Opinion
CRIMINAL CASE NO. 22-35-DLB-CJS
2023-01-23
UNITED STATES of America, Plaintiff v. Adam M. LANG, Defendant
Andrew A. Spievack, Assistant U.S. Attorney, U.S. Attorney's Office, Fort Mitchell, KY, for Plaintiff. Wesley Kiser Williams, Deters, Fichner & Williams PLLC, Burlington, KY, for Defendant.
Andrew A. Spievack, Assistant U.S. Attorney, U.S. Attorney's Office, Fort Mitchell, KY, for Plaintiff. Wesley Kiser Williams, Deters, Fichner & Williams PLLC, Burlington, KY, for Defendant. MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION IN PART David L. Bunning, United States District Judge
This matter is before the Court upon the December 19, 2022 Report and Recommendation (R & R) of United States Magistrate Judge Candace J. Smith (Doc. # 29), wherein she recommends that the Court deny Defendant Adam Lang's Motion to Suppress (Doc. # 18). Defendant having filed Objections (Doc. # 30) and the United States having filed its Response (Doc. # 31), the R&R is ripe for the Court's consideration. For the reasons that follow, the R & R is modified and adopted in part as the opinion of the Court, Defendant's Objections are sustained in part and overruled in part, and the Motion to Suppress is denied.
I. FACTUAL BACKGROUND
On March 2, 2022, Highland Heights Police Officer Patrick Feldman stopped a white Buick LeSabre on Interstate 275 in Campbell County, Kentucky, for a cracked windshield and expired registration. (Doc. # 26 at 7). The vehicle quickly pulled over, and because of the narrow shoulder and heavy traffic, Officer Feldman approached the passenger side of the vehicle. (Id. at 7-8). As he approached, he noticed that the car contained a second person sitting in the front passenger seat. (Id. at 8). This passenger was the Defendant, Adam Lang. (Id. at 8-9). Because the passenger side window did not function, Officer Feldman asked Lang to open the door so he could speak to the driver, and Lang complied. (Id. at 8). When he did so, Officer Feldman noticed a small digital scale in the door. (Id. at 9).
Officer Feldman requested proof of insurance from the driver and identification from both occupants. (Id.). Traffic noise was so loud that Officer Feldman had difficulty communicating with the driver and asked her to repeat herself multiple times. (Id. at 11, 38; see also 29 at 11). Lang refused to identify himself, either by supplying a driver's license or by giving his name, claiming that as a passenger he was not required to do so. (Id. at 9-10). Because Officer Feldman could not safely stand on the driver's side of the car to communicate with the driver, he asked her to get out of the vehicle. (Id. at 10-11). He testified that both occupants appeared nervous, and that the driver seemed reluctant to get out of the car. (Doc. # 26 at 38-39). As Officer Feldman was about to get the driver out of the vehicle, Officer Rowland arrived, and Feldman asked Rowland to get Lang out of the vehicle and identify him. (Id. at 11). Officer Feldman testified that he would not have done this if he had not seen the scale, which caused him to suspect drug activity. (Id. at 39-40).
Once Lang and the driver were out of the car, Officers Feldman and Rowland interviewed them separately. Officer Feldman talked with the driver for about eight minutes. (Doc. # 29 at 3). During that time, he informed her that he had seen a scale in the passenger side door and asked her if she would consent to a search of the car. (Doc. # 26 at 13-14). Apparently surprised by the presence of the scale, the driver consented. (Id.). She also consented to a search of her person by a female officer. (Id.). When Officer Feldman asked her what she knew about Lang's drug use habits, she replied that she had heard he used methamphetamine in the past. (Id.). Officer Feldman testified at the evidentiary hearing that she described Lang as "a habitual methamphetamine user." (Id.).
A female officer conducted a search of the driver and found no contraband. (Doc. # 26 at 14-15).
Officer Feldman then thoroughly searched the vehicle. During the search, he discovered various items of drug paraphernalia in the car and the bags within it, including a digital scale, unused capped syringes, premeasured vials of water, and cotton swabs with the cotton pulled off. (Id. at 17-18). Officer Feldman testified that although none of these items, standing alone, qualified as an item of drug paraphernalia, taken together and with his experience, they were strong evidence of drug use. (Id. at 17). For example, cotton from a cotton swab is often used to filter heroin through premeasured vials of water for administration via syringe. (Id. at 17-18). When confronted with this evidence, the driver appeared shocked and vehemently denied that it belonged to her, protesting that Lang must have placed it there. (Id. at 21-22).
Meanwhile, Officer Rowland interviewed Lang, who initially identified himself as "Adam Lang" as he was getting out of the car, though due to traffic noise, Officer Rowland had difficulty hearing him. (Id. at 49). Lang denied having any form of identification and refused to identify himself further. (Id.). Officer Rowland persisted, taking out a pen and paper to take down Lang's identification, and Lang continued to refuse to identify himself or confirm his previous identification. (Id.). Eventually, he relented and identified himself as "Nicholas Jason Lang." (Id. at 51, 108-09). The driver also stated that she knew Lang as "Nick." (Doc. # 29 at 7). Officer Rowland warned Lang that providing false identification was a crime in Kentucky, and asked him to confirm his name. (Id. at 52). When he did so, Officer Rowland ran the provided information through the database and returned no results. (Id. at 53). This conflicted with Lang's earlier admission that he had served time in prison for assault. (Id. at 53-54).
When Officer Feldman completed the consensual search of the car, he confronted Lang with the evidence he collected. (Id. at 19). Lang stated that the scale was for "measur[ing] coins that he sells and collects." (Id.). Coins were found in the car during the search. Lang further argued that the premeasured water packets were for the driver's daughter's breathing treatment. (Id. at 19). Officer Feldman noted that they were consistent with the premeasured vials handed out at needle exchanges to be used for administering drugs. Lang argued that the needles were used for administering insulin. (Id. at 21). Officer Feldman found these excuses unconvincing, and informed Lang that he had probable cause to arrest him for possession of drug paraphernalia and that he would be searched if arrested. (Id. at 19). After talking with the driver and considering her response, the officers decided they had probable cause to search and arrest Lang. (Id. at 22). They did so, discovering methamphetamine, a small quantity of fentanyl, and a glass pipe for using methamphetamine, among other personal items. (Id. at 55-56). Lang was promptly arrested (id. at 56) and later indicted. (Doc. # 29 at 7). II. PROCEDURAL HISTORY
On August 1, 2022, Lang filed a Motion to Suppress all evidence obtained from the March 2022 traffic stop. (Doc. # 18). He argued that the police officers violated his Fourth Amendment rights by making him exit the vehicle for reasons other than officer safety, effectively abandoning the traffic stop and pursuing a criminal investigation instead. (Id. at 4-5). He argues that because the scope of the stop was unreasonably expanded, all evidence against him must be suppressed. (Id.). The United States contends that police have a categorical right to remove drivers and passengers from a vehicle during a traffic stop and may conduct any investigation so long as it does not extend the duration of the stop. (See Doc. # 19 at 7-8). The United States further argues that the digital scale gave the officers reasonable suspicion to remove Lang from the car to investigate further. (Id. at 8).
On September 26, 2022, Magistrate Judge Smith held an evidentiary hearing on Lang's Motion. Officers Feldman and Rowland testified at this hearing, and the parties stipulated to the bodycam footage from both officers. (See Docs. # 20 and 26). Magistrate Judge Smith granted Lang's motion for post-hearing briefing, and the parties filed additional briefing. (Docs. # 27 and 28). Magistrate Judge Smith entered her R & R on December 19, 2022, recommending that the Motion to Suppress be denied. (Doc. # 29). Lang objected (Doc. # 30) and the United States responded. (Doc. # 31).
III. REPORT AND RECOMMENDATION
In recommending that Lang's Motion to Suppress be denied, Magistrate Judge Smith addressed three main issues raised by the parties: whether the officers impermissibly extended the stop, whether they nevertheless had reasonable suspicion to do so, and whether the officers had probable cause to search Lang's person after the vehicle search. (See generally Doc. # 29 at 9-20).
First, Magistrate Judge Smith found that the officers did not prolong the traffic stop beyond what is allowed by the Fourth Amendment because officers have plenary power to remove occupants from a car during a traffic stop. (Id. at 10). Further, tasks related to the original traffic stop were ongoing, and therefore the questioning of Lang did not impermissibly extend the duration of the stop. (Id. at 12). It is well-settled that police officers may, without reasonable suspicion, remove the driver and passengers from a vehicle during a traffic stop if necessary for officer safety. (Id. at 9-10); Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). "This is so, in large part, because traffic stops are fraught with danger for police officers." United States v. Pacheco, 841 F.3d 384, 390 (6th Cir. 2016) (quotations omitted). However, as Magistrate Judge Smith noted, removal for reasons other than officer safety are impermissible as they expand the scope of the traffic stop and constitute a "detour" requiring reasonable suspicion. (Doc. # 29 at 10).
