United States District Court, E.D. Louisiana
SECTION:
“E” (2)
ORDER AND REASONS
SUSIE
MORGAN UNITED STATES DISTRICT JUDGE
On
November 30, 2017, the grand jury charged Defendant Ronald
Thompson, Jr. with three counts of possession with the intent
to distribute cocaine, cocaine base, and
heroin.[1] Before the Court is Defendant's Motion
to Suppress.[2] The motion is opposed.[3]Defendant filed a
reply memorandum.[4] Defendant has not requested an evidentiary
hearing.[5] For the reasons that follow,
Defendant's Motion to Suppress is
DENIED.
FACTUAL
BACKGROUND [6]
On July
28, 2017, members of the St. Charles Parish Sheriff's
Office's Special Investigations Division conducted
surveillance operations near Birdie's Food and Fuel Gas
Station in Luling, Louisiana, an area known for illegal drug
activity.[7] At approximately 4:15 p.m., Officer Jason
Tiliakos observed a black Infiniti pull into the parking lot
of the convenience store.[8] According to the incident report, the
investigators were familiar with a vehicle of this
description because the Sheriff's Office had received an
anonymous tip in February 2017 that Ronald Thompson used a
black Infiniti to conduct drug sales.[9]
After a
short time, Detective Tiliakos observed a black male, later
identified as Emanuel Harris, ride his bicycle up to the
Infiniti, put his head through the driver's side window,
and appear to converse with the vehicle's
occupant.[10] Shortly thereafter, a second man
approached the Infiniti and entered the vehicle through the
passenger side door.[11]Detective Tiliakos stated that the second
man exited the car seconds later, got into a maroon-colored
sport-utility vehicle, and left the area.[12] Emanuel
Harris also soon departed, riding his bicycle north on
Louisiana Highway 52.[13] Detective Tiliakos relayed his
observations to Detective Daniel April and Sergeant Brad
Walsh of the St. Charles Parish Sheriff's Office as the
black Infiniti exited the parking lot.[14]
April
and Walsh followed the black Infiniti traveling south on
Highway 52, and then onto Old Spanish Trail.[15] The incident
report states, “[a]s investigators followed the
Infiniti, they observed the vehicle cross the center line of
the roadway, which was a two way road, on several
occasions.”[16] After observing the traffic violation,
Detective April and Sergeant Walsh activated their emergency
lights and stopped the Infiniti.[17]
The
traffic stop began at 4:59 p.m.[18] Detective April
approached the driver's side of the vehicle, and the
driver identified himself as Ronald Thompson, confirming the
anonymous tip to the extent that the tip included the
statement that Thompson drove a black Infiniti.[19] Sergeant
Walsh approached the passenger's side, and made contact
with the passenger, Darryl Bourgeois.[20] Detective
April informed Defendant of the traffic violation and asked
for Defendant's driver's license and vehicle
registration.[21] As Detective April spoke with Defendant,
April observed that Defendant was “sweating heavily
about the forehead” and “his body was visibly
shaking while he produced his driver's
license.”[22] Defendant also “stuttered while
attempting to answer, clearing his throat several
times.”[23] When Detective April asked where he was
driving, Defendant “stated he was just driving around
with no known destination.”[24]
Detective
April conducted a name check on Defendant through law
enforcement indices, and learned that Defendant's license
was in good standing.[25] Defendant argues that, at this point,
the investigation of the traffic violation concluded, and he
should have been released.
Rather
than concluding the investigation, however, Detective April
questioned Defendant further, asking him whether he was
nervous. According to the incident report, Defendant said he
was nervous because he was on parole for prior narcotics
violations.[26]The investigators asked Bourgeois to exit
the vehicle, and when asked, Bourgeois told Walsh that
Defendant was taking him to Des Allemands,
Louisiana.[27] Bourgeois stated he did not know why
Defendant was unable to provide the same
answer.[28]
At
roughly 5:05 p.m., based on the information collected through
the surveillance at the gas station, the fact that the area
is known for drug activity, the February 2017 anonymous tip,
the confirmation of Defendant's identity as Ronald
Thompson, and Defendant's nervous behavior during the
stop, April and Walsh allege they developed a reasonable
suspicion that Defendant was involved in drug activity, and,
based on that reasonable suspicion, they requested assistance
from a canine unit.[29] The detectives asked Defendant to exit
the vehicle, and, because of his history of resisting
officers in the past, he was placed in
handcuffs.[30]
At 5:17
p.m., eighteen minutes after Defendant was pulled over,
Deputy Deroche arrived with the canine.[31] The canine
responded positively to an open-air sniff outside the
car.[32] The canine then sniffed the interior of
the vehicle, and alerted positively to the center console and
the driver's seat, where Defendant had been
sitting.[33] Based on the canine search, the officers
conducted a warrantless search of the vehicle, finding a
wallet with $1, 870 in cash and a social security card
bearing Defendant's name in the glove box, as well as
brass knuckles in the center console.[34]
At that
point, the officers placed Defendant in the back seat of the
patrol unit.[35] A few minutes later, officers removed
Defendant from the patrol car, read him his Miranda
rights, and asked for consent to search his
person.[36] Defendant initially consented to the
search, but then revoked his consent.[37] The officers
then placed Defendant back into the patrol vehicle while they
secured a warrant to search his person.[38] Video from
the interior of the vehicle shows that, after he was returned
to the patrol car, Defendant reached his handcuffed right
hand into his pants, and then moved his hand, balled into a
fist, into the seatback behind him.[39] The video does not show
what was in Defendant's fist.
