Opinion
6:20-CR-190-ADA
04-12-2023
UNITED STATES OF AMERICA, v. CORI RESENDEZ
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(c) and Rules 1(h) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the Court is Defendant's Second Motion to Suppress. ECF No. 62. The United States filed a response. ECF No. 63. After thorough review of the Motion, the Government's response, the applicable law, and the arguments of the parties, the Court finds that Defendant's Motion to Suppress should be denied for the reasons set forth below.
For docket control purposes, the Court dismissed the first motion to suppress because it raised the same issues addressed in the instant Motion.
I. PROCEDURAL BACKGROUND
On November 10, 2020, a grand jury indicted the Defendant for Possession with Intent to Distribute at Least 50 Grams of Methamphetamine, a Schedule II Controlled Substance; and Possession of a Firearm During the Commission of a Drug Trafficking Crime. ECF No. 4. The Defendant moves to suppress evidence that she argues was obtained by an illegal search. At the hearing on the instant Motion, the Court admitted Government's Exhibit 1, a dash camera video of the traffic stop. The Court also heard testimony from Officer Jay Greer of the City of Lorena, Texas Police Department (LPD).
II. MOTION TO SUPPRESS
Defendant moves to suppress all evidence from the warrantless search occurring after the traffic stop, arguing that 1) the Defendant did not commit the alleged traffic violation and that the traffic stop was therefore unreasonable; and while not explicitly discussed in the Motion or at the hearing 2) the investigative detention resulting from the stop exceeded the permissible limits of the stop and rendered it an illegal seizure.
III. LEGAL STANDARD
The Fourth Amendment protects individuals “against unreasonable searches and seizures.” U.S. Const. amend. IV. This protection extends to traffic stops of vehicles, which are considered seizures for purposes of the Fourth Amendment. United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005); United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993) (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)).
Where a challenged search or seizure was conducted without a warrant, the government bears the burden of showing that it was constitutionally valid. United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005). A traffic stop is a seizure for purposes of the Fourth Amendment. United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). The reasonableness of traffic stops and investigative detentions of motorists who are suspected of criminal activity is analyzed under the framework established in Terry v. Ohio, 392 U.S. 1 (1968). This framework entails examining (1) whether the officer's action of stopping the vehicle was justified at its inception and (2) whether the officer's actions were reasonably related in scope to the circumstances that justified the stop. United States v. Stevens, 487 F.3d 232, 244 (5th Cir. 2007).
IV. STATEMENT OF FACTS
The Defendant argued at the hearing and in her Motion that she did not violate any traffic laws and that the officer had no reason to stop her. The Government called Officer Jay Greer of the LPD to testify at the hearing. Greer has worked as an LPD officer since 2016. He was trained in Texas traffic law while at the academy and has subsequently taken continuing education courses on the topic. He is also a certified canine handler.
Greer credibly testified to the circumstances of the incident. At about 10:45 p.m. on September 14, 2020, Officer Greer was driving at 65 m.p.h. in the middle of three northbound lanes of IH-35. Greer was driving a discreetly-marked or “ghost marked” patrol vehicle that carried a drug-sniffing dog. Because of the discreet markings, drivers often do not recognize that the vehicle is a patrol car unless they are very nearby. At around mile marker 320, Greer observed a vehicle pass him on his left. That vehicle, driven by the defendant, was traveling at least 80 miles per hour in a 75 m.p.h. zone. After passing him, the vehicle immediately moved from the far left lane to the far right lane, abruptly slowed down, then moved in behind an 18wheeler. Greer observed the nose of the vehicle dive under heavy braking, and the vehicle then closely followed the truck-at times closer than one car length. Greer then observed the vehicle weave in the lane and cross the solid white line to the right of the Defendant's vehicle at least three times. In two of those instances, at least half the vehicle crossed the line. Greer then pulled behind the Defendant's vehicle and activated his emergency lights. The Defendant pulled over at mile marker 322.
