WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Joseph P. Montminy, U.S. Attorney's Office (Nashville Office) Middle District of Tennessee, Nashville, TN, for Plaintiff.

Sumter L. Camp, Jr., Federal Public Defender's Office (MDTN), Nashville, TN, for Defendant.

MEMORANDUM OPINION

WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE

Before the Court is Defendant James Lamonte Jackson's Motion to Suppress evidence obtained during an allegedly unconstitutional traffic stop. (Doc. No. 36). Having considered Jackson's arguments in support of his motion, the Government's response (Doc. No. 37), Jackson's reply (Doc. No. 42), the Government's sur-reply (Doc. No. 43), the testimony presented during the January 29, 2021 evidentiary hearing (Doc. No. 47), and the parties’ post-hearing briefs (Doc. Nos. 50–52), the Court will grant Jackson's motion to suppress.

I. BACKGROUND

On February 24, 2019, at around 4:00 a.m., Officer Lindsey Javins of the Fairview, Tennessee Police Department was parked at a gas station on Highway 96, facing the roadway. (Doc. No. 47 (hereinafter "Hr'g Tr.") 20:13–21:12; Doc. No. 43-3 at 5; see also Doc. No. 43-2 (overhead picture of scene)). Across the street, she observed a vehicle turn right onto Highway 96 going southbound, which allegedly "caught [her] attention" because the vehicle had a "dark tint" and "noisy muffler." (Hr'g Tr. 20:13–23; Doc. No. 43-3 at 5). Although Officer Javins admitted she would not have stopped the vehicle solely for having a tint violation, (Hr'g Tr. 17:13–18:5; 77:7–25; 89:5–14), she nevertheless left her parking spot to follow the car. The driver of the vehicle was later identified as Vanessa Clark, and the sole passenger was later identified as Jackson, the Defendant in this case. (Doc. No. 43-3 at 5).

Officer Javins caught up to the vehicle in "approximately a minute" and followed behind it at a distance of "approximately one to two car lengths" for four to eight seconds before both cars stopped at a red light. (Hr'g Tr. 38:7–16, 41:5–12, 43:11–15, 62:11–20). During these few seconds, she claims that her headlights reflected off a "clear plastic cover" on the vehicle's registration tag, and the reflection "washed" out the tag and prevented her from seeing the letters or numbers on it. (Id. 43:21–44:10, 72:3–8). But when she stopped at the red light and was "[a]pproximately five [or] six feet" away from the vehicle, she could read the tag clearly. (Id. 38:17–21, 41:21–42:21, 45:18–22, 59:8–16). Indeed, the letters and numbers on the tag were so legible at this distance that she memorized them and later reported them to dispatch over the radio. (Id. 57:11–20, 69:8–70:9). When the light turned green and the vehicle began moving again, however, Officer Javins was once more unable to read the letters and numbers displayed on the tag because of the reflection on the clear plastic cover when she was "approximately a car length ... and-a-half away." (Id. 46:19–47:3, 59:18–24).

Based on her experience and training, Officer Javins stated that she would have expected to be able to read the license tag from about twenty-four feet away. (Id. 64:11–65:5). But because she could not read the tag when her headlights reflected off of the clear plastic cover at this distance, she suspected that there was a "registration violation" under Tenn. Code Ann. § 55-4-110(b) (governing the display of registration plates). (Id. 45:8–22). As a result, Officer Javins activated her overhead blue lights and conducted a traffic stop. (Id. 47:5–12).

During the stop, Officer Javins and Corporal Dutton (who arrived on the scene after the stop) allegedly smelled a "strong odor of marijuana" coming from the vehicle. (Doc. No. 43-3 at 5; Hr'g Tr. at 50:18–51:12). Clark and Jackson were then ordered out of the vehicle, and the officers searched the car and found a firearm under the passenger seat. (Doc. No. 43-3 at 5; Hr'g Tr. at 51:13–17). Jackson was confronted with this evidence and made statements suggesting that the firearm was his. (Doc. No. 43-3 at 6). When a subsequent criminal history check revealed that he was a convicted felon, Jackson was arrested and ultimately indicted for being a convicted felon in possession of a firearm. (Id.; see also Doc. No. 3).