After
receiving the warrant to search Defendant, Detectives April
and Tennison removed him from the police car, and Detective
Tennison searched the back seat.[40]Tennison found a bag of
drugs containing roughly 28 grams of cocaine, rock-like
substances that tested positive for cocaine, 34 tablets that
tested positive for ecstasy, and nine bundles that tested
positive for about 2 grams of heroin.[41] Defendant was
then placed under arrest.[42] During a search of
Defendant's person pursuant to the search warrant, $400
was found in his pants pocket.[43]
On
November 30, 2017, the grand jury returned a three-count
indictment alleging Defendant (1) possessed with the intent
to distribute a quantity of cocaine, (2) possessed with the
intent to distribute a quantity of cocaine base, and (3)
possessed with the intent to distribute a quantity of heroin,
all in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C).[44]
Defendant
now moves to suppress any and all evidence obtained after
Detective April verified that Defendant's driver's
license was in good standing as the fruits of an
unconstitutional search and seizure, including (1) the $1,
870 in cash and the brass knuckles found during the search of
his vehicle, (2) the drugs found in the police vehicle, and
(3) the $400 in cash found on his person pursuant to the
search warrant.[45] Defendant contends that the initial
investigatory stop of Defendant's vehicle was justified
only by the alleged traffic violation, and as a result, the
stop should have concluded after Detective April verified
that Defendant's license was in good standing. Defendant
argues that by continuing to detain and question him,
requesting a canine unit, and searching his vehicle, the
officers extended the detention beyond the scope of the
initial investigation, violating the Fourth Amendment. Any
and all evidence obtained as a result of the detention,
Defendant asserts, should be excluded from
trial.[46]
The
Government asserts that the facts available to the officers
at the time they continued to detain him-including (1) the
anonymous tip regarding Defendant using a black Infiniti for
drug transactions, (2) Detective Tiliakos' surveillance
of suspicious activity surrounding the Infiniti in the
parking lot, (3) the fact that the area is known for drug
activity, (4) the confirmation of Defendant's identity as
Ronald Thompson, and (5) the Defendant's nervousness
during the traffic stop-are sufficient to establish
reasonable suspicion of criminal activity, justifying a
prolonged detention sufficient to call for the assistance of
the canine unit.[47] The Government argues that because the
additional investigation was justified, the evidence obtained
as a result of the canine sniff, the search of
Defendant's vehicle, and the search of the police
vehicle, should not be suppressed.
LEGAL
STANDARD
The
Fourth Amendment expressly imposes two requirements: (1) all
searches and seizures must be reasonable, and (2) “[a]
warrant may not be issued unless probable cause is properly
established and the scope of the authorized search is set out
with particularity.”[48] “Warrantless searches
are presumptively unreasonable.”[49] The
exclusionary rule forbids the use of evidence obtained in
violation of the Fourth Amendment.[50] The rule prohibits such
use “not because the evidence is not probative, or to
chastise errant law officers or to benefit the accused, but
to compel respect for the guaranty of the Fourth Amendment
‘in the only effectively available way-by removing the
incentive to disregard it.'”[51] Accordingly,
“where suppression fails to yield ‘appreciable
deterrence, ' exclusion is ‘clearly . . .
unwarranted.'”[52]
As a
general rule, the proponent of a motion to suppress must
prove by a preponderance of the evidence that the evidence in
question was obtained in violation of his or her Fourth
Amendment rights.[53] In the case of a warrantless search of a
car, the burden shifts to the Government to prove by a
preponderance of the evidence that its actions were
constitutional.[54]
ANALYSIS
The
stop of a vehicle and detention of its occupants constitutes
a “seizure” under the Fourth
Amendment.[55] The legality of a traffic stop is
analyzed under the two-part test set forth in Terry v.
Ohio.[56] First, the Court inquires whether the
traffic stop was justified at its inception.[57] If so, the
Court next inquires “whether the officer's
subsequent actions were reasonably related in scope to the
circumstances that justified the stop.”[58]
Regarding
the first prong, a traffic stop is justified at its inception
when an officer has reasonable suspicion that a traffic
violation occurred or is about to occur.[59] Detective
April observed Defendant's vehicle cross the center line
several times-a clear traffic violation. Accordingly, the
constitutionality of this traffic stop turns on the second
prong of the Terry test.
