Opinion
2:23-CR-14-FL
12-27-2023
UNITED STATES OF AMERICA v. CHARLES LAMONT GREGORY, JR, Defendant.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on Defendant Charles Gregory's (“Gregory”) motion to suppress. [DE-24], The Government responded in opposition to the motion [DE-25], and the court held an evidentiary hearing on October 24, 2023. For the following reasons, it is recommended that the motion to suppress be denied.
I. PROCEDURAL BACKGROUND
On July 5, 2023, a Grand Jury sitting in the Eastern District of North Carolina returned a three-count indictment charging Gregory with knowingly and intentionally possessing with the intent to distribute a quantity of cocaine base in violation of 21 U.S.C. § 841(a)(1), knowingly possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), and knowingly possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924. [DE-1], Apublic defender was appointed for Gregory on July 11, 2023 [DE-10], and on August 23, 2023, counsel filed the instant motion to suppress [DE-24], The Government responded in opposition on September 5, 2023. [DE-25].
The suppression motion argues that: (1) Gregory did not throw an item out of the vehicle he was driving; (2) Gregory's Fourth Amendment rights were violated when he was subjected to a traffic stop for expired license tags, but never charged with having expired tags; and (3) Gregory's Fifth Amendment rights were violated when he was subjected to prz-Miranda questioning while in custody. Gregory moves to suppress all evidence seized as a result of the traffic stop and interrogation, and filed several exhibits with the motion, including Officer Colon's police report, Ex. A; Officer Colon's body-worn camera footage, Ex. B; and Officer Felton's body-worn camera footage, Ex. C. At the suppression hearing, the Government presented two witnesses, Officers Colon and Felton. The Government also offered as evidence an aerial photograph of the scene where the traffic stop occurred and a disk containing body-worn camera footage from Officers Colon and Felton, both of which the court admitted.
II. STATEMENT OF FACTS
The facts of the instant case are as follows. On August 7, 2022, around 12:06 a.m., Elizabeth City Police Officer Colon initiated a traffic stop of a Subaru after observing that the vehicle had an expired license plate. At the hearing, Officer Colon testified that as the vehicle turned off the main road and into a gas station parking lot, he saw the driver throw a bag outside of the passenger-side window. Gregory, the driver, was the sole occupant of the Subaru.
Officer Colon approached the Subaru and instructed Gregory to turn off the car, hand over the keys, and step out of the vehicle. Colon then placed Gregory in handcuffs, explaining that he initially stopped him for expired tags, but that he was now under arrest for the bag that was thrown out of the Subaru. Gregory denied knowledge of the bag. At this point, Colon directed Officers Felton and Taylor, who had arrived as backup, to retrieve the bag from the roadside. Colon also placed Gregory in the back seat of a patrol car.
After retrieving the bag, Officers Taylor, Felton, and Colon were unable to deduce its contents; they speculated, however, that the substance inside might be fentanyl. At this point, Felton approached the patrol car and asked Gregory about the bag's contents, concerned for the officers' safety. Gregory simply responded that the bag was not his, which Felton relayed to the other officers. Around the same time, Colon returned to the patrol car and asked Gregory if there was anything illegal inside the Subaru. Gregory's response, as heard on Colon's body cam footage, is inaudible, and neither the defense nor the Government claimed otherwise,at the suppression hearing.
Following the conversation with Gregory, Colon began to search the Subaru. During the search, Colon told another officer that he suspected that the baggie thrown from the Subaru contained crack cocaine. Colon also located a firearm in the glove box. Sergeant Mariner, another responding officer, identified Gregory as a convicted felon. Subsequently, Gregory was transported to the magistrate's office for processing.
III. DISCUSSION
Gregory makes three arguments for suppressing the evidence seized from the August 7, 2022 traffic stop. Specifically, he asserts that (1) he did not throw the plastic bag out of the Subaru; (2) Officer Colon violated his Fourth Amendment rights when he stopped Gregory for having expired plates and searched the Subaru, but never charged him with having expired plates; and (3) Officer Felton violated his Fifth Amendment rights by questioning him about the plastic bag's contents before issuing his Miranda warnings. This Recommendation addresses each claim in turn.
