Opinion
Case No.: 1:22-cr-306-CLM-GMB
2023-05-03
UNITED STATES of America, v. J.T. TOOMBS, III, Defendant.
U.S. Attorney Prim F. Escalona, U.S. Attorney's Office, Birmingham, AL, U.S. Probation, United States Probation Office, Birmingham, AL, USM, Birmingham, AL, M. Blake Milner, Northern District of Alabama, Birmingham, AL, for United States of America. John C. Robbins, Robbins Law Firm, Birmingham, AL, Katherine Pritchett Bounds, Public Defender, Federal Defender's Office, Birmingham, AL, Kevin L. Butler, Jake Watson, Public Defenders, Federal Public Defender, Birmingham, AL, for Defendant.
U.S. Attorney Prim F. Escalona, U.S. Attorney's Office, Birmingham, AL, U.S. Probation, United States Probation Office, Birmingham, AL, USM, Birmingham, AL, M. Blake Milner, Northern District of Alabama, Birmingham, AL, for United States of America. John C. Robbins, Robbins Law Firm, Birmingham, AL, Katherine Pritchett Bounds, Public Defender, Federal Defender's Office, Birmingham, AL, Kevin L. Butler, Jake Watson, Public Defenders, Federal Public Defender, Birmingham, AL, for Defendant. ORDER COREY L. MAZE, UNITED STATES DISTRICT JUDGE
After holding a suppression hearing, the magistrate judge entered a report, recommending that the court deny Defendant JT Toombs, III's motion to suppress. (Doc. 45). Toombs timely objects to the report and recommendation. (Doc. 47). For the reasons stated within, the court WILL OVERRULE Toombs' objections and DENY the motion to suppress (doc. 21).
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Toombs is charged with one count of conspiracy to possess fentanyl with the intent to distribute and one count of possession of fentanyl with intent to distribute. In his motion to suppress, Toombs asserts that the Government found evidence supporting these charges through an illegal search of his vehicle. The magistrate judge recommends that the court deny Toombs' motion to suppress for two reasons. First, Officer Josh Powers did not violate Toombs' Fourth Amendment rights by accessing license plate reader data from the Department of Justice's Drug Enforcement Administration System Information License ("DEASIL"). Second, Powers had reasonable suspicion of criminal activity when he extended Toombs' traffic stop. The court will address each recommendation in turn.
A. Use of DEASIL System
Toombs objects to the magistrate judge's finding that Powers' use of the DEASIL system didn't violate Toombs' Fourth Amendment rights, arguing that he had a reasonable expectation of privacy in that information under Carpenter v. United States, 585 U.S. 296, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). In Carpenter, the court held that there was a reasonable expectation of privacy in cell-site records that catalogue a person's "every moment of every day for five years." See id. at 2219-20. So the court determined that the Government will usually need a warrant to access this information. Id. at 2222-23.
The court agrees with the magistrate judge that "Powers' use of the DEASIL system is a far cry from the 24-hour surveillance issue in Carpenter." (Doc. 45 at 14). As the magistrate judge points out, Toombs hasn't cited any case in which a court has held that officers must obtain a search warrant before searching a license plate reader database. And in several cases, even some post-Carpenter, courts have held that using automated license plate readers doesn't violate the Fourth Amendment. As the magistrate judge reasoned, the use of the DEASIL system is more like the use of the radio transmitter discussed in United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), or search for a car's VIN addressed in New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), than the use of cell-site records in Carpenter. In fact, in a pre-Carpenter case, the Eleventh Circuit looked to Knotts and Class and determined that the capture of an image of a license plate by tag reader technology didn't violate the Fourth Amendment. See United States v. Wilcox, 415 F. App'x 990, 992 (11th Cir. 2011) ("The district court did not commit plain error in concluding that [the defendant] did not have a reasonable expectation of privacy in the plainly visible license plate and that the officers' use of the tag reader in this case did not violate the Fourth Amendment.").
Toombs says that use of the DEASIL system differs from use of the radio transmitter (or beeper) in Knotts in three ways. First, Toombs points out that the information obtained from the beeper in Knotts wasn't the only information used to secure a search warrant. As explained below, the DEASIL data wasn't the only information that gave Powers reasonable suspicion of Toombs and his co-defendant, Hill. Indeed, the magistrate judge found that even if the court ignored the DEASIL data, the remaining facts Powers knew would have aroused reasonable suspicion. (See Doc. 45 at 27 n.12). So the court overrules this objection.
Toombs next says that unlike with the beeper technology in Knotts, law enforcement's visual surveillance of Toombs' vehicle wouldn't have yielded the same facts as those provided by the DEASIL data. Toombs contends "it would be impossible for law enforcement to observe, memorize, record, and track every single vehicle's license plate number that passes on the highway." (Doc. 47 at 4). So Toombs contends the DEASIL data is more intrusive than the technology discussed in Knotts.
As Toombs notes, the Court in Knotts "was careful to distinguish between the rudimentary tracking facilitated by the beeper and more sweeping modes of surveillance." Carpenter, 138 S. Ct. at 2215. But the "more sweeping modes of surveillance" discussed in Knotts was "twenty-four hour surveillance of any citizen of this country." Id. The license plate reader simply "provide[s] a snapshot of the suspect's location at a discrete time while traveling in an automobile on a public road." (Doc. 45 at 14). It is not like the 24-hour surveillance cautioned against in Carpenter and Knotts. Plus, the court in Carpenter explained that its holding did not "call into question conventional surveillance techniques and tools, such as security cameras." Carpenter, 138 S.Ct. at 2220. And security cameras placed on a highway overpass would presumably also be able to record and track every single license plate number that passed it on the highway. The court overrules this objection.
