Opinion
No. 53,413-KA
03-04-2020
STATE of Louisiana, Appellee v. Brandon BELL-BRAYBOY, Appellant
This criminal appeal arises from the 26th Judicial District Court, Parish of Webster, the Honorable Michael O. Craig, presiding. The defendant, Brandon Bell-Brayboy ("Bell-Brayboy"), entered a Crosby plea to possession with intent to distribute 400 grams or more of CDS, Schedule II, cocaine, and possession with intent to distribute CDS, Schedule I, heroin. Defendant was sentenced to 15 years' hard labor on both counts. Defendant now appeals. For the following reasons, we reverse Bell-Brayboy's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
On Tuesday evening, February 21, 2017, Bell-Brayboy was stopped for a traffic violation on I-20 in Webster Parish, Louisiana. During that traffic stop, law enforcement completed a K-9 search of defendant's vehicle and found 24 pounds of cocaine and heroin. Initially, defendant was prosecuted in the United States District Court for the Western District of Louisiana for conspiracy to possess with intent to distribute cocaine and heroin. Defendant filed a motion to suppress, and a hearing was held on that motion on July 19, 2017. On November 3, 2017, in accordance with the recommendation of the magistrate judge, the federal district court granted defendant's motion, finding the search of defendant's vehicle unconstitutional, and suppressed all evidence recovered as result of the search, including defendant's incriminating statements. As such, the federal charges for conspiracy to possess with intent to distribute cocaine and heroin were subsequently dismissed.
Then, on November 7, 2017, the 26th Judicial District Court, Parish of Webster, issued an arrest warrant for Bell-Brayboy for the charge of possession with intent to distribute cocaine and heroin, found as a result of the February 21, 2017 search. On December 6, 2017, defendant was charged by bill of information with: (1) Count One: possession with intent to distribute 400 grams or more of CDS, Schedule II, cocaine, in violation of La. R.S. 40:967(F)(1)(c) ; and (2) Count Two: possession with intent to distribute CDS, Schedule I, heroin, in violation of La. R.S. 40:966(A)(1). The defendant waived formal arraignment and pled not guilty.
On January 3, 2018, the state filed an opposition to defendant's motion to suppress arguing there was reasonable suspicion of criminal activity during the stop. On September 13, 2018, defendant filed a motion to suppress arguing that there was no probable cause for defendant's traffic stop, and that law enforcement unconstitutionally extended the stop so that a K-9 unit could search defendant's vehicle.
The record indicates that the State filed its opposition to defendant's motion to suppress before defendant filed the motion.
On October 5, 2018, a hearing was held on the motion to suppress. At that hearing, the state introduced a transcript of the hearing on the motion to suppress held in the U.S. District Court. The following testimony was elicited at the July 19, 2017 hearing in U.S. District Court. Louisiana State Trooper George Strickland ("Tpr. Strickland") testified that on the evening of February 21, 2017, he was positioned on the shoulder of I-20 east in Webster Parish, near mile marker 38. Tpr. Strickland testified that he observed a 2005 Toyota Solara pass his location traveling in the right lane. Tpr. Strickland stated that when the Solara passed him it was traveling at about 70 mph, and as it passed him, it slowed down to approximately 65 mph.
The transcript was introduced as State's Exhibit 2 ("S.E. 2"). The state indicated that the trial court would need to read that transcript prior to ruling, and that "some of the testimony is probably not going to make sense to you until you read the federal transcript." Defendant agreed to the introduction of S.E. 2, and the trial court referenced S.E. 2 throughout its written ruling. Therefore, that transcript will be summarized first.
Tpr. Strickland testified that he pulled out to further observe the vehicle, and saw it use the left lane to pass several tractor-trailers. Tpr. Strickland stated that, upon catching up to the vehicle, he began running its Georgia license plate. Tpr. Strickland testified that when the vehicle moved back into the right lane, it crossed the fog line. Tpr. Strickland testified that he then confirmed that that the vehicle had not been stolen. Tpr. Strickland testified that he then initiated a traffic stop at which point his dash cam was activated. Tpr. Strickland testified that he asked for defendant's driver's license and identified him as Brandon Bell-Brayboy. Tpr. Strickland stated that the vehicle was registered to a female in Georgia, the inside of the vehicle was very clean, and there were no personal effects inside the vehicle except a backpack in the backseat that had "University of Alabama" on it.
Tpr. Strickland stated that defendant told him he had been in Houston since Friday, where he had been exercising with his trainer. Tpr. Strickland stated that defendant was holding on to his cell phone during their interaction, and defendant kept breaking eye contact to stare at the blank cell phone screen. Tpr. Strickland stated that he found it odd that defendant had been in Houston from Friday to Tuesday, but the only luggage in the passenger compartment of the car was a backpack. Tpr. Strickland testified that as he continued to speak with defendant, defendant received a call on his cell phone, which he answered. Tpr. Strickland testified that he asked defendant to put down the phone and tell the person he was speaking with that he would call him back. Tpr. Strickland stated that defendant said he was only letting his friend know where he was located. Tpr. Strickland stated that the phone number that appeared on the screen of defendant's phone did not have a name attached to it, which he found odd, because defendant stated he was speaking with a friend.
Tpr. Strickland stated that defendant put his phone down, and the two continued to talk. Tpr. Strickland stated that defendant said he was headed back to school in Tuscaloosa, and that he played football for the University of Alabama. Tpr. Strickland stated that he then believed defendant was being deceptive with his answers, and he suspected defendant was engaged in criminal activity. Tpr. Strickland testified that he then told defendant that he was going back to his police vehicle to check defendant's driver's license and defendant should wait in his vehicle.
Tpr. Strickland stated that he then checked defendant's criminal history and checked on whether he was listed on the University of Alabama football team's roster. Tpr. Strickland testified that he could not find defendant's name on the current roster for the university's football team, but he had found it listed on a prior year's team or maybe the spring roster. Tpr. Strickland testified that he suspected defendant had been engaged in some type of criminal activity, so he contacted two other troopers to provide backup for a consent-search of defendant's vehicle. Tpr. Strickland testified that once another Tpr. arrived, he had defendant step out of his vehicle. Tpr. Strickland stated that he did not issue defendant a citation at that point, or return his driver's license.
Tpr. Strickland stated that he explained to defendant that he worked on the interstate every day and saw a lot of bad things happen, he then asked to search defendant's vehicle. Tpr. Strickland testified that defendant did not consent to having his vehicle searched. Tpr. Strickland stated that defendant was not free to leave. Tpr. Strickland testified that he told defendant it was within his rights to refuse, but that he had the right to call a K-9 unit to the scene to "run around his vehicle."
Tpr. Strickland stated that by then a third trooper had arrived, and that trooper then contacted a K-9 unit with the Minden Police Department. Tpr. Strickland testified that the K-9 unit the state troopers ordinarily worked with was not available that day, so they were working with a local K-9 unit. Tpr. Strickland testified that once the available K-9 unit was contacted, they arrived 20-22 minutes later. Tpr. Strickland testified that he gave a brief description to the K-9 officer of what was going on, the officer had the canine perform an open-air search of defendant's vehicle, and he was then told by the K-9 officer that there was a positive alert on both rear quarter panels of the vehicle.
Tpr. Strickland stated that he then began a search of the vehicle. Tpr. Strickland stated that he found two after-market compartments in the rear quarter panels on both sides of defendant's vehicle. Tpr. Strickland stated that the plastic shell on the inside that covered the quarter panels included electronic compartments that would swing open to allow for contraband to be placed inside. Tpr. Strickland stated that he was able to pull back the plastic shells and see the contraband, which consisted of duct tape wrapped packages inside the passenger side.
Tpr. Strickland stated that he then placed defendant under arrest and moved the vehicle to a safe location to recover the contraband. Tpr. Strickland testified that the contraband consisted of ten grey duct-taped packages that included cocaine, and one black duct-taped package that included heroin; the packages were field tested for CDS. Tpr. Strickland stated that the CDS amounted to 11 kilograms of narcotics.
On cross examination, Tpr. Strickland stated that he was aware that the day before defendant was arrested, Monday, February 20, 2017, was President's Day, making the weekend prior to defendant's arrest a three-day weekend. Tpr. Strickland stated that on February 21, 2017, he was working "stationary patrol" as a part of criminal interdiction. Tpr. Strickland stated that he was looking for traffic violations and doing drug interdiction, but he did not pull over every traffic offense he witnessed, because "we would be there all night." Tpr. Strickland stated that the posted speed was 70 mph along the part of I-20 where defendant was stopped. Tpr. Strickland stated that he did not find it suspicious that defendant's vehicle slowed when he saw a state trooper vehicle, but that it caught his attention. Tpr. Strickland stated that he typed defendant's license plate into his computer while he was driving to confirm the vehicle was not stolen.
Tpr. Strickland testified that defendant stated that the vehicle belonged to his sister, but he did not ask defendant the name of his sister. Tpr. Strickland acknowledged that a check of the license plate provided a woman's name, which fit with defendant saying the car belonged to his sister. Tpr. Strickland then stated, "But at the same time, normally if he borrowed his sister's car, I'm sure he didn't clean it up for her. The inside was immaculate. It had no personal property." Tpr. Strickland was unable to recall whether he asked for or received the registration for the vehicle. Tpr. Strickland stated that there was a white bag in the front seat of the vehicle with chips and snacks in it which was consistent with defendant's story that he was driving from Houston to Tuscaloosa.
Tpr. Strickland testified that he thought it was suspicious that defendant had been on a three to four-day trip with only a backpack. Tpr. Strickland stated that it did not appear that the backpack would hold enough if defendant was exercising every day as he told Tpr. Strickland. Tpr. Strickland acknowledged that he had not yet looked in the trunk to determine if defendant had additional luggage. Tpr. Strickland testified that he did not ask defendant about his luggage.
Tpr. Strickland stated that when he returned to his patrol car with defendant's driver's license, he checked defendant's criminal history and he check the Automated License Plate Recognition System ("ALPR"), a license plate reader system. Tpr. Strickland stated that defendant did not have any outstanding warrants, but he did have a prior assault charge in Houston. Tpr. Strickland stated that ALPR showed that the vehicle had been on I-10 traveling westbound from Lake Charles into Texas on Monday, February 20, 2017. Tpr. Strickland stated that he does not check the ALPR system for every person he pulls over, only those he found to be deceptive, and he found defendant to be deceptive. Tpr. Strickland testified that based on his training and experience, "I know something is not adding up here."
Tpr. Strickland then testified that he found the following facts suspicious:
1. Defendant's travel itinerary-that he was in Houston training for the football team.
2. Defendant's assertion that he played football for the University of Alabama. Tpr. Strickland acknowledged that he did find defendant's name on the team's roster in a prior year.
3. Third-party owner of the vehicle. Tpr. Strickland testified that there being a third-party owner for vehicle defendant was driving was not suspicious alone, but taken with the other factors it was. Tpr. Strickland acknowledged that he never asked defendant about the owner of the vehicle.
