Opinion
Criminal Action No. 1:05-CR-075-WSD-ECS.
December 1, 2005
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction
Defendant, Drexel Lamar Berry ("Defendant" and/or "Berry"), was charged by the grand jury with being a felon unlawfully in possession of a firearm, in violation of 18 U.S.C. § 924(e). [Doc. 1]. The charges were based upon a traffic stop that occurred on July 14, 2004, during which the firearm, a handgun, was recovered from the rear floorboard on the passenger side of a vehicle in which Defendant was a passenger.
This matter is before this Court on Defendant's motion to suppress the handgun on the grounds that there was neither probable cause nor reasonable suspicion for stopping Berry's vehicle. [Doc. 14]. Defendant also moved to suppress statements made at the time of the stop in connection with his arrest. [Doc. 15]. The motion to suppress came on for an evidentiary hearing on September 15, 2005, and the final response brief was filed by the government on November 4, 2005. [Doc. 25]. No reply brief was filed by Defendant. The motions are now ready for report and recommendation to the district judge.
II. Factual Background
On July 14, 2004, City of Atlanta Police Officer L.D. Whitsey was a beat patrol officer assigned to the evening watch in Zone Four in Atlanta. Around 7:00 PM, Officer Whitsey made a traffic stop of a silver gray Chevrolet Avalanche. Explaining why he made the stop, Officer Whitsey stated that "it had a drive-out tag on it without a validation sticker on it that is required by the state." [Transcript of September 15, 2005, hearing at 38, hereinafter "(T:__)"]. When asked further whether the tag had a dealership name on it, he stated, "I can't remember exactly if it had a dealership name on it, but it was just a paper tag on there without the silver validation sticker on it." Id. The officer explained that these validation stickers are the reflective stickers that are required to have "the make, V.I.N. and the expiration date of that validation sticker on it." Id. Officer Whitsey declared that the failure to have the sticker was a violation of O.C.G.A. § 40-2-8. Id.After pulling the Avalanche over in a parking lot at the West End Mall, Officer Whitsey approached the vehicle and, when the windows were rolled down, he smelled the odor of marijuana. He returned to his vehicle and called for backup. (T:46). Officer Harry Stephens responded, and the two approached the vehicle from both sides, Officer Whitsey on the driver's side and Officer Stephens on the passenger side. There were four occupants in the vehicle. Whitsey testified he obtained consent to search from the driver and asked the driver to step out of the vehicle. He put the driver in his patrol car and went back to take out the rear passenger. Officer Stephens meanwhile was dealing with the rear passenger on the other side. As he attended to the rear driver side passenger, Officer Whitsey saw the front passenger with a handgun.
Believing that the front passenger was about to point the gun at Stephens, Whitsey yelled out the police code indicating a gun and then "drew down" on the front passenger, who apparently then dropped the gun onto the rear passenger floor board. Stephens then went to the front passenger and detained him with handcuffs. Whitsey recovered the gun, a Smith Wesson 45 caliber pistol, from the rear floorboard. (T:46). The handcuffed front passenger was placed in the patrol car. He was subsequently identified as Defendant.
The defense at the hearing spent some time with both the officers attempting to demonstrate that Defendant physically could not in fact have been pointing the weapon at either of the officers. See (T:61-66).
After detaining the other occupants, the officers searched the vehicle and found marijuana and some cash. Thereafter, Defendant was Mirandized, questioned, and admitted that the gun was his. (T:48).
III. Discussion
A. The Parties' ContentionsThe government contends that the initial vehicle stop was based upon reasonable suspicion of a traffic violation, namely, that the vehicle was displaying an improperly validated "drive-out" tag. In other words, the government contends that Officer Whitsey had a reasonable and articulable suspicion, as required underTerry v. Ohio, 392 U.S. 1 (1968), that the law had been or was about to be violated. The government argues that, because the vehicle had a temporary drive-out tag that appeared to lack the requisite validation sticker required under Georgia law, Officer Whitsey had reason to suspect that the traffic laws were being violated, thus justifying the initial stop.
Defendant, on the other hand, submits that a validation sticker is required only for temporary tags acquired from dealers, and Officer Whitsey could not testify categorically with certainty that the temporary tag had a dealer's name on it. (T:38). Accordingly, Defendant argues that the officer lacked reasonable suspicion to stop him. Defendant also relies upon a series of cases decided by the Georgia Court of Appeals holding that stopping a car with a drive-out tag solely to ascertain whether the driver is complying with vehicle registration laws is not permissible. Bius v. State, 254 Ga. App. 634, 637 (2002);Berry v. State, 248 Ga. App. 874, 879-80 (2001).
B. The Law Applicable
Law enforcement officers may briefly detain a person for an investigatory stop if they have a reasonable, articulable suspicion based on objective facts that the person has engaged, or is about to engage, in criminal activity. Terry, 392 U.S. at 20-21, 29. The "reasonable suspicion" must be more than an "inchoate unparticularized suspicion or hunch," Terry, 392 U.S. at 27, and the officer must have "some minimal level of objective justification" taken from the totality of the circumstances.United States v. Sokolow, 490 U.S. 1, 7-8 (1989) (quotingI.N.S. v. Delgado, 466 U.S. 210, 217 (1984)). "In justifying such an intrusion, the `reasonableness' standard requires that a police officer `be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonable warrant that intrusion.'" United States v. Pruitt, 174 F.3d 1215, 1219 (11th Cir. 1999) (quoting Terry, 392 U.S. at 21).