Toombs finally objects to the magistrate judge's finding that the DEASIL data doesn't track a suspect's movement over a long time. It's Toombs' position that this technology tracks "the movement of an individual in significant detail and over unknown periods of time." (Doc. 47 at 5). Toombs has pointed to no evidence that supports this assertion. Indeed, Toombs doesn't challenge the magistrate judge's finding that "Powers testified that the DEASIL database reflected a reading on I-20 eastbound earlier that day. If his query yielded other results, Powers did not testify about them and the record does not otherwise establish them." (Doc. 45 at 14 n.5). This single reading from earlier in the same day that Powers queried the DEASIL database is much different from the 12,898 location points from records spanning 127 days that the Government obtained in Carpenter. See United States v. Yang, 958 F.3d 851, 864 (9th Cir. 2020) (Bea, J., concurring) ("It would be folly to hold that searches of [license plate reader] databases require a warrant without identifying even one case whether the whole of one's physical movements was implicated in [a license plate reader] database search." (cleaned up)).
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In sum, after reviewing Toombs' objections, the court sees no error in the magistrate judge's recommendation that the court find that the DEASIL database search didn't violate Toombs' Fourth Amendment rights. As the magistrate judge found, even after Carpenter, Toombs lacked a reasonable expectation of privacy in the information stored in the DEASIL system.
B. Prolonged Stop
Toombs next objects to the magistrate judge's finding that Powers had developed reasonable suspicion before engaging in activities unrelated to the traffic stop or unrelated safety concerns. Having reviewed the magistrate judge's report, Toombs' objections, and the relevant caselaw, the court overrules this objection. Because the magistrate judge presided over the suppression hearing, the court will defer to his finding that Powers credibly explained why Hill and Toombs' behavior "signaled a particularized and objective basis for suspecting legal wrongdoing." (Doc. 45 at 24 (quotations omitted)). And the court agrees with the magistrate judge that Powers had reasonable suspicion based on Hill's driving behavior, Toombs' decision to ride in the backseat of his own car, information from the DEASIL data that cast doubt on Hill's explanation for the length of the trip to Atlanta, and other circumstances related to the traffic stop.
Toombs says that the magistrate judge erred in finding that Toombs' explanation for the visit to Atlanta contradicted Hill's explanation for the visit. As the magistrate judge noted, Hill told Powers that he and Toombs had gone to Atlanta for a meeting related to the Magic City Classic. But Toombs simply stated that they were "just visiting" Atlanta. The court sees no error in the magistrate judge's finding that these explanations were contradictory. And because they were contradictory, these explanations support a finding of reasonable suspicion. But even if the court didn't consider Hill and Toombs' explanations for the Atlanta trip, the totality of the circumstances would still establish that Powers had reasonable suspicion of criminal activity before he extended the traffic stop. In short, Powers had reasonable suspicion of criminal activity before he extended the stop by asking Hill questions about Toombs.
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In summary, having reviewed de novo the entire record, including the magistrate judge's report and Toombs' objections, the court OVERRULES Toombs' objections, ADOPTS the magistrate judge's report, ACCEPTS the recommendation, and DENIES Toombs' motion to suppress (doc. 21).
Done and Ordered on May 3, 2023.
REPORT AND RECOMMENDATION
GRAY M. BORDEN, UNITED STATES MAGISTRATE JUDGE
Before the court is the Motion to Suppress filed by Defendant J.T. Toombs, III. Doc. 21. The court held an evidentiary hearing on the motion on February 2, 2023, and has reviewed the Government's response to the motion (Doc. 23), along with supplemental briefing (Docs. 38 & 39), the parties' evidentiary materials, and the relevant law. For the reasons to follow, the Magistrate Judge recommends that the motion be denied.
I. BACKGROUND
A grand jury sitting in the Northern District of Alabama returned a two-count indictment against Toombs and codefendant Demarcus Leon Hill for a conspiracy to possess with intent to distribute fentanyl in violation of 21 U.S.C. § 846 and possession with intent to distribute fentanyl in violation of 21 U.S.C. § 841(a)(1). Doc. 1. In his motion to suppress, Toombs contends that the Government obtained the evidence supporting these charges through an illegal search of his vehicle. Doc. 21.
II. FINDINGS OF FACT
1. On the afternoon of August 12, 2021, Josh Powers of the Oxford, Alabama Police Department was conducting an interdiction operation on Interstate 20 around the border of Calhoun County and Cleburne County. Powers is an investigator assigned to the narcotics division, and he is certified to use a dog to detect the smell of narcotics.
2. Powers parked his Chevrolet Tahoe in the median of I-20 facing the westbound lanes of travel.
3. The Tahoe had visible markings as a K-9 unit and was equipped with license plate reader ("LPR") devices facing the front and rear.
4. Powers' LPR devices were designed to capture an image of every car passing him in either direction. To do so, they made a digital image of the rear of each vehicle, including the license plate, and automatically cataloged the time of the capture and the roadway on which the vehicle was traveling at the time.
5. At the time, Powers' LPR devices were not linked to the Department of Justice's LPR system, which is known as the Drug Enforcement Administration System Information License ("DEASIL") database.
6. Although Powers' LPR devices were not uploading data to DEASIL, he had the ability to query DEASIL for LPR data from other law enforcement agencies.
7. At about 4:30 p.m., Powers noticed a white Hyundai sedan approaching him from the east in the left lane, which was the lane closest to him and to the median.