4. Defendant's statement that he left Tuscaloosa on Friday for Houston, and was returning on Tuesday.
5. Defendant was traveling on I-20, which Tpr. Strickland stated was not the fastest route from Houston to Tuscaloosa.
6. The ALPR system showed the car was on I-10 in Lake Charles the day before defendant was arrested.
Tpr. Strickland stated that that he did not know what particular crime in which he believed defendant to be was involved, but he thought it was probably narcotics. Tpr. Strickland stated that while waiting for the K-9 unit to arrive, one officer patted down defendant and took his cell phone. Tpr. Strickland then testified that while waiting for the K-9 unit, the defendant and officers were standing around discussing football, and that defendant was calm, relaxed, and answering questions.
Officer Clint Smith ("Ofc. Smith"), with the Minden Police Department, testified that he is part of a K-9 unit, and was present during the search of defendant's vehicle. Ofc. Smith stated that he was at home in Minden when he received a call from a state trooper to bring his canine, Harley, to where defendant's vehicle was stopped on I-20. Ofc. Smith testified that, upon receiving the call, he dressed and left the house and drove immediately to the scene. Ofc. Smith verified that Harley alerted upon smelling each of the rear quarter panels of defendant's car.
Louisiana State Police Officer O.H. Hank Haynes ("Tpr. Haynes"), testified that he served on the Drug Enforcement Administration Task Force for 16 years. Tpr. Haynes contacted defendant after he was brought to the Minden Police Department. Tpr. Haynes testified that he Mirandized defendant, and he stated that he understood his rights. Tpr. Haynes stated that the defendant said that he was being paid to drive from Houston to Atlanta, he did not know what was inside the vehicle, but he knew it was illegal. Tpr. Haynes testified that defendant gave him permission to get his cell phone out of the vehicle, and gave the officer the code to access the phone. Tpr. Haynes testified that the phone showed there were numerous missed calls, and that defendant agreed to cooperate and make phone calls to the person who was calling his phone. Tpr. Haynes stated that defendant referred to the person responsible for the CDS in the car by the nickname "Pop."
The testimony does not state what rank Tpr. Haynes holds with the state police.
Tpr. Haynes testified:
[Defendant] was paid by an unknown male which goes by the nickname of "Pop." [Defendant] said Pop flew him from Atlanta, Georgia, to Houston, Texas, where he was picked up by another unknown black male, which [defendant] only knew as a nickname, driving a blue SUV. He said it was approximately 30 or 40 minutes from the airport where this unkown black male picked him up, carried him to a motel, where [defendant] told me that he went up to the valet parking and received the keys to this Toyota and he was on his way back driving it to Atlanta, Georgia. Once he arrived at Atlanta, Georgia, he was supposed to call Pop. Pop would tell him where to park his vehicle and he would have to get his own ride back to his Chrysler 300 that was parked at the Atlanta airport.
[Defendant] was willing to attempt a controlled delivery. We contacted agents in Atlanta, Georgia; just couldn't get everything together. And later on, that night, it was determined that we would not attempt a controlled delivery because we didn't have enough information.
The "Report and Recommendation" signed by the magistrate judge for the U.S. District Court for the Western District of Louisiana, and the order signed by the U.S. district judge granting defendant's motion to suppress in the U.S. district court were included in the record. The "Report and Recommendation" stated that defendant driving a third-party vehicle provided little to no weight in determining reasonable suspicion, and that Tpr. Strickland could have, but did not, verify that the name defendant gave as his sister's matched what was on the registration. The report stated that having a clean car was not indicative of criminal activity, defendant had a bag of snacks and his backpack inside the car, which was indicative of a long trip, and Tpr. Strickland did not inquire if defendant had luggage in the trunk. The report stated that the only basis for finding defendant nervous was Tpr. Strickland's testimony, and the magistrate judge did not see "excessive nervousness beyond that normally associated with an uninvited encounter" with law enforcement, which does not suffice to establish reasonable suspicion.
The report stated that Tpr. Strickland was unable to explain how defendant receiving a phone call from a friend whose number was not saved in his contacts was suggestive of criminal activity. The report stated that defendant's statement that he played football for the University of Alabama "indicated nothing more than useful aggrandizement" meant to impress Tpr. Strickland in the hopes that he would not issue defendant a traffic citation. The report noted that Tpr. Strickland did not ask defendant any questions regarding the discrepancy between his stated travel plans and what was recorded by the ALPR system, and that defendant was not taking the most direct route from Houston to Tuscaloosa. The report stated that Tpr. Strickland could not articulate what crime defendant may have committed or provide specific facts for why he suspected defendant of criminal activity. The report stated that none of the factors indicated by Tpr. Strickland, individually or collectively, amounted to reasonable suspicion of criminal activity beyond defendant crossing the fog line which led to the stop.
On October 5, 2018, Tpr. Strickland testified again at the hearing on defendant's motion to suppress at the 26th Judicial District Court, providing the following testimony in addition to what he testified to in the U.S. District Court. Tpr. Strickland stated that in his drug interdiction work he typically saw drugs travel from "hub" cities, such as Dallas and Houston, toward cities in the eastern United States. Tpr. Strickland testified that people who are traveling the speed limit do not typically slow down when they see a police vehicle, as defendant did. Tpr. Strickland testified that he stopped defendant because he crossed the fog line, and also because he wanted to know why defendant decreased his speed when he saw Tpr. Strickland.
Tpr. Strickland stated that defendant's car looked like a rental car, because it was so clean and defendant had few personal effects inside. Tpr. Strickland stated that most of the time in traffic stops he gets eye contact, and that a lack of eye contact, like he saw with defendant, is due to nervousness. Tpr. Strickland stated that it is very common in drug trafficking for the person who is transporting the drugs to have to repeatedly check in with the person for whom they are transporting the drugs while traveling. Tpr. Strickland stated that, while he was speaking with defendant, he was holding his phone like he was expecting a call, and during his interaction with defendant he got a call and tried to answer.
Tpr. Strickland testified that according to the ALPR system, on Monday, February 20, 2017, at 4:05 a.m., defendant's vehicle was in Gulfport, Mississippi heading westbound. Tpr. Strickland stated that defendant's car was later recorded by the ALPR system as being in Hammond, Louisiana, then Lafayette, Louisiana, and, finally, in Lake Charles, Louisiana. . Tpr. Strickland stated he thought defendant was engaged in a "turn-around trip," where a person trafficking narcotics will travel to where the drugs are located, pick them up, and immediately drive them to another destination. Tpr. Strickland stated that he believed defendant was transporting narcotics.
When Tpr. Strickland testified before the U.S. District Court, he only mentioned defendant's car being recorded by the ALPR system in Lake Charles, Louisiana.
On cross examination, Tpr. Strickland stated that defendant had not been driving erratically, but he did cross the fog line when he passed vehicles and returned to the right lane. Tpr. Strickland affirmed that he had no idea that if defendant had luggage or not, because he did not see inside the trunk of defendant's vehicle. Tpr. Strickland testified that he has pulled people over before who had their phone on their person, but with defendant it was the only time he had seen someone focus on a blank phone screen. When asked if it was reasonable that defendant's friend who was to call him used a different person's phone, and that was why there was no contact name associated with the phone number that appeared on the defendant's phone when he received a call, Tpr. Strickland stated, "I guess anything is possible." Tpr. Strickland stated that most people are a little nervous initially when he pulls them over, but once he starts talking to them, they relax and engage with him if they are not engaged in criminal activity.
Tpr. Strickland testified that it is common for persons transporting narcotics to have a car that travels ahead of the one transporting the drugs, in order to warn them of police presence. Tpr. Strickland testified that he did not see any other cars that appeared to be interested in defendant's vehicle. Tpr. Strickland stated that the ALPR system is designed to take pictures of the license plates and the cars that are associated with the plate numbers. Tpr. Strickland stated that sometimes the ALPR system will get pictures of the person driving a car, but he did not testify that there was a photo of defendant driving the Toyota the day before his arrest, when the car was photographed traveling along I-10 west between Gulfport and Houston. Tpr. Strickland testified that he did not write defendant a ticket, and he did not know if he would have without having found narcotics in the car.
The state entered a video of the stop and arrest, recorded by the camera located in Tpr. Strickland's dashboard. The video sound quality is poor, particularly when Tpr. Strickland spoke with the defendant while he was still in his car, which was pulled over to the side of I-20, as multiple vehicles passed defendant's vehicle throughout the video. Tpr. Strickland engaged defendant about one minute into the video, and asked him questions for about two and a half minutes, before returning to his patrol car. Tpr. Strickland stood on the passenger side of the car when questioning defendant, while defendant remained in the car.
After returning to his patrol car, Tpr. Strickland can be heard stating on the video, "He was getting pretty choked up when I was asking questions." At approximately 13 minutes into the video, Tpr. Strickland asks defendant to exit the car, and then asks the defendant if he can search his vehicle. The defendant refuses to give consent. Around 14 minutes into the video, Tpr. Strickland states that he will call for a K-9 unit, and they then proceed to wait for the unit to arrive. During that time, defendant can be seen standing in front of Tpr. Strickland's patrol car, and can be heard discussing football and Toyota vehicles with one of the troopers present. At approximately 36 minutes into the video, the K-9 unit arrives and conducts the search, alerting to the presence of narcotics.
On October 16, 2018, the trial court denied the motion to suppress. The trial court provided the following reasons:
In this case, Tpr. Strickland had probable cause to pull over the defendant due to improper lane usage, in violation of [La. R.S.] 32:79. Tpr. Strickland also had reasonable suspicion that the defendant had committed a crime, or was about to commit a crime. Reasonable suspicion requires a weighing of the totality of the circumstances. Here, Tpr. Strickland acted in good faith and reasonably concluded based on all the factors corroborated in his testimony that the defendant was involved in criminal activity. The obvious next step in his investigation was to request a K-9 unit to conduct a roadside open-air sniff. The time it took for the K-9 unit to arrive to the scene and conduct the sniff (20-22 minutes) was not an unreasonable time frame based on the location of the traffic stop.
* * *
On June 17, 2019, defendant entered a guilty plea pursuant to State v. Crosby , 338 So. 2d 584 (La. 1976), reserving the right to appeal the trial court's ruling on the motion to suppress. After defendant waived all delays, the trial court sentenced defendant to (1) Count One: 15 years at hard labor; and (2) Count Two: 15 years at hard labor without benefits. The trial court stated that the sentences were to run concurrently, and defendant was given credit for time served. The trial court advised defendant that he had the right to appeal the ruling on the motion to suppress, but not his sentence; the trial court also advised defendant of his post-conviction relief time limits. Defendant now appeals.
DISCUSSION
On appeal, the defendant asserts a single assignment on the issue of whether there were reasonable, articulable grounds for his arrest when he was seized illegally for 22 minutes before the initial free air dog sniff. The defendant argues that Tpr. Strickland did not have sufficient information to dispel or confirm any suspicions he had regarding defendant's alleged criminal activity. He maintains that the trial court did not make individual findings supporting reasonable suspicion of criminal activity, but the U.S. District Court did, and avers Tpr. Strickland "cherry-picked" those facts that he considered suspicious and acted on a hunch. Defendant states that once he has exhausted his remedies in state court, he will be able to seek federal habeas review, and the federal courts would likely grant him relief. Bell-Brayboy argues the evidence recovered in the search and his subsequent incriminating statements should be suppressed.
