United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
the Court is Defendant Jason Catrell Whitaker's Motion to
Suppress Evidence (Doc. 25), seeking to
suppress the items seized on September 1, 2015 during an
encounter with the Baton Rouge Police Department. (Doc. 25 at
p. 1). The United States of America ("Government")
filed a memorandum in opposition. (Docs. 28). The Court held
an evidentiary hearing on the motions, and permitted the
simultaneous filing of post-hearing briefs. (Doc. 29).
September 1, 2015, Detective Vincent Liberto ("Detective
Liberto") and Detective Richard McCloskey
("Detective McCloskey") of the Baton Rouge Police
Department were patrolling the area around 2112 North Foster
Drive in Baton Rouge, Louisiana. (Doc. 31, Hr'g Tr. at p.
7:3-25, 8:1-5). According to the testimony adduced at the
hearing, the officers pulled into a parking lot of the
building located at 2112 North Foster Drive, and noticed a
"CD stand" playing loud music and, in front of that,
a White 2010 Nissan Sentra parked in a handicapped parking
space, but without a handicap license plate. (Id. at
9:16-22, 11:14-16). The officers also noticed two people
standing at the CD stand. (Id.). One of the people
at the stand was the Defendant. (Id. at 10:25). The
officers, both of whom were wearing vests with police
markings, made contact with the two people, and asked them to
turn down the music. (Id. at 11:6-16, 25:19-22).
They also instructed the men to move the car that was parked
in the handicap space. (Id.). The officers then
began to drive away. (Id. at 11:21-22).
Liberto then noticed Defendant walking back toward the
vehicle. (Id. at 12:4-10). Defendant was observed
opening the front passenger door of the vehicle, retrieving a
firearm from the pockets of his pants and place it in the
front passenger side of the vehicle. (Id.). Then
Defendant walked back to the stand. (Id. at
31:23-25, 32:1). After witnessing the Defendant place the
pistol in the car, the officers immediately drove back into
the parking lot and exited their vehicle. (Id. at
12:20-24) Detective Liberto then engaged Defendant.
(Id.). Detective McCloskey testified that he walked
around the vehicle, looked inside the vehicle while standing
outside of it, and saw a bag of marijuana on the front
driver's seat in "plain view." (Id. at
47:14-16). Detective McCloskey communicated to Detective
Liberto that marijuana was in the vehicle. (Id. at
13:23-25). Detective Liberto then placed Defendant in
handcuffs and advised Defendant of his Miranda
rights. (Id. at 14:7-24, 47:20-22).
McCloskey then returned to the vehicle, opened the door, and
retrieved the bag of marijuana. (Id. at 48:10-19).
He also searched the vehicle for the handgun he saw being
placed there by the Defendant. (Id.). The search
resulted in the discovery of a 380-Caliber Cobra Pistol and a
clear plastic bag containing seven dosage units of MDMA.
(Id.). Detective Liberto spoke with the Defendant
during the course of the search and learned that the
Defendant had been previously convicted of a felony offense.
(Id. at 15:22-25).
Defendant raises three arguments in support of the motion:
First, the Defendant challenges the credibility of the
officer's testimony that he observed the marijuana in
plain view, specifically arguing that the lack of credibility
taints any attempt to rely on the plain view
doctrine. (Doc. 32 at p. 4). Second, Defendant
argues that the officers conducted an illegal stop when they
returned to the parking lot and made contact with the
Defendant for a second time. (Doc. 25-1 at p. 6). Finally,
Defendant argues that the search of his vehicle after the
officer allegedly saw the marijuana in plain view violated
the Fourth Amendment of the U.S. Constitution under the
doctrine established in Arizona v.
Credibility of the Officers Testimony
of the most important principles in our judicial system is
the deference given to the finder of fact who hears the live
testimony of witnesses because of his opportunity to judge
the credibility of those witnesses." Louis v.
Blackburn, 630 F.2d 1105, 1109 (5th Cir.1980). In
weighing credibility determinations, courts weigh factors
such as inconsistencies, intentional omissions, and even
demeanor of the witnesses in order to determine if the
witness's testimony is credible. See United
States u. Jones, 187 F.Supp.3d 714, 724 (M.D. La.
2016) (finding that an officer's testimony lacked
credibility due to multiple inconsistencies and omissions);
United States v. Kelley, No. CRIM. H-09-512, 2011WL
201477, at *5 (S.D. Tex. Jan. 20, 2011) (finding that an
officer was credible when the testimony was consistent with
other evidence presented to the court); Nasakaitis
Motorsports MgmL, LLC v. Rockstar, Inc., No.
1:10-CV-125-HSO-JMR, 2011 WL 2446612, at *3 (S.D.Miss. June
15, 2011) (". . . [a witness's] demeanor on the
stand will provide a finder of fact the additional
information necessary to decide whether or not to believe
argues that "there is a lack of credible testimony,
either from the position of believability or from a lack of
independent recollection" that the officers'
testimony was credible as to what Detective McCloskey saw
when he peered into the vehicle. (Doc 32 at pp. 4-5). The
Court disagrees. The officers testified consistently with one
another, and displayed a calm demeanor while on the stand.
Finally, even though the officers each testified that they
could not recall certain specific facts not germane to the
issues here, the Court is not persuaded that such natural
failures to recall all minor details were so great as to
warrant a finding that the officers' testimony is not
credible. See United States v. Barnes, 803 F.3d 209,
219 (5th Cir. 2015), cert, denied sub nom. Hall v. United
States, 137 S.Ct. 691, 196 L.Ed.2d 570 (2017) (holding
that a witnesses inability to remember certain details, even
when coupled with inconsistencies, did not mandate a district
court to find the witness was not credible). Because
Defendant failed to show otherwise, Defendant's argument
fails, and the Court finds that the testimony of the officers
the Court accepts the credible and uncontroverted testimony
of Detective McCloskey regarding the circumstances of his
discovery of the marijuana.
The "Stop" of the Vehicle
next argues that when the officers returned to the parking
lot, but before the search of the vehicle, the officers
conducted an illegal investigatory detention of Defendant.
(Doc. 25-1 at pp. 3-4). The Government argues that, prior to
the finding of the marijuana and placement of Defendant in
handcuffs, the officers' actions were not "under the
compass" of the Fourth Amendment, and therefore, within
the confines of what is constitutionally
permissible. (Doc. 28-1 at p. 6). It is important to
note that, according to the timeline established by the
credible testimony of the officers, the encounter at that
point in time would have been so brief as to be nearly
non-existent, as Detective McCloskey saw the marijuana in the
vehicle close in time to when ...