Opinion
CRIMINAL 2:24-CR-12
07-29-2024
UNITED STATES OF AMERICA, Plaintiff, v. DAVID LAQUAN MCGOWAN, Defendant.
REPORT AND RECOMMENDATION, RECOMMENDING THAT DEFENDANT'S MOTION TO SUPPRESS [ECF NO. 23] BE DENIED
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE
Pending before the undersigned Magistrate Judge is a motion to suppress [ECF No. 23] filed by Defendant David Laquan McGowan (“Defendant”) on June 18, 2024. By Referral Order dated June 18, 2024 [ECF No. 25], the Hon. Thomas S. Kleeh, Chief United States District Judge, referred the motion to the undersigned for conducting a hearing and entering a report and recommendation as to disposition of the motion.
The Court also is in receipt of the Government's response in opposition [ECF No. 32] to Defendant's motion, filed on June 27, 2024. [ECF No. 32]. The undersigned conducted a hearing on Defendant's motion on July 23, 2024, at which the Court heard witness testimony and accepted exhibits into evidence.
Based on a detailed review of Defendant's motion [ECF No. 23]; the Government's response [ECF No. 32]; the exhibits introduced into evidence at the hearing on Defendant's motion; the testimony given by witnesses at the hearing; and the record herein and pertinent legal authority, the undersigned RECOMMENDS that Defendant's motion be DENIED as set forth herein.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant stands accused in a two-count indictment which a Grand Jury returned against him on April 16, 2024. [ECF No. 1]. Defendant is named in the Indictment with the offenses of (1) Possession with Intent to Distribute More than Fifty Grams of Methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A), and (2) Possession with Intent to Distribute More than Forty Grams of Fentanyl, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B).
As part of a law enforcement initiative to target drug trafficking, on August 4, 2024, officers utilized a confidential informant (“CI”) to contact a target (alleged to be Defendant herein) to arrange for a controlled buy of drugs in the Elkins, West Virginia area. Officers had the CI tell the target that the CI had arranged for the target to stay at a local hotel, although in reality, the CI did not do so. The officers staged an operation near the hotel, and they planned to stop the target and arrest him when he arrived at the hotel. Officers believed they had an accurate description of the vehicle in which the target would be traveling, a white sedan. The CI had several telephone calls with the target from the evening of August 4 and into the early morning hours of August 5, 2024. The target assured the CI that he was en route from Huntington, West Virginia to Elkins. However, after several hours, the target did not show at the hotel and the officers disbanded the operation.
Nonetheless, shortly after 6:00 a.m. on August 5, 2024, a staffer at the hotel called 911 to report that an irate male, fitting the target's description, was at the hotel, demanding to know information about a room and causing a disturbance. The male was traveling in a white car, and eventually left the hotel. Shortly thereafter, having heard about the 911 call, officers stopped a white car in the vicinity. The officers removed the two occupants from the white car, one of them being Defendant. A K-9 alerted on the white car during a free air sniff. Upon searching the white car, officers found drugs and drug paraphernalia, giving rise to the Indictment herein.
In his motion to suppress, Defendant questions whether officers had enough information, given the totality of the circumstances, to establish reasonable suspicion of criminal activity to initiate the traffic stop. In particular, Defendant challenges the reliability of the CI, arguing that the CI had little personal knowledge about the target and that officers did not corroborate the information which the CI provided. For its part, the Government argues that officers had reasonable suspicion, insofar as the CI's information was corroborated by controlled phone calls between the CI and the target; that a person fitting the target's description ultimately appeared at the hotel in question; and that the white car in which Defendant was stopped was known to officers from prior controlled drug buys.
II. SUMMARY OF TESTIMONY AND OTHER EVIDENCE
During the aforementioned suppression hearing on July 23, 2024, the Court heard sworn testimony from two witnesses, namely, (1) Officer Joshua Tallman (“Tallman”), of the West Virginia State Police who is assigned to the Mountain Region Drug and Violent Crimes Task Force (“Task Force”), and (2) Senior Deputy Tyler Knotts (“Knotts”) of the Randolph County, West Virginia Sheriff's Department, who is a K-9 handler and part-time member of the Task Force. The Court also received into evidence the following:
1. Government's Exhibit 1, which consists of (a) an audio recording of the 911 call from hotel staff and (b) three audio recordings of officers' radio traffic during events herein;
2. Defendant's Exhibit 1, which consists of four controlled, recorded telephone calls between the CI and the target, which the Government provided to Defendant herein in discovery.