A. The Plastic Bag Claim
Rule 41 of the Federal Rules of Criminal Procedure addresses search and seizure under the Fourth Amendment and identifies suppression as a remedy when the proper procedures are not followed by law enforcement. See Fed. R. Crim. P. 41(h). There are two definitions of a search for Fourth Amendment purposes. First, under the traditional trespassory definition, a search occurs when there is an unlicensed physical intrusion into a constitutionally protected area, such as the home or immediately surrounding area. Florida v. Jardines, 569 U.S. 1, 5 (2013). Second, “[a] ‘search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984) (citations omitted); see also United States v. Jones, 565 U.S. 400, 409 (2012) (“the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”).
In determining whether a defendant has a valid basis for challenging a search under either definition, the crux of the inquiry is whether he had an “individualized expectation of privacy that was ‘objectively reasonable.'” United States v. Rose, 3 F. 4th 722, 727 (4th Cir. 2021) (quoting United States v. Castellanos, 716 F.3d 828, 832 & n.3 (4th Cir. 2013)). Where a defendant challenges seizure of property not in his possession at the time of the search, the Fourth Circuit has mandated that courts consider “whether the defendant claims an ownership or possessory interest in the property, and whether he has established a right or taken precautions to exclude others from the property” to decide if such an expectation exists. Id. The analysis is straightforward in this case, where Gregory denies throwing an item out of the Subaru. If this claim is true, Gregory never had an ownership or possessory interest in the bag, nor a reasonable expectation of privacy in its contents under Rose.
Even if Gregory did throw the bag from the Subaru, though, the subsequent search and seizure was not unlawful. This is because “the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.” California v. Greenwood, 486 U.S. 35, 41 (1988). If Gregory did toss the bag from the Subaru, he willingly exposed the bag and its contents to anyone traversing the public road, including law enforcement. See id. at 40 (finding no reasonable expectation of privacy in opaque garbage bags left on or at the side of a public street). Consequently, no matter how the bag wound up on the roadside, no Fourth Amendment violation occurred, and suppression is not warranted on this basis.
B. The Fourth Amendment Claims
1. The Stop
The Fourth Amendment provides that “(t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” U.S. Const, amend. IV. Because an ordinary traffic stop constitutes a limited seizure within the meaning of the Fourth and Fourteenth Amendments, Delaware v. Prouse, 440 U.S. 648, 653 (1979), such action must be justified at its inception by probable cause or a reasonable suspicion, based on specific and articulable facts, of unlawful conduct. Terry v. Ohio, 392 U.S. 1 (1968). Additionally, the officer's actions during the traffic stop, as well as the overall duration of the traffic stop, must satisfy the conditions of an investigative seizure. United States v. Guijon-Ortiz, 660 F.3d 757, 764 (4th Cir. 2011). Evidence seized as a result of an illegal stop is subject to the fruit of the poisonous tree doctrine. See, e.g, Wong Sun v. United States, 371 U.S. 471 (1963).
Gregory asserts that because he was never charged with having an expired license plate, no basis existed for conducting the stop in the first place. However, precedent has made clear that “[w]hen an officer observes a traffic offense-however minor-he has probable cause to stop the driver of the vehicle.” U.S. v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993) (quoting United States v. Cummins, 920 F.2d 498, 500 (8th Cir. 1990)). The Fourth Circuit has also emphasized that expired tags can be the basis for a lawful stop. United States v. Perez, 30 F. 4th 369, 374-75 (4th Cir. 2022). Thus, when Colon noticed and confirmed that the Subaru's tags were expired, there was probable cause to believe that a traffic violation had occurred.
Not only was the stop justified at its inception, but it remained so throughout. To pass constitutional muster, “[i]f a police officer wants to detain a driver beyond the scope of a routine traffic stop ... he must possess a justification for doing so other than the initial traffic violation that prompted the stop in the first place.” United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008) (citing Florida v. Royer, 460 U.S. 491, 500 (1983)). Such justification may include the officer's reasonable suspicion of illegal activity. Id. As applied here, when Colon activated his blue lights to initiate a traffic stop and noticed the driver of the Subaru throw an item out of the window while turning into a gas station parking lot, he had reasonable suspicion to believe that the bag contained contraband. See United States v. Wheatley, 2023 WL 1113149, at *3 (S.D. W.Va. Jan. 30, 2023) (finding defendant lacked standing, but probable cause existed where law enforcement saw passenger toss contraband after stepping out of vehicle during stop). Consequently, Colon was entitled to recover the baggie and examine its contents during the stop itself.
