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United States v. Richardson

United States District Court, M.D. Louisiana

April 19, 2017




         This matter is before the Court on a Motion to Suppress Evidence and Statements (Doc. 18) brought by the Defendant, Anthony Richardson. The Government filed an Opposition (Doc. 20). An evidentiary hearing was held on the Motion on November 28, 2016. Both parties submitted post hearing memoranda (Docs. 29 and 30). The Court allowed the Government to file a Response (Doc. 31-1) to the Defendant's post hearing memorandum because the Defendant raised new arguments in his post hearing memorandum. Further, the Court allowed the Government to present additional testimony regarding the new issues. An evidentiary hearing on those issues was held on March 29, 2017. No further briefing is needed. For the reasons stated below, the Defendant's Motion is GRANTED in part and DENIED in part.

         I. Factual Findings[1]

         This case involves an illegally parked vehicle at a Motel 6 and the subsequent search of that vehicle as well as a search of the driver's nearby motel room.

         While patrolling a Motel 6 in Baton Rouge, Officer Barcelona (“Barcelona”) observed a vehicle parked in a handicap spot without handicap tags. The officer approached the driver's side of the vehicle with his gun drawn.[2] The officer observed the Defendant sorting money and pills on the center console. The officer testified that he could not identify the pills and that they could have been vitamins.[3] The officer shined his flashlight into the car, and the Defendant quickly put the pills into a cigarette box and dropped them on the floor.

         The officer asked the Defendant to step out of the vehicle. The Defendant exited the vehicle and was apparently nervous. The officer performed a Terry frisk for weapons. The officer did not find any weapons on the Defendant.

         After the pat down, the officer placed handcuffs on the Defendant and secured him in his police vehicle.[4] The officer stated that the Defendant was just detained at this time, implying that the Defendant was not under arrest yet.[5]

         The officer began talking to the Defendant, advising him of his Miranda rights, and asking him about the civil parking violation and the pills. The Defendant told the officer that the pills belonged to him and that he had a prescription for them. The officer asked the Defendant if he could search the vehicle, and the Defendant consented. The officer found Xanax, Oxycodone, and rolling papers in the vehicle.

         After concluding the search, the officer returned to the police vehicle to speak with the Defendant. The Defendant admitted that he smoked synthetic marijuana. Earlier, he had also advised the officer that he was renting a room in the Motel 6 and his girlfriend was in the room. The officer asked the Defendant if he had any synthetic marijuana in his room. The Defendant stated that he was not sure and advised the officer he could go to the room to check. He also asked the officer to tell his girlfriend about what had occurred.

         Before Officer Barcelona went to search the room, he called for back-up and ran a background check on Richardson. The background check revealed that Richardson was a convicted felon. After Officer Kennedy (“Kennedy”) arrived, the officers went to the Defendant's room and knocked on the door. Richardson's girlfriend (“Stepter”) answered and gave the officers consent to search the room including Defendant's bags. Stepter advised the officers that certain bags belonged to Richardson and certain bags belonged to her.

         While searching the room, the officers saw a firearm in plain view that was sticking out from the top of a work boot. They also opened and searched Richardson's duffel bag. Inside the duffel bag, they found a toiletry kit. They searched the toiletry kit and found a brown glass bottle which contained synthetic marijuana and MDMA. They did not search Ms. Stepter's items.

         The officers left the motel and went outside to re-question the Defendant. The Defendant admitted that the firearm and drugs belonged to him. The officers stated that the Defendant was “very cooperative” throughout the entire encounter.

         II. Law & Analysis

         The Defendant was charged with unlawful possession of a firearm and possession of various controlled substances. He now moves to suppress all of the evidence recovered from his encounter with the officers. The Defendant has not been particularly precise about which police action he is challenging. However, after hearing ample testimony and reviewing the briefs, the Court finds that the Defendant is arguing that the evidence and his statements should be suppressed for four reasons-(1) the seizure of the car and the subsequent actions of the officer which included handcuffing and questioning the Defendant were unlawful; (2) the search of the vehicle was unlawful; (3) the search of the motel room was unlawful; and (4) the failure by the officers to preserve video footage from the Motel 6 is a violation of Defendant's due process rights that warrants suppression of the evidence.