8. As it approached, the Hyundai moved away from Powers into the right lane. There were no vehicles near the Hyundai at the time.
9. About a quarter of a mile after passing Powers, the Hyundai moved back into the left lane. As it drove away, Powers could tell that the Hyundai was accelerating because it began to pass other cars.
10. One of Powers' LPR devices captured the Hyundai's license plate as it passed him. He used this image to query the DEASIL database. Powers did not obtain a search warrant or other legal process before doing so.
11. According to the DEASIL data, the same license plate had been detected traveling eastbound on I-20 in Douglas County, Georgia earlier that afternoon at about 1:30 p.m.
12. Powers viewed the image from DEASIL and confirmed that it depicted a white Hyundai vehicle displaying the same license plate as the vehicle that had just passed him traveling westbound.
13. Based on the DEASIL information, Powers suspected that the vehicle had driven to and from Atlanta, Georgia that day while staying in Atlanta for only a short time. He estimated that it would take a vehicle driving the speed limit between 90 and 100 minutes to travel from Atlanta to his position, and he had personally seen the Hyundai driving westbound about three hours after the Douglas County LPR captured it traveling eastbound towards Atlanta.
14. Powers pulled onto I-20 westbound and attempted to catch up to the Hyundai, but he did not see it again for 16 or 17 miles. It is unusual in Powers' experience for him to have to travel so far to catch up with a vehicle.
15. While driving in the left lane on I-20 in Talladega County, the Hyundai crossed over the yellow fog line, then overcorrected and crossed over the white dotted line dividing the left and right lanes.
16. At this point, Powers decided to stop the vehicle for improper lane usage.
17. Powers turned on his emergency lights, and a short time later the driver of the Hyundai pulled onto the shoulder of I-20 and turned on the Hyundai's hazard lights.
18. Powers parked his Tahoe behind the Hyundai and walked towards it.
The Government introduced into evidence a video recording taken from Powers' body camera. Powers did not begin the recording until shortly before pulling over the Hyundai. Because of the placement of the camera on Powers' body, the Hyundai is not visible on the recording until after both cars have stopped on the side of the road and Powers has begun walking towards the Hyundai.
19. As he approached, the occupants lowered both of the windows on the passenger side of the Hyundai.
20. There were two people in the car—one in the driver's seat and one in the rear passenger seat. Powers later identified the driver as Hill and the passenger as Toombs.
21. As he came even with the rear quarter panel of the Hyundai, Toombs handed his phone out of the window to Powers with his proof of insurance displayed on the phone.
22. Powers took the phone from Toombs and asked Hill for his driver's license, which Hill handed to Powers through the open rear window.
23. While standing near the Hyundai, Powers briefly looked at Toombs' phone and Hill's driver's license. Powers handed the phone back to Toombs but held onto Hill's license.
24. Powers explained to Hill that the Hyundai "was all over that yellow line coming down the hill back there," so he was concerned that Hill might be sleepy or drunk.
25. Hill indicated that he was looking at his phone while driving, and Powers told him that he planned to write him a warning, but not issue a ticket. Powers had decided to issue a warning even though he did not have the occupants' information, but he could not actually issue the warning until he confirmed their information.
26. Powers said to Hill, "Just come back to my car and let me get some information from you and I'll get y'all out of here, OK?"
27. Hill complied and got out of the Hyundai at 01:41 after the traffic stop began.
The video recording from Powers' body camera is time stamped. For the purpose of this recommendation, the court considers the beginning of the traffic stop to be the moment Powers shifted his Tahoe's transmission into park, which occurred at 39 seconds into the video. All other times in this recommendation are calculated by subtracting 39 seconds from the time stamp reflected on the recording. The times are listed in the format of minutes:seconds.
28. Powers' standard practice is to ask drivers pulled over for traffic violations to join him in his police car because (1) it is easier to talk inside where there is less road noise, (2) it is not safe to stand on the side of the roadway close to passing cars, and (3) it is not safe to stand outside of the passenger side of a vehicle occupied by people he does not know. In this instance, it also was hot outside.
29. Powers sat in the driver's seat of his Tahoe while Hill sat in the front passenger seat. Once inside, Powers asked Hill a series of questions while preparing the paperwork for his warning.
30. These questions related to their itinerary, Hill's personal information, and the like. Hill introduced additional topics of discussion related to the COVID-19 pandemic, gas prices, and other matters.
31. During their conversation in the Tahoe, at various times Hill yawned, rubbed his face and his neck, or patted his thighs. Powers had not noticed any of these behaviors while Hill was sitting inside the Hyundai, and he interpreted them as comforting techniques to overcome nervousness.
32. While preparing the paperwork and talking with Hill, Powers repeatedly used the laptop computer mounted in his Tahoe. The computer allowed him to access information such as whether the license plate matched the Hyundai's registration and whether the car had been reported as stolen.
33. At 04:42 into the stop, Powers asked Hill how long he and Toombs had been in Atlanta that day. Hill responded that they had been there "maybe about 2, 3 hours or so." Based on the DEASIL data, Powers believed it was impossible for Hill and Toombs to have stayed in Atlanta for two or three hours.
34. At 05:30 into the stop, Powers asked Hill why they went to Atlanta. Hill responded that they "had some partners of ours up there. Um, we met with them. Well, he did more of the meeting. I kind of was still on another call trying to lock something down. You know in Birmingham we have something called the Magic City Classic that's coming up. So we're trying to get ready for that."
