vehicle and TFC Volk's cruiser at the beginning of the video, TFC Volk was able to see Defendant's car sufficiently well such that he clocked Defendant's pace and determined that he was traveling at a rate of speed well over the posted speed limit of 65 miles per hour. The Court is not persuaded by the argument that TFC Volk had to be closer to Defendant's car to clock him accurately. While the Court can imagine a scenario in which a police cruiser is so far from the vehicle it is clocking such that the clocked speed might be inaccurate, the Court need not define the contours of such a scenario because it is clear to the Court that this case does not present such an issue. Rather, the Court finds that the distance portrayed at the beginning of the dash cam video of the April 5, 2013, stop was a distance from which TFC Volk was able to accurately clock Defendant's vehicle traveling at approximately 79 miles per hour.
The Court therefore concludes that TFC Volk had probable cause to believe that Defendant was traveling at a rate of speed well over the posted speed limit of 65 miles per hour, and that his stop of Defendant was therefore lawful under the Fourth Amendment. See Davenport, 134 Fed.Appx. at 525 (holding that officer's automobile stop of the defendant was supported by probable cause when officer had clocked the defendant for five-tenths of a mile going fifteen to twenty-five miles per hour over the speed limit).
In the alternative, Defendant argues that if TFC Volk had probable cause to stop Defendant for speeding, TFC Volk detained him beyond the time necessary to complete the purpose of the stop (i.e., to issue a warning or ticket for speeding). Defendant contends that this continued detention was not supported by reasonable suspicion and therefore ran afoul of the Fourth Amendment. (ECF No. 147 at 24.)
Defendant notes that "to justify an extension of the stop beyond the time necessary to issue a warning or speeding ticket, law enforcement must possess a reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity." (Id. at 25 (citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Illinois v. Wardlow, 528 U.S. 119, 123 (2000).) Defendant asserts, however, that considering the totality of the circumstances, TFC Volk did not have this requisite reasonable suspicion to detain him. Defendant notes that even though TFC Volk ostensibly pulled him over for speeding, the "purpose of the stop had nothing to do with speeding and everything to do with interdiction." (Id. at 26-32.) In support of this argument, Defendant contends that the "indicators" upon which TFC Volk relied in forming his belief that Defendant was engaged in criminal activity were unreliable and should carry little weight. (Id.) For example, Defendant suggests that Philadelphia is not so far from the location of the stop such that it would be suspicious for him to travel there and back in one day. (Id. at 29.) In addition, Defendant suggests his "nervous chatter" when being pulled over should not support a finding of reasonable suspicion, because many citizens become nervous during traffic stops. (Id. at 29-30.) Defendant also points out that the presence of the dog in Defendant's car is of little significance, because TFC Volk has stated that he is unfamiliar with dogs and had only observed the dog in the vehicle on April 3, 2013, for a very short amount of time. (Id. at 30.) Defendant thus argues that TFC Volk could not be sure that it was the same dog in Defendant's car during the April 5, 2013, stop. (Id.)
"While reasonable suspicion must be more than an inchoate hunch, the Fourth Amendment only requires that police articulate some minimal, objective justification." U.S. v. Frierson, 611 Fed.Appx. 82, 85 (3d Cir. 2015) (citing United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003)) (internal quotations omitted). "Courts must consider the totality of the circumstances in light of the officer's experience. While individual factors giving rise to reasonable suspicion may be innocent in isolation, together they may serve to eliminate a substantial portion of innocent travelers." Id. (citing United States v. Sokolow, 490 U.S. 1, 13, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)) (internal quotations omitted).
To the extent Defendant argues that the pretextual nature of the stop was inappropriate or inconsistent with the Fourth Amendment, this assertion is not grounded in the law. As noted above, pretextual stops do not run afoul of the Fourth Amendment. Indeed, it is well established that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action as long as the circumstances, viewed objectively, justify that action." U.S. v. Leal, 235 Fed. Appx. 937, 939 (3d Cir. 2007) (citing Whren, 517 U.S. at 813) (internal quotations omitted).)
Defendant cites United States v. Peters, 10 F.3d 1517 (10th Cir. 1993), for the proposition that an earlier stop of an individual cannot form the basis for reasonable suspicion to conduct a later stop of that individual, absent independent reasonable suspicion in the later stop. (ECF No. 147 at 31-32.) This case, however, is readily distinguishable from the case at hand. In Peters, the government attempted to base reasonable suspicion of criminal activity on the following factors: (1) having been informed of the defendants' Nigerian ancestry, (2) a properly executed lane change, which the government characterized as "abrupt"; and (3) "nervous conduct" by the defendants, during a stop of defendants by a different officer prior to the stop that produced the evidence at issue. Peters, 10 F.3d at 1521-22.