         After two hearings and reviewing all of the briefs, the Court finds that the officer's use of physical restraints during an investigatory stop was unlawful where the Defendant only posed a remote threat of fight or flight. Accordingly, the drugs found in Defendant's vehicle and the drugs seized from the duffel bag in his motel room shall be suppressed as they were “fruits” of the unlawful conduct. The firearm found in the Defendant's motel room shall not be suppressed as it was lawfully found after the Defendant's girlfriend consented to a search of their joint motel room.

         The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[6] The exclusionary rule prohibits the introduction of evidence obtained as a result of unlawful searches and seizures.[7] The rule excludes not only the illegally obtained evidence itself, but also other incriminating evidence that is the “fruit” of unlawful police conduct.[8]

         When the Government searches or seizes a defendant without a warrant, the Government bears the burden of proving, by a preponderance of the evidence, that the search or seizure was constitutional.[9] In this case, the burden is on the Government to prove that the detention of the Defendant and the subsequent searches were constitutional.

         A. Legality of the Seizure

         1. The Officer Acted Lawfully in Detaining the Defendant, Removing Him From the Vehicle, and Performing a Brief Terry Frisk.

         The initial stop and removal of Richardson from the vehicle were lawful for two independent reasons. First, the Defendant was committing a parking violation which gave the officer authority to detain the Defendant and remove him from his vehicle. Second, throwing the pills on the ground gave the officer reasonable suspicion that a crime was being committed.

         The stopping of a vehicle (whether it is parked or moving) and detention of its occupants constitutes a seizure under the Fourth Amendment.[10] To analyze the legality of a vehicle stop, courts utilize the two-step Terry standard.[11] A court must first examine whether an officer's decision to stop the vehicle was justified at its inception, and then it must examine whether the officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop.[12] A Terry stop that is justified at its inception may nevertheless violate the Fourth Amendment if it is “excessively intrusive in its scope or manner of execution.”[13]

         In the context of the first prong, where a vehicle is parked illegally, an officer can briefly detain the vehicle to conduct a Terry stop.[14] Additionally, “a law enforcement officer making a traffic stop [can] order the driver and any passengers to exit the vehicle pending completion of the stop.”[15] Here, Officer Barcelona had the authority to briefly stop Richardson and remove him from his vehicle because Richardson was illegally parked in a handicap space.[16]

         Even if the car had not been parked illegally, Officer Barcelona's actions in stopping the car and directing the Defendant to exit the vehicle would still have been lawful. Upon approaching the vehicle in a parking lot, Officer Barcelona saw the Defendant sorting pills. An officer may stop a vehicle, detain its occupants for investigation, and order them to exit the vehicle provided he has reasonable suspicion of criminal activity.[17] Here, the sorting of the pills and throwing them to the ground when the officer knocked on the window gave the officer reasonable suspicion that criminal activity was afoot. Therefore, the officer had the authority to stop the vehicle and order Richardson to exit.

         The Defendant also challenges the Terry pat down as unlawful. “When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous” he may conduct a limited protective search for concealed weapons.[18] Here, the pat down was reasonable as the officer had just seen Richardson throw something to the ground and he was acting moderately nervous in a high crime area. The officer was justified in performing a limited frisk to protect himself.

         2. The Officer Acted Unlawfully in Handcuffing the Defendant and Placing Him in the Police Vehicle.

         Next, the Court turns to the actions that occurred after the frisk to determine if they were lawful. Again, under the second prong of Terry, the relevant question is whether the officer's actions after he legitimately stopped Richardson were reasonably related to the circumstances that justified the stop, or to dispelling reasonable suspicion developed during the stop.[19] Whether an officer's actions were “reasonable” under the Fourth Amendment is a fact-specific inquiry, not based on bright-line rules, but on the totality of the circumstances.[20]

         If there is probable cause to arrest a defendant, use of handcuffs is always proper.[21] If an officer only has reasonable suspicion that criminal activity is afoot, the use of handcuffs is not “ordinarily proper” during an investigatory stop because using handcuffs aggravates the intrusiveness of a Terry stop.[22] However, the use of handcuffs does not automatically convert a proper Terry stop into a de facto arrest requiring probable cause.[23]

         Here, the Court finds that it must answer two questions in order to determine if handcuffing the Defendant and placing him in the vehicle were unreasonable after he had been frisked and no weapons were found. First, the Court must determine whether there was probable cause to believe Richardson had committed a crime. If so, the handcuffing was permissible. Second, if there was no probable cause to arrest, and this was still an investigatory detention based on reasonable suspicion, the Court must determine whether the officer was justified in handcuffing the Defendant. The Court first addresses whether the officer had probable cause to arrest the Defendant after seeing him throw pills on the floor of the car.