35. At 10:28 into the stop, Powers used his handheld radio to communicate Hill's personal information to an Oxford Police Department dispatch officer. Powers was using a Bluetooth earpiece to receive information back from dispatch, so the response is not audible on the video captured by his body camera.
36. While asking these questions and afterwards, Powers continued to input information into his computer.
37. At some point while they were both sitting in the vehicle, Powers completed Hill's written warning for improper lane usage. He did not give Hill a copy of the warning at that time.
38. At 13:45 into the stop, Powers told Hill to "hang tight" while he got out of his Tahoe to walk back towards the Hyundai. Once there, he asked for Toombs' driver's license.
39. At 14:11 into the stop, Powers asked Toombs, "Where y'all coming from today?" Toombs did not answer this question. Instead, he handed his Arkansas driver's license to Powers while stating, "Yeah cause man, I got, I be, my car's on Turo and I gotta get this car back to Birmingham."
40. Powers looked at Toombs' license, asked whether he still lived in Arkansas or had an Alabama license, and then repeated his earlier question, "Alright, where y'all coming from today?" At 14:40 into the stop, Toombs responded, "We just left Atlanta."
41. Powers asked, "Atlanta, what was y'all doing over there?" At 14:47 into the stop, Toombs responded, "Nothing, just visiting."
42. Powers asked, "How long were y'all over there?" At 14:50 into the stop, Toombs responded, "It wadn't long. But, hey, now I'm not trying to be [inaudible]. I'm just trying to . . . I got to get this car dropped off." He then explained that the Turo app allows him to rent his car to other people for a fee. Powers interpreted these comments as an attempt to expedite the traffic stop.
43. At 15:40 into the stop, Powers returned to his Tahoe and began to ask questions about Toombs. He first asked Hill, "Why is he sitting in the back? You said he's tired?" After Hill responded, Powers asked him, "Why's he live in Arkansas?" When Hill professed ignorance, Powers followed up with, "How long y'all known each other?" Throughout this discussion, Powers continued to input information into his laptop.
44. At 16:48 into the stop, Powers called the dispatch officer to provide Toombs' information and mentioned that it would have to be run "through Arkansas." Because Toombs had an Arkansas driver's license, Powers could not use the computer in his Tahoe to verify Toombs' information.
45. The dispatch officer eventually responded but the response is not audible on the recording. Once he heard back from dispatch, Powers knew that Toombs' had a valid license and no active warrants.
46. At 19:45 into the stop, Powers asked Hill, "So there's nothing illegal in the car?" After receiving a negative response, he asked about a number of specific illegal substances, such as marijuana, cocaine, and methamphetamine.
47. At 21:01 into the stop, Powers asked Hill for consent to search the Hyundai. Hill told him, "Well, I can't. You know that's his automobile."
48. After Hill deferred to Toombs, Powers stayed in the Tahoe and continued to talk with Hill. As Powers explained to Hill, "I have a feeling he's gonna tell me 'no,' so what I'm gone do is wait. There's another guy coming, and when he gets here, I'm gone go ask him. And if he says 'no,' I'm gone get my dog out. And if he says 'yeah,' I'll just search the car."
49. The other unit arrived on scene at approximately 25:20 into the stop, and Powers returned to the Hyundai to ask Toombs for consent to search the car about 25 seconds later. Toombs refused.
50. Powers removed Toombs from the Hyundai and used his dog to conduct an exterior search of the Hyundai. During the search, the dog alerted to the presence of the smell of narcotics on the driver's side of the car. The dog finished its search at approximately 30:20 into the stop.
51. Powers then searched the car. During the search, he found a paper bag from a Krystal restaurant on the floorboard behind the driver's seat. Inside the bag, he found pills that appeared to be either oxycodone or fentanyl.
52. At 37:00 into the stop, Powers and the other officers on scene handcuffed Toombs and Hill. At some point after arresting Hill, Powers gave him a copy of the warning for improper lane usage.
III. DISCUSSION
Toombs makes three arguments for suppressing the evidence recovered from his Hyundai. First, he claims that Powers violated his Fourth Amendment rights by obtaining information on his vehicle's movements through the DEASIL system. Similarly, he argues that Powers unconstitutionally relied on information from the DEASIL database in developing reasonable suspicion for extending the traffic stop. Finally, Toombs argues that Powers violated his Fourth Amendment rights by unlawfully extending the stop past the time needed to address the traffic violation and any related safety concerns. These claims do not have merit.
Although characterized as two separate grounds for suppression, the court addresses these arguments together because both rise and fall on the constitutionality of Powers' warrantless use of the DEASIL system.
A. DEASIL System
Analogizing to the cell-site location information under review in Carpenter v. United States, 585 U.S. 296, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), Toombs claims that he had a reasonable expectation of privacy in the information stored in the DEASIL system such that Powers violated his Fourth Amendment rights by accessing the database without a warrant and then using that data to support reasonable suspicion for prolonging the traffic stop. Doc. 38 at 4. Because Carpenter does not support Toombs' position and the court has found no other supporting authority, this argument for suppression fails.