The state, on the other hand, argues that the traffic stop at issue in this case did not violate defendant's Fourth Amendment rights, and that Tpr. Strickland had reasonable suspicion to believe criminal activity was afoot. The state argues the automobile exception to the warrant requirement allowed Tpr. Strickland to search defendant's car, and thus, his conviction and sentence should be affirmed.
Applicable law
This Court reviews the trial court's ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to findings of law. State v. Manning , 51,450 (La. App. 2 Cir. 8/9/17), 244 So. 3d 600, writ denied , 17-1575 (La. 5/18/18), 242 So. 3d 575 (" State v. Manning II "). A trial court's denial of a motion to suppress is afforded great weight and will not be set aside unless a preponderance of the evidence clearly favors suppression. Id. ; State v. Prince , 50,548 (La. App. 2 Cir. 4/13/16), 195 So. 3d 6.
The right of every person to be secure in his person, house, papers and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and by Article I, § 5, of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified under one of the narrowly drawn exceptions to the warrant requirement. State v. Thompson, 02-0333 (La. 4/9/03), 842 So. 2d 330 ; State v. Tatum, 466 So. 2d 29 (La. 1985) ; State v. Manning , 50,591 (La. App. 2 Cir. 5/18/16), 196 So. 3d 626, writ denied , 17-1575 (La. 5/18/18), 242 So. 3d 575 (" State v. Manning I "); State v. Lawrence, 45,061 (La. App. 2 Cir. 3/3/10), 32 So. 3d 329, writ denied, 10-0615 (La. 10/8/10), 46 So. 3d 1265. The purpose of limiting warrantless searches to certain recognized exceptions is to preserve the constitutional safeguards provided by a warrant, while accommodating the necessity of warrantless searches under special circumstances. Donovan v. Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981) ; State v. Thompson, supra ; State v. Manning I , supra.
The authority and limits of the Fourth Amendment apply to investigative stops of vehicles. United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) ; United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985). The stopping of a vehicle and the detention of its occupants is a seizure within the meaning of the Fourth Amendment. State v. Manning I, supra ; State v. Burney, 47,056 (La. App. 2 Cir. 5/23/12), 92 So. 3d 1184, writ denied, 12-1469 (La. 1/11/13), 106 So. 3d 548. The standard for evaluating a challenge to a routine warrantless stop for violating traffic laws is a two-step formulation: the court must determine "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968) ; State v. Pena, 43,321 (La. App. 2 Cir. 7/30/08), 988 So. 2d 841.
For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur, before stopping the vehicle. U.S. v. Sharpe, supra ; State v. Burney, supra . If a police officer observes a traffic infraction, the subsequent stop for that offense is clearly legal; the standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. State v. Manning I, supra ; State v. Lee, 46,742 (La. App. 2 Cir. 12/14/11), 79 So. 3d 1278.
This objective standard is indifferent to the relatively minor nature of a traffic violation. Id. In Louisiana, as in other jurisdictions, a car which partially leaves its lane of travel and crosses the fog line either at the center of a divided highway or on the right-hand shoulder of the road provides the police with probable cause to believe that a traffic violation for improper lane use has occurred. State v. Waters, 00-0356 (La. 3/12/01), 780 So. 2d 1053.
In stopping a vehicle on reasonable suspicion, an officer has the right to conduct a routine license and registration check and may engage in conversation with the driver and any passenger while doing so. State v. Lee, supra. If a police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. State v. Burney, supra. In order to further detain a suspect, however, the officer must have articulable facts giving rise to a reasonable suspicion of some separate illegal activity that would justify further detention of the suspect. State v. Williams, 47,750 (La. App. 2 Cir. 4/10/13), 112 So. 3d 1022 ; State ex rel. Williams v. State, 13-1394 (La. 12/2/13), 126 So. 3d 502.
In making that determination, the totality of the circumstances must be taken into account. Id. The circumstances must be judged by an objective standard such that the facts available to the officer at the moment of seizure or the search would warrant a man of reasonable caution in the belief that the action taken was appropriate. State v. Lee, supra. There is no bright line rule for when a detention lasts too long and each instance must be assessed in view of the surrounding circumstances. Id. Factors which may give rise to reasonable suspicion include the demeanor of the suspect and unlikely and inconsistent accounts regarding travel. State v. Miller, 00-1657 (La. 10/26/01), 798 So. 2d 947 ; State v. Lee, supra.
In Rodriguez v. United States , 575 U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015), the officer stopped the defendant's vehicle for driving on the shoulder. The officer completed the traffic stop and issued a citation in about 21 minutes. However, the defendant was detained for an additional eight minutes, waiting for a second officer to arrive in order to conduct a dog sniff of the defendant's car. The Rodriguez Court declined to address whether reasonable suspicion of criminal activity justified detaining the defendant beyond completion of the traffic infraction investigation and remanded the case for further proceedings on the issue. In holding that absent reasonable suspicion, police may not extend an otherwise-completed traffic stop in order to conduct a dog sniff, the Supreme Court explained:
Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's "mission"—to address the traffic violation that warranted the stop, and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may "last no longer than is necessary to effectuate that purpose." Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed ....
An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But, he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.
Rodriguez v. United States, supra .
La. C. Cr. P. art. 215.1(D) codifies the directive of the United States Supreme Court in Rodriguez and provides that in conducting a traffic stop "an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity."
In State v. Manning I, supra , and State v. Manning II, supra , this Court considered Manning's motions to suppress, and whether he was detained for longer than necessary during a stop related to a traffic violation. Manning was driving east on I-20 in Bossier Parish. Louisiana State Tpr. Sharbono observed Manning cross the white fog line, and signaled him to pull over. Two other adults and a child were passengers in the car. Manning did not have a driver's license or any paperwork for the car he was driving; it had been rented by his sister, who was not present.
After hearing the story of Manning's travel itinerary and checking his driving record and criminal history, Tpr. Sharbono called for assistance from the canine unit. Manning refused to consent to a search of the car, and the canine unit conducted a sniff of its exterior. The free air sniff of the exterior of the car by the canine officer was conducted approximately 24 minutes after the traffic stop began. After the dog alerted, the troopers searched the interior of the car and found a bag of assorted colored pills under the front passenger seat. Manning was arrested.
Tpr. Sharbono testified at a hearing on Manning's motion to suppress and stated that he observed Manning cross the fog line. He then signaled Manning to pull over by turning on his lights, and simultaneously began video recording the traffic stop. Tpr. Sharbono stated that it was not his practice to immediately write a citation when a stop was made, but instead he would talk with the driver prior to issuing a citation. After speaking with the passengers, Tpr. Sharbono checked Manning's driving record and criminal history. He noted that the car had been rented in Texas, and stated that because the person who rented the car was not present and Manning was unable to produce any paperwork related to the rental, he was unable to determine if Manning had authority to operate the car or if the car was authorized for out-of-state travel. Tpr. Sharbono stated the reason he asked for Manning's consent to search the vehicle was because of his suspicions that other criminal activity might be taking place based on Manning's lack of identification, "not normal" travel arrangements, the lack of paperwork for the Ford Taurus, and Manning's criminal record.
Tpr. Sharbono further testified that it is standard practice for backup to respond when a criminal history search is requested. He stated that the K-9 unit was probably at the scene as the backup unit, even before Manning refused consent to search. Tpr. Sharbono denied that the canine alert was the sole basis for a search of the car, again citing Manning's suspicious travel itinerary, lack of paperwork for the car, lack of personal identification, and criminal history. However, Tpr. Sharbono admitted that, without the canine alert, he would not have had probable cause to conduct the search of the car's interior.
The trial court stated in its ruling:
Mr. Manning had no identification. He stated he caught a ride to Houston.... The rental papers of the car and the person who rented the car was not there. There was no documentation. There was no paperwork on the car or a rental agreement according to Tpr. Sharbono's testimony. He did a criminal records check; found that Mr. Manning had several prior arrests. And he believed that based on Mr. Manning's statements and all the surrounding information that there was a possibility that a crime had been committed. He stated he did not know if the car had been stolen, taken across Texas lines without the proper rental agreement. Stated he did not know if there was other possibilities of other crimes. State v. Manning I, supra.
This Court affirmed the trial court's ruling, finding the search constitutional. Id. ; State v. Manning II, supra. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from trial. State v. Benjamin , 97-3065 (La. 12/1/98), 722 So. 2d 988. In State v. Brock , 47,005 (La. App. 2 Cir. 3/7/12), 91 So. 3d 1003, writ denied , 12-0784 (La. 9/28/12), 98 So. 3d 826, citing , Herring v. United States , 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), this Court stated that the exclusionary rule is designed to safeguard Fourth Amendment rights generally through its deterrent effect.
Analysis
The state argues that, based on the totality of circumstances, the following facts amount reasonable suspicion justifying the defendant's continued detention:
1. The interior of defendant's car was clean and devoid of personal effects, save a backpack in the back seat and a bag of snacks in the front passenger seat. Tpr. Strickland stated he did not find that consistent with defendant's assertion that he had been training with his personal trainer in Houston over the previous weekend.
2. The car was registered to a third party, whom defendant identified as his sister.
3. Defendant claimed to be a football player at the University of Alabama, and Tpr. Strickland was not able to confirm that defendant was on the current (spring 2017) team roster.
4. Defendant answered a phone call from a friend whose name was not saved in his phone's contacts.
5. Defendant appeared nervous during the stop.
6. Defendant's stated travel itinerary was inconsistent with what Tpr. Strickland discovered through a search of the ALPR system, that defendant's vehicle was photographed on I-10 the day before his arrest.
7. Defendant was not taking the most direct route from Houston, Texas to Tuscaloosa, Alabama.
We are not persuaded and find the state's arguments are without merit. The defendant's car appearing clean is not a fact, which alone or accompanied with the other facts in this case, would have provided Tpr. Strickland with reasonable suspicion sufficient to detain defendant once the traffic stop had concluded. A clean car is not suggestive of criminal mischief, as many people keep clean cars. Likewise, the fact that the car contained few personal items is also not, in and of itself, indicative of criminal behavior. Here, Bell-Brayboy merely had a bag of snacks and his backpack in the passenger compartment. Tpr. Strickland assumed that that was all defendant carried with him, without questioning defendant about his luggage or whether he had additional effects in the trunk of the car. Considering the length of the stop, it is extremely evident Tpr. Strickland had the time and opportunity to make this inquiry.
Prior to speaking with defendant, Tpr. Strickland knew the car was registered to a female in Georgia, and defendant stated the car belonged to his sister. Tpr. Strickland failed further question defendant about the car's ownership, verifying what his sister's name was, and whether her name matched that on the vehicle's registration. People drive the cars of third parties frequently, and the fact that defendant was driving a car that belonged to another does not weigh in favor of reasonable suspicion.
Moreover, the defendant's claim that he was football player for the University of Alabama also does not provide reasonable suspicion. Tpr. Strickland stated that he was able to confirm that defendant had played football for the university in a prior year, but could not confirm that he played on the current roster in 2017. Defendant was stopped in February of 2017, and college football season had ended weeks before. Tpr. Strickland did not further question defendant about the discrepancy, or ask defendant exactly what he meant when he said that he was on the team. Defendant's statements might have warranted further questioning, but do not rise to the level of reasonable suspicion.