         “Probable cause exists when the totality of facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.”[24] Where an officer lawfully views pills, has a reasonable belief that the pills are controlled substances, and has a reasonable belief that the defendant does not have a prescription for the pills, an officer has probable cause to arrest the defendant for possessing a controlled substance.[25]

         However, where an officer merely observes some pills while making a traffic stop, but does not have any belief as to whether they are controlled substances or not, he does not have probable cause to arrest a defendant for possession of a controlled substance.[26] This is the case even when the defendant makes a brief furtive movement that is consistent with trying to hide the pills.[27]

         The Court has not been able to locate a case directly on point in this Circuit. Accordingly, it finds the case State v. Sanchez, a New Mexico appellate case, persuasive.[28] In that case, the officer stopped the defendant for having expired plates.[29] After approaching the driver's window, the officer shined his flashlight into the vehicle and saw a plastic bag that contained some pills on the floorboard.[30] The officer asked the defendant what the pills were and the defendant tried to slide the bag under the seat and said “what bag?”[31] The officer admitted that he could not identify the two pills he saw in the bag before removing the bag from the car.[32] The court held that because pills are not inherently criminal and because defendant's furtive movements were equally consistent with either an assertion of his right to privacy or an intent to conceal contraband, the officer did not have probable cause to seize the pills nor did he have probable cause to arrest the defendant for possession of a controlled substance.[33] The court suggested that on the facts before it there may have been reasonable suspicion to believe criminal activity was afoot but not circumstances that would give rise to a finding of probable cause.[34]

         Here, the Court finds that at the moment Officer Barcelona placed Richardson in handcuffs, he only had reasonable suspicion that a crime was being committed rather than probable cause. Like the officer in Sanchez who did not have probable cause to arrest the defendant for possession of a controlled substance because he could not identify the pills, Officer Barcelona did not have probable cause to arrest Richardson because he could not identify the pills.[35] In fact, Officer Barcelona admitted that the pills could have been vitamins. While it was suspicious for Richardson to throw the pills onto the floor, this action, in and of itself, did not give rise to the probable cause necessary to effect an arrest. The conclusion that there was not probable cause to arrest Richardson after he was removed from the car is further supported by Officer Barcelona's own testimony. After removing Richardson from the vehicle, Barcelona said he was not placing Richardson under arrest.[36] Presumably, this was because he knew that before searching the vehicle he did not have probable cause to arrest the Defendant. Accordingly, the handcuffing cannot be justified as part of a lawful arrest because at the moment Richardson was handcuffed, Officer Barcelona did not have probable cause to arrest him.

         Having determined that at the moment the Defendant was handcuffed, the officer only had reasonable suspicion and not probable cause that a crime was being committed, the Court must address whether the use of handcuffs was reasonable during the investigatory stop. In determining whether the use of handcuffs during an investigatory detention is lawful, a court must determine whether the police were “unreasonable in failing to use less intrusive procedures to conduct their investigation safely.”[37] While there are no per se rules about exactly when the use of handcuffs is reasonable during investigatory stops, many courts have found that the use of handcuffs during investigatory stops is unreasonable when a suspect only poses a remote threat of fight or flight.[38]If a suspect is compliant, is not suspected of having committed a violent crime, and a Terry frisk has revealed that he is unarmed, the suspect only poses a remote threat of fight or flight.[39] The Fifth Circuit has found the use of handcuffs reasonable in situations where a suspect poses a strong threat of either fight or flight.[40]

         The Fifth Circuit case United States v. Jordan is illustrative.[41] In Jordan, officers were patrolling a high crime area.[42] The officers saw the defendant running at full speed from a grocery store.[43] At one point, the defendant tripped and fell but picked himself up and kept running.[44]Concluding that the defendant may have robbed the store, the officers stopped the defendant and ordered him to put his hands on the car.[45] The defendant refused to comply and jerked his hands away when the officers tried to detain him.[46] They then handcuffed the defendant and performed a pat down which revealed a weapon.[47] The defendant moved to suppress the firearm, arguing, among other things, that the pat down and handcuffing were unlawful.[48] The court held that the officers conducted a proper Terry stop, and that the handcuffing was permissible because the defendant was non-compliant, erratic, and aggressive.[49]