Greer testified that when he activates his emergency lights, his dash camera automatically begins recording and it includes video of the 45 seconds prior to the activation of the lights. As such, not all the observations that Greer described were captured on the video. A review of the video shows the defendant's vehicle briefly weaving within her lane, but not crossing outside the solid white line to the right of the vehicle. Defendant argued in her Motion and at the hearing that the absence of any recording of the Defendant weaving over the solid white line establishes that the Defendant did not commit any traffic violation that would justify the traffic stop. Given the testimony, the Court finds this argument unpersuasive. The testimony establishes that the Defendant committed at least three traffic violations that preceded the events shown in the video recording: speeding, following too closely, and failing to remain in her lane of traffic. As such, the traffic stop was justified at its inception. Stevens, 487 F.3d at 244.
The Court must also consider whether the officer's actions were reasonably related in scope to the circumstances that justified the stop. Id. After the Defendant stopped, Greer went to the passenger side of the vehicle and spoke with the Defendant. Greer noticed a faint scent of marijuana and he observed the Defendant making furtive movements in front of the driver's seat. The Defendant gave Greer her driver's license and he returned to his patrol car to check the license. After performing the check, he returned to the Defendant's vehicle and again smelled marijuana. He announced that he was going to deploy his drug-sniffing dog and asked the Defendant if there was anything in the vehicle that the dog would alert to. The Defendant said no. As Greer returned to his vehicle, he noticed that the Defendant was again “fidgeting” between her knees. Greer concluded that he should remove her from the vehicle before he deployed the dog.
Greer walked back to the Defendant's car and requested that she get out of her car and stand in front of his patrol car while he walked the dog around her car. The Defendant's demeanor immediately changed-her face grew pale and her eyes began to water. She initially refused to leave her vehicle and, after some discussion, she admitted that there might be a marijuana cigarette in the vehicle. Greer ordered the Defendant out of the vehicle and she complied. He moved the Defendant to stand near the front of his patrol car.
Greer then took the dog around the exterior of the Defendant's car and the dog alerted on the driver's door handle and along the edge of the door. Greer returned the dog to his patrol car and informed the Defendant that he was going to search her car. Inside the vehicle, Greer found digital scales in a purse, a marijuana cigar, a .380 caliber cartridge, four tablets of hydrocodone, and four baggies of a white, crystalline substance that field tested as methamphetamine. Another deputy arrived on scene and found a .380 pistol with a full magazine hidden inside a tear in the driver's seat. When Greer again spoke with the Defendant, she became nauseated and was sweating heavily. He moved her to the interior of the patrol car and left the door open. After doing so, he noticed a baggie of marijuana on the ground where she had been standing.
The Fifth Circuit has held that “Indeed, the smell of marijuana alone may be ground enough for a finding of probable cause, as this Court has held many times.” United States v. McSween, 53 F.3d 684, 686 (5th Cir. 1995) citing United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989) (the officer's detection of marijuana “in itself . . . justified the subsequent search of [the defendant's] vehicle”); United States v. Henke, 775 F.2d 641, 645 (5th Cir. 1985) (“Once the officer smelled the marijuana, he had probable cause to search the vehicle.”); United States v. Gordon, 722 F.2d 112, 114 (5th Cir. 1983) (same); United States v. McLaughlin, 578 F.2d 1180, 1183 (5th Cir. 1978) (same). Officer Greer's initial detection of the scent of marijuana provided him with probable cause to extend the traffic stop and search the vehicle.
If an officer develops reasonable suspicion of additional criminal activity during the investigation of the circumstances that originally caused the stop, he may further detain the occupants for a reasonable time while appropriately attempting to dispel or confirm this reasonable suspicion. United States v. Pack, 612 F.3d 341, 350 (2010). This is exactly what happened during the traffic stop in the case. When Greer smelled marijuana coming from the vehicle at the outset of the traffic stop, he had probable cause to search the vehicle. Instead of immediately searching the vehicle based solely on a faint scent, he prudently made additional observations to either dispel or confirm his reasonable suspicion. The Defendant's furtive movements and nervous behavior, her admission that there might be marijuana in the car, and the drug dog's alert on the vehicle all provided additional probable cause for the search. The vehicle search was clearly related in scope to the circumstances that justified the stop. Stevens, 487 F.3d at 244. Because the traffic stop was justified at its outset, and the subsequent vehicle search was warranted by the circumstances presented at the stop, the search was constitutional.
V. RECOMMENDATION
Based on the foregoing, the Court should DENY Defendant's Motion to Suppress. The parties may wish to file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985).