The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. The Government bears the burden of proving the reasonableness of a warrantless search or seizure. United States v. Knight, 336 F. App'x 900, 904 (11th Cir. 2009) (citing United States v. Freire, 710 F.2d 1515, 1519 (11th Cir. 1983)). Although the Government has the burden, Toombs has not identified any other court which has held that law enforcement officers must obtain a search warrant to query an LPR database, and the court's own research has not yielded such a case. Presumably it is for this reason that Toombs tries to stretch Carpenter's holding to cover the DEASIL data. But Carpenter, 138 S. Ct. at 2212, was a case about historical location information compiled by the defendant's cellular phone provider. More to the point, the Supreme Court asked in Carpenter whether the defendant had a reasonable expectation of privacy in "12,898 location points cataloging [his] movements—an average of 101 data points per day" for more than four months. Id. Although this "innovation[ ] in surveillance tools" did not fit neatly within existing precedent, the Court held that comprehensive cell-site location information enjoys Fourth Amendment protection. Id. at 2214-17.
Toombs does claim that United States v. Frazier, 30 F.4th 1165 (10th Cir. 2022), stands for the proposition that "information gleaned from the database of information taken from the DEASIL system could not be the basis for reasonable suspicion." Doc. 38 at 8. This is a profound overstatement of the Frazier holding. In Frazier, 30 F.4th at 1178, the court considered whether information from the DEASIL database could retroactively create reasonable suspicion justifying an officer's earlier decision to prolong a traffic stop. It was in this context that the court concluded the DEASIL data had no "bearing on our reasonable suspicion analysis as it regards an earlier investigative detour." Id.
In arriving at this conclusion, the Supreme Court addressed its line of cases relating to privacy expectations in physical location and movements—most notably, United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In Knotts, id. at 278, 103 S.Ct. 1081, officers used a radio transmitter described as a "beeper" to track the movement of a vehicle. The surveillance conducted with the beeper "amounted principally to the following of an automobile on public streets and highways," leading the Court to observe that "[v]isual surveillance from public places" along the vehicle's route "would have sufficed to reveal all of [the relevant] facts" to the police. Id. at 281, 103 S.Ct. 1081. The Knotts court thus found that a "person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movement from one place to another." Id. at 281, 103 S.Ct. 1081. For this reason, "[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case." Id. Carpenter did not overrule Knotts, but the Carpenter court observed that Knotts had been "careful to distinguish between the rudimentary tracking facilitated by the beeper and more sweeping modes of surveillance." Carpenter, 138 S. Ct. at 2215. This was because " 'different constitutional principles may be applicable' if 'twenty-four hour surveillance of any citizen of this country [were] possible.' " Id. (quoting Knotts, 460 U.S. at 283-84, 103 S.Ct. 1081).
While the Supreme Court has not applied these principles to LPR data, it has considered the constitutionality of a search for a Vehicle Identification Number ("VIN"). In New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), the Supreme Court noted a number of "factors that generally diminish the reasonable expectation of privacy in automobiles," such as their function as modes of transportation and not residences, along with the fact that they are "justifiably the subject of pervasive regulation" by the government. Id. at 112-13, 106 S.Ct. 960. Finding that these considerations apply with equal force to the VIN on an automobile, the Court observed that "it is unreasonable to have an expectation of privacy in an object required by law to be located in a place ordinarily in plain view from the exterior of an automobile." Id. at 114, 106 S.Ct. 960. For these reasons, the Supreme Court held that "there was no reasonable expectation of privacy in the VIN." Id.
In light of these decisions, there is no basis for finding that Toombs had a reasonable expectation of privacy in the DEASIL data. Powers' use of the DEASIL system is a far cry from the 24-hour surveillance at issue in Carpenter; he testified that he made one query to DEASIL and received one data point. At most, the LPR information parallels the beeper data that did not implicate Fourth Amendment concerns in Knotts. Both provide a snapshot of the suspect's location at a discrete time while traveling in an automobile on a public road. Neither tracks the suspect's entire movements over a significant period of time. And both result in information that could have been obtained from simple visual surveillance. Moreover, just as with the Class suspect's VIN, the law required Toombs to display his license plate in plain view on the exterior of his vehicle, further undercutting any claim to an expectation of privacy of constitutional proportions.
Powers testified that the DEASIL database reflected a reading on I-20 eastbound earlier that day. If his query yielded other results, Powers did not testify about them and the record does not otherwise establish them.
The Eleventh Circuit has not taken up this precise question since Carpenter, and it appears to have done so before Carpenter only in dicta. The court's opinion in United States v. Wilcox, 415 F. App'x 990, 992 (11th Cir. 2011), nevertheless points to the same outcome. In Wilcox, the defendant filed a motion to suppress claiming that he had a "reasonable expectation of privacy in the information on his license plate and that the capture of an image of that license plate on the public roads by tag reader technology . . . violate[d] . . . [the] Fourth Amendment." United States v. Wilcox, 2009 WL 10671540, at *1 (N.D.), adopted, 2010 WL 11527193 (N.D. Ga. Jan. 27, 2010), aff'd, 415 F. App'x 990 (11th Cir. 2011). In recommending the denial of a motion to suppress, the Magistrate Judge found that
the information obtained from the [defendant's] license plate was captured by the tag reader technology while the vehicle was on the public roads. The officers' vehicle was legally in a place where it was permitted to be and where the cameras were able to capture the tag without intruding into any private space. The tag information was thus in plain view when it was captured by the cameras.Id. at *2-*3.
The fact that the officers were assisted by the camera technology that expands the officers' ability to capture these images does not render its capture unconstitutional. The information was displayed to the public on the back of the vehicle, as required by law. The display of such information was in part for the very purpose of allowing law enforcement to obtain the tag information to determine that the vehicle was licensed and was not stolen or otherwise noncompliant with the law . . . . The technology used in this case did not allow the officers to obtain any private information that could not be obtained by observation; it simply allowed the police to access the tag number more quickly and more efficiently than with the naked eye.