         Unlike the defendant in Jordan who was non-compliant, erratic, and aggressive, Richardson was calm and cooperative. Where a defendant is compliant and unarmed, handcuffing should not be the first line of defense during an investigatory stop especially given the fact that handcuffing substantially aggravates the intrusiveness of a detention. While the Court acknowledges that there was some evidence in this case suggesting that Richardson might have posed a threat to the officer's safety (the officer was in a high crime area and the Defendant was nervous), the Court finds that the evidence presented by the Government was not sufficient to meet the threshold needed to justify the use of handcuffs as part of an investigative detention especially where the Defendant was cooperative and had already been subjected to a pat down which did not reveal any weapons.

         B. Legality of the Vehicle Search

         Having determined that handcuffing the Defendant was unreasonable, the Court must determine whether the warrantless search of the vehicle was lawful. Warrantless searches are per se unreasonable unless they fall within a few narrowly defined exceptions.[50] Two exceptions to that general rule are relevant here-the automobile exception and the consent exception.

         Law enforcement may conduct a warrantless search of an automobile if (1) the officer conducting the search has probable cause to believe that the vehicle contains contraband; and (2) exigent circumstances justify the search.[51] The fact of a vehicle's potential mobility provides the necessary exigency.[52] Probable cause to search an automobile exists when “trustworthy facts and circumstances within the officer's personal knowledge would cause a reasonably prudent man to believe that the vehicle contains contraband.”[53]

         If Officer Barcelona had probable cause to search the vehicle, Richardson's consent was not required for the officer to search the car.[54] The Court finds that Officer Barcelona did not have probable cause to search the vehicle until after Richardson, who had already been improperly handcuffed and secured in the police car, responded to Officer Barcelona's question about which type of pills were in the cigarette box.[55] In other words, once Officer Barcelona learned that the pills were controlled substances, saw them in a non-labeled container, and found out that the Defendant could not produce a prescription, the officer had probable cause to search the vehicle. However, where an admission by a defendant is tainted by a Fourth Amendment violation, an officer cannot rely on that tainted admission as probable cause to search a vehicle.[56] Here, the Defendant's admissions that the pills were controlled substances and that he could not produce a prescription for them were tainted by the unlawful handcuffing that occurred seconds prior. Accordingly, the search cannot be justified based on the automobile exception to the warrant requirement.

         Additionally, the search cannot be justified by Richardson's consent to search the vehicle because it was given within minutes of his improper handcuffing.[57] “Consent to search may, but does not necessarily, dissipate the taint of a Fourth Amendment violation.”[58] Where consent is given after a constitutional violation occurs, it will be considered valid if it was (1) voluntary and (2) an independent act of free will.[59]

         The Court finds that Richardson's consent to search the vehicle was not an independent act of free will; therefore, it need not determine whether his consent was voluntary.[60] The purpose of the independent act inquiry is to determine if there was a break in the causal chain between the Fourth Amendment violation and the consent.[61] To determine if the consent to search the vehicle was an independent act of free will, a court must look to three factors: (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the initial misconduct.[62] No one factor is dispositive.[63]

         The first two factors weigh strongly in favor of the Defendant. There is “substantial authority for the proposition that consent given within a few seconds or minutes of the violation generally favors the defendant.”[64] In fact, in the Fifth Circuit, the consent is presumed tainted if less than one hour passes between the illegal conduct and the consent.[65] Accordingly, the first factor weighs overwhelmingly in favor of Richardson as not more than a few minutes passed between his unlawful handcuffing and his consent to search the vehicle. The second factor also weighs overwhelmingly in favor of Richardson. Intervening events include, for example, consultation with an attorney; merely questioning a suspect and giving him Miranda warnings is insufficient to constitute an intervening event.[66] The consent will usually be considered invalid and not an act of free will when coercive tactics are present and the defendant is not informed of his right to refuse a search.[67] Here, there were no intervening circumstances of significance between the unlawful handcuffing and ...

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