Lang relied heavily on the recent Sixth Circuit opinion United States v. Whitley in his arguments to the contrary. 34 F.4th 522 (6th Cir. 2022). In Whitley, police officers stopped the defendant for a minor traffic violation. Id. at 526. When they approached the car, officers noticed a scale in his lap. Id. at 527. The officer asked Whitley about it, and then conferred with his fellow officer. Id. He then returned and pulled Whitley out of the car and questioned him about the scale. Id. The court concluded that the officers abandoned any effort to investigate the original offenses that necessitated the stop, and turned their attention exclusively to an unrelated drug investigation. Id. at 530. They therefore violated the Fourth Amendment when they removed Whitley from the vehicle solely to investigate the scale he had on his lap. Id. at 530-31. While the evidence was ultimately not suppressed for other reasons, the court did find a Fourth Amendment violation. See id. at 535. In her R & R, Magistrate Judge Smith overruled Lang's Whitley objections. Based on Officer Feldman's testimony at the evidentiary hearing, she found that Lang and the driver were both removed from the vehicle for safety reasons. (Doc. # 29 at 10-11).
Second, Magistrate Judge Smith found that even if the officers impermissibly prolonged the traffic stop, they were justified based on independent reasonable suspicion. (Id. at 13). The circumstances of the stop created reasonable suspicion of ongoing criminal activity and it was therefore proper for the officers to continue to detain the driver and Lang. (Id. at 10-11). She found that the officers relied on the occupants' nervousness, Lang's incessant refusal to identify himself, the presence of the scale, and the driver's later statement that Lang had previously used methamphetamine, which, taken together, provided reasonable suspicion of criminal activity. (Id. at 14-15).
Lang argued that nervousness, refusal to identify, and a digital scale by themselves did not constitute reasonable suspicion. (Id. at 15-16). Magistrate Judge Smith pointed out that while that is correct, reasonable suspicion is not something deduced from rigid rules, but from "commonsense judgments and inferences about human behavior." (Id. at 14) (quoting Kansas v. Glover, — U.S. —, 140 S. Ct. 1183, 1188, 206 L.Ed.2d 412 (2020)). Taking those observations together with their training and experience, Officers Feldman and Rowland had reasonable suspicion to suspect criminal activity. (Id. at 17).
Finally, Magistrate Judge Smith found that the officers had probable cause to search Lang's person. (Id. at 17). Lang argued that the drug-related items found in the car after the consensual search did not constitute drug paraphernalia and therefore did not provide probable cause. (Id. at 18). Magistrate Judge Smith found that the officers possessed probable cause to search and arrest Lang based on an entirely separate issue—his providing of false identifying information to the officers. (Id.). Lang had admitted to serving prison time for a state assault offense. (Id. at 20). However, when Officer Rowland ran the information Lang provided through his computer, it returned no results. (Id.). Officer Rowland testified that if someone has served time for a previous conviction, it is very easy to find them if they provide the correct information. (Id.). Therefore, Magistrate Judge Smith found that the officers had probable cause to arrest Lang for providing false identifying information to the officers and to search him incident to his arrest. (Id.).
For these reasons, Magistrate Judge Smith recommended that Lang's Motion to Suppress should be denied. (Id. at 20). Lang objected (Doc. # 30) and the United States responded. (Doc. # 31).
IV. ANALYSIS
A. Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1)(B), a district court judge may "designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition . . . of any motion." Under Federal Rule of Criminal Procedure 59(b)(1), following a magistrate judge's recommended disposition, a party has fourteen days to file "specific written objections to the proposed findings and recommendations." The district judge is required to "consider de novo any objection to the magistrate judge's recommendation," and "may accept, reject, or modify the recommendation." Fed. R. Crim. P. 59(b)(3); see also 28 U.S.C. § 636(b)(1)(C). Failure to object is considered waiver of the party's right to review. Fed. R. Crim. P. 59(b)(2).
Objections to a magistrate judge's recommended disposition must be "specific written objections to the proposed findings and recommendations." Id. This necessitates that "vague, general, or conclusory objections," will not be considered and are "tantamount to a complete failure to object." Cole v. Yukins, 7 F. App'x 354, 356 (6th Cir. 2001). Further, an objection that does "nothing more than state a disagreement with a Magistrate's suggested resolution, or simply summarizes what has been presented before, is not an 'objection' as that term is used in this context." United States v. Shephard, No. 5:09-cr-81-DLB-EBA, 2016 WL 9115464, at *1 (E.D. Ky. Sept. 18, 2016) (quoting VanDiver v. Martin, 304 F. Supp. 2d 934, 938 (E.D. Mich. 2004)). A specific objection "explain[s] and cite[s] specific portions of the report which [counsel] deem[s] problematic." Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (alteration in original) (quoting Smith v. Chater, 121 F.3d 709 (6th Cir. 1997) (unpublished table decision)).
B. Defendant Lang's Objections
Lang raised three objections to Magistrate Judge Smith's R & R. (See Doc. # 30). First, he argues that the officers did not remove Lang from the vehicle for safety reasons, but to facilitate a separate criminal drug investigation. (Id. at 1-4). Second, he argues that the information known to the officers at the time they removed him from the car was insufficient to establish reasonable suspicion that criminal activity was afoot. (Id. at 4-5). And finally, he argues that the search of the car did not yield sufficient evidence to establish probable cause to search Lang himself. (Id. at 5-6). For the reasons that follow, the Court agrees with Lang's first two objections and finds that the officers' motivations in removing him from the car were not permissible under the Fourth Amendment. However, the Court disagrees that the officers did not possess probable cause to search his person after the consensual search of the car yielded drug paraphernalia and he provided false identifying information.
1. The Officers Impermissibly Removed Lang from the Car
Investigatory traffic stops are lawful under the Fourth Amendment if the officers have probable cause to believe that a traffic violation has occurred. United States v. Davis, 430 F.3d 345, 352 (6th Cir. 2005). "When a traffic stop is supported by probable cause, an officer's subjective intent is irrelevant." United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008). However, the traffic stop must be carefully limited in both scope and duration. See United States v. Lott, 954 F.3d 919, 923 (6th Cir. 2020). The temporal duration of the stop may not be extended beyond the time required to conduct the tasks associated with the stop. See Hernandez v. Boles, 949 F.3d 251, 256 (6th Cir. 2020). As the Sixth Circuit has stated, "[t]his is a bright-line rule." Id. The scope of the stop may not be expanded absent reasonable suspicion. Id. Within the time required to conduct the stop, officers may ask any questions they want. Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). But they may not do anything they want.
Officers may remove the driver and any passengers from the vehicle because of the potentially serious threats to officer safety inherent in a traffic stop. See Mimms, 434 U.S. at 111, 98 S.Ct. 330; Wilson, 519 U.S. at 415, 117 S.Ct. 882. The Supreme Court's rule is categorical: "[A]n officer making a traffic stop may order passengers to get out of the car pending completion of the stop." Wilson, 519 U.S. at 415, 117 S.Ct. 882. This broad, categorical rule was significantly limited in Rodriguez v. United States. 575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). Whereas Mimms and Wilson appear to state that officers may always remove everyone from a stopped vehicle regardless of the reason, Rodriguez imposes a limiting principle: officer safety. Rodriguez, 575 U.S. at 355-56, 135 S.Ct. 1609.
In Rodriguez, the Court explained that the powers of a police officer at the scene of a traffic stop depend on the purpose of the stop. Id. Because traffic stops are dealt with under a Terry framework, a stop may only extend as long as is reasonably necessary to accomplish the mission of the traffic stop. Id. at 354, 135 S.Ct. 1609. That mission comes with certain inquiries that are typically conducted, such as checking licenses, searching for warrants, and verifying registration. Id. at 355, 135 S.Ct. 1609. "These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly." Id. But there are limits. An officer's interest in his own safety extends only as far as "the mission of the stop itself." Id. at 356, 135 S.Ct. 1609. "On-scene investigation into other crimes . . . detours from that mission," and "[s]o too do safety precautions taken in order to facilitate such detours." Id. In other words, even otherwise reasonable safety measures, taken for impermissible reasons, are constitutionally prohibited.
This is not to say that an officer can never go beyond the reason for the initial traffic stop and investigate new evidence as it arises. He certainly can. But it must be based on independent reasonable suspicion. Whitley, 34 F.4th at 529.
The Sixth Circuit applied Rodriguez in United States v. Whitley. There, the police stopped a car for a traffic violation and noticed a scale in the driver's lap when they approached the window. Whitley, 34 F.4th at 530. Seeing it, they essentially abandoned any investigation of the traffic violations and instead pulled Whitley out of the car to "investigate the scale real quick." Id. (quotations omitted). The Sixth Circuit found that the officer had explicitly detoured from the purpose of the stop as prohibited by Rodriguez. Id. (citing the court's exegesis of Rodriguez in United States v. Lott, 954 F.3d at 924). The Court noted that "the officers . . . explicitly stated that their purpose in continuing the stop was to investigate the scale." Id. at 532 (quotations omitted). "This meant that the stop now became concerned with the scale and Whitley's possible drug-related activity." Id.
The parties—particularly Lang—debate extensively over the application of Whitley despite the fact that it was decided by the Sixth Circuit in May 2022, over two months after the traffic stop in this case. (See Docs. # 29 at 10 and 30 at 3). However, the principles of Whitley find their origin in Rodriguez and its progeny, not in Whitley itself. See Whitley, 34 F.4th at 529-32 (examining Rodriguez, Lott, and Howard). Therefore, in light of the parties' arguments and the continued relevance of the underlying arguments themselves, the case will be addressed.