A. Tallman - Direct Examination
The Government called Tallman to testify. Tallman testified that he is an officer with the West Virginia State Police who is assigned to the Task Force. [9:04:28 to 9:04:41]. Tallman testified as to events of August 4-5, 2023 which gave rise to the Indictment herein. [9:04:45 to 9:05:34]. Tallman explained that the Task Force actually was conducting an investigation prior to that date. Id. In that investigation, Tallman was working with the CI. Id. Tallman stated that the Task Force had utilized the CI in approximately eight controlled buys of controlled substances, and had found the CI to be credible in those dealings. Id. Some of those eight controlled buys were related to Defendant. Id.
The citations here to times in brackets correspond to the times of the Court's archived audio recording of the suppression hearing on July 23, 2024, which is located on the section of the Court's intranet site for FTR recordings.
Tallman specified that the controlled buys involved two people in particular: a man named Dennis Smith (“Smith”) and a woman named Tabitha Row (“Row”). Row was Defendant's girlfriend. [9:05:37 to 9:05:48]. Smith and Row had been using an automobile, a white sedan, which officers stopped in the early morning of August 5, 2023. [9:05:49 to 9:05:57]. At that traffic stop, Defendant was in the white sedan. [9:06:00 to 9:06:10].
Tallman testified that the white sedan had a license plate which commemorated disabled veterans, which was a distinguishing characteristic of the car. [9:06:11 to 9:06:42]. Prior to events of August 5, 2023, Row had driven the same car with Dennis Smith during two controlled buys which the Task Force had monitored. Id. As a result, the Task Force had video surveillance of the car, and had garnered the information about the license plate. Id.
As for how this pertained to events of August 5, Tallman explained that the Task Force had been in contact with the CI. [9:07:05 to 9:08:08]. Per the CI, Smith was willing to connect the CI directly with a source of drug supply, and that source became the target of the Task Force's investigation. Id. That source was a person named “Drip,” which the Task Force later learned is Defendant herein. Id. The Task Force instructed the CI to order approximately $5,000.00 worth of drugs from the target. Id. The CI then contacted the target to place such an order. Id. The CI conducted a number of phone calls with the target, beginning in the afternoon of August 4, 2023 and going into the early hours of August 5. Id.
During one of the calls, the target instructed the CI to obtain a hotel room for him for when he would arrive in the local area of Elkins, West Virginia. [9:08:40 to 9:09:59]. The Task Force then had the CI tell the target that there would be a room for him at a local Hampton Inn hotel. Id. The Task Force did not actually obtain a hotel room for the target, but instead planned to conduct a traffic stop of his vehicle as soon as he arrived at the hotel. Id.
As the CI continued to have phone calls with the target, he repeatedly said his arrival time to Elkins was delayed. [9:10:00 to 9:10:35]. The Task Force started conducting surveillance outside of the hotel starting at approximately 11:00 p.m. that evening, and finally decided to cease surveillance around 3:00 a.m. after the target had not arrived.
Tallman believed that, had the target arrived at the hotel as anticipated, officers had probable cause to initiate a traffic stop of his car. [9:10:38 to 9:11:17]. In so doing, Tallman testified that he relied on the totality of the circumstances - namely, the series of controlled phone calls to arrange for a drug buy, the use of a reliable CI, the prior controlled purchases in which Row (Defendant's girlfriend) was involved, and the supposed rental of a hotel room to aid in the drug transaction which the target was scheduled to occupy. Id.
On direct examination, the Government's counsel inquired as to officers' probable cause to initiate the traffic stop, and Tallman testified as to probable cause. However, in Defendant's motion to suppress [ECF No. 23] and the Government's response [ECF No. 32], the parties brief the issues as to less-demanding reasonable suspicion standard, instead of probable cause. Thus, the undersigned concludes that, during the suppression hearing, counsel for the parties (and this witness) intended to present matters for an analysis as to whether officers had reasonable suspicion for the stop, not probable cause. The analysis below thus reviews the matter as to reasonable, articulable suspicion.