Following this further, the defendant receiving a phone call from a nameless number, referring to the caller as a friend during the stop, does not rise to the level of reasonable suspicion justifying continued detention. The term "friend" is not always used literally or with sincerity. Such use of the term could be seen as an attempt to dismiss a phone call that was unimportant. Furthermore, not everyone saves a person's phone number to their contacts, and the person calling defendant may have used third-party phone to contact him.
The fact that the defendant appeared nervous during the traffic stop does not sufficiently provide reasonable suspicion. Being pulled over by law enforcement is an anxiety-inducing event for many people, which may result in nervous behavior, such a lack of eye contact. Some people simply are not comfortable with eye contact.
Additionally, the fact that Bell-Brayboy's travel itinerary did not match what Tpr. Strickland discovered through a search of the ALPR system, while this fact may have merited further questioning, it did not rise to the level of reasonable suspicion justifying further detention. Tpr. Strickland did not question defendant further about why his car's license plate was recorded on I-10 the day before (Monday), when defendant stated he had been in Houston over the weekend. Moreover, Tpr. Strickland did not testify that defendant stated he himself drove to Houston, and Tpr. Strickland did not question him about his mode of travel to Houston.
Similarly, the fact that the defendant was not taking the most direct route between Houston and Tuscaloosa does not provide reasonable suspicion. Tpr. Strickland did not inquire of defendant why he was taking I-20 to get to Tuscaloosa, instead of taking I-10, the shorter route. Motorists often take longer routes between destinations, for various innocent reasons, and defendant doing so here did not justify lengthening defendant's detention without further information.
In the matter sub judice , we find there are too many innocuous explanations for the facts that the state claims provided Tpr. Strickland with reasonable suspicion to detain defendant and prolong the stop beyond the Tpr.'s tasks related to defendant's traffic infraction. The state analogizes this search to the facts in the Manning cases, arguing that the instant search in this case was constitutional. However, in State v. Manning I, supra , the free air sniff of the exterior of the car by the K-9 officer was conducted approximately 24 minutes after the traffic stop began . Here, the traffic stop had concluded and defendant was made to wait an additional 20-22 minutes for the K-9 unit to arrive. The free air dog sniff of defendant's vehicle was not a means of investigation likely to quickly confirm or dispel Tpr. Strickland's suspicions about defendant's potential criminal activity. Questioning defendant for a few more minutes probably would have accomplished either goal much more expediently as opposed to making defendant wait more than 20 minutes after the traffic stop had concluded for a K-9 unit to arrive. Furthermore, the defendant in State v. Manning I, supra was driving a rented car with no paperwork, had no driver's license, and had an extensive criminal history. Here, defendant had registration for the car, had his driver's license, and had only one prior arrest, not conviction, for assault. In this case there were not enough facts, even when considered as a whole, that provided the requisite reasonable suspicion for detaining Bell-Brayboy beyond the time it took for Tpr. Strickland to conclude the traffic stop. In Rodriguez, supra , the Supreme Court stated that an additional eight minutes added to Rodriguez's detention was too long "absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Here, defendant was detained an additional 20-22 minutes after initially being stopped by Tpr. Strickland.
Furthermore, as defendant correctly stated in his brief, he is likely entitled to federal habeas relief once he has exhausted his state remedies. A defendant in state custody may seek federal habeas relief on the grounds that he is in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254. As seen in the "Report and Recommendation" and order from the U.S. District Court for the Western District of Louisiana, the federal court has already ruled that the search of defendant's car was unconstitutional and ordered the evidence and its derivative incriminating statements excluded in his federal prosecution. The federal district court is unlikely to countermand that decision on habeas relief.
Error Patent
We note that the record reveals one error patent – the trial court failed to sentence defendant on count one to a prison term without benefits as required by La. R.S. 40:967(G). We find that because the defendant's conviction and sentence be reversed, this sentencing error is now moot, pretermitting any further discussion.
CONCLUSION
For the foregoing reasons, the defendant, Brandon Bell-Brayboy's conviction and sentence are hereby reversed.
CONVICTION AND SENTENCE REVERSED.
Garrett, J., dissents with written reasons.
GARRETT, J., dissents.
I respectfully dissent. The defendant claimed that the evidence against him should be suppressed because it was obtained after a prolonged traffic stop without reasonable suspicion to believe that he had committed another offense. After hearing all the evidence and having an opportunity to observe and assess the credibility of Trooper Strickland, the trial court issued a lengthy and well-reasoned written opinion denying the motion to suppress. Based upon the totality of the evidence in this record, it does not appear to me that the trial court erred in that decision. What occurred here was permissible under La. C. Cr. P. art. 215.1(D).
The defendant was pulled over when Trooper Strickland observed him cross the fog line on I-20 in Webster Parish, while he was driving in an easterly direction. It is undisputed that the officer had probable cause to stop the defendant for improper lane usage, a violation of La. R.S. 32:79. The record also shows that Trooper Strickland had reasonable suspicion to believe that the defendant was transporting illegal narcotics, warranting a prolongation of the traffic stop until a drug dog could be brought to the scene to conduct an air sniff. When the dog arrived, it alerted and a massive amount of cocaine and heroin was found in the rear quarter panels of the vehicle.
The defendant later confessed that he had flown from Atlanta to Houston earlier that same day, where he was provided with the car he was driving. He was driving it back to Atlanta, where he would be paid. This, of course, was inconsistent with the story he originally gave to law enforcement that he had driven the car from Tuscaloosa, Alabama, to Houston the previous Friday for "training sessions" in connection with his "football career" at the University of Alabama and was en route back to Tuscaloosa.
The defendant was initially charged with a federal crime and the federal court dismissed the case after a motion to suppress the evidence was granted. The defendant was then charged in state court, where he again filed a motion to suppress the evidence against him. I have carefully reviewed the transcripts and the records from both the federal hearing and the second hearing held in state court. At the second hearing, the prosecutor presented additional evidence relating to the extensive training and experience of Trooper Strickland, who has been a law enforcement officer since 2004, after graduating from college. His curriculum vitae was introduced as an exhibit. His testimony was more fully developed as to drug trafficking on interstate highways and his experience in this area, including his training and work with the Drug Interdiction Assistance Program ("DIAP").
The more fully developed record presented to the state trial court established that, based upon his training and experience, Trooper Strickland had the requisite reasonable suspicion that the defendant was engaged in some other criminal activity to justify prolonging the stop until a K-9 unit could arrive and conduct an air sniff test. Trooper Strickland more fully explained why he found certain behaviors by the defendant to be significant and indicative of drug trafficking. Trooper Strickland explained that drugs go east on interstates from hubs like Houston and the money goes back west. He said that transporters avoid I-10 because there is a more significant law enforcement presence in south Louisiana. He noted that taking I-20 from Houston to Tuscaloosa would not be the most direct route. He also stated that, even though the defendant said he had been in Houston for five days, Trooper Strickland had access in his vehicle to the Automated License Plate Recognition System, which showed that the car was observed on the interstate in Gulfport, Mississippi, headed west, and then in Hammond and Lake Charles, Louisiana, the day before the stop. Accordingly, he had confirmation that the defendant was not being truthful about his whereabouts. Trooper Strickland noted that the defendant was nervous in the vehicle, kept looking at his cell phone, and eventually received a call from a "friend." However, no name showed up on the screen. According to Trooper Strickland, the trafficker is usually observed by someone in another car and monitored by phone. Trooper Strickland also stated that it was significant that the defendant did not appear to have any luggage, despite being on a five-day trip. The majority opinion criticizes the trooper for not questioning the defendant about luggage. In reviewing the dash cam video of the stop, the trunk was eventually opened after the K-9 dog had alerted. It does not appear that there was any luggage in the trunk when the officer was in the process of removing the spare tire. Although this, of course, occurred after the defendant had been arrested, it again illustrates that Trooper Strickland's reasonable suspicion, based on his training and experience, proved to be correct. I agree with the ruling made below. The totality of the evidence and the rational inferences made by the trooper, based on his training and experience, support the trial court's finding that the trooper had reasonable suspicion to believe that the defendant was engaged in drug activity. The trial court obviously found Trooper Strickland to be a credible witness, and we must give deference to the trial court's credibility determinations.
I am also not persuaded that the defendant will be automatically entitled to habeas relief in federal court if we affirm the conviction, as suggested by the majority opinion. In my view, the federal court will need to consider the additional evidence presented in the state court hearing on the motion to suppress and the lengthy and cogent opinion written by the state trial court judge.
ON REHEARING
GARRETT, J.
We granted rehearing to consider whether the detention of the defendant, Brandon Bell-Brayboy, following a legal traffic stop was constitutionally permissible. The defendant entered guilty pleas to one count of possession with intent to distribute more than 400 grams of cocaine and one count of possession with intent to distribute heroin, reserving his right to contest the denial of a motion to suppress, pursuant to State v. Crosby . The sentences were agreed upon and the defendant was ordered to serve 15 years at hard labor for the cocaine charge and 15 years at hard labor without benefit of parole, probation, or suspension of sentence for the heroin charge. The sentences were ordered to be served concurrently. On appeal, Bell-Brayboy contends that the trial court erred in denying his motion to suppress the evidence against him. On original hearing, two judges determined that the trial court ruling denying the motion to suppress should be reversed. The third judge disagreed and issued a written dissent. The state filed an application for rehearing, which was granted. The matter was reargued before a five-judge panel. For the reasons set forth in the original dissent and for all of the reasons given below, on rehearing we affirm the trial court judgment.
State v. Crosby , 338 So. 2d 584 (La. 1976).
FACTS
Because a complete recitation of the facts is required to resolve the issues presented, we deem it necessary to set forth a thorough statement of the facts and evidence that were adduced below. On the evening of Tuesday, February 21, 2017, Louisiana State Police Trooper George Strickland, III, was patrolling I-20 in Webster Parish, along with Troopers Matthew Titus and Brent Peart, who were in separate vehicles. They were part of a team that patrolled I-20 looking for traveling criminal activity such as drug and human trafficking.
Shortly after 8:00 p.m., Trooper Strickland saw a 2005 Toyota Solara automobile with a Georgia license plate traveling eastbound at the speed limit of 70 mph. The vehicle was being driven by Bell-Brayboy. When he saw Trooper Strickland, Bell-Brayboy slowed the vehicle to 65 mph. This action caught Trooper Strickland's attention and he began to follow the vehicle. He observed Bell-Brayboy pass two or three commercial vehicles and then pull back into the right lane. In doing so, he crossed the white fog line on the right side of the road, which is a violation of La. R.S. 32:79. Trooper Strickland stopped Bell-Brayboy for the traffic violation.
La. R.S. 32:79 provides, in part:
Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition to all others consistent herewith, shall apply.
(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
During the course of the traffic stop, facts emerged which gave Trooper Strickland reasonable suspicion to believe that Bell-Brayboy was engaged in drug trafficking. These facts will be more thoroughly discussed below. Bell-Brayboy refused to give consent to search the vehicle and a K-9 unit was called. Within 20 to 22 minutes after receiving the call, the K-9 unit arrived. A drug dog performed an open-air search around the vehicle and alerted on both rear quarter panels. A search of the vehicle was conducted. Ten kilograms of cocaine and one kilogram of heroin were recovered from the vehicle. Bell-Brayboy was arrested.