Just as in Whitley, the officers here testified at the evidentiary hearing that they removed Lang from the car because—and only because—of the digital scale which Officer Feldman observed when he initially opened the car's door to speak to the occupants. The United States and Magistrate Judge Smith acknowledge that Officer Feldman testified to removing the occupants of the car for safety reasons, and because he could not hear their answers to his questions. (See Docs. # 29 at 10-11 and 31 at 2). Yet this is only partly correct.
Officer Feldman testified that he removed the driver because of safety reasons. (Doc. # 26 at 10-11). Although the prosecutor asked the questions broadly, including both occupants, Officer Feldman answered very specifically about the driver only. (Id.).
Q. Now, did you then have the driver and passenger exit the car?
A. I did.
Q. Why did you have them exit?
A. I had the driver exit the vehicle to speak with her where I could hear her in a better volume.
Q. Was it very loud on that stretch of highway?
A. Very.
Q. Was it difficult to hear them from your vantage point on the passenger side, speaking into the vehicle?
A. Yes.
Later, on cross-examination, defense counsel asked Officer Feldman about his motivations. (Id. at 39-40).
Q. So if you didn't find the scale, would you have pulled them out of the vehicle?Predictably, Lang's Objections to the R & R rely heavily on this exchange. (See Doc. # 30 at 1-3). He argues that this exchange proves Officer Feldman removed him from the vehicle for impermissible reasons, whatever his reasoning was for removing the driver. (Id.).
A. No.
Q. So the scale was the lynchpin, so to speak, on kind of changing it from a traffic stop to we're going to do a criminal investigation into possible drugs?
A. Creating my reasonable suspicion, yes.
The Court agrees. Removing Lang from the vehicle to investigate the presence of the scale, without more, violates Rodriguez's prescription against deviating from the scope of a traffic stop. It is the essence of a "safety precaution taken in order to facilitate [a] detour." Rodriguez, 575 U.S. at 356, 135 S.Ct. 1609. Officer Feldman directly admitted as such, and this interpretation of the situation makes intuitive sense in light of the body camera footage and the arrangement of the parties at the stop. Officer Feldman approached the car on the passenger side and spoke past Lang to the driver. Being directly next to Lang, he seems to have had no difficulty hearing him. Even if officers had not yet verified Lang's identity, officer safety did not justify removing him from the car.
The United States contends that so long as the officers did not temporally expand the traffic stop, then they could exercise a categorical right to remove a vehicle's occupants. (See Doc. # 31 at 1-2). They also argue that Whren rules out any subjective analysis of police intentions when a court examines the justification for an action. (Id.). These arguments will be addressed in turn.
The parties argue past each other on the first point. The United States defends the R & R on the grounds of the duration of the stop. (See Doc. # 31 at 1-2). Lang attacks it on the grounds of scope, even though he styles his objection as one made to the duration of the stop. (See Doc. # 30 at 1). The United States is correct that Officer Feldman's interactions with Lang occurred simultaneously with Officer Rowland's interactions with the driver related to the traffic stop. (See Doc. # 29 at 1-7). That much is true: whatever happened to Lang, it did not extend the duration of the stop. But that misses Lang's point. Lang argues that removing him from the car constituted an abandonment of the original traffic stop as it pertained to him, and the commencement of a new criminal investigation. (Doc. # 30 at 1-3). In other words, officers expanded the scope of the traffic stop in violation of the Fourth Amendment. See Lott, 954 F.3d at 923 ("To qualify as reasonable seizures under the Fourth Amendment, Terry detentions must be limited in [both] scope and duration." (quotations omitted)). Absent reasonable suspicion of another offense, scope is limited to the "mission" of the traffic stop. Rodriguez, 575 U.S. at 354-56, 135 S.Ct. 1609. The issue of independent reasonable suspicion will be addressed below, but the mission of the traffic stop did not include investigating other items in the car, even if Lang had not identified himself.
The United States' second argument is made in passing but illustrates a deeper tension in the caselaw. In their response to Lang's objections, they state that Whren precludes any analysis of subjective intentions in evaluating the issue. (See Doc. # 31 at 2). They point to the Whren Court's statement that "[s]ubjective intentions play no role in ordinary, probable cause Fourth Amendment analysis." Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). And Whren is full of such statements made while elaborating on the underlying holding that pretextual police stops are permissible under the Fourth Amendment. That court stated that "subjective intent alone does not make otherwise lawful conduct illegal or unconstitutional." Id. It also stated that "a lawful postarrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches." Id. And that "these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved." Id. All these statements, absent Rodriguez and although likely dicta, strongly counsel against any subjective analysis.
But alas, Rodriguez is with us, and in light of that case it is not clear that Whren stretches as far as the United States would have it—covering police interactions after the initial probable cause stop. It is true that Whren allows for pretextual police stops so long as probable cause exists. Whren, 517 U.S. at 819, 116 S.Ct. 1769. In other words, the officers' subjective motivation bears no relevance on whether the stop is actually justified by the known facts and the law, whether officers rely upon those facts or not. But reading Whren in context and reviewing the cases cited by the court, it appears to apply only to the justification of probable cause traffic stops and probable cause arrests. See id. at 813, 116 S.Ct. 1769 ("We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.") (emphasis added). Whren's progeny seems to continue this limitation. See Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (stating that "cases make clear that an arresting officer's state of mind . . . is irrelevant to the existence of probable cause"). When the Supreme Court allows a certain action—in this case, officers removing a vehicle's occupants—based only on certain reasons, that necessarily requires an examination of motivation. Police are allowed to remove drivers and passengers from their cars because of the "legitimate and weighty" concerns for officer safety. Mimms, 434 U.S. at 110, 98 S.Ct. 330. However, "[h]ighway and officer safety are interests different in kind from the Government's endeavor to detect crime in general or drug trafficking in particular." Rodriguez, 575 U.S. at 357, 135 S.Ct. 1609. So, when the police extend beyond the mission of highway safety and attempt to initiate a drug investigation, they step beyond the blanket of protection provided by the officer safety exception. They are now in new territory that requires independent reasonable suspicion.
It is true the officers would have been justified to remove Lang from the vehicle if they had done so for officer safety reasons, or to facilitate communication. But Officer Feldman essentially rejected that reason at the evidentiary hearing. Therefore, the Court will sustain Lang's first Objection.
2. The Officers Lacked Reasonable Suspicion
Police officers may extend the scope or duration of a traffic stop if they have reasonable suspicion to do so. See Rodriguez, 575 U.S. at 357-58, 135 S.Ct. 1609 (remanding for consideration of whether the dog sniff was supported by independent reasonable suspicion); United States v. Davis, 430 F.3d 345, 353 (6th Cir. 2005). "To satisfy the reasonable-suspicion standard, an officer must put forth more than an inchoate and unparticularized suspicion or hunch." Whitley, 34 F.4th at 532 (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)) (quotations omitted). Instead, they must cite "a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Gross, 662 F.3d 393, 399 (6th Cir. 2011). The factors cited by law enforcement are considered in the aggregate as the totality of the circumstances. Pacheco, 841 F.3d at 394 ("[T]he Supreme Court has cautioned against separating each factor from the others and finding an innocent explanation for it."). But valid factors "may not together provide reasonable suspicion if they are all relatively minor and subject to significant qualification, particularly where the case lacks any of the stronger indicators of criminal conduct that have accompanied these minor factors in other cases." United States v. Stepp, 680 F.3d 651, 665 (6th Cir. 2012) (quotations omitted).
The United States argues—and Magistrate Judge Smith agreed—that the officers had reasonable suspicion to remove Lang from the vehicle because of the presence of the scale and the driver's testimony that Lang had previously used methamphetamine. (Doc. # 29 at 17). Lang argues that these objects were discovered after the officers had already decided to conduct a separate criminal investigation. (Doc. # 30 at 4-5).
This objection is well taken. At the time Lang was removed from the vehicle, Officers Feldman and Rowland knew three things about him: (1) that he was nervous, (2) that he refused to identify himself, and (3) that he possessed a digital scale. (See Doc. # 26 at 38-39, 43). The fact that he was a previous methamphetamine user, elicited from the driver, was not discovered until both Lang and the driver had already been removed from the car. (Id. at 14). Thus, it cannot constitute part of the reasonable suspicion that justified removing Lang from the vehicle in the first place.
Nervousness cannot by itself create reasonable suspicion of a crime. Courts generally recognize that encounters with police almost always create some form of nervousness in the person stopped. See, e.g., United States v. Richardson, 385 F.3d 625, 630-31 (6th Cir. 2004) ("Many citizens become nervous during a traffic stop, even when they have nothing to hide or fear."). The Sixth Circuit has "held on numerous occasions . . . that nervousness is an unreliable indicator, especially in the context of a traffic stop." Stepp, 680 F.3d at 665 (quotations omitted). As a factor justifying reasonable suspicion, courts find it "inherently unsuspicious." United States v. Urrieta, 520 F.3d 569, 577 (6th Cir. 2008) (emphasis in original). However, "while [courts are] cautioned against relying too heavily on nervousness as indicia of dangerousness, [Lang's] nervousness is another factor in the totality-of-the-circumstances analysis that [may support] a reasonable-suspicion finding." Pacheco, 841 F.3d at 393. The officers in this case testified that Lang and the driver both appeared nervous; in fact, they appeared unusually nervous. (Doc. # 26 at 38-39).