Knotts was part of the operation, in the event he was needed to utilize the K-9. [9:12:04 to 9:12:51]. After the Task Force dispersed around 3:00 a.m., Knotts was scheduled to be back on duty early that same morning, so Knotts went directly home. Id. However, at approximately 6:00 a.m., the Task Force learned of a 911 call from hotel staff, saying that an irate black male had arrived at the hotel to claim his hotel room, and that he was causing a disturbance. Id. The Task Force later learned, from notes of the incident made by hotel staff, that the black male was asking for the CI by name. Id.
Per Tallman, the person causing the disturbance left the hotel once staff there placed the 911 call. [9:13:02 to 9:14:29]. Knotts and another officer, Deputy Elbon (“Elbon”), began a search of the area for the white car. Id. Dispatch had provided a description of the vehicle obtained via the 911 call. Id. And Tallman earlier had provided a description of the white car to the other officers. Id. The hotel staffer had provided a description of the vehicle as being a white sedan, but did not provide a license plate number. Id. The Task Force knew the license plate of the white car from its prior operations. Id. The Task Force also knew that the target was a black male (which Defendant is), who possibly was a gang member and possibly dangerous. Id. The Task Force also knew that the target wore an ankle monitoring bracelet. Id. Knotts and Elbon located the white car, and initiated a traffic stop of it in the nearby town of Beverly, at the Fast Break convenience store. Id.
The Government published its Exhibit 1, which Tallman confirmed contains audio of (1) the 911 call from hotel staff and (2) three audio clips of radio traffic among Task Force officers. [9:15:10 to 9:20:43]. The call 911 by hotel staff includes the staffer's account of the interaction with Defendant at the hotel. Id. In the recording of the call, the hotel staffer tells dispatch that there is an irate male at the hotel who is not a guest and who is demanding to be given information about a hotel reservation. Id. The staffer says that they do not provide such information to non-guests, as a safety measure for guests. Id. The staffer says the person is just outside of the hotel, in front, in a white car. Id.
One of the audio clips of radio traffic is Knotts asking for a better description of the person at the hotel; another of the audio clips is a response to Knotts describing that person as being in a white car, and as a black male wearing a white t-shirt and black shorts, and covered in tattoos. Id.
At the traffic stop at the convenience store, officers discovered Row and Defendant in the white car, and detained them. [9:21:20 to 9:22:08]. They were the only two people in the car. Id. Tallman arrived at the scene of the traffic stop minutes after the Knotts and Elbon initiated it. [9:22:12 to 9:23:04]. When Tallman arrived at the scene of the traffic stop, officers already had detained and secured Row. Id. The other officers were handcuffing Defendant. Id. Defendant was irate. Id. The officers were trying to get Defendant into a police vehicle, but he refused. Id. Tallman had to forcibly place Defendant in a police vehicle. Id.
Tallman was confident that Defendant was the same person of interest who was the target of the Task Force operation the previous night, insofar as Defendant fit the description of the target. [9:23:05 to 9:23:15].
Tallman testified that Knotts utilized his K-9 partner to conduct a free air sniff of the white car, and the K-9 alerted. [9:23:17 to 9:25:35]. Officers searched the white car, and found a set of digital scales tucked under the back seat. Id. They also found marijuana. Id. In the trunk, in the area where a spare tire would be, they found a large tub of MSM, which is a cutting agent for methamphetamine. Id. Officers also found a notebook with monetary amounts written in it, which officers believe to be a drug ledger. Id. And there was alcohol in the white car. Id. Finally, officers located suspected drugs concealed in the ceiling area of the car. Id. Row told officers that she saw Defendant “messing” with that area of the car prior to their departure. Id. Officers sent the drugs for laboratory testing, and test results showed the substance to be methamphetamine. Id.
B. Tallman - Cross-Examination
On cross-examination, Defendant's counsel inquired of Tallman about the CI and the Task Force's past use of that CI. [9:43:50 to 9:49:56]. Tallman himself had been in contact with the CI, and the Task Force had utilized the CI in the preceding weeks or months. Id. Tallman could not recall who with the Task Force enrolled the CI for Task Force work. Id. Tallman was the lead investigator of the instant case, but could not recall if he was the lead investigator in the other matters in which the Task Force used the CI. Id. Tallman testified that he was a witness to the CI engaging in other controlled buys. Id. Defendant's counsel asked Tallman to walk through the history of the Task Force's use of the CI. Id. Tallman stated that he could not recall the dates the Task Force used the CI or other such specifics because there were several cases in which the CI was involved and Tallman did not have a command of what occurred in each one. Id.