On appeal, the Eleventh Circuit found that the defendant waived his right to challenge the Magistrate Judge's recommendation by failing to file written objections within 14 days. Wilcox, 415 F. App'x at 992 (citing Fed. R. Civ. P. 59(b)(2)). But the court went on to say that it would have affirmed the recommendation even if the defendant had preserved his arguments for appeal:
The Supreme Court has concluded in similar contexts that visual surveillance of vehicles in plain view does not constitute an unreasonable search for Fourth Amendment purposes. This is true even if the surveillance is aided by the use of technology to augment the officers' sensory faculties.Id. (citing Class, 475 U.S. at 114, 106 S.Ct. 960; Knotts, 460 U.S. at 282, 103 S.Ct. 1081; Ga. Code § 40-2-41). There is no daylight between our facts and those in Wilcox. For all of these reasons, the motion to suppress should be denied to the extent it raises a Fourth Amendment challenge to the DEASIL data or its use in this investigation.
Georgia law requires license plates to be displayed at all times on the rear of the vehicle so that it is plainly visible. Given the Supreme Court's Fourth Amendment precedent, the district court did not commit plain error in concluding that Wilcox did not have a reasonable expectation of privacy in the plainly visible license plate and that the officers' use of the tag reader in this case did not violate the Fourth Amendment.
Although not binding on this court, a number of district courts throughout the country have reached the same conclusion. See, e.g., United States v. Brown, 2021 WL 4963602, at *4 (N.D. Ill. Oct. 26, 2021) (finding that law enforcement officers "did not conduct a search under the Fourth Amendment when they queried the automatic license plate reader databases"); United States v. Rubin, 556 F. Supp. 3d 1123, 1130 (N.D. Cal. 2021) (denying a motion to suppress "[b]ecause accessing the [LPR] database was not a Fourth Amendment search"); Boniecki v. Fox, 2015 WL 3507936, at *1 (D. Mont. June 3, 2015) (finding in a civil case invoking 42 U.S.C. § 1983 that "[l]aw enforcement officers who see a license plate in plain view and use it to access non-private information do not conduct a Fourth Amendment search") (citing Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)).
B. Prolonged Stop
Toombs claims that Powers extended the traffic stop to facilitate a canine search without first developing reasonable suspicion of criminal activity. Doc. 21 at 3. This argument fails because Powers had reason for suspicion before engaging in any activities that were unrelated to the traffic stop or related safety concerns.
"A traffic stop is a seizure within the meaning of the Fourth Amendment." United States v. Campbell, 26 F.4th 860, 880 (11th Cir. 2022), cert. denied, — U.S. —, 143 S. Ct. 95, 214 L.Ed.2d 19 (2022) (citing Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). Because a seizure requires reasonable suspicion, "an officer making a stop must have 'a particularized and objective basis for suspecting the person stopped of criminal activity.' " Id. (citing Navarette v. California, 572 U.S. 393, 396, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014)). "It is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution." Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). "Because a routine traffic stop is only a limited form of seizure, it is more analogous to an investigative detention than a custodial arrest." U.S. v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). "Therefore, [courts] analyze the legality of these stops under the standard articulated in" Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Id. To pass muster under Terry, "an officer's actions during a traffic stop must be reasonably related in scope to the circumstances which justified the interference in the first place," and "the duration of the traffic stop must be limited to the time necessary to effectuate the purpose of the stop." Id. (internal quotation marks omitted).
Toombs does not challenge the basis for initiating the traffic stop under Alabama Code § 32-5A-88, which mandates that a "vehicle shall be driven as nearly as practicable entirely within a single lane."
The Supreme Court most recently addressed the lawful scope and duration of a traffic stop in Rodriguez v. United States, 575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). The Court explained that "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." Rodriguez, 575 U.S. at 354, 135 S.Ct. 1609 (internal citation omitted). "Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose." Id. (internal quotation marks omitted and alteration adopted). "Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed." Id.
The mission of a traffic stop includes "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Rodriguez, 575 U.S. at 355, 135 S.Ct. 1609. These are "ordinary inquiries incident to the traffic stop" and "serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly." Id. at 355-56, 135 S.Ct. 1609 (internal quotation marks omitted and alteration adopted). Tasks and inquiries unrelated to the mission of a stop are those "aimed at detecting criminal activity more generally," such as asking about a passenger's gang affiliation and using a dog to search for contraband. Campbell, 26 F.4th at 882 (internal quotation marks omitted).
"But whether an inquiry is 'related' or 'unrelated' doesn't end [the] analysis." Id. "Unrelated inquiries are permitted so long as they do not add time to the stop." Id. On this point, the Eleventh Circuit recently clarified that while its pre-Rodriguez precedent asked whether the overall length of the stop was reasonable, Rodriguez rejected that standard. Id. at 879, 882-84 & 882 n.17. Under Rodriguez, "the length of time [by which unrelated inquiries extend a stop] is immaterial. Id. at 884. An extension of the stop by any amount of time violates the Fourth Amendment unless an officer possesses reasonable suspicion of other illegal activity. Id. at 883-84; United States v. Ramirez, 476 F.3d 1231, 1237 (11th Cir. 2007). "In other words, to unlawfully prolong, the officer must (1) conduct an unrelated inquiry aimed at investigating other crimes (2) that adds time to the stop (3) without reasonable suspicion." Campbell, 26 F.4th at 884.
Alternatively, there is no Fourth Amendment violation if an encounter becomes consensual before any prolongation of the stop. No party here has argued that the encounter with Powers became consensual.