That nervousness is quite understandable given the facts of the case. Officer Feldman approached the car from the passenger side and opened the door to speak with Lang and the driver. (Id. at 8). This put him in an unusual position compared to the usual traffic stop where passengers are not expected to be as nervous. See Rodriguez, 575 U.S. at 368, 135 S.Ct. 1609 (Thomas, J., dissenting) ("The officer thought he was 'more nervous than your typical passenger' who 'do[esn't] have anything to worry about because [t]hey didn't commit a [traffic] violation.' "). Officer Feldman was standing directly next to Lang, with the door open, leaning down to see and converse with the driver. These facts justify more nervousness on his part and are benign taken by themselves.
Second, the officers noted that Lang initially refused to identify himself. (Doc. # 26 at 9). It is uncontested that identification of the occupants of a vehicle is one of the tasks associated with a normal traffic stop. Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609. "Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond." Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). "[A] citizen's refusal to listen or answer does not, without more, provide reasonable, objective grounds to suspect criminal activity." United States v. Chivers, No. 1:19-CR-119, 2020 WL 5757135, at *11 (S.D. Ohio Sept. 28, 2020) (quotations omitted). Only something more, added to the refusal to provide identification, can allow the refusal to help produce reasonable suspicion. See id. (citing Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)). By itself, this refusal would not create reasonable suspicion.
Finally, the officers relied on the presence of a digital scale as reasonable suspicion that Lang was engaged in drug trafficking. (Doc. # 26 at 17, 37). Digital scales such as this have "long [been] recognized as tools of the drug trade." United States v. Frazier, 249 F. App'x 396, 402 (6th Cir. 2007). And although explanations for the purpose of suspect objects can help remove the taint of suspicion, officers are of course not required to accept those explanations. See United States v. Ellis, 497 F.3d 606, 614 (6th Cir. 2007).
Here, when Lang was asked about the scale, he readily explained that he kept it for weighing valuable coins. (Doc. # 26 at 19). Officer Feldman admitted on cross-examination that there were a number of these coins in Lang's lap while he spoke to Officer Feldman, all of them individually packaged "the way a coin collector would do." (Id. at 26). Nevertheless, Officer Feldman decided that the scale was itself drug paraphernalia. (Id. at 34). Yet at that moment, and based on what the officers actually knew, the strong corroborating evidence severely undermined that conclusion.
Given the weakness of the first and second factors, the Court does not believe that the third factor—the presence of a digital scale—strengthens the aggregate factors sufficiently to support reasonable suspicion here. Both the driver and Lang were nervous when Officer Feldman initially approached, perhaps more so than normal for a traffic stop. (Id. at 38-39). Lang initially refused to identify himself. (Id. at 9). And there was a scale in the door, accompanied by a coin collection on Lang's lap. (Id. at 19). Looking at the totality of the circumstances according to the analysis above, the Court does not find "the exact opposite of ambiguity: objective and particularized indicia of criminal activity." United States v. Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011).
Other factors relied on by the United States, such as the driver's statement about Lang's past methamphetamine use and the drug paraphernalia later found in the car, cannot be considered here because they were found after Lang was removed from the vehicle. As Lang pointed out in his Objections, "when a court examines reasonable suspicion, factors that an officer becomes aware of after the seizure cannot be considered." (Doc. # 30 at 5). That is correct. Beauchamp, 659 F.3d at 571 ("As reasonable suspicion to make a stop cannot be justified by facts that become apparent only after a seizure, these facts are irrelevant to the court's analysis.").
Based on the facts available to the officers when they decided to remove Lang, the Court finds that the responding officers did not have independent reasonable suspicion sufficient to justify removing Lang from the vehicle. The Court therefore sustains Lang's second objection to the R & R.
3. The Officers Had Probable Cause to Search Lang
Lang's final objection focuses on the search of his person that revealed the methamphetamine he is charged with possessing. (See Doc. # 30 at 5-6). He argues that the objects discovered in the car did not constitute drug paraphernalia and therefore did not give probable cause to search his person. (Id.). Magistrate Judge Smith agreed with the United States' position that the status of the discovered items was irrelevant because the officers had probable cause to arrest him for providing false identifying information. (Doc. # 29 at 18). Under the search-incident-to-lawful-arrest doctrine, which allows a pre-arrest search if officers finalize the arrest shortly after conducting the search, Officers Rowland and Feldman were justified in searching Lang. (Id. at 20). Lang responds that the officers testified that they searched and arrested him based on the drug paraphernalia found in the car, and therefore their search could not have been based on the false information. (Doc. # 30 at 5-6).
The search-incident-to-lawful-arrest doctrine allows officers to conduct a "full search of an arrestee's person incident to a lawful custodial arrest." United States v. Robinson, 414 U.S. 218, 234-35, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). In Rawlings v. Kentucky, the Supreme Court extended this rule to allow officers to search before the arrest, provided they already have probable cause to arrest the suspect before conducting the search. 448 U.S. 98, 110-11, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).
Based on this law, Magistrate Judge Smith stated that Lang's providing false information to the officers was sufficient to establish probable cause for Lang's arrest. (Doc. # 29 at 20). The Court agrees. Providing law enforcement officers with incorrect identifying information is a crime in Kentucky. See Ky. Rev. Stat. § 532.110(1). Officer Rowland attempted to identify Lang, who initially refused, then identified himself as "Adam Lang" (Doc. # 26 at 49), then stated his name was "Nicholas Jason Lang" when asked to confirm later. (Id. at 51). Officer Rowland warned him that providing false information to police was illegal, as he was required to do by the statute, and Lang confirmed that his name was "Nicholas Lang." (Id. at 52). When Officer Rowland ran the information through his computer, it returned no results. (Id. at 52-54). This result was inconsistent with Lang's statement that he had served prison time for a state assault charge, because court records reliably show up when a correct name is entered. (Id. at 53). While Lang certainly had the right to remain silent, once he decided to identify himself, he was under an obligation to do so truthfully. At this point the officers had probable cause to arrest Lang for violation of K.R.S. § 523.100. Therefore, a pre-arrest custodial search was permissible. See Rawlings, 448 U.S. at 110-11, 100 S.Ct. 2556.
The search would have been proper even if the officers searched Lang based on the items discovered during the search of the car. The standard for probable cause does not require that there be no other possible use for the items in question than a criminal one. All that is required is that "the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (quotations omitted). "Determinations of probable cause are based on a review of the totality-of-the-circumstances, and involve a practical, common-sense review of the facts available to the officer at the time of the search." United States v. Padro, 52 F.3d 120, 123 (6th Cir. 1995) (quotations omitted).
During the search of the car, Officer Feldman discovered hypodermic needles, cotton buds with the cotton tips pulled off, premeasured vials of water, and the digital scale. (Id. at 17-18). He further testified that taken together and given his experience, they were strong evidence of drug use. (Id. at 17). Applying the probable cause analysis, this Court is confident that observation of hypodermic needles, cotton buds with the cotton tips pulled off, pre-measured vials of water, and a digital scale, combined with the driver's statement that she knew Lang had previously used methamphetamine would be sufficient to convince any "man of reasonable caution"—let alone a trained law enforcement officer—that criminal activity was afoot. See Brinegar, 338 U.S. at 175-76, 69 S.Ct. 1302. As the United States points out in its Reply, it is "immaterial that [the defendant] was ultimately charged with an offense different than that which provided the legitimate probable cause justifying the search." (Doc. # 31 at 4) (quoting United States v. Coleman, 458 F.3d 453, 458 (6th Cir. 2006)).
Therefore, the Court finds that there was probable cause to arrest Lang for providing false identifying information to the police, and a pre-arrest search-incident-to-arrest was therefore proper. Further, the officers had probable cause to search Lang based on the drug paraphernalia in the car. Lang's third objection is therefore overruled.
C. Suppression of Evidence
Suppression is an extraordinary sanction. United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Although the Court agreed with two of Lang's three objections, that does not mean he is automatically entitled to suppression of the evidence against him. See id. (Suppression is not "a personal constitutional right of the party aggrieved."). And it comes with significant social costs from not allowing the use of "inherently trustworthy tangible evidence" in the prosecution's case. Id. at 907, 104 S.Ct. 3405. The main purpose of suppression is deterrence, and therefore, suppression is the "last resort, not [the] first impulse." Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). As a guide in determining whether suppression is warranted, "the court must consider the extent of such deterrence as well as the social costs of suppressing evidence, and the benefits of deterrence must outweigh the costs." United States v. Alderson, No. 3:21-CR-68, 2022 WL 3356025 (M.D. Tenn. Aug. 12, 2022) (quotations omitted).
The value of deterrence in this case is very low, not least because the evidence against Lang was the fruit of a valid probable cause search-incident-to-arrest, itself justified by evidence obtained through Lang's own actions and a consensual search of the vehicle. Based on this record, the Court has found that the police interactions with Lang morphed into a criminal investigation separate from the purpose of the original traffic stop. See supra pp. 828-34. However, as Officer Rowland was interacting with Lang, Officer Feldman simultaneously questioned the driver as a normal part of the traffic stop and investigation, which did not extend the traffic stop beyond a constitutionally permissible one. (See Doc. # 26 at 11-16). It was from this contemporaneous investigation, untainted by any improper removal from the car, that officers obtained consent to search the vehicle and learned of Lang's apparent past use of methamphetamine. (Id. at 13). In this search they discovered drug paraphernalia. (Id. at 17). As that was occurring, Lang abandoned his right not to answer officer questions and elected to identify himself—albeit falsely. (Id. at 51-52). His false self-identification is untainted by the improper removal from the car; Officers Rowland and Feldman would have continued their attempts to identify Lang whether he remained in the car or not.