The fact that Colon never charged Gregory with having expired tags is irrelevant. As previously articulated, the stop itself was reasonable under the Fourth Amendment. Furthermore, the Fourth Circuit has explicitly stated that “[a]n officer's exercise of discretion in making charging decisions has no impact on whether reasonable suspicion existed at the time of the stop.” U.S. v. Wingle, 565 Fed.Appx. 265, 269 (4th Cir. 2014). Accordingly, the stop was lawful even though Gregory was not charged with the same offense for which he was stopped. Suppression is unwarranted on these grounds.
2. The Search
A search or seizure conducted without a warrant issued upon a showing of probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). One such exception to the warrant requirement for searches is the automobile exception, which justifies a warrantless search when there is probable cause to believe that contraband or evidence of a crime will be found within a readily mobile vehicle. See Carroll v. United States, 267 U.S. 132, 153 (1925); United States v. Lowing, 703 F.3d 229, 239 (4th Cir. 2012); United States v. White, 549 F.3d 946, 949 (4th Cir. 2008). Probable cause is determined by the totality of the circumstances, and courts examine all the facts known to the officer to see whether an objectively reasonable police officer would believe there was contraband or evidence to be found in the vehicle. See Ornelas v. United States, 517 U.S. 690, 696 (1996); Lowing, 703 F.3d at 239; Evans v. Griess, 2013 WL 5817239, at *6 (E.D. N.C. Oct. 23,2013).
Gregory argues that because he was never charged with having an expired license plate, no basis ever existed for searching the Subaru. However, Colon testified at the suppression hearing that he saw the Subaru's driver toss a bag from the passenger window after he activated the patrol car's blue lights, and Gregory offered no evidence to refute this version of events. Colon further testified that after recovering the baggie from the roadside, he and the other officers confirmed that it contained some sort of contraband, possibly fentanyl or crack cocaine. Based on these facts, a reasonable officer could objectively conclude, considering their experience, that there was contraband inside the Subaru. See Wheatley, 2023 WL 1113149, at *3. Therefore, it was appropriate to search the vehicle under the automobile exception to the warrant requirement, regardless of whether Gregory was ever charged with having expired tags. There are no grounds for suppression based on this claim.
C. The Fifth Amendment Claim
The Fifth Amendment guarantees that “[n]o person . .. shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const, amend. V. To protect this right, the Supreme Court adopted in Miranda v. Arizona, 384 U.S. 436 (1966), several procedural rules governing custodial interrogations. Id. at 479. Prior to any questioning, a defendant must be warned “that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him . . . .” Id. Any statement elicited from a defendant in violation of these procedural rules is inadmissible in the prosecution's case-in-chief. Oregon v. Elstad, 470 U.S. 298, 307 (1985). Further, once an individual has invoked his Miranda right to counsel, he cannot be “subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
Notably, Miranda's protection only extends to statements-not tangible evidence obtained as the result of an unwarned statement. United States v. Sterling, 283 F.3d 216,219 (4th Cir. 2002). In other words, where a defendant makes an unwarned yet otherwise voluntary statement to law enforcement, that statement will never trigger the fruit of the poisonous tree doctrine with respect to tangible evidence found as a result of that statement. Id. Here, Gregory should have been issued Miranda warnings prior to interrogation when he was in the back of a patrol car, but there are no self-incriminating statements-or frankly, any statements at all-mentioned in the motion to suppress. Def.'s Mot. [DE-24] p. 1-3. At most, there are indirect references to Gregory denying that the bag was his, a claim that he reasserts in the instant motion and that did not contribute to the discovery of the bag or the firearm. Id. As a result, the Fifth Amendment does not mandate suppression of the evidence in this case.
IV. CONCLUSION
For the reasons stated herein, it is RECOMMENDED that Defendant's motion to suppress [DE-24] be DENIED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until November 24, 2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1). Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).