1. The Rodriguez Moment
Toombs has not identified what he contends to be the "Rodriguez moment" in his traffic stop—that is, the precise moment when Powers extended the traffic stop by veering into an unrelated inquiry. It is certain that Powers' use of a dog to search the exterior of the vehicle was unrelated to the stop and prolonged it. See Campbell, 26 F.4th at 882 (holding that "using a dog to search for contraband is not related" to the purpose of the stop). It also seems beyond dispute that Powers' requests for consent to search the Hyundai from Hill and later from Toombs extended the stop and were not related to its mission. See United States v. Forget, 853 F. App'x 534, 536 (11th Cir. 2021) (finding that an officer's "request to search was not related to the purpose of the stop"); United States v. Keith, 2021 WL 6340985, at *4 (S.D.), adopted, 2022 WL 95287 (S.D. Ga. Jan. 10, 2022) ("[T]he blanket proposition that officers can always ask for consent to search during a traffic stop is no longer good law after Rodriguez."). But these investigative detours were not Powers' first.
This finding does not mean there are no circumstances under which a request for consent to search may be related to the mission of a traffic stop. Here, however, the Government did not elicit any testimony suggesting a nexus to the stop.
Based on Powers' testimony and the video from his body camera, the court fixes the Rodriguez moment earlier, at the point when Powers returned to his Tahoe after speaking with Toombs and began to probe Hill's knowledge of Toombs, such as asking why he lives in Arkansas and why he was sitting in the backseat of his own car. This exchange continued from 15:40 to 16:48 into the traffic stop. And what Powers did not do in those 68 seconds is critical: he did not call the Oxford Police Department dispatch officer even though he now had Toombs' license in hand. Powers had not completed all of the tasks attendant to the stop at that time since he had not yet confirmed that Toombs had no outstanding warrants, but this does not matter after Rodriguez. E.g., Campbell, 26 F.4th at 882 (holding that unrelated inquiries are prohibited if they add time to the stop).
Powers could have immediately radioed the dispatch officer, and instead he asked about Toombs' living arrangements and fished for information on Toombs' decision to ride in the backseat. These inquiries crossed over into areas unrelated to the traffic stop or related safety concerns. And these questions prolonged the stop unless the Government has established that Powers was diligently conducting other tasks related to the stop at the time. Powers can be seen on the video interacting with his laptop during this discussion, but he did not testify about the specific tasks he was completing then. He did disclose, on the other hand, that he knew he had to run Toombs' information through a dispatch officer because of his out-of-state license. The court must draw the inference from this testimony that whatever Powers was doing on his computer at the time—after confirming Hill's information but before calling dispatch to run Toombs' license—was not related to the purpose of the stop or any safety concerns. For this reason, Powers prolonged the stop by asking this series of questions about Toombs. By doing so, he violated Toombs' constitutional rights unless he had developed reasonable suspicion of criminal activity by that time.
If Powers had been simultaneously completing tasks related to the mission of the stop in a reasonably diligent manner, these inquires would not have added time to the stop and would have been permissible. See United States v. Vargas, 848 F.3d 971, 974 (11th Cir. 2017) (allowing an unrelated inquiry because the officers had not completed their duties at the time and the inquiry did not prolong the stop); Forget, 853 F. App'x at 536 (permitting an unrelated inquiry because it occurred simultaneously with another officer's identification check and thus did not extend the stop); Keith, 2021 WL 6340985, at *5 (noting that an unrelated inquiry is permissible "so long as the question is posed while active progress is being made to complete the traffic stop").
2. Reasonable Suspicion
By the Rodriquez moment, however, there is ample evidence supporting the conclusion that Powers had reasonable suspicion to suspect that Hill and Toombs were engaged in criminal activity beyond Hill's improper lane usage. "While reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification" for an investigative action. United States v. Braddy, 11 F.4th 1298, 1310 (11th Cir. 2021) (internal quotation marks omitted). This must be something " 'more than an inchoate and unparticularized suspicion or hunch.' " United States v. Byron, 817 F. App'x 753, 757 (11th Cir. 2020) (quoting United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000)). "In determining whether reasonable suspicion is present, [a court] looks at the totality of the circumstances of [a] case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing." Braddy, 11 F.4th at 1310-11 (internal quotation marks omitted). For reasonable suspicion to exist, the "likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)).
The Government claims that nine factors coalesced to provide reasonable suspicion to extend the traffic stop: (1) Hill's driving behavior as he passed Powers on I-20, (2) his increased speed after passing Powers, (3) the DEASIL data indicating the Hyundai's recent eastbound travel on I-20 in Georgia, (4) Hill's decision to turn on his hazard lights when Powers pulled him over, (5) Toombs' decision to ride in the backseat of his own car while Hill drove, (6) Hill's nervous behavior while Powers questioned him in the Tahoe, (7) Hill's representation that they had been in Atlanta for two or three hours, (8) Toombs' and Hill's contradictory explanations for their visit to Atlanta, and (9) Toombs' evasion of certain of Powers' questions. While some of these factors are only marginally persuasive, others weigh more heavily in favor of reasonable suspicion. Particularly since this is not a "divide-and-conquer" exercise in which the court must reject every factor "readily susceptible to an innocent explanation," id. at 274, 122 S.Ct. 744, the totality of the circumstances comfortably tips the scales toward a finding of reasonable suspicion.