Jackson now moves to suppress evidence of the firearm found in the car and any statements he made thereafter, arguing that Officer Javins lacked justification under the Fourth Amendment to stop the car he was riding in. (Doc. No. 36 at 4) (citations omitted). In response, the Government contends that the stop was valid because Officer Javins observed that the vehicle's registration plate was not "at all times" clearly visible and legible, in violation of Tenn. Code Ann. § 55-4-110(b). (Doc. No. 51 at 5).

II. ANALYSIS

The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "Stopping a vehicle and detaining its occupants amounts to a seizure under the Fourth Amendment." United States v. Freeman, 209 F.3d 464, 466 (6th Cir. 2000) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ). "An automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances." Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). To qualify as a reasonable seizure, the traffic stop must be supported (1) by probable cause to believe a civil traffic violation occurred, or (2) by reasonable suspicion of ongoing criminal activity. United States v. Collazo, 818 F.3d 247, 253–54 (6th Cir. 2016) (citing United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008) ). If the initial traffic stop is unreasonable, then it violates the Fourth Amendment and the evidence and statements obtained from that illegality must be excluded as "fruit of the poisonous tree." United States v. Gross, 550 F.3d 578, 583 (6th Cir. 2008) (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ).

In this case, Officer Javins stopped the vehicle Jackson was riding in because she suspected it violated Tenn. Code Ann. § 55-4-110(b). Section 55-4-110 requires the following:

(a) The registration plate issued for passenger motor vehicles shall be attached on the rear of the vehicle....

(b) Every registration plate shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so to prevent the plate from swinging and at a height of not less than twelve inches (12") from the ground, measuring from the bottom of the plate, in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible.... No tinted materials may be placed over a license plate even if the information upon the license plate is not concealed.

Tenn. Code Ann. § 55-4-110(a), (b). Because a § 55-4-110(b) violation is considered an ongoing criminal offense, Officer Javins needed only reasonable suspicion that the vehicle's registration plate violated the statute to justify an investigatory stop under the Fourth Amendment. See United States v. Simpson, 520 F.3d 531, 541 (6th Cir. 2008) ; see also Tenn. Code Ann. § 55-4-110(e) (noting that "[a] violation of this section is a Class C misdemeanor").

The government bears the burden of proving, by a preponderance of the evidence, the existence of reasonable suspicion to believe that there was an ongoing criminal offense. See United States v. Torres-Ramos, 536 F.3d 542, 552 (6th Cir. 2008) (citation omitted). The reasonable suspicion necessary to justify a traffic stop requires "a particularized and objective basis for suspecting the particular person stopped of criminal activity." Navarette v. California, 572 U.S. 393, 396–97, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) (citing United States v. Cortez, 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ). To satisfy this standard, the stop (often referred to as a Terry stop) "must be supported by specific and articulable facts that would ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.’ " Blair, 524 F.3d at 750 (quoting Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). "In other words, ‘[t]he officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.’ " Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 124 (2000)) (internal quotation marks omitted). "Additionally, the stop must be justified at its inception[.]" Id. (citing Terry, 392 U.S. at 19–20, 88 S.Ct. 1868 ). In determining whether an officer had reasonable suspicion to justify a Terry stop, the Court considers the totality of the circumstances. Navarette, 572 U.S. at 397, 134 S.Ct. 1683.