In the end, none of the evidence in this case would be different had Lang not been removed from the car. There is no reason to assume that the officers would not have requested and received permission to search the car. After all, that question was not asked because of any evidence discovered as a result of Lang's removal from the vehicle. Therefore, the drug paraphernalia would still have been discovered and the officers would have had probable cause to search him, as discussed above. And his removal from the car did not prompt him to provide false identifying information to the police; there is every indication that Officer Rowland would have continued to try to obtain Lang's identification even had he remained seated in the car. Therefore, the officers would still have had probable cause to arrest him for violating Kentucky law. Thus, the Constitutional violation does not affect the evidence against Lang at all, and suppression is not warranted.
V. CONCLUSION
Ultimately, Defendant has raised some meritorious legal objections to part of Magistrate Judge Smith's Report and Recommendation. However, suppression is not appropriate for the reasons stated. Accordingly,
IT IS ORDERED as follows:
(1) The Magistrate Judge's Report and Recommendation (Doc. # 29) is MODIFIED AND ADOPTED AS STATED HEREIN;
(2) Defendant Lang's Objections (Doc. # 30) to the Report and Recommendation are SUSTAINED IN PART AND OVERRULED IN PART; and
(3) Defendant's Motion to Suppress (Doc. # 18) is DENIED; and
(4) This matter is scheduled for a Scheduling/Status Conference on Tuesday, January 31, 2023 at 1:00 p.m. in Covington. REPORT AND RECOMMENDATION AS TO DEFENDANT'S MOTION TO SUPPRESS Candace J. Smith, United States Magistrate Judge
This matter is before the Court on Defendant Adam Lang's Motion to Suppress (R. 18). The Government responded to the Motion (R. 19), and an evidentiary hearing was held on September 27, 2022 (R. 23). Lang filed a supplemental memorandum following the hearing (R. 27), to which the United States responded (R. 28). The Motion is now ripe for consideration and preparation of a report and recommendation by the undersigned pursuant to the Standing Referral Order (R. 6). See 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below, it will be recommended that the Motion to Suppress (R. 18) be denied.
See United States v. Quinney, 238 F. App'x 150, 152 (6th Cir. 2007) (citing United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001) (characterizing a motion to suppress as dispositive)).
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts surrounding Lang's suppression motion are based on testimony and video footage of the events that transpired during a traffic stop on March 2, 2022. The parties stipulated to the accuracy and admissibility of the officers' body camera footage pertaining to the traffic stop. (See R. 22 (Officer Feldman's body camera stipulated as Joint Exhibit 1; Officer Rowland's body camera stipulated as Joint Exhibit 2); see also R. 26 at Page ID 60-63 (admitting joint exhibits)). At the evidentiary hearing, the United States called two witnesses—Officers Patrick Feldman and Michael Rowland—to testify about the alleged events that transpired leading up to and during Lang's traffic stop. (See R. 23; R. 24; R. 26). The following is a chronological version of the events elicited from testimony and video footage from body cameras of the traffic stop and arrest.
Unless otherwise indicated, Page ID numbers refer to the transcript of the evidentiary hearing (R. 26).
On March 2, 2022, Officer Patrick Feldman of the City of Highland Heights Police Department stopped a vehicle on the interstate for expired registration and a broken windshield. (Page ID 64-65; Joint Ex. 1 at 00:49). Officer Feldman testified that the stretch of highway where the traffic stop occurred was very busy and had a shoulder "approximately 6 to 8 feet" wide, placing him close to passing cars when conducting the traffic stop. (Page ID 65-66). Officer Feldman exited his cruiser, approached the passenger's side of the vehicle, and asked the passenger (Defendant Lang) to lower the passenger window. (Page ID 66; Joint Ex. 1 at 00:40). Lang indicated that the window was broken and opened the passenger door. (Id.). Officer Feldman testified that when Lang opened the passenger door, he observed a digital scale located in the pocket of the door. (Page ID 67). The scale is visible in Officer Feldman's body camera footage. (Joint Ex. 1 at 00:45).
Officer Feldman continued with the traffic stop, asking for insurance for the vehicle and identification for both the driver and Lang. (Id.; Joint Ex. 1 at 1:29). The driver stated she had a driver's license but that it might take time for her to find it. (Joint Ex. 1 at 1:35-2:10). During this exchange, Officer Feldman told the driver that he could not hear her and that she needed to speak up. (Joint Ex. 1 at 1:35). Lang stated he did not have a physical ID and refused to verbally provide identifying information, claiming that he was not required to do so as a passenger. (Page ID 68; Joint Ex. 1 at 2:15). Officer Feldman asked the driver to provide her identifying information verbally. (Page ID 67). The driver provided her first and last name, how to spell both names, her date of birth, her social security number, and the fact that she had an Ohio ID. (Joint Ex. 1 at 2:49-3:40). Officer Feldman testified that, at that time, he did not know who the passenger of the vehicle was or whether he had any outstanding warrants, or whether the driver was in fact who she identified herself to be. (Page ID 68).
While circling the rear of the car to the driver's side, Officer Feldman told another officer who had arrived at the scene, Officer Michael Rowland, also of the City of Highland Heights Police Department, that he was "gonna get her [the driver] out." (Joint Ex. 1 at 3:40). Officer Feldman asked the driver to exit the vehicle because he could not hear her. (Joint Ex. 1 at 3:52). Officer Feldman testified that he had the driver exit the vehicle because the passing traffic was close in proximity making it both difficult to hear and dangerous. (Page ID 69, 82-83, 96). Officer Feldman further testified that the driver was "hesitant" to exit the vehicle and "overly nervous for a basic traffic violation." (Page ID 96-97; Joint Ex. 1 at 3:50). Officer Feldman directed Officer Rowland to have Lang exit the vehicle and to determine his identity. (Page ID 69, 106; Joint Ex. 1 at 4:25). Officer Feldman conducted a roadside interview of the driver at the front of the suspect vehicle, some distance away from Lang and Officer Rowland. (Page ID 70-71).
1. Officer Feldman interviews the driver then searches the vehicle
Officer Feldman's interview of the driver lasted approximately seven and a half minutes. (Joint Ex. 1 at 5:10-12:45). That interview started with questions pertaining to where she was coming from and going to; where she lived; and her relationship with Lang. (Id.). Officer Feldman subsequently asked for and received the driver's consent to search the vehicle. (Page ID 71-72, 86; Joint Ex. 1 at 6:18). Officer Feldman informed the driver that he wanted to search the vehicle because he observed a digital scale in the passenger door. (Page ID 72; Joint Ex. 1 at 6:18 (stating also faulty registration and broken windshield)). Officer Feldman testified that the driver appeared surprised when he described the scale. (Page ID 72). Officer Feldman questioned the driver about both her and Lang's drug use. (Id.; Joint Ex. 1 at 6:18). The driver indicated that she heard Lang used methamphetamine. (Id.). Officer Feldman testified that the driver described Lang as a habitual methamphetamine user. (Page ID 72).
Officer Feldman also asked for and received the driver's consent to have a female officer search her person. (Page ID 72). A female officer later responded to the scene and searched the driver, but nothing illegal was found on her person. (Page ID 72-73).
After having the driver verify her information and informing her that providing false information to an officer is an arrestable offense in Kentucky, Officer Feldman provided the driver's information to dispatch. (Page ID 73-74; Joint Ex. 1 at 8:24-9:50). Before hearing back from dispatch, Officer Feldman questioned the driver about her criminal history, specifically, whether she had ever been arrested or had any speeding tickets. (Joint Ex. 1 at 9:25-10:14). Shortly thereafter, dispatch responded, and Officer Feldman replied with "gotcha." (Joint Ex. 1 at 10:15). Officer Feldman continued to question the driver about the credibility of her excuse that they were actively headed to the BMV to fix her registration. (Id.). Officer Feldman concludes his interview by conducting a consensual cursory search of the driver's pockets. (Joint Ex. 1 at 11:10). After finishing his cursory search, Officer Feldman directed the driver to stand next to Officer Rowland and he proceeded to search the vehicle. (Joint Ex. 1 at 11:10-12:10).
Dispatch's response is inaudible in the body camera footage. Officer Feldman did not testify whether this response was a confirmation of the driver's information.
The search of the vehicle lasted approximately 18 minutes. (Joint Ex. 1 at 12:45-30:54). Officer Feldman found what he believed to be drug paraphernalia, including a digital scale, unused capped syringes, premeasured vials of water, and Q-Tips with cotton pulled off. (Id.; Page ID 75-76). Officer Feldman testified that, according to his training and experience, drug users tend to pull cotton from the ends of a swab and place it in water to filter narcotics. (Id.). Officer Feldman further testified that, according to his training and experience, the presence of the items together suggested that it was drug paraphernalia. (Id.). Officer Feldman clarified that all of the drug paraphernalia was found within reach of Lang. (Id. at Page ID 93, 102).