The reasonable suspicion analysis "allows officers 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.' " Id. at 273, 122 S.Ct. 744 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). Mindful of this deference, the court accepts Powers' interpretation of Hill's driving behavior when passing him, of Hill's decision to turn on his hazard lights during the traffic stop, of Toombs' decision to ride in the backseat of his own car, of Hill's behavior while Powers questioned him in the Tahoe, and of Toombs' non-answers to some of Powers' questions. While the court may not find anything peculiar about some of these behaviors, Powers credibly explained how, in light of his experience and training, they signaled "a particularized and objective basis for suspecting legal wrongdoing" by Toombs and Hill. Braddy, 11 F.4th at 1310-11. The court has limited experience with this type of interaction and will not supplant Powers' conclusions with its own untrained knowledge. See United States v. Smith, 201 F.3d 1317, 1323 (11th Cir. 2000) (holding that "behavior, seemingly innocuous to the ordinary citizen, may appear suspect to one familiar with the practices of narcotics couriers") (internal quotation marks and citations omitted). These factors all weigh in favor of reasonable suspicion but do not carry the day alone.
Toombs has not explicitly argued that it was improper for Powers to move Hill to his patrol car while they talked. Even if he had, police officers who have made a lawful stop do not infringe on the driver's constitutional rights if they order him out of the car because of a concern for their own safety. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).
Other circumstances of Powers' interaction with Toombs and Hill are objectively suspicious and, taken in combination, justify his decision to prolong the stop. First, Hill's dramatically increased speed after passing Powers on I-20 would have caused a reasonable officer to suspect that he was engaged in criminal activity. Powers testified that it took him 16 or 17 miles to catch up to Hill and that this led him to believe Hill was trying to evade pursuit. This was a reasonable interpretation of Hill's driving behavior. See United States v. Bautista-Silva, 567 F.3d 1266, 1273 (11th Cir. 2009) (holding that a suspected alien smuggler's "sudden acceleration to approximately 90 miles per hour after passing the agents was suspicious").
Second, Toombs' and Hill's contradictory explanations for their visit to Atlanta weigh in favor of reasonable suspicion. Hill told Powers that they had been in Atlanta for a meeting relating to the Magic City Classic, while Toombs maintained that they were "just visiting." Inconsistent stories are an archetypal source of reasonable suspicion. See, e.g., United States v. Griffin, 109 F.3d 706, 708 (11th Cir. 1997) (endorsing "entirely inconsistent" responses to officer's questions about travel plans as evidence supporting reasonable suspicion); United States v. Banshee, 91 F.3d 99, 102 (11th Cir. 1996) (holding that inconsistent statements about a trip's origin supported reasonable suspicion); United States v. Hardy, 855 F.2d 753, 758 (11th Cir. 1988) (holding that inconsistent descriptions of a fishing vacation supported reasonable suspicion).
Third, the DEASIL data indicating the Hyundai's eastbound travel on I-20 directly contradicted Hill's representation that he and Toombs had been in Atlanta for two or three hours. Powers knew that the Hyundai had been eastbound in Douglas County, Georgia only three hours before it passed him headed westbound in Alabama. And Powers knew that if the Hyundai had continued on to Atlanta, as Hill claimed, it would have had to turn around almost immediately to have arrived at his location by 4:30 p.m. Powers assessed that this itinerary was impossible, calling into doubt Hill's innocent explanation for the trip, and the court agrees. See United States v. Mosby, 630 F. App'x 961, 964 (11th Cir. 2015) (finding reasonable suspicion in part because the suspect "responded to the officers' questions in a way that indicated he was lying or at least being evasive").
Considering these facts in totality, as the reasonable suspicion analysis requires, Powers had reason to believe that Hill and Toombs were engaged in some other form of criminal activity. Hill's rapid acceleration betrayed a desire to distance himself from Powers, and his inability to get on the same page with Toombs about something so basic as their purpose for traveling to Atlanta underscored Powers' reasonable suspicion. The DEASIL data's contradiction of Hill's version of events only bolstered this conclusion. Considering these facts, Powers had developed reasonable suspicion at least by the time he began to question Hill about unrelated matters, and therefore he did not unlawfully prolong the stop by doing so.
If the court ignored the DEASIL data, as Toombs urges in seeking its suppression, even the remaining facts known to Powers would have aroused reasonable suspicion.
IV. RECOMMENDATION
For these reasons, the Magistrate Judge RECOMMENDS that the Motion to Suppress (Doc. 21) be DENIED.
V. NOTICE OF RIGHT TO OBJECT
Any party may file specific written objections to this report and recommendation. Any objections must be filed with the Clerk of Court within 14 days. The party must identify every objectionable finding of fact or recommendation and state the specific basis for every objection. The objecting party also must identify every claim in the complaint that the report and recommendation has not addressed. Objections should not contain new allegations, present additional evidence, or repeat legal arguments.
Any party who fails to object to factual or legal conclusions in the Magistrate Judge's report and recommendation waives the right to challenge on appeal those same conclusions adopted in the District Judge's order. Without a proper objection, however, the court on appeal may review the unobjected-to factual and legal conclusions for plain error if necessary in the interests of justice. 11th Cir. R. 3-1.
After receiving any objections, a District Judge will conduct a de novo review of the relevant portions of the report and recommendation and may accept, reject, or modify in whole or in part the Magistrate Judge's findings of fact and recommendations. The District Judge also may refer this action back to the Magistrate Judge with instructions for further proceedings.
The parties may not appeal the Magistrate Judge's report and recommendation directly to the United States Court of Appeals for the Eleventh Circuit. They may appeal only from a final judgment entered by a District Judge.
DONE and ORDERED on April 12, 2023.