Once
lawfully stopped, the detention must last no longer than
necessary to effectuate the purpose of the
stop.[60] During this time, an officer may order
the occupants out of the car, [61] ask the occupants for
identification and run a computer check for outstanding
warrants, [62] and engage in “wide-ranging”
questioning unrelated to the purpose of the traffic
stop.[63] As a general rule, if all computer
checks come back clean, any questioning must stop, and the
driver and passengers must be released.[64] If, however,
additional reasonable suspicion arises before the initial
purpose of the stop has been fulfilled, the detention may
continue until the new reasonable suspicion has been
dispelled or confirmed.[65] In determining whether reasonable
suspicion develops, a court “must look at the
‘totality of the circumstances' of each case to see
whether the detaining officer has a ‘particularized and
objective basis' for suspecting legal
wrongdoing.”[66]
I.
Reasonable Suspicion to Prolong the Detention
The
Government asserts that Detective April and Sergeant Walsh
had reasonable suspicion to prolong Defendant's detention
based on several factors: (1) Detective Tiliakos'
observations of suspected drug activity, (2) the fact that
the activity took place in an area known for drug crime, (3)
the anonymous tip regarding Defendant's use of a black
Infiniti to conduct drug transactions, (4) the confirmation
of Defendant as Ronald Thompson, and (5) the Defendant's
nervousness during the initial traffic stop. The Government
also asserts that Defendant and Bourgeois' inconsistent
statements regarding the purpose of the trip heightened the
officers' suspicion. However, Sergeant Walsh did not
question Bourgeois until after Defendant's license was
verified, and therefore the inconsistency cannot be used to
justify the continued stop.[67]
The
Court evaluates each of these factors in order to determine
whether, in the aggregate, they establish reasonable
suspicion to extend the Terry stop.
A.
Surveillance of Defendant's Vehicle in Area Known for
Drug Activity
While
parked in an unmarked vehicle near Birdie's Food and Fuel
Gas Station, Detective Jason Tiliakos observed
Defendant's Black Infiniti pull into the gas station
parking lot.[68] Tiliakos observed several people visit
Defendant's vehicle. First, Emanuel Harris approached the
driver's side of the car, “put his head through the
driver's side front window, ” and appeared to talk
with the occupants of the car. Soon thereafter, a second
unidentified male entered Defendant's vehicle through the
driver's side front door, only to exit “seconds
later.”[69] This unidentified male subsequently got
into a different vehicle, and left the area.[70]
According
to the incident report, “based on training,
professional experience and knowledge, investigators knew
that individuals who meet with individuals for very short
periods of time and/or enter parked vehicles in parking lots
is consistent with how individuals involved in illicit drug
activity commonly facility drug
transactions.”[71] The Court “allows officers to draw
on their own experience and specialized training to make
inferences from and deductions about the cumulative
information available to them, ”[72]giving these
inferences “due weight.”[73]
Further,
the officers knew from experience that the parking lot of the
gas station and the street adjacent to it are “known
haven[s] for criminal, specifically narcotics,
activity.”[74] The incident report states that
surveillance and undercover operations conducted at this gas
station have led to drug arrests in the past.[75] Of course, a
defendant's presence in a high-crime area, without more,
is not sufficient to establish reasonable
suspicion.[76] The Fifth Circuit has found, however,
that being in an area known for criminal activity may be one
factor in the totality-of-the-circumstances
analysis.[77] For example, in United States v.
Wilson, the court found reasonable suspicion for a
Terry Stop where:
The officers, who were hired to secure a private parking lot
located in a high-crime area, observed Wilson walking in
between the parked cars at night concealing something beneath
his shirt. Upon noticing the police, Wilson nervously
attempted to evade them. These facts objectively gave the
officers reasonable suspicion sufficient to effectuate a
constitutional stop.
In this
case, Detective Tiliakos observed Defendant engage in several
short interactions, in which people rapidly enter and exit
his vehicle, in area known to law enforcement as a
high-drug-crime area.
B.