2. Officer Rowland interviews Lang
During Officer Feldman's interview of the driver and subsequent search of the vehicle, Officer Rowland had Lang exit the vehicle and interviewed him some distance away from the driver and Officer Feldman. (Page ID 106-07; Joint Ex. 2 at 3:50). That interview lasted approximately 26 minutes. (Joint Ex. 2 at 4:05-30:35). Lang initially identified himself first as Adam Lang. (Page ID 106-07; Joint Ex. 2 at 4:12). Officer Rowland questioned Lang regarding his travel plans, whether he had a physical ID, and whether he had anything illegal or dangerous on his person. (Id.). Lang informed Officer Rowland that he had recently been released from Boone County after serving five and a half months for assault. (Page ID 111; Joint Ex. 2 at 4:30). Lang also noted that he did not have ID. (Page ID 107-08).
Officer Rowland again asked Lang for his name and this time Lang refused. (Id.). Officer Rowland testified that he and Lang had a "back and forth" about providing identifying information. (Id.; Joint Ex. 2 at 4:30-11:00). Lang ultimately identified himself as Nicolas Jason Lang and gave a date of birth. (Page ID 108-09; Joint Ex. 2 at 11:05-12:12 (Nicholas Lang), 23:15 (middle name Jason)). However, Lang could not provide a social security number. (Page ID 109; Joint Ex. 2 at 22:35). Officer Rowland continued to question Lang about his line of work and his criminal history. (Joint Ex. 2 at 16:00-30:00). Officer Rowland informed Lang that providing false identifying information to a police officer is an arrestable offense in Kentucky. (Page ID 110; Joint Ex. 2 at 30:14). Lang verified that the information he provided was accurate. (Id.). Officer Rowland testified that he could not immediately check the information provided by Lang because Officer Feldman was "still dealing with the [driver] and then Officer Feldman began searching the vehicle when I was talking with the [driver] and Mr. Lang." (Id. at 108-09, 100 S.Ct. 2556).
At some point during Officer Rowland's interview with Lang, the driver joined, and Officer Rowland also questioned the driver about her line of work. (Joint Ex. 2 at 16:20-17:05).
3. Officer Feldman Interviews Lang
After completing his search of the vehicle, Officer Feldman interviewed Lang away from the driver and Officer Rowland. (Page ID 75-79; Joint Ex. 1 at 31:25-40:15). Officer Feldman questioned Lang about his drug use, what the scale, needles, cotton swabs, and vials of water were used for, his relationship with the driver, his line of work, and the driver's drug use. (Id.). Lang insisted the digital scale was used to measure coins, the hypodermic needles were used for insulin, and the premeasured vials of water were used for breathing treatments for the driver's daughter. (Page ID 77-79; Joint Ex. 1 at 31:25-40:15). Officer Feldman testified that he did not find Lang's excuses for the items credible. (Page ID 77-78, 99). Officer Feldman directed Lang to stay with the female officer and presented the drug paraphernalia to the driver. (Page ID 79; Joint Ex. 1 at 40:15). The driver stated that the drug paraphernalia did not belong to her and that it must have been placed in her purse by Lang. (Page ID 79-80, 119; Joint Ex. 1 at 41:00).
4. The Officers Search and Arrest Lang
While Officer Feldman was questioning Lang, Officer Rowland returned to his cruiser and checked the identifying information provided by Lang. (Page ID 108-11; Joint Ex. 2 at 30:35-37:30). Officer Rowland testified that it would be "very easy to find somebody if they have any prior cases." (Page ID 111). Officer Rowland further testified that the system did not return a hit when using the information provided by Lang, leading him to believe that Lang had not been truthful. (Page ID 112; Joint Ex. 2 at 30:35-37:30). When he completed the information check, Officer Rowland exited his cruiser and questioned the driver about Lang's identity. (Id.; Joint Ex. 2 at 37:30). The driver informed Officer Rowland that she knew Lang as "Nick." (Id.). Officer Rowland testified that at that point "he was under the belief that [Lang] was lying to [him] about [Lang's] name." (Page ID 112-13).
After confirming with the driver that the drug paraphernalia did not belong to her, Officer Feldman informed Officer Rowland for the first time that he had found drug paraphernalia in the vehicle. (Page ID 80, 113; Joint Ex. 1 at 45:55; Joint Ex. 2 at 45:15). It was at that point that the officers decided to search Lang's person. (Page ID 113; Joint Ex. 1 at 46:15; Joint Ex. 2 at 45:35). The officers found two separate quantities of methamphetamine, an amount of fentanyl, and a glass pipe typically used for methamphetamine. (Page ID 113-14; Joint Ex. 1 at 47:15; Joint Ex. 2 at 46:30). The officers handcuffed Lang and placed him inside a police cruiser. (Page ID 114; Joint Ex. 1 at 47:15). The methamphetamine the officers obtained from Lang's person was the basis for the federal charges brought against Lang. (See R. 1).
B. Procedural History
On May 12, 2022, the federal grand jury at Covington returned an Indictment charging Lang with one count of possession with the intent to distribute 50 grams or more of methamphetamine. (R. 1). Lang initially appeared and was arraigned on June 1, 2022, where he pleaded not guilty. (R. 10). Lang filed the pending Motion to Suppress all evidence obtained from the search of his vehicle and his person. (R. 18). The Government responded (R. 19) and the Court held an evidentiary hearing on the issue. (R. 23). At the conclusion of the hearing, the Court granted Lang's unopposed oral motion for a transcript of the hearing and for leave to file a post-hearing brief. (Id. at ¶ 2). The parties filed their respective post-hearing briefs (R. 27; R. 28) and the Motion is ripe for adjudication.
II. ANALYSIS
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 . . . [.]" U.S. Const. amend. IV. The parties do not dispute that Lang's traffic stop constituted a seizure within the meaning of the Fourth Amendment, Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), or that Lang has standing to challenge the seizure, Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). See United States v. Bah, 794 F.3d 617, 626-27 (6th Cir. 2015). Moreover, Lang conceded that Officer Feldman had probable cause to initially stop the vehicle. (R. 27 at Page ID 127); see United States v. Simpson, 520 F.3d 531, 540 (6th Cir. 2008).
Instead, Lang moved to suppress the Government's evidence on two grounds: first, that the officers impermissibly abandoned the traffic stop when, without reasonable suspicion, they removed the driver and Lang from the vehicle and questioned them about narcotics (R. 27 at Page ID 128); and second, that "the items located by the officers during a search of the vehicle did not rise to the level of probable cause to search Mr. Lang." (R. 27 at Page ID 135). The United States argued (1) that the officers did not prolong the traffic stop, (2) that even if the officers prolonged the traffic stop, they had reasonable suspicion to do so, and (3) that the officers had probable cause to search Lang's person. (R. 28 at Page ID 163). Thus, the Court first turns to whether the officers abandoned the traffic stop, and if so, whether that abandonment was supported by reasonable suspicion.
A. The officers did not impermissibly prolong the traffic stop
The Supreme Court has determined that a lawful seizure "can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). Since traffic stops are generally brief encounters, the stop is more akin to a Terry stop than a formal arrest. See Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). Thus, like a Terry stop, the duration and scope of an officer's inquiry is determined by the seizure's "mission," meaning "to address the traffic violation that warranted the stop" and "attend to related safety concerns[.]" Rodriguez v. United States, 575 U.S. 348, 354, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). In general, the "mission" is complete and the officer's authority to detain a person ends, "when tasks tied to the traffic infraction are—or reasonably should have been—completed." Id. at 355, 135 S.Ct. 1609. An officer's mission during a typical traffic stop includes determining whether to issue a citation, "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration." Id. If an officer exceeds the mission of the traffic stop, his detour must be supported by reasonable suspicion. United States v. Whitley, 34 F.4th 522, 529 (6th Cir. 2022). This is true even when the detour is de minimis. Id.
Lang argued that "Officer Feldman initiated [a] criminal investigation when he found the scale, and had [the occupants] exit the vehicle." (R. 27 at Page ID 129). In other words, removing the occupants from the vehicle "converted a lawful traffic stop into a criminal investigation" and required reasonable suspicion. (Id. at Page ID 128). Lang relied on three cases in support of his position. See, e.g., Whitley, 34 F.4th 522; United States v. Beauchamp, 659 F.3d 560 (6th Cir. 2011); and United States v. Chivers, No. 1:19-cr-119, 2020 WL 5757135 (S.D. Ohio Sept. 28, 2020).
It is well-established that law enforcement may remove the driver of a lawfully stopped vehicle as a matter of course, that is, without reasonable suspicion. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). That rule applies equally to passengers in a vehicle. See Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997); see also United States v. Pacheco, 841 F.3d 384, 390 (6th Cir. 2016). "[A]n officer may need to take certain negligibly burdensome precautions in order to complete his mission safely." Rodriguez, 575 U.S. at 356, 135 S.Ct. 1609. "This is so, in large part, because traffic stops are 'fraught with danger' for police officers." Pacheco, 841 F.3d at 390. In other words, legitimate safety concerns are incidental to the typical traffic stop. Thus, the officers were permitted to remove both the driver and Lang from the vehicle without having to show independent reasonable suspicion.
Whitley is not to the contrary. In Whitley, officers removed a driver from a lawfully stopped vehicle solely to investigate a scale they observed on the driver's lap. 34 F.4th at 527. The Sixth Circuit determined that removing the driver from the vehicle constituted a detour and therefore required independent reasonable suspicion. Id. at 530. This was "because the request facilitated the investigation into the scale and did not pertain to the original traffic stop." In other words, the officers did not have a legitimate safety concern to justify removing the occupant from the vehicle. See Rodriguez, 575 U.S. at 356, 135 S.Ct. 1609. The officers in Whitley "explicitly stated their purpose in continuing the stop was to 'investigate the scale.' This meant that the stop [then] became concerned with the scale and Whitley's possible drug-related activity." Id. at 532.