The court held that these factors were insufficient to form reasonable suspicion. Id. In reaching this conclusion, the court noted that the record did not support a finding that the defendants had behaved nervously, and rejected the government's argument that "slow driving is indicative of nervousness," particularly when the defendants were inexperienced drivers of a large vehicle. Id. at 1522. Further, the court found that there was "no factual basis, other than an inarticulable hunch . . . to suspect that the defendants' statements were not completely accurate," and that nothing in the record cast any doubt upon the defendants' statements related to their story about their travel. Id. at 1521. Lastly, the court held that the "single, legal lane change" of defendants could not provide grounds for reasonable suspicion of criminal activity. Id. The court therefore concluded that the stop violated the Fourth Amendment.
Here, however, the totality of the circumstances indicate that TFC Volk had the objective, reasonable suspicion necessary to detain Defendant until the canine unit arrived to conduct a sweep of the vehicle. Defendant correctly notes that the Fourth Amendment would not have allowed TFC Volk to stop Defendant on April 5, 2013, based solely on the indicators he had observed during the stop on April 4, 2013, including the lining of Defendant's trunk being pulled back, the fact that Defendant's trunk could not be opened from the outside, the smell of raw marijuana emanating from the trunk, and Defendant's lack of luggage despite stating that he was traveling to Philadelphia for an indeterminate amount of time.
Defendant's continued detention during the April 5 stop, however, was based on far more than these indicators from the April 4 stop alone. Indeed, TFC Volk's reasonable suspicion on April 5 was independently supported by: (1) the fact that Defendant's stories about his travels to Philadelphia were inconsistent and contradictory, including the fact that he had returned from Philadelphia one day after he had told TFC Volk that he was traveling there for an indeterminate amount of time, (2) the presence of the dog in Defendant's car that TFC Volk believed was the same dog he had observed in the car of two individuals two days earlier who were known to be on pretrial release for drug-related violations, (3) the fact that Defendant was unsure of details about the dog, and that his story about the dog changed and became contradictory, and (4) Defendant's nervous behavior. See Leal, 235 Fed. Appx. at 942 (holding that trooper had reasonable suspicion of criminal activity to justify continued detention of the defendant pending the arrival of the canine unit and that the 80-minute delay pending arrival of canine unit did not impermissibly exceed the scope of the stop).
Defendant argues that TFC Volk failed to "articulate any justification for his pat-down of Mr. Green," other than the fact that Trooper Glista had asked him to do so. (ECF No. 147 at 33-34.) Defendant argues that the frisk was not supported by reasonable suspicion that he was armed and dangerous, and that the frisk therefore violated the Fourth Amendment. (Id. at 34.)
"After a traffic stop, an officer may frisk a person whom he has ordered out of the car if he has a reasonable suspicion that the person is armed." Thach, 411 Fed.Appx. at 489 (citing Pennsylvania v. Mimms, 434 U.S. 106, 111-13, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam)). "Reasonable suspicion is formed when, under the totality of the circumstances, the officer reasonably believ[es] that his safety [is] threatened." Id. (citing Terry, 392 U.S. at 27). "The totality of the circumstances includes an officer's `knowledge, experience, and common sense about human behavior.'" Id. (quoting United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002)).
Contrary to Defendant's assertions, TFC Volk provided many reasons based upon which he formed the requisite reasonable suspicion to conduct a pat-down of Defendant prior to relinquishing control of Defendant to Trooper Glista. As explained above, TFC Volk had observed several indicators of criminal activity over the course of the April 3, 4, and 5, 2013, stops. These indicators included Defendant's behavior, the fact that the trunk of Defendant's vehicle could not be opened from the outside, the fact that the liner of the trunk had been tampered with, the fact that the trunk smelled of raw marijuana, the fact that Defendant's stories about his travels and about the dog in his car were inconsistent and contradictory, and the presence of a dog in Defendant's car that TFC Volk believed was the same dog he observed in the car of two individuals known to be on pretrial release for drug-related violations.
Based upon these indicators, the Court finds that TFC Volk's frisk of Defendant was supported by reasonable suspicion and was therefore lawful under the Fourth Amendment. TFC Volk had reasonable suspicion to believe that Defendant was engaged in drug related criminal activity. Therefore, based on TFC Volk's extensive experience and expertise, he had reasonable grounds to believe that Defendant could be armed and dangerous such that the frisk was warranted and did not run afoul of the Fourth Amendment prior to Trooper Glista assuming control over Defendant. See Thach, 411 Fed.Appx. at 489 (holding that frisk was lawful when individuals in vehicle were suspects in a drug investigation, and when officer knew, based on his experience and training, that guns often accompanied drugs, and when occupants' stories about their travel were inconsistent).
Having determined that Defendant's Fourth Amendment rights were not violated by any of TFC Volk's actions, the Court denies his request that the evidence and statements obtained as a result of the stop and subsequent search be excluded. (See ECF No. 147 at 35.) Because there has been no Fourth Amendment violation, this evidence and Defendant's statements will not be excluded based on the arguments Defendant presents in the instant motion.
For the reasons stated above, Defendant's Motion to Suppress Evidence and Statements (ECF No. 121) is denied. An appropriate order follows.