Following his arrest, Bell-Brayboy waived his right to remain silent and agreed to talk with the officers. He was questioned by Trooper O.H. "Hank" Haynes, IV, who was assigned to the Drug Enforcement Agency ("DEA") Task Force. Bell-Brayboy stated that he was being paid to drive the vehicle from Houston to Atlanta, Georgia. He did not know what was in the vehicle, but he knew that it was illegal. Bell-Brayboy turned his cellphone and passcode over to the officers. He allowed the officers to examine his cellphone, which contained numerous missed calls from someone Bell-Brayboy knew only as "Pop," the individual responsible for the drugs. Bell-Brayboy also agreed to try to call Pop, but his efforts were unsuccessful. He said Pop flew him from Atlanta to Houston, where he was picked up by an unknown male who transported him to a motel. There he obtained the keys to the Toyota from valet parking. He immediately began driving the vehicle back to Atlanta. When he reached Atlanta, Bell-Brayboy was to call Pop, who would tell him where to park the vehicle and Bell-Brayboy would get his own ride back to his personal car, which he left at the Atlanta airport. Bell-Brayboy was willing to attempt a controlled delivery of the drugs with the help of agents in Atlanta, but the officers could not get enough information to attempt the controlled delivery.
Bell-Brayboy was originally charged in federal court with conspiracy to possess with intent to distribute cocaine and heroin. A motion to suppress was filed claiming that Trooper Strickland stopped Bell-Brayboy's car without probable cause to believe that a traffic offense had been committed and that the officer unconstitutionally extended the traffic stop without reasonable suspicion until a drug-sniffing K-9 could be brought to the scene. Bell-Brayboy argued that the search of the car violated the Fourth Amendment, so that all of the evidence found and incriminating statements made afterward should be suppressed.
A hearing was held on the motion before a federal magistrate judge on July 19, 2017. Trooper Strickland testified at the hearing. He briefly set forth his law enforcement experience. He detailed the initial observation of the defendant's vehicle and the traffic violation which resulted in the stop. When the stop was initiated, the dash-camera on his vehicle was activated.
Trooper Strickland ran a check on the vehicle's Georgia license plate and determined that the vehicle was not stolen, but was registered to a woman in Georgia. Bell-Brayboy said that the vehicle belonged to his sister. However, Trooper Strickland never asked for her name. The officer took Bell-Brayboy's Georgia driver's license and asked if he was sleepy. Bell-Brayboy said that he was "fine." Trooper Strickland noted that the interior of the car was very clean, with no personal effects of the driver or the owner. There was only a University of Alabama backpack in the back seat. Bell-Brayboy said that he played football for the University of Alabama and had been in Houston since Friday attending a training session. He said he was heading back to school in Tuscaloosa, Alabama. Trooper Strickland found it odd that Bell-Brayboy did not have more luggage for a four- or five-day trip.
During the initial portion of his encounter with Trooper Strickland, Bell-Brayboy was holding his cellphone, staring at a blank screen. The phone rang and Bell-Brayboy tried to answer. Trooper Strickland noted that only a phone number appeared on the screen and not a name. The officer asked Bell-Brayboy to put the phone down. Bell-Brayboy said he was letting a "friend" know where he was located. Trooper Strickland thought Bell-Brayboy was deceptive in his answers and was engaged in some type of criminal activity.
Trooper Strickland returned to his vehicle to investigate further. He checked Bell-Brayboy's criminal history, finding an arrest for assault in Houston. Trooper Strickland also checked the player roster for the current year at the University of Alabama and did not find Bell-Brayboy's name. He did find his name on a roster that was several years old, possibly on a spring team.
Trooper Strickland determined that he was going to ask Bell-Brayboy for consent to search the vehicle, and he called Troopers Peart and Titus for backup before he did so. When the officers arrived, Bell-Brayboy refused to consent to a search. Officer Clint Smith with the Minden Police Department K-9 unit was contacted. The State Police K-9 unit was not available that night. The officers had previously arranged with Officer Smith to fill in if needed. Officer Smith arrived within 20 to 22 minutes. The drug dog performed an open-air search and alerted on both rear quarter panels of the car. A search revealed two aftermarket compartments in the natural voids of the vehicle. The officers could see contraband and packages wrapped in duct tape inside the compartments. The compartments had electronic devices that could not be readily opened. Bell-Brayboy was arrested and the vehicle was moved to the Minden Police Department, which was a safer location to continue the search. The officers found ten packages, wrapped in duct tape, each containing one kilogram of cocaine. They also found a package containing one kilogram of heroin.
On cross-examination, Trooper Strickland said that the stop occurred on a Tuesday night after a three-day weekend for President's Day. Trooper Strickland said that the amount of luggage Bell-Brayboy had did not match the length of his trip. He saw only a backpack and a bag of snacks. Trooper Strickland did not think the backpack would have held enough clothes for a five-day trip. However, the officer never asked if there was luggage in the trunk.
In addition to checking Bell-Brayboy's driver's license and registration, Trooper Strickland ran a criminal history and checked the Automated License Plate Recognition ("ALPR") system, which showed that the vehicle was observed traveling westbound into Texas on I-10 in Lake Charles, Louisiana, on Monday, the day before the stop. Trooper Strickland was asked by defense counsel if he had a "gut feeling" that things were not right with Bell-Brayboy's story. Trooper Strickland replied, "Well you say ‘a gut feeling.’ I call it ‘reasonable suspicion.’ "
According to Trooper Strickland, based upon his experience and training, he knew that something was not "adding up." This impression was based upon the facts that Bell-Brayboy did not appear on the University of Alabama player roster; he was not driving his own car; he was on I-20, which was not the shortest route from Houston to Tuscaloosa; the car was seen traveling westbound from Lake Charles the day before; and Bell-Brayboy refused to give consent to search the vehicle. Trooper Strickland said, "At that point, I really felt like it was narcotics but I couldn't say for sure." Trooper Strickland thought that someone was traveling with Bell-Brayboy in another car and that would explain the phone call. Trooper Strickland said that the K-9 unit arrived at the scene within 20 to 22 minutes. While waiting for the K-9 unit, Bell-Brayboy was very talkative. According to Trooper Strickland, the defendant did not seem nervous at that point.
In addition to the testimony of Trooper Strickland, Trooper Haynes testified at the hearing about the statement made by Bell-Brayboy after his arrest. The dash-camera video of the stop was introduced into evidence and was viewed by the magistrate judge.
The dash-camera video shows that 20 seconds after the officer initiated the stop, Bell-Brayboy pulled over. Trooper Strickland engaged Bell-Brayboy in conversation, which is initially difficult to hear because the defendant was still in his vehicle and there was a lot of noise from the highway. Bell-Brayboy said that he had been in Houston since Friday. Two minutes and three seconds into the stop, Bell-Brayboy's cellphone rang and Trooper Strickland asked him to put it down and continue their conversation. Trooper Strickland asked Bell-Brayboy where he stayed in Houston. Bell-Brayboy replied that he stayed with his trainer, and asked whether the trooper believed his story. Bell-Brayboy said that he played football for the University of Alabama. Three minutes and 20 seconds into the stop, Trooper Strickland returned to his vehicle and began investigating Bell-Brayboy's story. At one point, Trooper Strickland is heard talking to another officer, telling him that Bell-Brayboy was pretty nervous. Trooper Strickland related Bell-Brayboy's story that he played football for Alabama and that he claimed he stayed with his trainer while in Houston. Trooper Strickland said that he could not find Bell-Brayboy on the player roster. He related that Bell-Brayboy claimed that he was using his sister's car and Trooper Strickland noted that the only luggage in the vehicle was a University of Alabama backpack. Trooper Strickland told the other officer that it did not make any sense and the officer agreed. Trooper Strickland stated that Bell-Brayboy was getting pretty choked up when he was questioned. Trooper Strickland then returned to Bell-Brayboy's vehicle and asked him to get out. Trooper Strickland asked for permission to search the vehicle and Bell-Brayboy refused. He was told that the officer would call for a K-9 unit.
Other officers can be seen and heard on the video engaged in small talk about football with Bell-Brayboy. At 15 minutes and 44 seconds into the stop, an officer is heard to say that the K-9 unit is on the way. At 32 minutes and 31 seconds into the stop, the drug dog begins his open-air sniff. At 36 minutes into the stop, the dog alerted on the vehicle. The video shows that the traffic portion of the encounter took 14 minutes and the criminal portion took 22 minutes, for a total of 36 minutes. On October 3, 2017, the federal magistrate judge made a report and recommendation. He found that there was probable cause for the initial stop by Trooper Strickland, but there was no reasonable suspicion for the continued detention after completion of computer checks and other tasks necessary for the traffic stop. The magistrate judge recommended that the motion to suppress be granted.
The magistrate judge stated that the government argued that reasonable suspicion for the continued detention existed based upon the totality of the following facts: (1) the car was registered to a third party; (2) the interior of the car was clean and void of personal effects and luggage; (3) Bell-Brayboy appeared nervous; (4) Bell-Brayboy answered a phone call from a friend whose name was not saved in his phone; (5) Trooper Strickland was unable to confirm that Bell-Brayboy was on the current roster for the University of Alabama's football team; (6) Bell-Brayboy's stated itinerary was inconsistent with information provided by the ALPR system; and (7) Bell-Brayboy was not taking the most direct route from Houston to Tuscaloosa. The magistrate judge then evaluated these factors "independently and collectively."
The magistrate judge noted that, even though registry of a car to a third party might be a factor in establishing probable cause, Trooper Strickland never asked Bell-Brayboy for his sister's name to determine if it matched the name on the registration. The magistrate judge gave no weight to the third-party vehicle registration.
The magistrate judge also found that the fact that the car was very clean did not work to establish reasonable suspicion of drug activity stating that, "Many people keep clean cars." The magistrate judge noted that Trooper Strickland did not ask Bell-Brayboy about his lack of luggage. Then the magistrate judge concluded, "But even if there were no luggage in the trunk, that circumstance would be entitled to very little weight."
The magistrate judge next discounted Trooper Strickland's observation that Bell-Brayboy was nervous during the traffic stop. The magistrate judge viewed the dash-camera video and did not observe any excess nervousness "beyond that normally associated with an uninvited encounter with a state trooper on the side of a busy highway."
The magistrate judge discounted Trooper Strickland's testimony that it was "odd" that Bell-Brayboy took a call from a "friend" when the screen on the phone did not show an existing contact. The magistrate judge opined that people often get new telephones and have to re-enter contact information. According to the magistrate judge, "It may be that the fact was unusual or even odd, like a person wearing mismatched socks, but Trooper Strickland did not explain how the fact was suggestive of criminal activity."
The magistrate judge found that Bell-Brayboy's statements about playing football for Alabama were "nothing more than youthful aggrandizement" and "puffery" aimed at avoiding a traffic ticket, "but did not do much to create reasonable suspicion of criminal activity."
The magistrate judge noted that Trooper Strickland never asked Bell-Brayboy about the fact that the car was seen in Lake Charles on the ALPR system the day before the traffic stop. The magistrate judge speculated that Bell-Brayboy may have left Houston on Monday and travelled to a casino in Lake Charles.