Given the legal principles above, the proper question in this case is not whether the vehicle Jackson was riding in violated § 55-4-110(b), but rather, whether Officer Javins had an "objectively reasonable suspicion that a violation of that statute was occurring" at the time she stopped the vehicle. See Simpson, 520 F.3d at 542. Officer Javins testified that she suspected the vehicle was violating § 55-4-110(b) solely because her headlights reflected off of a clear plastic cover on the vehicle's registration tag, and that reflection temporarily prevented her from seeing the otherwise legible information on the tag from approximately twenty-four feet away. (Hr'g Tr. 43:21–44:10, 62:11–63:8, 64:20–65:8). The Court finds that although Officer Javins appeared to testify credibly about what she observed, the totality of the circumstances, case law, and plain language of § 55-4-110(b) all suggest that her basis for reasonable suspicion to justify the traffic stop in this case was not credible.

Under the totality of the circumstances, there were many factors that made it objectively unreasonable for Officer Javins to believe that the vehicle was violating § 55-4-110(b). The registration tag was secured to the vehicle correctly, in good condition, and properly displayed. (Id. 84:14–16). The clear plastic cover was not tinted. (Id. 84:17–19). And there was no foreign material on the tag itself that would have prevented her from reading it. (Id. 84:5–8). But the biggest indicator that the vehicle's tags complied with § 55-4-110(b) was that Officer Javins was, in fact, able to read the tag from at least five feet away at night, even with her headlights shining on the clear plastic cover. (Id. 59:8–16, 101:2–8). Indeed, she could see the letters and numbers so clearly at this distance that she memorized them and reported them to dispatch before initiating the stop and exiting her vehicle. (Id. 84:20–86:5). Accordingly, it is undisputed that the vehicle's registration plate was clearly visible and legible "at all times" from at least five feet away.

The Government argues that five feet is not enough to dispel reasonable suspicion because the phrase "at all times" in § 55-4-110(b) means that an officer should be able to read a vehicle's license plate from "a single car length" away (or twelve feet). (Doc. No. 51 at 3). That is not what the statute says. In fact, § 55-4-110(b) does not mention any distance at which the information on a registration plate must be visible or legible. On this point, the Sixth Circuit in Simpson noted, in dicta, that "[a]lthough we are aware of no Tennessee case law that indicates a precise distance from which a [registration tag's information] must be visible, it seems reasonable to assume that more than a few feet is required." United States v. Simpson, 520 F.3d 531, 542 (6th Cir. 2008). But the Sixth Circuit was careful not to create a blanket distance rule because "even if the minimal legibility of the [registration tag's information] from a few feet away were enough to pass muster with" § 55-4-110(b), there were other facts in Simpson (such as the tag's poor condition and illegible expiration date) that added to the officer's reasonable suspicion that the statute was being violated. See id. 542–53. The Court cannot take the same approach in this case, however, because Officer Javins’ testimony and the totality of the evidence presented make clear that none of the secondary factors supporting the stop in Simpson apply here. Simpson left open the question of whether there is a precise distance from which a vehicle's registration plate information must be visible under § 55-4-110(b). Neither the statute nor subsequent case law provide clear guidance on this issue. Nevertheless, the Court finds that it was not objectively reasonable for Officer Javins to believe that § 55-4-110(b) was violated when a clear plastic cover on the vehicle's registration plate created a temporary glare from her headlights approximately twenty-four feet away. See Heien v. North Carolina, 574 U.S. 54, 66, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) (noting that "[t]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes–whether of fact or of law–must be objectively reasonable").

First, if the Court accepted Officer Javins’ alleged basis for reasonable suspicion in this case, it would be interpreting § 55-4-110(b) in a manner that the Sixth Circuit and Tennessee Court of Criminal Appeals rejected as overbroad. In Simpson, the Sixth Circuit found unpersuasive the district court's following interpretation of the statute:

any invisibility or obstruction to visibility of any portion of the tag could constitute a violation of the statute, even if such invisibility or obstruction to visibility is temporary—or even momentary—and may be easily cured, as by the turning on of headlights or by a slight change in distance or the position of the vehicle in relation to the observer.

