D. Thomas Ferraro United States Magistrate Judge

REPORT AND RECOMMENDATION

Before the Court is Defendant Singleton's motion to suppress evidence. (Doc. 46.) The government filed a conclusory response opposing this motion. (Docs. 48, 52.) These matters came before Magistrate Judge Ferraro for a report and recommendation as a result of a referral, pursuant to LRCrim 5.1. An evidentiary hearing was held on February 6, 2019. (Doc. 67.) The Magistrate Judge recommends that the District Court, after its independent review, deny the motion.

During the motions hearing the Court clarified that the defendant's singular claim is the officer lacked reasonable suspicion for the stop.

I.

FACTUAL BACKGROUND

Arizona Department of Public Safety (DPS) Trooper Algra testified at the hearing as follows: On April 27, 2018, at about 9 to 10 p.m., Trooper Algra saw a green Audi automobile traveling in the number one lane (commonly referred to as the left or passing lane) westbound on State Route (SR) 80 at about milepost 360. He followed immediately behind the Audi for about 4 miles, which was traveling at 52 miles per hour (MPH) in the number one lane the entire time. Trooper Algra paced the Audi at this speed and used his radar to verify the vehicle was traveling at that speed. The posted speed limit was 65 MPH. There was other traffic on the highway, which appeared to Trooper Algra did not pass the Audi because they would have had to travel in the right lane. Thus, in Trooper Algra's opinion, the Audi was obstructing the flow of traffic. Trooper Algra stopped the Audi and issued two warnings for violating Arizona traffic laws to the defendant, who was driving the Audi.

Defendant Mykahl Zebadiah Singleton testified at the hearing as follows: On April 27, 2019, he was driving the Audi vehicle on the number two lane (commonly referred to as the slow or right lane) westbound on SR 80 when he saw a DPS vehicle pull along side of him in the left lane. The DPS vehicle then slowed, pulled in behind him and turned on his emergency lights. The defendant initially testified that he was traveling at 60 mph, then changed his testimony and said he was driving at 65 mph but slowed down when the marked DPS vehicle pull alongside. On cross-examination the defendant testified that he set his cruise control earlier at 60 MPH when he saw a posted 55 mph speed limit sign. The defendant acknowledged on cross-examination that he did not want to be stopped because he had personal amount of marijuana in the vehicle. When asked in cross-examination about why he set his cruse control above the posted 55 mph speed limit, the defendant did not have an explanation, except that people in Arizona drive above the speed limit.

II.

DISCUSSION

Defendant Singleton moves to suppress all evidence seized by law enforcement officers after the stop. He argues the stop was pretextual, was based on his race and lacked reasonable suspicion. In support of this claim the defendant makes four points, which he argues shows the Trooper's racial bias. First, when the Trooper first saw the green Audi he ran a registration check and discovered the vehicle was registered to a "black woman" in Phoenix. Second, the defendant testified that the Trooper pulled up next to him, where he presumably could have seen his race, then immediately pull in behind him and turned on his emergency lights. Third, on cross-examination the Trooper said there were not very many blacks who live in the area. Fourth, soon after stopping the defendant, as he came alongside the passenger side he drew his taser.

The Court considers each of these assertions in order. The Trooper testified that he runs vehicle registrations hundreds of times daily and he merely described the registered owner, who was a black female. The Trooper denied pulling alongside of the defendant. The Trooper's testimony about the number of blacks living in the area was in response to a question on cross-examination. There was no evidence that this belief played any role in his decision to stop the defendant. The Trooper also testified that when he approached the car after the stop he noticed people who appeared to be illegal aliens inside, so he drew his taser for protection. The Trooper denied pointing the taser at the defendant but did aim it at the side of the car. Significantly, this is the only testimony about Trooper Algra's knowledge of the occupants in the green Audi. Apparently, he was unaware before the stop that there were possibly illegal aliens in the car.

Trooper Algra provided reasonable explanations for each of the events defendant claims support his conclusion of racial bias. Thus, the issue turns on the credibility of Trooper Algra versus Defendant Singleton. According to Trooper Algra's testimony the defendant was obstructing travel by driving in the number one lane at 52 MPH in a posted 65 MPH speed zone. Trooper Algra stopped the defendant for that reason and he issued two warnings for those violations. "[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810 (1996). If a traffic violation is observed, the traffic violation forms the reasonable basis for the stop, even when the ultimate purpose of stopping the vehicle is to search for contraband. See id. at 812-13.

According to the defendant's testimony, he was not traveling below the speed limit in the number one lane obstructing the flow of traffic. Rather, he was traveling at the posted speed limit in the slow lane and when the Trooper pulled alongside he saw his race and then pulled him over. If the defendant's version is true, the Trooper's account is completely fabricated. If Trooper Algra testified falsely there is a strong inference the stop was not for a traffic violation, but pretextual. If Defendant Singleton's testimony is inaccurate it was either the result of mistake, faulty memory or an effort obstruct justice. This Court need not determine which of these caused the false testimony to find the defendant's testimony incredible.

The defendant seems to have difficulty remembering his speed at the time. He variously testified that he set his cruise control at 60 MPH and 65 MPH. This testimony contradicts Trooper Algra's testimony that he both paced and check the speed on radar, which showed he was traveling at 52 MPH. According to the defendant, he set his cruise control after he passed a 55 MPH speed sign. It seems unreasonable that the defendant would have set his cruse control above the speed limit under the circumstances, because he testified he did not want to be stopped. The defendant's manner of testimony when confronted with apparent inconsistencies also suggests either confusion, memory lapse or deception. He often paused and seem to have difficulty explaining his answer. Finally, the defendant has a significant interest in the outcome of the case. If his motion to suppress is granted, he may avoid prosecution on the pending felony charges.

In contrast, Trooper Algra's testimony was consistent with his report, he seemed to have a good memory of the events. The Court also notes that Trooper Algra elected to issue the defendant warnings rather than citations, which undermines an inference that the Trooper acted with an improper motive. The Court finds Trooper Algra's testimony credible, the stop was motivated by traffic violations committed in his presence and, therefore, lawful.

III.

RECOMMENDATION

Accordingly, it is recommended that, after its independent review of the record, the District Court deny Defendant's motion to suppress. (Doc. 46.) Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.

Dated this 11th day of February, 2019.

/s/_________

D. Thomas Ferraro

United States Magistrate Judge