Anonymous Tip
Defendant
argues the February 2017 anonymous tip that “Ronald
Thompson was utilizing a black Infiniti while distributing
quantities of illicit narcotics” is insufficiently
reliable to establish reasonable suspicion to justify the
prolonged detention. Defendant questions whether the
anonymous tip even exists, arguing that the St. Charles
Parish Sheriff's Office has not provided the name,
address, or telephone number of the tipster.[78]
The
Fifth Circuit evaluates whether an informant's tip
provides reasonable suspicion based on several factors,
including:
the credibility and reliability of the informant, the
specificity of the information contained in the tip or
report, the extent to which the information in the tip or
report can be verified by officers in the field, and whether
the tip or report concerns active or recent activity, or has
instead gone stale.[79]
When
the identity of an informant is known, her reputation can be
assessed, and she can be held responsible if her allegations
turn out to be fabricated. In cases involving anonymous
sources, on the other hand, the tip alone “seldom
demonstrates the informant's basis of knowledge or
veracity about the suspect's involvement in criminal
behavior.”[80] Accordingly, the United States Supreme
Court views anonymous informants with “strong
distrust.”[81] Nevertheless, “there are
situations in which an anonymous tip, suitably corroborated,
exhibits sufficient indicia of reliability to provide
reasonable suspicion to make the investigatory
stop.”[82]
In
United States v. Martinez, the Fifth Circuit found
that an anonymous tip that the defendant had witnessed a
violent crime and might possess the weapons used in the crime
was not sufficiently credible or reliable to establish
reasonable suspicion to stop the defendant.[83] As in this
case, the government had offered no evidence demonstrating
the credibility or reliability of the tipster, so the court
had look to other facts to evaluate the tip. Although the tip
alleged that the defendant was storing weapons used in a
crime, the only verified information that the police
had at the time of the stop was the name of the defendant and
his location. “Notably absent . . . [was] any verified
information that ‘criminal activity may be
afoot.'”[84] As a result, the court found the tip, on
its own, did not establish reasonable suspicion.
In this
case, however, the police had additional information that
verified the allegations of criminal activity in the
anonymous tip. According to Detective April's incident
report, the tipster indicated that “Ronald Thompson was
utilizing a black Infiniti while distributing quantities of
illicit narcotics.”[85] During the traffic stop,
Detective April verified that the driver of the black
Infiniti, observed in an area known for illegal activity, was
indeed Ronald Thompson. The substance of the tip was further
corroborated by Detective Tikiatos' surveillance of
Defendant's vehicle, in which the driver engaged in
activity indicative of drug transactions. Therefore, unlike
in Martinez, Detective April and Sergeant Walsh had
“corroboration of the illegal activity itself” at
the time of the stop.[86]In any event, the officers did not
rely solely on the tip. The tip is only one of the factors
informing the officers' suspicion.
C.
Nervousness
During
the lawful investigation of the traffic violation, Detective
April observed Defendant “sweating heavily about the
forehead” and “visibly shaking while he produced
his driver's license.”[87] Defendant argues that
nervous behavior, in and of itself, does not establish
reasonable suspicion, relying on United States v.
Santiago.[88] In that case, an officer stopped the
defendant for a violation of state traffic laws, but detained
the defendant and his family based solely on the
defendant's “nervousness and conflicting
statements.”[89] After receiving consent to search the
defendant's automobile, the officer found evidence of
drug trafficking.[90] The district court denied the
defendant's motion to suppress, and the Fifth Circuit
reversed, finding that the initial justification for the stop
was satisfied when the officer ran the computer check.
“At that point, there was no reasonable or articulable
suspicion that Santiago was trafficking in drugs . . . and
the extended detention violated Santiago's Fourth
Amendment rights.”[91]
Defendant's
faith in Santiago is misplaced. In that case, the
officer's suspicion of drug activity was not based on
articulable facts other than the defendant's
nervousness. The facts of this case are more closely
analogous to United States v.
Wallstrum.[92] In that case, the officer suspected one
of the defendants was engaged in drug trafficking because the
defendant “exhibited extreme nervousness” and was
traveling in tandem with other cars, which is common in drug
trafficking.[93] The officer also noted receipts and food
and drink containers that contradicted the defendant's
explanation of his trip.[94] The court ultimately found,
“[b]ased on the totality of these facts, ” that
reasonable suspicion was justified.[95] In this case, as in
Wallstrum, Detective April and Sergeant Walsh's
suspicions were supported by other information, including the
anonymous tip and the officers' observations of possible
drug transactions at the gas station.
CONCLUSION
“Any
analysis of reasonable suspicion is necessarily
fact-specific, and factors which by themselves may appear
innocent, may in the aggregate rise to the level of
reasonable suspicion.”[96] The Court concludes that, in
the aggregate, the information known to the officers at the
time Detective April verified Defendant's driver's
license established a reasonable suspicion that Defendant was
participating in illegal drug activity sufficient to justify
continued detention to request a canine team. The Fifth
Circuit has held that a prolonged traffic stop is
constitutional so long as:
(1) the facts that emerge during the police officer's
investigation of the original offense create reasonable
suspicion that additional criminal activity warranting
additional present investigation is afoot, (2) the length of
the entire detention is reasonable in light of the suspicious
facts, and (3) the scope of the additional investigation is
reasonable in light of the suspicious facts, meaning that it
is reasonable to believe that each crime investigated, if
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