Here, unlike Whitley, the officers had legitimate reasons for removing the driver and Lang from the vehicle. Officer Feldman testified that the stretch of highway where the traffic stop occurred was very busy and had a shoulder "approximately 6 to 8 feet" wide, placing him close to passing cars when conducting the traffic stop. (Page ID 65-66). Officer Feldman further testified that he removed the driver from the vehicle because the passing traffic was close in proximity making it both difficult to hear and dangerous. (Page ID 69, 82-83, 96). Officer Feldman's testimony was corroborated by the fact that he asked the driver to repeat herself several times when requesting her identifying information. (Joint Ex. 1 at 1:35 and 3:52). Thus, it was proper for Officer Feldman to remove the driver from the vehicle to confirm her identifying information—a task tied to the traffic stop. Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609. Regardless, given his proximity to passing traffic, Officer Feldman's legitimate safety concern warranted removing the occupants from the vehicle. See Whitley, 34 F.4th at 530; see also United States v. Street, 614 F.3d 228, 232 (6th Cir. 2010).
Lang cited Beauchamp solely for the proposition that the Court's inquiry into the officers' reasonable suspicion to remove the occupants from the vehicle should be limited to what the officers knew at the time of removing the occupants. (See R. 27 at Page ID 129-30) ("reasonable suspicion to make a stop cannot be justified by facts that become apparent only after the seizure.") (quoting Beauchamp, 659 F.3d at 571). In the context of seizures that require reasonable suspicion, the point is well-taken. But as already discussed, the officers here did not need reasonable suspicion to remove the occupants from the vehicle. See Mimms, 434 U.S. at 110-11, 98 S.Ct. 330; Wilson, 519 U.S. at 414-15, 117 S.Ct. 882. Their "legitimate and weighty interest" in safely completing the stop was enough. Rodriguez, 575 U.S. at 356, 135 S.Ct. 1609; Whitley, 34 F.4th at 530. In addition, Beauchamp did not involve the government's removal of an occupant from a vehicle. See 659 F.3d at 564.
Lang also cited to Chivers at length. (See R. 27 at Page ID 130-33). In Chivers, a driver was pulled over for speeding. Chivers, 2020 WL 5757135, at *2. There were three passengers in the vehicle and two officers conducted the stop. Id. After the officers obtained identifying information, one officer ran the information while the other officer began questioning the passengers about other unrelated potential crimes. Id. After the officer running the information had finished, he decided to discontinue writing the ticket to also question the passengers about unrelated crimes. Id. at *3. After talking to the passengers again and finding inconsistencies in their stories, the officers reentered their police vehicle to discuss whether they should call a drug dog to conduct a sniff of the vehicle. Id. The officers eventually learned that a drug dog was nearby and asked that it be brought to the traffic stop. Id. at *4. The officers waited approximately eight minutes for the dog to arrive. Id. While waiting on the dog to arrive, the officers questioned the driver about the vehicle's rental agreement. Id. The officers decided to put the defendant in the back of their police vehicle to question him about the rental agreement. Id. Once the dog arrived, and without consent, the K-9 conducted a sniff of the vehicle and alerted to several areas of the vehicle where the officers found firearms. Id. at *5. The district court, relying on Rodriguez and the panel decision in Campbell, found that the traffic stop was unreasonably prolonged once the officer had finished writing the ticket and reengaged in questioning the passengers about unrelated crimes without reasonable suspicion. Id. at *9. The district court explained that the other officer's unrelated questioning did not prolong the traffic stop because it occurred while another officer was working on the ticket. Id. However, once the officer had finished checking the information and reengaged in unrelated questioning, that conduct prolonged the traffic stop in violation of the Fourth Amendment because the officers lacked reasonable and articulable suspicion of ongoing criminal activity. Id. The district court granted the defendant's motion to suppress and concluded that suppression of the evidence was warranted.
The United States appealed the Southern District of Ohio's suppression ruling to the Sixth Circuit, Docket No. 20-4084, but that appeal was subsequently voluntarily dismissed and a motion to dismiss the indictment was filed and granted by the district court.
Chivers is inapposite. The district court determined that the officers abandoned the traffic stop because they questioned the occupants of the vehicle after they had "run[ ] [the] required checks" and had "all of the information necessary to issue the citation." Id. at *10. Thus, the court determined, the officers "brought stop-related activities to a halt [and] undeniably prolonged the stop." Id. Here, the traffic stop was ongoing until the officers were able to confirm the identity of both the driver and passenger. Questions "unrelated to the traffic stop" are permissible "during the time 'when tasks tied to the traffic infraction [were]—or reasonably should have been' ongoing." Whitley, 34 F.4th at 530 (quoting Rodriguez, 575 U.S. at 354, 135 S.Ct. 1609). As discussed, the officers had the driver and Lang exit the vehicle for legitimate safety reasons. When the driver exited the vehicle, Officer Feldman obtained her consent to search the vehicle. (R. 26 at Page ID 71-72, 86; Joint Ex. 1 at 6:18). Officer Feldman then confirmed her information and ran it with dispatch. (R. 26 at Page ID 73-74; Joint Ex. 1 at 8:24-10:15). Officer Rowland testified that he was unable to check Lang's identifying information until after Officer Feldman had completed his search of the vehicle. (R. 26 at Page ID at 108-09). After running Lang's information, Officer Rowland double checked with the driver whether that information was in fact correct. (Id. at Page ID 112; Joint Ex. 2 at 37:30). In other words, the tasks related to the traffic stop were ongoing; thus, any unrelated questioning did not prolong the stop and no independent reasonable suspicion was necessary. Whitley, 34 F.4th at 530.
B. Even if the officers prolonged the traffic stop, they did so based on independent reasonable suspicion
Because the removal of the occupants from the vehicle did not prolong the traffic stop, the reasonable suspicion inquiry is not limited to, as Lang suggested (see R. 27 at Page ID 130), what was known to the officers at that time. The circumstances of the traffic stop created reasonable suspicion of ongoing criminal activity and it was therefore proper for the officers to continue to detain the driver and Lang.
In general, reasonable suspicion involves officers making "commonsense judgments and inferences about human behavior." Kansas v. Glover, — U.S. —, 140 S. Ct. 1183, 1188, 206 L.Ed.2d 412 (2020) (quoting Wardlow, 528 U.S. at 125, 120 S.Ct. 673). Courts consider the totality of the circumstances when determining whether an officer has developed reasonable suspicion of criminal activity. United States v. Stepp, 680 F.3d 651, 664 (6th Cir. 2012) (citation omitted). "Reasonable suspicion requires specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant the continued detention of a motorist after a traffic stop." United States v. Smith, 263 F.3d 571, 588 (6th Cir. 2001) (citing Terry, 392 U.S. at 21, 88 S.Ct. 1868); see also United States v. Bell, 555 F.3d 535, 539 (6th Cir. 2009) ("To detain the motorist any longer than is reasonably necessary to issue the traffic citation, however, the officer must have reasonable suspicion that the individual has engaged in more extensive criminal conduct.") (quotation omitted). The officer "must point to specific and articulable facts that are more than an ill-defined hunch." United States v. Richardson, 385 F.3d 625, 630 (6th Cir. 2004) (internal quotations omitted). "Police officers are permitted to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." United States v. Shank, 543 F.3d 309, 315 (6th Cir. 2008); see also United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). "[T]he likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." Arvizu, 534 U.S. at 274, 122 S.Ct. 744 (citations omitted). The Supreme Court has also "recognized that the concept of reasonable suspicion is somewhat abstract" but explained that it has "deliberately avoided reducing it to a neat set of legal rules." Finally, "newly discovered information 'can create reasonable suspicion to detain the driver longer in order to investigate other crimes.' " United States v. Stevenson, 43 F.4th 641, 648 (6th Cir. 2022) (quoting United States v. Sheckles, 996 F.3d 330, 345 (6th Cir.), cert. denied, — U.S. —, 142 S. Ct. 717, 211 L.Ed.2d 404 (2021)).
Lang argued that he had a legitimate explanation for the digital scale, and that his nervousness and refusal to provide identifying information cannot be considered in the reasonable suspicion analysis. In support of the claim that a person's refusal to provide identifying information cannot be considered, Lang again relied on Chivers. (See R. 27 at Page ID 133). However, in Chivers, the court stated that "a citizen's 'refusal to listen or answer does not, without more,' provide 'reasonable, objective grounds' to suspect criminal activity." 2020 WL 5757135, at *11. (emphasis added) (quoting Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). Officer Feldman testified that several things in addition to Lang's refusal to give his identifying information provided reasonable suspicion of criminal activity. (R. 26 at Page ID 83, 96-98, 101) (digital scale, driver's hesitancy to exit the vehicle, both occupants' nervousness). Chivers looks to a Ninth Circuit decision which held that "demanding a passenger's identification is not part of an officer's mission during a traffic stop." Id. (citing United States v. Landeros, 913 F.3d 862, 868-70 (9th Cir. 2019)). However, there is Sixth Circuit precedent to the contrary. See United States v. Smith, 601 F.3d 530, 542 (6th Cir. 2010) (finding "it [ ]appropriate for [an officer] to check both whether [the passenger] and [the driver] had valid identification and whether they had any outstanding warrants"); see also United States v. Alexander, 467 F. App'x 355, 362 (6th Cir. 2012) ("In this circuit we have held that in situations similar to the present case, an officer does not violate the Fourth Amendment during a traffic stop by asking for passenger identification, even where there was no reasonable suspicion of any wrongdoing by the passengers.").