Tallman did recall that the Task Force used the CI with respect to three different targets in the weeks and months prior to the events of August 4-5, 2023. [9:50:00 to 10:02:09]. Two of those targets were Smith and Row. Id. Tallman recalled an instance in which Smith and Row were in a vehicle together and pulled up to the CI. Id. The CI approached the window where Smith was sitting. Id. Smith handed drugs to the CI. Id. Tallman testified that Row was engaged in conversation and in the video which officers captured, she talked about drugs. Id. Row mentioned that her boyfriend was in jail. Id. Tallman took Row's statement about her boyfriend being in jail to be about how Defendant had been arrested previously from an incident in Barbour County. Id. Later that same day, per Tallman, the CI completed another controlled buy in the same manner from Smith and Row. Id. Tallman testified that the Task Force became aware of the CI, and ultimately utilized the CI, as a result in the CI's drug distribution activity. Id. Tallman could not recall whether the CI had been convicted of any crimes. Id.
As for how the Task Force came to learn of Defendant through the CI, the CI claimed to be partnered with Smith to sell drugs. [10:03:22 to 10:05:18]. Via Smith, the CI was introduced to Row and, ultimately, to the target. Id. Thus, prior to the Task Force operation of August 4-5, 2023, the CI had not met Defendant. Id. Everything which the CI knew about Defendant, the CI learned through Smith. Id.
Defendant's counsel inquired about the basis for Tallman concluding that there would have been probable cause to stop Defendant's car at the hotel, had Defendant arrived at the hotel as the Task Force anticipated. [10:08:50 to 10:13:55]. Tallman spoke to the history of prior controlled buys involving the CI (although those prior controlled buy were not between the CI and the target - they were between the CI and someone who knew the target). Id. However, prior to the traffic stop involving Defendant here, no one with the Task Force had seen or surveilled Defendant or otherwise interacted with him. Id. Nonetheless, Tallman also noted how the Task Force had certain details of the white car, which the Task Force had known to have been involved in other controlled buys. Id. And while the Task Force had not seen Defendant himself in that white car prior to August 5, 2023, the Task Force knew of certain characteristics of the car - namely, its distinguishing license plate commemorating disabled veterans, and the license plate number. Id. Tallman also stated that the Task Force relied on the recorded calls between the CI and the target to have reason to initiate the traffic stop. [10:18:45 to 10:20:09]. The calls involved the CI asking the target if he could bring $5,000 worth drugs to sell to an interested buyer, and the target saying that he could do so. Id.
See Footnote 2, above.
In particular, Defendant's counsel asked Tallman about the basis for the Task Force's belief that the target would be arriving to the hotel in a white car. [10:13:35 to 10:14:57]. Counsel asked Tallman whether there was discussion in the recorded calls between the CI and the target about the target arriving to the area in a white car. Id. Tallman was inconclusive in response to counsel's question about whether, in those recorded calls, there was discussion about the target traveling in a white car. Id. Defendant's counsel requested leave to supplement the record with Defendant's Exhibit 1, that being recorded calls between CI and the target, which the undersigned granted. Id. Defendant subsequently provided Defendant's Exhibit 1 to the Court.
In any event, Tallman stated that the Task Force believed the target would be arriving in the white car because the CI had told the Task Force that he would. [10:14:58 to 10:16:50]. And Tallman stated the Task Force also believed the target would be in the white car because of past controlled buys involving the white car. Id. When probed further about why the CI believed the white car would be involved, Tallman could not recall, given the passage of time. Id.
As for the target's conduct at the hotel which spawned the 911 call, Tallman stated that it was not the reason for the traffic stop herein. [10:22:00 to 10:26:58]. And Tallman stated that he was unaware of the driver of the white car having committed a traffic violation which would have given reason for a stop. Id. Tallman then stated that the 911 call could have given reason for the traffic stop, because of the alleged disturbance of the peace or some other misdemeanor. Id. But he also stated that Task Force officers initiated the stop based on the totality of the circumstances from their drug trafficking investigation. Id. Counsel probed Tallman about whether a traffic stop for a nonviolent misdemeanor which had concluded would have been proper. Id. But Tallman further clarified that the conduct at the hotel which led to the 911 call was not the basis for the traffic stop. Id. The basis for the stop was the information gleaned from the drug trafficking investigation. Id.