The magistrate judge was also swayed by the fact that Trooper Strickland did not ask Bell-Brayboy why he was not taking the most direct route from Houston to Tuscaloosa, concluding that "a driver's apparent choice of a less direct route is simply not very indicative of drug trafficking or other criminal activity."
According to the magistrate judge, Trooper Strickland thought that Bell-Brayboy was suspicious, but could not articulate what crime may have been committed or provide specific facts for why he suspected the driver. The magistrate judge stated that Trooper Strickland "merely had an unexplained hunch that something was afoot" and concluded that an officer must have more than a "mere hunch" that a person stopped is engaged in illegal activity if he wishes to lawfully detain him beyond the time reasonably necessary to handle the traffic offense. The magistrate judge noted that the traffic stop was completed in 14 minutes, but Bell-Brayboy was detained another 20 to 22 minutes before the drug dog arrived. Accordingly, the magistrate judge found that the additional detention was unconstitutional and the motion to suppress should be granted.
On November 3, 2017, the federal district court judge adopted the magistrate judge's report and recommendation, granted the motion to suppress, and ordered that all "evidence recovered as a result of an unconstitutional search and seizure, including Defendant's incriminating statements" would be suppressed. This ended Bell-Brayboy's prosecution in federal court.
On December 6, 2017, based upon the same incident, Bell-Brayboy was charged in state court with one count of possession with intent to distribute more than 400 grams of cocaine and possession with intent to distribute heroin. Just as he did in federal court, Bell-Brayboy filed a motion to suppress the evidence and statements, claiming there was no probable cause for the traffic stop and the officer unconstitutionally extended the traffic stop so that a K-9 unit could search the vehicle. Bell-Brayboy requested that the motion be granted and that all evidence following his traffic stop be declared inadmissible.
The prosecution of Bell-Brayboy in state court for the same criminal activity after the dismissal of charges in federal court does not violate double jeopardy due to the dual-sovereignty doctrine. That rule provides that a crime under one sovereign's laws is not the same offense as a crime under the laws of another sovereign. See Gamble v. United States , ___ U.S.___, 139 S. Ct. 1960, 204 L. Ed. 2d 322 (2019).
Even though somewhat repetitive of the facts stated above, it is important to recite the additional evidence and testimony presented at the state court motion to suppress hearing in order to illustrate the differences. The transcript of the federal motion to suppress hearing was admitted into evidence, along with Trooper Strickland's dash-camera video of the traffic stop. Trooper Strickland's curriculum vitae ("CV") was introduced. This evidence had not been used in the proceedings before the federal magistrate. The CV reflects that Trooper Strickland received a B.A. degree in criminal justice from Northwestern State University in 2004. He then worked for the Many Police Department and the DeSoto Parish Sheriff's Office before becoming employed by the Louisiana State Police in 2007. He had attended numerous law enforcement training sessions and had been a Team Leader for the Criminal Patrols Unit since 2014. During his tenure as Team Leader, Trooper Strickland had recovered a large amount of narcotics and money, numerous vehicles and weapons, and had recovered some people who were being trafficked.
At the hearing, Trooper Strickland's testimony was much more detailed than it had been before the federal magistrate. He explained his training and testified that he had attended a week-long drug interdiction course in Michigan called the Drug Interdiction Assistant Program. He was currently working on a four-man team, which included a K-9, looking for traveling criminals on I-20 that "travel across our state every day." He stated that there are narcotics trails from Mexico through hub cities in the United States, such as McAllen, Houston, and Dallas, Texas, and Atlanta, Georgia, all the way up the east coast. The normal procedure is that drugs are transported eastbound and money is transported westbound.
On the evening of February 21, 2017, Trooper Strickland was sitting on the shoulder of I-20 in Webster Parish watching eastbound traffic. He observed the 2005 Toyota Solara, driven by Bell-Brayboy, traveling in the right lane at the speed limit of 70 mph. When Bell-Brayboy saw Trooper Strickland, he slowed to 65 mph, and this caught Trooper Strickland's attention. Trooper Strickland said that he looks for driver reactions when they see a police vehicle. He testified that, normally, people don't slow down that much when they are going the speed limit.
Trooper Strickland began following the vehicle, which passed two or three commercial vehicles, and then pulled back into the right lane, crossing the fog line, a violation of La. R.S. 32:79. Trooper Strickland pulled the vehicle over for the traffic violation. The vehicle had a Georgia license plate. Trooper Strickland ran a computer check on the license plate and determined that the vehicle was not stolen, but it was registered to a woman in Georgia. During the course of their conversation, Bell-Brayboy told Trooper Strickland that the car belonged to his sister.
According to Trooper Strickland, Bell-Brayboy did not look like he was doing interstate travel in the vehicle. The vehicle was very clean with no personal effects from the driver or the owner, and the car appeared to be freshly vacuumed. There was only a bag of snacks in the car and a University of Alabama backpack in the back seat. There was no luggage or other effects in the interior of the car. Trooper Strickland said the vehicle looked like a rental car with no personal items, such as loose change, pens, or paperwork.
The nature of his conversation with Bell-Brayboy raised Trooper Strickland's suspicions. He said that Bell-Brayboy was nervous and choked on his answers when initially questioned. Bell-Brayboy was holding a cellphone while talking to Trooper Strickland and was staring at a blank screen. He never really made eye contact and appeared to be waiting on a phone call. Trooper Strickland stated that, in his many years in law enforcement, he has made thousands of traffic stops and usually people make eye contact. Trooper Strickland saw this as a sign of nervousness.
During the course of his conversation with Trooper Strickland, Bell-Brayboy's cellphone rang. Bell-Brayboy said that he was letting a friend know where he was and that he was "okay." Trooper Strickland noted that the call appeared on the cellphone screen with only a telephone number and not the name of the "friend" that would normally be in the contacts list. The trooper said it would have been normal if Bell-Brayboy had been talking on the phone. Instead of having made a phone call, the defendant was focusing on a blank screen, expecting to receive a call. When Bell-Brayboy received the call, he tried to answer it. Trooper Strickland asked him not to answer and to continue talking with him. Trooper Strickland testified that drug traffickers frequently travel in pairs, with one car transporting the narcotics and another car traveling a mile or so away to keep an eye on the drugs. The driver of the vehicle transporting the drugs is usually required to check in regularly. Trooper Strickland concluded that the other vehicle called Bell-Brayboy when the traffic stop was observed. Trooper Strickland testified that, in some instances, they are able to apprehend the drivers of both vehicles.
Bell-Brayboy told Trooper Strickland that he played football for the University of Alabama and had traveled to Houston on Friday for training. The traffic stop occurred on Tuesday night. Trooper Strickland thought Bell-Brayboy would have had more luggage for a multi-day training trip. On cross-examination, Trooper Strickland said he had no idea if Bell-Brayboy had luggage in the trunk, but, as it turned out, there was no luggage.
Trooper Strickland felt that Bell-Brayboy was being deceptive. He returned to his vehicle and investigated whether Bell-Brayboy was on the University of Alabama football team. He could not find his name on the current roster of players, but did find his name on a list for a couple of years in the past, possibly on a practice team. Trooper Strickland also found it odd that Bell-Brayboy would go to Houston for training because there would have been plenty of trainers in Alabama. The officer was also aware that Houston is a known hub for drug activity.
Trooper Strickland noted that the quickest route from Houston to Tuscaloosa was on I-10 rather than I-20. However, he was aware that drug traffickers frequently avoid I-10 because it is more heavily patrolled by law enforcement and interdiction teams. Trooper Strickland ran Bell-Brayboy's license plate number on the ALPR system. This inquiry showed that the car was on I-10 in Gulfport, Mississippi, at 4:05 a.m. on Monday morning, headed west. The car was also seen heading west on I-12 in Hammond, Louisiana, I-10 in Lafayette, Louisiana, and I-10 in Lake Charles, Louisiana, which was the location of the last camera in the system. This information, indicating a turnaround trip for the car, along with other factors testified to by the officer, led Trooper Strickland to be suspicious that Bell-Brayboy was transporting narcotics. In accordance with standard procedure, the officer called for backup. When Troopers Peart and Titus arrived, Bell-Brayboy was asked for consent to search the vehicle. He refused to give consent, so Trooper Strickland called for the K-9 unit.
The K-9 unit from the Minden Police Department arrived within 20 to 22 minutes of the call. The drug dog performed an open-air sniff around the car and alerted on both rear quarter panels. The car was searched, leading to the discovery of large amounts of cocaine and heroin, and Bell-Brayboy was arrested.
The defendant did not testify at the hearing. The trial court took the matter under advisement in order to review the evidence. On October 16, 2018, the trial court issued a lengthy written opinion and denied the motion to suppress. The trial court outlined the facts that were adduced at the hearing. The trial court found that Trooper Strickland had probable cause to stop Bell-Brayboy for improper lane usage and had reasonable suspicion that Bell-Brayboy had committed a crime or was about to commit a crime. The trial court noted that reasonable suspicion requires a weighing of the totality of the circumstances and Trooper Strickland acted in good faith and reasonably concluded, based upon all the factors set forth in his testimony, that Bell-Brayboy was involved in criminal activity. The obvious next step was to request a K-9 unit to conduct a roadside open-air sniff. The trial court found that the time it took for the K-9 unit to arrive at the scene was not unreasonable, based upon the location of the traffic stop. Accordingly, the trial court denied the motion to suppress the evidence.
The original opinion in this case recites only one paragraph from the opinion. We cannot help but note that the well-reasoned, thorough, and cogent opinion issued by the trial court contains 60 footnotes, which extensively reference the evidence, the parties’ briefs, applicable statutes, and federal and state jurisprudence.
On June 17, 2019, Bell-Brayboy entered pleas of guilty to the charges against him, reserving his right to appeal the denial of the motion to suppress the evidence, pursuant to State v.Crosby , supra .
MOTION TO SUPPRESS
Bell-Brayboy appealed the trial court's denial of his motion to suppress. In his single assignment of error, he states:
There were no reasonable, articulable grounds for arresting Brandon Bell-Brayboy when he was seized illegally for 22 minutes before the initial free-air dog sniff.
We note that Bell-Brayboy was not under arrest while awaiting the arrival of the drug dog. He was merely detained.
He claims in his brief that Trooper Strickland did not have sufficient information to justify the 22-minute detention and that he "cherry-picked" facts to support his "hunch" that criminal activity was afoot. Bell-Brayboy contends that, because he was seized illegally before the free-air dog sniff, the drugs recovered should be suppressed. These arguments are without merit.
Legal Principles
The state bears the burden of proving the admissibility of the evidence seized without a warrant when the legality of a search or seizure is placed at issue by a motion to suppress evidence. La. C. Cr. P. art. 703(D). The trial court's ruling on a motion to suppress is reviewed under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to findings of law. State v. Prince , 50,548 (La. App. 2 Cir. 4/13/16), 195 So. 3d 6 ; State v. Delvalle , 46,563 (La. App. 2 Cir. 9/21/11), 73 So. 3d 1026. A trial court's denial of a motion to suppress is afforded great weight and will not be set aside unless a preponderance of the evidence clearly favors suppression. State v. Manning ("Manning II ") , 51,450 (La. App. 2 Cir. 8/9/17), 244 So. 3d 600, writ denied , 2017-1575 (La. 5/18/18), 242 So. 3d 575 ; State v. Wells , 2008-2262 (La. 7/6/10), 45 So. 3d 577. The entire record is reviewable for determining the correctness of a ruling on a motion to suppress. State v. Pena , 43,321 (La. App. 2 Cir. 7/30/08), 988 So. 2d 841.