The principles enunciated in Terry apply to traffic stops.United States v. Arvizu, 534 U.S. 266, 273 (2002); United States v. Cortez, 449 U.S. 411, 417 (1981); United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2002). As the Court observed in Delaware v. Prouse, 440 U.S. 648, 653 (1979):
The Fourth and Fourteenth Amendments are implicated in this [traffic stop] case because stopping an automobile and detaining its occupants constitutes a `seizure' within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief.Delaware v. Prouse, 440 U.S. at 662. The Supreme Court has further instructed that "[t]o insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion `would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches. . . .'" Id. at 661 (quoting Terry, 392 U.S. at 22). "This kind of standardless and unconstrained discretion is the evil the court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent."Id.
The "grave danger" of abuse of discretion does not disappear simply because the automobile is subject to state regulation resulting in numerous instances of police-citizen contact. Id. at 662. An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Id. Accordingly, in Delaware v. Prouse, the Supreme Court held that "except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment." Id. at 662 (emphasis added). The Supreme Court has also repeatedly stated that in making reasonable-suspicion determinations, courts must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. Arvizu, 534 U.S. at 273.
Accordingly, the police may stop a vehicle if they have reasonable suspicion to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810 (1996);Illinois v. Wardlaw, 528 U.S. 119, 123 (2000); see United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998) (lane violation). "Reasonable suspicion" is a less demanding standard than probable cause and requires considerably less than a preponderance of the evidence. Sokolow, 490 U.S. at 7. However, the officer must be able to articulate a level of objective justification that rises above mere inchoate suspicion.Wardlaw, 528 U.S. at 123 (citing Terry, 392 U.S. at 27);Sokolov, 490 U.S. at 7.
A stop may be valid even if the officer was factually mistaken.United States v. Bustillos-Munoz, 235 F.3d 505, 512-13 (10th Cir. 2000) (stop valid where driver appeared to have high beams on, even though later proved wrong); United States v. Dorais, 241 F.3d 1124, 1131 (9th Cir. 2001). The stop will not, however, be upheld where the officer's mistake is one of law. United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir. 2005) (officer mistakenly believed that city code required side rear-view mirrors); United States v. King, 244 F.3d 736, 741-42 (9th Cir. 2001) (officer mistakenly believed placard on rearview mirror was illegal). Bottom line, the officer must point to specific and articulable facts, together with rational inferences drawn from those facts, that reasonably suggest that criminal activity, including any violation of vehicle registration laws, has occurred or is imminent. Terry, 392 U.S. at 21.
In a series of cases before the Georgia Court of Appeals, the Georgia courts have addressed the constitutionality of stops involving "drive-out" tags. In Chiasson v. State, 250 Ga. App. 63 (Ga.App. 2001), the court recognized that operation of any vehicle required to be registered in Georgia without a valid license plate is a misdemeanor, except that, during the thirty-day period within which vehicle registration is required, the purchaser of a new or used vehicle may operate the vehicle with a temporary plate issued by the dealer. Id. at 63. In that case, where the vehicle was being operated with a dealer's drive-out tag that appeared faded or weathered, the court found "no question that a stop of the vehicle to investigate compliance with state registration law was authorized." Id. at 64.
In Berry v. State, 248 Ga. App. 874 (Ga.App. 2001), the en banc Georgia Court of Appeals found that the officer had stopped the car because it had a drive-out tag. The evidence also showed that the officer stopped the car to investigate whether it was stolen "merely because [the driver] did not have a state-issued tag on the car." Id. at 880. The Georgia Court of Appeals held that this was an impermissible basis for a traffic stop, finding that "the officer had no `particularized and objective basis for suspecting [Berry] of criminal activity.'"Id. The motion to suppress, therefore, should have been granted.
The Berry decision was followed by Bius v. State, 254 Ga. App. 634 (Ga.App. 2002). In that case, also an en banc decision, the Georgia Court of Appeals squarely held that "stopping a car with a drive-out tag solely to ascertain whether the driver was complying with our vehicle registration laws is also not authorized." Id. at 636. In that case, the officer testified that he stopped the defendant because her car was displaying a drive-out tag and he wanted to see if she had owned the car for less than thirty days. The officer did not testify, however, that anything about the appearance of the drive-out tag led him to believe that Bius was violating the vehicle registration laws. Id. Accordingly, the court found that the officer had no particularized and objective basis for suspecting Bius of criminal activity but was acting upon a mere hunch. Id. The court specifically overruled any case under Georgia law which would authorize a traffic stop solely because the vehicle was being operated with a dealer's drive-out tag. Id. at 637.