C. Knotts - Direct and Cross-Examination
The Government called Knotts to testify. Knotts testified that he is a senior deputy with the Randolph County Sheriff's Department. [10:28:40 to 10:29:22]. In that capacity, he is a K-9 handler and a part-time member of the Task Force. Id. Knotts' K-9 partner is Twix. Id. Knotts was on duty during the day shift of August 4, 2024, but the Task Force asked if he could stay late to be available with Twix as part of the Task Force's operation. [10:29:40 to 10:33:40]. Knotts met with Tallman and other members of the Task Force, both in person and by telephone. Id. Then, in the evening of August 4, 2024, officers staged in an area behind a shopping plaza near the Hampton Inn hotel. Id. At that point, Knotts learned that the target of the operation was a “plug” - meaning that the target was a lead source of drug supply. Knotts also learned that the target was thought to be coming to the area from Huntington, West Virginia. Id. And Knotts learned that the target had a criminal history, was potentially violent, and was believed to be armed and dangerous. Id.
As for a description of the target, Knotts knew that he was a black male with “sleeve” tattoos. Id. Knotts learned that the Task Force believed that another black male would be traveling with the target, and that the target's girlfriend would be traveling with him, too. Id. Further, the Task Force provided Knotts with photographs of the license plate of the vehicle in which officers believed the target would be traveling. Id. Knotts knew the color, make, and model of the vehicle in which the target would be traveling. Id. Knotts knew this from prior controlled buys in which that car was involved. Id.
In neither witness testimony, nor in the record otherwise, is there information about whether this second black male actually traveled to Elkins with the others. It does not appear that this person ultimately was part of events observed in Elkins. In any event, the parties do not address it further, and it is not material to the undersigned's review and analysis.
At the staging area, officers waited several hours. [10:36:15 to 10:37:00]. Officers there were in touch with Task Force members who were in touch with the CI. Id. The target's anticipated arrival time repeatedly was pushed back until, at approximately 3:30 a.m., the Task Force disbanded the operation and Knotts went home. Id.
Once home, Knotts went to sleep so as to maximize the amount of rest he got before his next scheduled shift at 6:00 a.m. on August 5. [10:37:10 to 10:38:34]. Knotts was back on duty as scheduled. Id. Approximately 15 or 20 minutes into his shift, Knotts learned of the 911 call from the hotel about the disturbance. Id. The 911 caller described a black male at the hotel who was confrontational and causing a disturbance. Id. The 911 caller also stated that this person was wearing an ankle monitor. Id. Further, the 911 caller gave a description of the vehicle in which this person had left the hotel. Id. Knotts recognized the description of the person at the hotel and the associated vehicle as being the target of the operation the previous night. Id.
At the time that dispatch relayed information about the 911 call, Knotts was working with Elbon and another officer, Lt. Talkington. [10:38:40 to 10:40:23]. Knotts' location was farther south of the hotel (in the area of Dailey, West Virginia), but Elbon's location was closer and more northerly (in the area of Beverly, West Virginia). Id. Knotts and Elbon were in direct communication with one another. Id. Elbon stated over the radio that he saw the target vehicle, and Elbon called out information about the vehicle's license plate. Id. Knotts recognized the license plate as the disabled veteran's commemorative plate which distinguished the white car which was the target of the previous night's operation. Id. Knotts then called Tallman to apprise him of developments. Id. As Knotts was talking with Tallman and traveling north in his police vehicle with Twix, he observed the white car traveling south, in the opposite direction, with Elbon tailing it. Id.
Per Knotts, Elbon had not yet initiated a traffic stop of the white car, because he was waiting for other officers to arrive to assist. [10:40:25 to 10:41:40]. Elbon was concerned about the potentially dangerous nature of the target believed to be in the white car. Id. Once Knotts turned around and caught up to Elbon, he and Elbon together initiated the traffic stop of the white car. Id. Knotts observed a black male and a white female in the car. Id. Knotts testified that he and Elbon initiated the traffic stop because of information gleaned from the Task Force investigation. [10:41:50 to 10:42:18]. Moreover, because the 911 call concerning the white car had come through only a short time prior, Knotts believed that the occupants were then-currently engaged in drug trafficking. Id.
In interacting with the occupants of the white car, Knotts immediately smelled marijuana when he approached. [10:43:30 to 10:44:10]. He also smelled alcohol. Id.