The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, § 5, of the Louisiana Constitution. State v. Freeman , 44,980 (La. App. 2 Cir. 1/27/10), 33 So. 3d 222, writ denied , 2010-0535 (La. 10/1/10), 45 So. 3d 1094. The authority and limits of the Fourth Amendment apply to investigative stops of vehicles. United States v. Sharpe , 470 U.S. 675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). The stopping of a vehicle and the detention of its occupants is a seizure within the meaning of the Fourth Amendment. State v. Burney , 47,056 (La. App. 2 Cir. 5/23/12), 92 So. 3d 1184, writ denied , 2012-1469 (La. 1/11/13), 106 So. 3d 548.
The standard for evaluating a challenge to a routine warrantless stop for violating traffic laws is the two-step formulation articulated in Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See State v. Pena , supra . The court must determine whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. United States v. Shabazz , supra ; State v. Pena , supra .
For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred or is about to occur, before stopping the vehicle. United States v. Sharpe , supra ; State v. Sims , 426 So. 2d 148 (La. 1983). To satisfy the reasonableness requirement of the Fourth Amendment, police officers conducting an investigatory stop must have a reasonable suspicion supported by articulable facts that criminal activity "may be afoot." United States v. Sokolow , 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989) ; State v. Morgan , 2009-2352 (La. 3/15/11), 59 So. 3d 403 ; State v. Ardison , 52,739 (La. App. 2 Cir. 6/26/19), 277 So. 3d 883.
As a general matter, "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." See Whren v. United States , 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) ; State v. Waters , 2000-0356 (La. 3/12/01), 780 So. 2d 1053. The standard is a purely objective one that does not take into account the subjective beliefs or expectations of the detaining officer. Whren v. United States , supra ; State v. Waters , supra . Although they may serve, and may often appear intended to serve, as the prelude to the investigation of much more serious offenses, even relatively minor traffic violations provide an objective basis for lawfully detaining the vehicle and its occupants. State v. Waters , supra .
In Louisiana, as in other jurisdictions, a car which partially leaves its lane of travel and crosses the fog line either at the center of a divided highway or on the right-hand shoulder of the road therefore provides the police with probable cause to believe that a traffic violation for improper lane use has occurred. State v. Waters , supra ; State v. Prince , supra .
La. C. Cr. P. art 215.1(D) provides, in part:
D. During detention of an alleged violator of any provision of the motor vehicle laws of this state, an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity [.] [Emphasis supplied.]
In stopping a vehicle on reasonable suspicion, an officer has the right to conduct a routine license and registration check and may engage in conversation with the driver and any passenger while doing so. State v. Manning ("Manning I "), 50,591 (La. App. 2 Cir. 5/18/16), 196 So. 3d 626 ; State v. Lee , 46,742 (La. App. 2 Cir. 12/14/11), 79 So. 3d 1278 ; State v. Pena , supra . In order to further detain a suspect, however, the officer must have articulable facts giving rise to a reasonable suspicion of some separate illegal activity that would justify further detention of the suspect. In making that determination, "the totality of the circumstances — the whole picture — must be taken into account." United States v. Cortez , 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). See also United States v. Place , 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) ; State v. Kalie , 96-2650 (La. 9/19/97), 699 So. 2d 879 ; Manning II , supra ; State v. Arnold , 34,194 (La. App. 2 Cir. 12/6/00), 779 So. 2d 840.
Based on that whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. The circumstances must be judged by an objective standard: would the facts available to the officer at the moment of seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate? State v. Kalie , supra ; Manning II , supra .
Regarding reasonable suspicion, the Supreme Court in Terry stated that, in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or "hunch," but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. The Supreme Court further explained that officers are allowed 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. Arvizu , 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002) ; State v. Morgan , supra ; State v. Johnson , 2001-2081 (La. 4/26/02), 815 So. 2d 809.
A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. See State v. Miller , 2000-1657 (La. 10/26/01), 798 So. 2d 947, and cases cited therein. Much as a "bright line" rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria. See United States v. Sharpe , supra , and cases cited therein. See also Manning I , supra ; State v. Prince , supra . Further, there is no bright line rule for when a detention lasts too long and each instance must be assessed in view of the surrounding circumstances. State v. Burney , supra .
If a police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. United States v. Sharpe , supra ; State v. Turner , 13-0180 (La. 3/1/13), 108 So. 3d 753 ; State v. Williams , 47,750 (La. App. 2 Cir. 4/10/13), 112 So. 3d 1022, writ denied , 2013-1394 (La. 12/2/13), 126 So. 3d 502 ; State v. Burney , supra ; State v. Lee , supra .
The use of a drug dog as a means of investigation is one way to confirm or dispel the officer's reasonable suspicion. A dog sniff of the vehicle's exterior surfaces is not a "search" under the meaning of the Fourth Amendment. United States v. Place , supra ; State v. Kalie , supra ; Manning I , supra ; State v. Smith , 49,356 (La. App. 2 Cir. 11/19/14), 152 So. 3d 218, writ denied , 2014-2695 (La. 10/23/15), 179 So. 3d 597. See also Illinois v. Caballes , 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). However, at the moment the dog alerts to the interior of the vehicle, officers have probable cause to search a vehicle without first obtaining a warrant. State v. Prince , supra .
Discussion
Bell-Brayboy originally contended in his motions to suppress in federal court and in the state court that the traffic stop was a mere pretext and illegal. Both courts rejected that argument and found there was probable cause for the initial stop. On appeal, Bell-Brayboy does not object to the trial court's finding on this issue. Rather, he essentially contends that there was no reasonable suspicion to detain him after the traffic stop in order for the drug dog to arrive and perform an open-air sniff of his vehicle.
The testimony and evidence adduced at the motion to suppress hearing under review in this case was more extensive than that presented in the federal court and established that Trooper Strickland had reasonable suspicion that Bell-Brayboy was trafficking in illegal narcotics. This reasonable suspicion justified extending the stop for further investigation.
First, Trooper Strickland outlined his educational background in criminal justice and his extensive experience and training in detecting drug trafficking. He also explained the significance of drug hub cities, such as Houston, and the manner in which drugs and money are transported east and west. He explained how drug trafficking works and the various tools and methods that are employed. His experience and training allowed him to make inferences from and deductions about the cumulative information in this case that might have eluded an untrained person.
After stopping Bell-Brayboy for a traffic violation, Trooper Strickland noted that the vehicle was registered to a woman in Georgia. When he approached Bell-Brayboy, it was obvious that the vehicle was not his. The trooper also noted the clean state of the car, with no personal effects from the owner or the driver. It appeared to have been recently vacuumed, contributing to the trooper's conclusion that the vehicle looked like a rental car. Bell-Brayboy said that the car was his sister's and, even though Trooper Strickland never asked for a name to verify that information, many other factors quickly developed which showed that Bell-Brayboy was being deceptive, leading to the formation of reasonable suspicion that he was engaged in criminal activity.
These factors included the defendant's nervousness and lack of eye contact when he was initially stopped. Although the magistrate judge reviewed the video of the traffic stop and did not observe any excessive nervousness, we also reviewed the video and note that, in the initial exchange between Trooper Strickland and Bell-Brayboy, the defendant was still in the vehicle. He cannot be seen and his answers cannot be heard due to traffic noise from the highway. In the present motion to suppress, the trial court found Trooper Strickland to be credible in his assessment that Bell-Brayboy was nervous when initially stopped. There is no evidence in the record to dispute that finding.
An additional factor supporting reasonable suspicion was Bell-Brayboy's behavior concerning his cellphone. Trooper Strickland testified that Bell-Brayboy was holding his cellphone, staring at a blank screen, immediately after the stop. He said that he was letting a "friend" know where he was. Trooper Strickland noted that Bell-Brayboy was not making a phone call, but was waiting to receive one. When the phone rang shortly after the traffic stop, the trooper noticed that only a phone number appeared on the screen. The name of the "friend" was not in Bell-Brayboy's contact list on the phone. The magistrate judge found there were innocuous explanations for the fact that no name appeared on the screen and concluded that Trooper Strickland did not explain how that fact was indicative of drug activity. By contrast, at the present hearing in the state trial court, Trooper Strickland provided an explanation. He testified that drug traffickers frequently travel in pairs. One person transports the drugs and the other keeps an eye on the drugs. The person transporting the drugs is required to check in frequently. Trooper Strickland stated that, based upon his experience, he suspected that the person or persons accompanying Bell-Brayboy saw the traffic stop and called to see what was happening.
In oral argument on rehearing, defense counsel argued that it was significant that Trooper Strickland did not identify any passing car he suspected was the companion vehicle. We find that this fact was not significant given the circumstances of the traffic stop. It was made at night, in the rain, with heavy traffic passing on a busy interstate highway, and the trooper's attention was focused on Bell-Brayboy.
The next factor leading to the development of reasonable suspicion was the discovery that Bell-Brayboy was lying about playing for the University of Alabama, casting doubt on his story that he had been in Houston for training. Trooper Strickland investigated this story and found that Bell-Brayboy was not on the current roster of players. The trooper observed that Bell-Brayboy did not have any luggage, as would be expected if his story was true. The trooper also found it significant that the defendant said he had gone to Houston, a known drug-hub city, for training, when there should have been plenty of trainers available at the University of Alabama.
The fact that the defendant may have played on a practice team in the past did not support his story of currently playing on the team or seeking training.
Next, Trooper Strickland discovered that Bell-Brayboy's vehicle was not in Houston the day before, but was seen traveling all the way across south Louisiana, beginning in the early morning hours the day before the traffic stop. In federal court, Trooper Strickland testified only that the vehicle was observed in Lake Charles the day before. In the hearing on the present motion to suppress, Trooper Strickland testified that the vehicle was initially seen in Gulfport, Mississippi at 4:05 a.m. on Monday, the day before the traffic stop, heading west. The car was also seen heading west on I-12 in Hammond, Louisiana, on I-10 in Lafayette, and finally on I-10 in Lake Charles, where the last camera in the system is located. Even though Trooper Strickland did not question the defendant regarding this information, he found that these facts indicated that the vehicle was making a turnaround trip. This information also undermines the magistrate judge's speculation that Bell-Brayboy may have traveled from Houston to "a casino in Lake Charles" the day before the traffic stop.
Trooper Strickland found it significant that Bell-Brayboy, who claimed he was traveling from Houston to Tuscaloosa, was on I-20 rather that I-10, which is a more direct route. At the federal motion to suppress hearing, the magistrate judge found that choosing a less direct route was not indicative of drug activity. In the hearing in the present case, Trooper Strickland explained that drug traffickers try to avoid I-10 because it is more heavily patrolled with interdiction teams than I-20. Therefore, the choice of a longer route avoiding I-10 was significant. Also, unlike his testimony in the federal court hearing, in this case, Trooper Strickland was unequivocal that he suspected Bell-Brayboy of drug trafficking.