520 F.3d at 544. The Sixth Circuit rejected this "overbroad interpretation of § 55-4-110(b)" because it "would mean that a police officer who had difficulty seeing a license plate at some unspecified distance or position, even if the license plate were visible at a closer distance or different position, could nevertheless stop a vehicle." Id. And in State v. Hall, the Tennessee Court of Criminal Appeals found that an officer's "subjective judgment that the license plate was ‘hard to see’ cannot be construed as a ‘particularized and objective basis’ for suspecting that the defendant was in violation of" § 55-4-110(b). No. E2006-01915-CCA-R3-CD, 2007 WL 2917728, at *4 (Tenn. Crim. App. Oct. 5, 2007). "Given that an officer need only articulate a modicum of suspicion for a traffic stop," the Hall court further held that "certainly something more objective [than the license plate was ‘hard to see’] must be articulated to meet the standards required by the Fourth Amendment[.]" Id. Coincidentally, the prophetic language from these two cases describes exactly what happened here. Officer Javins had temporary difficulty seeing the license plate only when her headlights reflected off of the clear plastic cover at some unspecified distance between five and twenty-four feet away from the vehicle, but she was able to clearly see the tag at five feet away (notwithstanding the glare from her headlights) because it was not otherwise illegible or obstructed by foreign material. According to Simpson and Hall, these facts alone would not have given Officer Javins reasonable suspicion to stop the vehicle.

Second, the Government's position would allow police officers to create reasonable suspicion through their own subjective, discretionary selection of how far away they ought to be able to read a license plate. In other words, a Tennessee motorist could be suspected of committing a criminal offense under § 55-4-110(b) based on a police officer's eyesight, height, vehicle length, or other circumstances outside that individual's control, even if their registration plate was clearly visible and clearly legible at a closer distance. Because the statute does not specify a distance for visibility, motorists would also have no notice about whether their license plates should be visible from twelve feet away, twenty-four feet away, or fifty feet away, which, of course, would all depend on what officer was on duty that day. Moreover, as a field training officer, Officer Javins testified that she does not train officers about how far away they should be able to see a license tag because of the "different factors that go into it," such as the weather and vehicle height. (Hr'g Tr. 66:23–68:4). Clearly, this arbitrary approach to implementing a criminal statute would run afoul of "one of the central tenets of American legal jurisprudence, that "[l]iving under a rule of law entails various suppositions, one of which is that (all persons) are entitled to be informed as to what the State commands or forbids." United States v. Caseer, 399 F.3d 828, 835 (6th Cir. 2005) (quoting Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (internal quotation marks omitted)).

Third, the Court's colloquy at the evidentiary hearing highlights another reason why Officer Javins did not have an objectively reasonable basis to initiate the traffic stop. During the hearing, the Court asked her to consider the following hypothetical situation and she provided the following answers:

THE COURT: All right. Then let's do that then. It's a bright sunny day. It's noon. You're six feet from the car. You can read the tag?

THE WITNESS: Yes, sir.

THE COURT: It still has the plastic cover on.

THE WITNESS: From six feet, yes, sir.

THE COURT: Right. But you can read it, I guess call it in if you had wanted to?

THE WITNESS: Yes, sir.

THE COURT: Would you still stopped the car?

THE WITNESS: Well, I didn't have any other vio- -- well, I had the tint, but, no, I wouldn't have stopped the car.

THE COURT: And if you were doing the same thing on this sunny day and you get within six feet, then you stop at the -- at the first -- the traffic stop, you would have been able to confirm what you saw at six feet away?

THE WITNESS: Correct.

THE COURT: And that would have been it?

THE WITNESS: Yes, sir.

(Hr'g Tr. 94:12–95:6). If Officer Javins would not have initiated a traffic stop if she could see the vehicle's license plate from six feet away during the day, then it logically follows that the only reason she stopped the vehicle in this case was because it was at night. But just because the stop happened at night does not make it reasonable, particularly because nothing in the statute requires registration plate information to be visible from a further distance at night than during the day.