In support of his claim that nervousness is not a proper factor for reasonable suspicion, Lang relied on United States v. Stepp, 680 F.3d 651 (6th Cir. 2012). (R. 27 at Page ID 134). To be clear, in Stepp the Sixth Circuit concluded only that "nervousness is an unreliable indicator," not that nervousness should never be considered. Id. at 665 (emphasis added). In fact, the Sixth Circuit concluded that "[a]lthough many of the government's factors when considered individually are weak indicators of criminal activity, when combined with the occupants' past history of narcotics activity and their vague travel plans, the totality of the circumstances supports the existence of reasonable suspicion." Id. The only limitation ordinarily placed on nervousness as a factor in the reasonable suspicion analysis is that it is "not a ground sufficient in and of itself." United States v. Wilson, 506 F.3d 488, 495-96 (6th Cir. 2007). Instead, "nervousness is generally included as one of several grounds for finding reasonable suspicion." Id.; see United States v. Simms, No. 20-9-DLB-EBA, 2020 WL 7769092, at *7 (E.D. Ky. 2020) (officer's "suspicions were bolstered by [the driver's] name not being on the rental agreement, his nervousness, and his improbable travel plans"). Thus, the officers' reliance on nervousness, in addition to the other factors, is not improper.
Finally, Lang argued that "[w]ithout more and given Mr. Lang's detailed explanation for the purpose of the digital scale and coins in his possession, the digital scale is not sufficient to create reasonable suspicion." (R. 27 at Page ID 135). Lang argued that "possessing a scale is an additional datapoint weighing in favor of reasonable suspicion [only] if other conduct suggestive of drug activity is observed." (Id.) (quoting Whitley, 34 F.4th at 534). But that was not the only information that connected Lang with drug use. During her interview with Officer Feldman, the driver indicated that Lang was known to have used methamphetamine. (R. 26 at Page ID 72; Joint Ex. 1 at 6:18). Notably, Officer Feldman's interview took place while Officer Rowland was trying to confirm the identity of Lang—a task tied to the traffic stop. Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609; Alexander, 467 F. App'x at 362. In other words, Officer Feldman's drug-related questioning of the driver "d[id] not measurably extend the duration of the stop." Whitley, 34 F.4th at 530 (quoting Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609). Officer Feldman's observation of the digital scale, combined with the driver's indication that Lang previously used methamphetamine, provided reasonable suspicion that the digital scale might be a "tool of the drug trade." Id. at 534 (quoting United States v. Frazier, 249 F. App'x 396, 402 (6th Cir. 2007)); see United States v. Marxen, 410 F.3d 326, 329 (6th Cir. 2005) ("In considering all the circumstances, the question is not whether there is a possible innocent explanation for each of the factors, but whether all of them taken together give rise to reasonable suspicion that criminal activity may be afoot.").
C. The officers had probable cause to search Lang's person
Warrantless searches "are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." Taylor v. City of Saginaw, 922 F.3d 328, 334 (6th Cir. 2019) (quoting United States v. Hockenberry, 730 F.3d 645, 658 (6th Cir. 2013)). "Under the 'search-incident-to-a-lawful-arrest' exception to the warrant requirement, a law enforcement officer may conduct a full search of an arrestee's person incident to a lawful custodial arrest." United States v. Montgomery, 377 F.3d 582, 586 (6th Cir. 2004) (quoting United States v. Robinson, 414 U.S. 218, 234-35, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)). Among the reasons for this exception is "the need to preserve evidence on his person for later use at trial." Id. The Supreme Court has extended the rule to "permit an officer to conduct a full search of an arrestee's person before he is placed under lawful custodial arrest." Id. However, law enforcement may conduct a pre-arrest search of a person only if " 'the formal arrest follow[s] quickly on the heels of the challenged search of . . . [his person]' and the fruits of that search are not necessary to sustain probable cause to arrest him." Id. (quoting Knowles v. Iowa, 525 U.S. 113, 116-19, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998)). In other words, the officer's search of Lang's person was proper if they had probable cause to arrest him, the arrest quickly followed the search of his person, and the evidence obtained as a result of his arrest was not necessary to establish probable cause in the first instance.
Lang challenged the officers' search of his person on the sole ground that the items seized from the search of the vehicle did not provide probable cause to believe that the items were drug paraphernalia in violation of KRS § 218A.500. However, the Court agrees with the Government's position that the officers had probable cause to arrest Lang for providing false identifying information to the officers in violation of KRS § 523.110. In other words, Lang's challenge to the officers' probable cause to arrest him for possessing drug-paraphernalia is irrelevant. See United State v. Coleman, 458 F.3d 453, 458 (6th Cir. 2006) ("It is [ ] immaterial that [the defendant] was ultimately charged with an offense different than that which provided the legitimate probable cause justifying the search.").
"[S]tate law defines the offense for which an officer may arrest a person, while federal law dictates whether probable cause existed for an arrest." Kennedy v. City of Villa Hills, 635 F.3d 210, 215 (6th Cir. 2011). KRS § 523.110 states:
(1) A person is guilty of giving a peace officer false identifying information when he or she gives a false name, address, or date of birth to a peace officer who has asked for the same in the lawful discharge of his or her official duties with the intent to mislead the officer as to his or her identity. The provisions of this section shall not apply unless the peace officer has first warned the person whose identification he or she is seeking that giving a peace officer false identifying information is a criminal offense.KRS § 523.110. Moreover, "[a] peace officer may make an arrest instead of issuing a citation for a misdemeanor committed in his or her presence if the misdemeanor is [a] violation of KRS . . . 523.110." KRS § 431.015(1)(b).
(2) Giving a peace officer false identifying information is a Class B misdemeanor.
Lang provided false information to Officer Rowland during the encounter. (R. 26 at Page ID 106-10; Joint Ex. 2 at 4:05-30:35). Lang also said that he did not have an ID. (R. 26 at Page ID 107-08). Officer Rowland asked Lang for identifying information, and Lang refused. (Id.). Officer Rowland testified that he and Lang had a "back and forth" about providing identifying information. (Id.; Joint Ex. 2 at 4:30-11:00). Lang ultimately identified himself as Nicolas Jason Lang and gave a date of birth. (R. 26 at Page ID 108-09; Joint Ex. 2 at 11:05-12:12 (Nicholas Lang), 23:15 (middle name Jason)). However, Lang did not provide a social security number. (R. 26 at Page ID 109; Joint Ex. 2 at 22:35). Officer Rowland informed Lang that providing false identifying information to a police officer is an arrestable offense in Kentucky. (R. 26 at Page ID 110; Joint Ex. 2 at 30:14). Lang confirmed that the information he provided was accurate. (Id.). Officer Rowland testified that he could not immediately check the information provided by Lang because Officer Feldman was "still dealing with the [driver] and then Officer Feldman began searching the vehicle when I was talking with the [driver] and Mr. Lang." (R. 26 at Page ID 108-09).
Officer Rowland testified that it would be "very easy to find somebody if they have any prior cases." (R. 26 at Page ID 111). Officer Rowland further testified that the system did not return a hit when using the information provided by Lang, leading him to believe that Lang had not been truthful because Lang previously said he had been in jail for an assault conviction. (Id. at Page ID 112; Joint Ex. 2 at 30:35-37:30). Officer Rowland clarified that he did not run the name Lang initially provided upon exiting the vehicle (i.e., his real name, Adam Lang) because Officer Rowland forgot his first name. (R. 26 at Page ID 115). When he completed the information check, Officer Rowland exited his cruiser and questioned the driver about Lang's identity. (Id.; Joint Ex. 2 at 37:30). The driver informed Officer Rowland that she knew Lang as "Nick." (Id.). Officer Rowland testified that at that point "he was under the belief that [Lang] was lying to [him] about [Lang's] name." (Page ID 112-13). Under these circumstances, the officers had probable cause that Lang provided false information to them, they arrested Lang shortly after confirming that his provided information was in fact false, and the evidence obtained from that search—the methamphetamine, fentanyl, and pipe—did not play a role in their probable cause determination. Therefore, under the search-incident-to-lawful-arrest exception, the officers did not violate the Fourth Amendment when they searched Lang's person immediately before lawfully arresting him.
III. CONCLUSION AND RECOMMENDATION
In his Motion to Suppress (R. 18), Lang asks the Court to suppress evidence obtained through the search of his person. As explained above, the Government has shown that law enforcement did not impermissibly prolong the duration or scope of the traffic stop and had probable cause to search Lang's person without a warrant. Lang has failed to show that he is entitled to suppression of any evidence because he has not demonstrated his Fourth Amendment rights were violated. Accordingly, IT IS RECOMMENDED that the Motion to Suppress (R. 18) be denied.
Specific objections to this Report and Recommendation must be filed within fourteen (14) days of the date of service or further appeal is waived. 28 U.S.C. § 636(b)(1)(C); Fed. R. Crim. P. 59(b)(2); Thomas v. Arn, 474 U.S. 140, 142, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947, 950-51 (6th Cir. 1981).