The officers removed the occupants from the white car, and Knotts retrieved Twix to conduct a free air sniff of the it. [10:44:25 to 10:47:05]. Knotts explained that with medical marijuana being legal in West Virginia, when officers detect marijuana, their determination about commission of a drug crime is more complicated. Id. However, Twix is not certified to conduct free air sniffs or alert for marijuana. Id. Rather, Twix is trained to alert for controlled substances other than marijuana. Id. Thus, when Twix alerts for the presence of drugs, it is not for marijuana. Id. Twix alerted on the white car, which to Knotts meant that controlled substances other than marijuana were present. Id.
On cross-examination, Knotts testified that, for initiating the traffic stop, he relied on information which he garnered from other members of the Task Force. [10:48:31 to 10:54:00]. Knotts himself had not interacted with the target of the Task Force investigation or otherwise developed his own leads. Id. And as for information which Knotts knew about the 911 call, he obtained it from dispatch. Id. Knotts did not know more about the incident at the hotel than what dispatch had relayed about it. Id.
D. Summary of Defendant's Exhibit 1
In the cross-examination of Tallman, counsel probed how the Task Force knew that the target would be arriving in a white car. Defendant offered his Exhibit 1 to demonstrate that, in the controlled, recorded calls provided by the Government in discovery herein, there was no discussion between the CI and the target about the target traveling in a white car. Indeed, in the undersigned's review of the calls contained in Defendant's Exhibit 1, there seems to be no discussion between the CI and the target about any description of the car in which the target was traveling.
Contained within Defendant's Exhibit 1 are audio recordings of four controlled phone calls between the CI and the target. The four calls are summarized as follows:
1) Recording of call with filename “D01a,” with audio file that is four minutes and 31 seconds in duration. The call was on August 4, 2023 at 5:09 p.m., placed by the CI to the target. In the recording, the CI expresses frustration with the target's tardiness in arriving at the drug deal. The CI tells the target that the buyer with whom the CI is working to obtain drugs from the target wants to buy five ounces of “ice” or methamphetamine and a quantity (“five balls”) of “fetty” or fentanyl, for a total of $5,000. The target assures the CI that he will
deliver the drugs as promised and that the buyer does not need to be concerned about not getting the delivery. The target asks the CI to see that the money be sent by the Cash App mobile payment service. The call concludes at 5:13 p.m.
2) Recording of call with filename “D01b,” with audio file that is two minutes and 55 seconds in duration. The call was on August 5, 2023 at 1:38 a.m., placed by the CI to the target. In the recording, the CI inquires as to the target's anticipated arrival time to the area for the drug deal. The CI tells the target that they are getting tired. The target and the CI again discuss the quantities of drugs sought for the anticipated purchase. The target tells the CI that he will arrive in approximately 90 minutes. The call concludes at 1:40 a.m.
3) Recording of call with filename “D01c,” with audio file that is two minutes and eight seconds in duration. The call was on August 5, 2023 at 2:08 a.m., placed by the CI to the target. In the recording, the CI seems to be telling the target that the buyer whom the CI arranged to buy drugs from the target wants the CI to return the buyer's money and terminate the drug deal. The target tells the CI to continue waiting and assures the CI that he is on his way to the area. The call concludes 2:10 a.m.
4) Recording of call with filename “D01d,” with audio file that is four minutes and 18 seconds in duration. Unlike the other files, this files does not contain an officer's audio notation of the date and start time of the call, although, from context, it appears to be a call on August 5, 2023 subsequent to the one above at 2:08 a.m. The call was placed by the target to the CI. In the recording, the target tells the CI that he is about one hour and 20 minutes away. They discuss how the CI is tired, and how the CI has arranged for a hotel room for the target. The call concludes at 2:43 a.m.
III. LEGAL ISSUES AND ANALYSIS
The issue before the Court is whether officers had reasonable, articulable suspicion to initiate the traffic stop of the white car in which Defendant was traveling, and whether the evidence seized during the stop should be suppressed.
A. Legal Principles
The undersigned notes, as a threshold matter, the well-established principle that the Fourth Amendment of the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. As for automobile stops, it is clear that they are a “seizure” under the Fourth Amendment. U.S. v. Sowards, 690 F.3d 583, 587-588 (4th Cir. 2012); see also Delaware v. Prouse, 440 U.S. 648, 653 (1979) (“[s]topping an automobile and detaining its occupants constitute a ‘seizure' within the meaning of the [Fourth and Fourteenth] Amendments . . .”).