Fourth, the plain language of § 55-4-110(b) does not prohibit individuals from placing clear plastic covers on their registration plates. Again, the statute provides, in relevant part, that "[e]very registration plate shall at all times be securely fastened ... in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible." Tenn. Code Ann. § 55-4-110(b). It also provides that "[n]o tinted materials may be placed over a license plate even if the information upon the license plate is not concealed." Id. (emphasis added). If the Tennessee legislature had wanted to prohibit clear, non-tinted materials from being placed over license plates, then it would not have expressly limited this clause to "tinted materials." Compare Tenn. Code Ann. § 55-4-110(b), with N.Y. Veh. & Traf. Law § 402 [1.(b)] (providing that "[n]umber plates shall be kept clean and in a condition so as to be easily readable and shall not be covered by glass or any plastic material"). Nor could Officer Javins have made a reasonable mistake of law on this issue, as even she admitted that "[h]aving a clear cover is not illegal." (Hr'g Tr. 70:12–18, 71:24–72:15). Because the clear plastic cover in this case did not prevent the registration plate information from being clearly visible and legible at all times from at least five feet away, Officer Javins did not have reasonable suspicion of a § 55-4-110(b) violation.

Recognizing that the Court could find that Officer Javins lacked reasonable suspicion of a § 55-4-110 violation, the Government argues that "the window tint violation provides an independent basis for upholding the stop." (Doc. No. 51 at 9–10). The Court disagrees. Sure, Officer Javins gave conclusory testimony that she had probable cause to believe there was a tint violation (Hr'g Tr. 22:24–23:15), but she also conceded to the Court and grand jury that "the tint violation ... was not my basis for the stop" and that she has never stopped anyone solely for a tint violation (id. 17:13–16, 77:17–22, 78:19–25, 112:23–114:24). And instead of listing the window tint as a reason for the stop, her incident report merely states: "Therefore, I conducted a traffic stop on the vehicle for violation of Display of Registration Plates ( TCA § 55-4-110 )." (Doc. No. 43-3 at 5). Moreover, while the Government emphasizes Corporal Dutton's testimony that he later tested the vehicle's windows and confirmed there was a tint violation, (Doc. No. 51 at 8), "it is clear that the courts may not determine whether there was probable cause by looking at events that occurred after the stop." United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (en banc). And even if the vehicle did have a tint violation, that violation would not provide an independent basis for upholding the stop in this case because "[t]he court cannot determine that an officer had reasonable suspicion [or probable cause] on the basis of a factor on which the officer did not actually rely." United States v. Townsend, 305 F.3d 537, 541 (6th Cir. 2002). Accordingly, the Court finds that the alleged tint violation is, at best, an impermissible after-the-fact justification for the stop, and certainly is not a factor on which Officer Javins relied. See United States v. Hughes, 606 F.3d 311, 316 (6th Cir. 2010).

In sum, the Court finds that at the time Officer Javins was able to read the vehicle's legible registration plate information while she driving in her car directly behind the vehicle, she could not have had an objectively reasonable suspicion that the vehicle was violating § 55-4-110(b). Accordingly, the Court does not find that the Government has proven by a preponderance of the evidence that Officer Javins was justified in initiating a traffic stop based on a § 55-4-110(b) violation. And because the alleged § 55-4-110(b) violation was the sole basis for the traffic stop in this case, all evidence obtained during the stop must be suppressed as fruit of the poisonous tree.

III. CONCLUSION

For the foregoing reasons, Jackson's Motion to Suppress (Doc. No. 36) will be granted because the February 24, 2019 traffic stop was not justified at its inception and violated the Fourth Amendment. All evidence seized as a result of that stop will be suppressed as "fruit of the poisonous tree," and cannot be used at trial.

An appropriate Order will enter.