None of the trooper's suspicions were shown to be incorrect. The defendant's story about being in Houston on a four- or five-day training trip was fabricated. The subsequent search of the trunk after the defendant was placed under arrest revealed that there was no luggage there. As shown on the video of the stop and eventual arrest, the defendant continued to be preoccupied with the cellphone. The phone contained numerous calls from the unidentified person Bell-Brayboy knew only as Pop. Had the trooper been incorrect about anything, the defense, of course, could have utilized this to impeach him. On the record before us there was simply no evidence to discredit Trooper Strickland's testimony. The trial court's decision to find his testimony credible is entitled to deference by this court.
Bell-Brayboy did not testify at the hearing on the motion to suppress to refute any of the testimony given by Trooper Strickland.
La. C. Cr. P. art.703(E)(1) provides, in part, that the defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant's testimony cannot be used by the state except for the purpose of attacking the credibility of the defendant's testimony at the trial on the merits.
In the present case, Trooper Strickland not only gave the court more information than was presented in the federal court, he also gave more detailed explanations of why those facts were significant to him and led him to have reasonable suspicion that Bell-Brayboy was engaged in drug trafficking. Trooper Strickland knew that Bell-Brayboy was lying about playing football for the University of Alabama and other factors indicated that Bell-Brayboy had not been in Houston for five days of training, as he claimed. The facts discussed above quickly developed during the traffic stop and, when viewed and evaluated by a trained law enforcement officer, led to the reasonable suspicion that Bell-Brayboy was transporting narcotics.
The defendant argues that, because Trooper Strickland did not question Bell-Brayboy about the third-party registration; his lack of luggage; why his name did not appear on the University of Alabama team; why the vehicle was seen early the day before, traveling west across the state of Louisiana; and why he was traveling on I-20 instead of I-10, the most direct route from Houston to Tuscaloosa, that the trooper did not diligently pursue a means of investigation likely to quickly dispel or confirm his suspicion. We are not persuaded by the defendant's argument that the trooper was required to question Bell-Brayboy about each factor of his story that did not add up after the officer had already developed reasonable suspicion that the defendant was engaged in criminal activity and knew that he was being untruthful. As discussed above, Trooper Strickland provided explanations of why those factors, coupled with his training and experience, gave him reasonable suspicion that Bell-Brayboy was transporting illegal drugs. The facts presented here show an ample basis for Trooper Strickland's reasonable suspicion, not an inchoate or unparticularized suspicion or hunch. He then chose to call a drug dog to do an open-air sniff. As set forth above, the use of a drug dog as a means of investigation is one way to confirm or dispel the officer's reasonable suspicion. This was the means of investigation Trooper Strickland diligently pursued to quickly confirm or dispel his suspicion, rather than engaging in pointless questioning of a person he knew was being deceptive.
Defense counsel argued before this court on rehearing that finding that Trooper Strickland developed reasonable suspicion of criminal activity without further questioning the defendant would necessarily result in giving officers free rein to abuse Fourth Amendment rights. We reject this argument. Reasonable suspicion will always be required for a detention and that standard was not breached here. Under the facts of this case, Trooper Strickland did not violate the defendant's constitutional rights in his choice of a means of investigation.
The original opinion found that that Trooper Strickland did not have reasonable suspicion and essentially echoed the reasoning of the magistrate judge without considering the additional testimony and evidence presented in this matter. That analysis was based on incomplete information and examined in isolation several factors which, in this case, combined to establish reasonable suspicion to detain Bell-Brayboy. The original opinion went to great lengths to posit "innocuous explanations" for the defendant's behavior and criticized Trooper Strickland. This approach is inappropriate and failed to consider the "totality of the circumstances," as the Supreme Court has frequently advised must be done. United States v. Arvizu , supra . The original opinion's approach was similar to that rejected in Arvizu , where a lower court evaluated separately each factor observed by an officer which he contended established reasonable suspicion to stop a vehicle. The lower court found each factor susceptible to an innocent explanation and entitled to "no weight." The Supreme Court in Arvizu observed that Terry "precludes this sort of divide-and-conquer analysis." The Louisiana Supreme Court has also cited Arzivu in finding that the assessment by a reviewing court of the cumulative information known to an officer or officers avoids a "divide-and-conquer analysis" by which the whole becomes less than the sum of its parts because each circumstance examined individually may appear "readily susceptible to an innocent explanation." State v. Johnson , supra .
The original opinion in this case also relied upon Rodriguez v. United States , 575 U.S. 348, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015), in finding that Bell-Brayboy's detention was illegal. Rodriguez is factually distinguishable from the present case. That case held that police may not routinely extend an otherwise completed traffic stop absent reasonable suspicion in order to conduct an open-air sniff by a drug dog. In Rodriguez , the defendant was stopped for veering onto the shoulder and then jerking the vehicle back onto the roadway. He was issued a warning ticket, the traffic stop was concluded, and there was no reasonable suspicion of any other criminal activity justifying continued detention. The officer asked for permission to run the drug dog around the car. Permission was refused, but the officer did so anyway. The dog alerted, leading to the discovery of illegal narcotics.
In Rodriguez , the traffic stop was completed and there was a total lack of reasonable suspicion of further criminal activity when the officer used the drug dog. By contrast, in the present case, factors began to develop immediately which quickly led to the development of reasonable suspicion that Bell-Brayboy was involved in drug trafficking. Rodriguez is inapplicable once reasonable suspicion is established. Manning I , supra .
The original opinion noted in dicta that, if Bell-Brayboy sought federal habeas relief in this matter, the federal court would be unlikely to countermand its decision that the search of the defendant's car was unconstitutional. If Bell-Brayboy applies for and is granted habeas review from this decision, the federal court would not be reviewing its prior decision, but would be required to review the more extensive evidence and testimony adduced in the present case, the trial court ruling, and this ruling. Further, this argument was not raised below and is not before us on appeal.
We also find that the length of Bell-Brayboy's detention was not unreasonable. In assessing the reasonableness of the duration of the investigative detention, the Supreme Court has focused on the diligence of the detaining officers. The Supreme Court said that a court making this assessment should take care to consider whether the police are acting in a swiftly developing situation and, in such cases, the court should not indulge in unrealistic second-guessing. United States v. Sharpe , supra . See also Manning II , supra ; State v. Prince , supra ; State v. Burney , supra . In this case, Trooper Strickland promptly requested a drug dog approximately 14 minutes after the initial stop, and the dog arrived 22 minutes later. The total time from the initial stop until the drug dog alerted was 36 minutes.
During oral argument on rehearing, defense counsel acknowledged that the length of time it took for the drug dog to arrive at the scene was not an issue and that the time was not unreasonable. However, since the original opinion of this case criticized the amount of time, we deem it necessary to address the issue.
Although there is no bright-line rule for how long is too long for an investigatory detention, numerous courts in our state have considered this question. The following periods of detention similar to or greater than those in the present case have been found to be reasonable: State v. Miller , supra , 34 minutes; State v. Turner , supra , 60 minutes; State v. Williams , supra , 39 minutes; State v. Burney , supra , 70 minutes; State v. Lee , supra , 30-40 minutes; State v. Lawrence , 45,061 (La. App. 2 Cir. 3/3/10), 32 So. 3d 329, writ denied , 2010-0615 (La. 10/8/10), 46 So. 3d 1265, 30 minutes; State v. Chinn , 11-893 (La. App. 5 Cir. 4/24/12), 94 So. 3d 838, writ denied , 2012-1171 (La. 11/2/12), 99 So. 3d 663, 34 minutes.
Trooper Strickland had reasonable suspicion that Bell-Brayboy was involved in drug trafficking and he legally detained him while awaiting the drug dog to investigate that suspicion. Bell-Brayboy's Fourth Amendment rights were not violated. Therefore, the evidence seized from the car and the statements made by Bell-Brayboy after his arrest are admissible. The trial court did not err in denying the defendant's motion to suppress.
ERROR PATENT
Our error patent review indicates that, at sentencing, the trial court failed to specify that the 15-year sentence for possession of 400 grams or more of cocaine be served without benefit of parole, probation, or suspension of sentence. La. R.S. 40:967(F)(1)(c), which was in effect at the time these offenses were committed, provided:
La. R.S. 40:966(F) and (G) were repealed by La. Acts 2017, No. 281, § 3.
F. Other penalties for possession.
(1) Except as otherwise authorized in this Part:
(c) Any person who knowingly or intentionally possesses four hundred grams or more of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule II(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than fifteen years, nor more than thirty years and to pay a fine of not less than two hundred fifty thousand dollars, nor more than six hundred thousand dollars.
La. R.S. 40:967(G) stated:
With respect to any person to whom the provisions of Subsection F are applicable, the adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for probation or parole prior to serving the minimum sentences provided by Subsection F.
When the district court fails to order service of a sentence without benefits, but a determinative time period is statutorily mandated, the sentence is to automatically be served without benefits for the required time period. La. R.S. 15:301.1 ; State v. Johnson , 46,405 (La. App. 2 Cir. 8/10/11), 70 So. 3d 1097. Here, Bell-Brayboy was sentenced to serve 15 years at hard labor for La. R.S. 40:967(F)(1)(c), the minimum sentence; therefore this sentence is automatically required by law to be served without benefits. We also note that this does not increase the amount of time that Bell-Brayboy will be required to serve, because he was ordered to serve 15 years at hard labor, without benefits, for the charge of possession with intent to distribute heroin under the version of La. R.S. 40:966(A)(1) in effect at the time of the commission of these offenses.
We further note that, in his bill of information, Bell-Brayboy was charged with violation of La. R.S. 40:967(F)(1)(c), which prohibits possession of 400 grams or more of cocaine. The words "with intent to distribute" is not contained in the statute. The possession of such a large amount of cocaine is indicative of an intent to distribute and the defendant was fully informed of the charge against him and the penalty. The inclusion of the additional language constitutes harmless error.
CONCLUSION
On rehearing, we affirm the ruling of the trial court, denying the motion to suppress filed by the defendant, Brandon Bell-Brayboy.
AFFIRMED.
STONE, J., dissents for the reasons set forth in the original opinion, and for the reasons set forth in the STEPHENS, J. dissent.
STEPHENS, J., dissents with written reasons.
STEPHENS, J., dissents.
I respectfully dissent, and would grant the motion to suppress for those reasons set forth in our original opinion, as well as the following.
While the interdiction of drugs in our country is of utmost importance, it cannot supersede the sanctity of our constitutional rights and freedoms. The right to be free of unwarranted searches and seizures is one such right that routinely conflicts with the enforcement of laws regarding drugs and drug trafficking. But, just as the right to remain silent often precludes the extraction of a confession, the preservation of that right is essential to our democracy.
In this case, Officer Strickland had a "hunch" that the Defendant was participating in an illegal activity. However, as accurate as that intuition may have been, it cannot and does not serve as grounds to suspend one's constitutional rights. Likewise, hunches cannot become the grounds for contriving suspicious activities where none actually exist.
Frankly, the most clearly suspicious activity engaged in by the Defendant was the assertion of his constitutional right to refuse the search. It is quite ironic that asserting your constitutional right will cause you to forfeit that right. I cannot and will not condone the legal premise that asserting one's constitutional rights somehow serves as grounds to deprive a person of that right.
I am thoroughly convinced that the Federal Court, as well as the original panel, was correct in its exclusion of the evidence. I would grant the motion to suppress.