The undersigned notes the vast body of caselaw differentiating between police stops where there is probable cause of a crime being committed versus stops governed by the less-demanding standard of reasonable, articulable suspicion of a crime. Based upon their arguments in their respective briefs, and as noted above in Footnote 2, the parties appear to agree that the facts and circumstances in this matter are governed by the reasonable, articulable suspicion standard.
“Although brief encounters between police and citizens require no objective justification . . . a brief investigatory stop is impermissible unless the officer's action is supported by a reasonable and articulable suspicion ... that criminal activity may be afoot.” United States v. Foster, 824 F.3d 84, 88 (4th Cir. 2016) (citations and quotations omitted); see also Terry v. Ohio, 392 U.S. 1, 30 (1968). “[I]n 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.” Terry, 392 U.S. at 27. A court “must look to the totality of the circumstances when evaluating the reasonableness of a stop.” United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011).
Further, instructive caselaw provides that reasonable suspicion arises from circumstances leading to a stop or search. Ornelas v. United States, 517 U.S. 690, 696 (1996). A court is to review the stop or search “from the standpoint of an objectively reasonable police officer.” Id. Specifically, permissible are “brief investigative stops . . . when a law enforcement officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Navarette v. California, 572 U.S. 393, 396 (2014) (citations and quotations omitted). Such a stop is permitted by an officer if he or she “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. . .”. Terry, 392 U.S. at 30 (1968).
The Fourth Circuit has articulated: “The reasonable suspicion standard, like the probable cause standard, is a fluid concept which takes its substantive content from the particular context in which the standard is being assessed.” United States v. Foreman, 369 F.3d 776, 781 (4th Cir. 2004) (citation omitted). Moreover, “because the Terry reasonable suspicion standard is a commonsensical proposition, ‘[c]ourts are not remiss in crediting the practical experience of officers who observe on a daily basis what transpires on the street.” Id. at 782 (quoting United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993)).
Further, the Fourth Circuit has specified that “[r]easonable suspicion is a ‘commonsense, nontechnical' standard that relies on the judgment of experienced law enforcement officers, ‘not legal technicians.'” United States v. Williams, 808 F.3d 238, 246 (4th Cir. 2015) (citations omitted). However, “[t]o justify a stop, the officer ‘must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” United States v. Slocum, 804 F.3d 677, 682 (4th Cir. 2015) (citations and quotations omitted). “The level of suspicion must be a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. (citations and quotations omitted).
A K-9's positive indication of drugs during a free air sniff gives rise to probable cause for officers to perform a warrantless search. United States v. Green, 740 F.3d 275, 282 (4th Cir. 2014).
Notwithstanding the parties arguments about whether reasonable, articulable suspicion existed to initiate the traffic stop in the first place, it is noted here that a K-9's positive indication for drugs establishes the more demanding probable cause that criminal activity is afoot.
“The government bears the burden of proving the admissibility of evidence obtained pursuant to a warrantless search by a preponderance of evidence.” United States v. Small, 944 F.3d 490, 502 (4th Cir. 2019).
Finally, a well-established principle is that of the exclusionary rule. This rule holds that a court should exclude evidence obtained by dint of law enforcement's unlawful arrest or search. See Mapp v. Ohio, 367 U.S. 643 (1961). Relatedly, however, a court should suppress evidence in a criminal matter “only where its deterrence benefits of exclusion outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006) (citations and quotations omitted).
B. Analysis
In his motion [ECF No. 23], Defendant focuses on CI's credibility, and argues that the CI was so lacking in personal knowledge of the target that officers had no reasonable, articulable suspicion to stop him. Per Defendant, the CI knew only that the target was a black male, but had no other descriptors of him. Defendant also challenges whether the CI had any information at all about the vehicle in which the target would be traveling. As such, Defendant argues that officers stopped the white car in Beverly on a mere hunch that the same person who created the disturbance at the hotel would be in it. And Defendant argues that it was a leap too far to think that the person who created the disturbance at the hotel was the person with whom the CI had been communicating about making a drug deal.
However, the Government rightly emphasizes that officers knew more about the target (and his alleged drug trafficking) than what was conveyed by the CI alone. Officers had conducted prior controlled buys using the CI, and in so doing, captured information about the white car, including distinctive information about its license plate. From the CI's dealings with Smith and Row, and the CI's efforts to be connected to the source of supply via Smith and Row, the officers were on the lookout for the white car.
Tallman testified that the Task Force was on the lookout for the white car for the additional reason that the CI had told them that the target would be traveling in it. Defendant produced his Exhibit 1 (controlled calls between the CI and the target) to show that the target never told the CI anything about the car in which he would be traveling. Indeed, in the undersigned's review of those calls, there is nothing discernable in the conversations about a description of the target's car. However, it is not clear from the record whether there were other methods by which the CI may have known details about the car. But in any event, the undersigned considers only the undisputed facts that (1) the Task Force had earlier observed controlled buys in which sellers were in the white car, and that those controlled buys involved people with apparent connections to the source of drug supply (that person being the target of the operation on August 4-5, 2023) and (2) the person who created the disturbance at the hotel was in a white car.
The CI had multiple calls with the target to arrange a drug deal. Officers also knew that the target was a black male who wore an ankle monitoring bracelet, and they had led the target to believe that he would have a room at a particular hotel. What is more, from the 911 call, a black male, wearing an ankle bracelet, arrived at the hotel in a white car. And while this person did not arrive at the hotel during the Task Force operation, he did so shortly after the operation disbanded. What is more, in the controlled calls, the CI and the target discuss the arrangement of the hotel room for the target. And in those same calls, the CI expresses frustration and fatigue in the target taking so long to arrive; nonetheless, the target repeatedly assures the CI that he will arrive in the area, and never indicates that he will not eventually get there.
Tallman testified that the Task Force later reviewed notes of the disturbance at the hotel made by hotel staff, wherein hotel staff stated that the person creating the disturbance inquired about a person, and that person has the same name as the CI. However, because that piece of information came to light after the traffic stop, the undersigned does not consider it in the review as to whether there was reasonable, articulable suspicion for the traffic stop.
Moreover, upon learning of the 911 call, the officers quickly searched the local area near the hotel and, in short order, located the white car. Officers easily recognized the commemorative veterans' license plate on the white car. Defendant emphasizes that the stop occurred at a location which is a distance of miles from the hotel. While that is true, it does not account for the suburban and rural nature of the area between the hotel and the site of the traffic stop. It is not an area that is densely developed or prone to heavy, early morning traffic. The undersigned takes judicial notice of the same. The undersigned also takes judicial notice of the fact that the hotel and the site of the traffic stop are approximately five to six miles apart - not a particularly remarkable distance given the nature of the locale and the circumstances of Knotts's and Elbon's search for the white car. This is all to point out that officers responded quickly to the 911 call, and in short order and relatively close to the hotel, located the white car and confirmed it to be the vehicle of interest because of its license plate. This supports the totality-of-the-circumstances conclusion that there was reasonable, articulable suspicion for officers to initiate the traffic stop and have the K-9 conduct the free air sniff.
The salient factors for the undersigned's analysis are as follows: (a) the target's communications with the CI about making a sizable drug deal; (b) the arrival at the hotel of a person who matched the description of the target; (c) the person at the hotel traveling in a vehicle which matched the description of the vehicle of interest; (d) the arrival of that person at the very hotel where the Task Force had lured the target into going; (e) the person's arrival at the hotel shortly after the Task Force disbanded its operation; and (f) officers' locating the white vehicle within a relatively close proximity to the hotel shortly after the 911 call. All taken together, then, the undersigned FINDS that, given the totality of the circumstances, there was reasonable, articulable suspicion to stop the vehicle in which Defendant was traveling.
There is no challenge to the duration of the traffic stop or the propriety of the K-9's free air sniff, nor is the undersigned suggesting that there should have been. The undersigned thus does not analyze the matter as to those developments.
IV. CONCLUSION
Accordingly, the undersigned FINDS that the Government has met its burden, by a preponderance of the evidence, to show the admissibility of evidence seized without a warrant. Thus, for the reasons set forth herein, the undersigned RECOMMENDS that Defendant's Motion to Suppress [ECF No. 23] be DENIED.
Any party shall have fourteen (14) days from the service of this Report and Recommendation to file with the Clerk of the Court specific written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the presiding United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitations, consistent with LR PL P 12.
Failure to timely file written objections to the Report and Recommendation as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk of Court is DIRECTED to transmit copies of this Report and Recommendation to counsel of record as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.