Of pertinence here, as of July 14, 2004, the date of the stop herein, the Georgia Motor Vehicle Code in O.C.G.A. § 40-2-8(b)(2)(A)(2004) provided as follows:
It shall be a misdemeanor to operate any vehicle required to be registered in the State of Georgia without a valid numbered license plate properly validated, unless such operation is otherwise permitted under this chapter; and provided, further, that the purchaser of a new vehicle or a used vehicle may operate such vehicle on the public highways and streets of this state without a current valid license plate during the period within which the purchaser is required by Code Section 40-2-20 to register such vehicle; but the purchaser of any such vehicle from a dealer of new or used motor vehicles shall display a temporary plate issued as provided by subparagraph (B) of this paragraph on the rear of such vehicle in the space provided for a license plate when such vehicle is operated on the public highways and streets of this state during such period prior to registration, unless such purchaser has made application to transfer to such vehicle in accordance with this chapter a valid license plate issued to him or her, in which event the license plate to be transferred shall be displayed on the vehicle during the period prior to registration, or unless such vehicle is to be registered under the International Registration Plan.
O.C.G.A. § 40-2-8(b)(2)(B)(i)(2004) further provided that dealers in new or used vehicles must issue purchasers a temporary plate:
which may bear the dealer's name and location and shall bear, in characters not less than one-quarter of an inch wide and one and one half inches high, the expiration date of the period within which the purchaser is required by Code Section 40-2-20 to register such vehicle. Such temporary plates shall be made of heavy stock paper, inscribed with indelible ink, and designed to resist deterioration or fading due to exposure to the elements during the period for which display is required. The expiration date may be handprinted on the plate at the time of issuance by use of an indelible marker, with contrasting ink, provided that the month of expiration shall be indicated by complete word or by three-letter abbreviation thereof.
All temporary plates issued by dealers after January 1, 2001, are required to be of a standard design prescribed by Department of Motor Vehicle regulations in accordance with this subparagraph. O.C.G.A. § 40-2-8(b)(2)(ii)(2004).
Finally, O.C.G.A. § 40-2-8(b)(3)(2004) provided that "[t]he purchaser and operator of a vehicle shall not be subject to the penalties set forth in this Code section during the period allowed for the registration. If the owner of such vehicle presents evidence that such owner has properly applied for the registration of such vehicle, but that the license plate or revalidation decal has not been delivered to such owner, then the owner shall not be subject to the above penalties."
Effective July 1 of 2005, section 40-2-8(b)(2)(B)(i) was amended to add the requirement that the vehicle identification number, and the year, make, and model of the vehicle, in addition to the expiration date, be handprinted on the temporary plate. 2005 Ga. L., Act 65, § 1 In addition, O.C.G.A. § 40-2-8(b)(2)(B)(ii) was amended, in part, to add the following specific requirements:
All temporary plates shall be required to have a holographic security image and a write-resistant overlay with security features such that any attempt to change or modify the expiration date on the temporary plate will show immediate signs of tampering. All holographic security images required under this division and manufactured on or after July 1, 2005, shall be numbered with a separate and distinct number at the point of manufacture. All holographic security images affixed to temporary plates on or after January 1, 2006, shall be numbered as required by this division.
O.C.G.A. § 40-2-8(b)(2)(B)(ii)(2005); see also 2005 Ga. L., Act 65, § 1.
C. Application of the Law to the Facts
1. Reasonable Articulable Suspicion
Applying the above authorities, the undersigned concludes that Officer Whitsey succeeded in articulating a reasonable suspicion upon which to base his stop of the subject vehicle. Officer Whitsey testified that he stopped the vehicle because "[i]t had a drive-out tag on it without a validation sticker on it that is required by this state." (T:38). Although the officer stated that he could not remember exactly if the tag had a dealership name on it, he was clear that "it was just a paper tag on there without the silver validation sticker on it." Id. He went on to state that the tag was missing the sticker that "has to have the make, V.I.N. and the expiration date of that validation sticker on it."Id. The tag "didn't have any of that," according to Officer Whitsey. Id.
A problem with Officer Whitsey's articulated legal basis for the stop is that Georgia law apparently did not, on July 14, 2004, when this stop occurred, require the silver validation stickers that Officer Whitsey referred to. In fact, the requirements in 2004 were less detailed and specific with regard to what must be displayed on a dealer drive out tag. Indeed, the year, make, model and V.I.N. number were not required by the statute to be on the tag at the time of this stop. However, the law clearly required that the expiration date and month of the registration period be prominently displayed on the temporary tag as required by the law then in force, and Officer Whitsey testified that the tag he saw "Didn't have any of that." (T:38).
The fact that Officer Whitsey testified that he relied on the absence of a silver validation sticker containing information that was not required at the time the stop is of some concern to this Court in analyzing whether reasonable suspicion was articulated. However, it nevertheless appears from the officer's testimony that the tag was noncompliant under the applicable law as well, given that he testified that there was no expiration date on it. The error in his testimoney is probably attributable to the passage of time between the stop and his testimony and the dimming of his present recollection of the specifics. The Court notes that, on cross examination by the defense, it was brought out that Officer Whitsey's report, which was written shortly after the incident, noted that the drive-out tag had no validation decal. (T:35).
Assuming that this was a dealer tag and that it did not bear a clearly displayed expiration date, then it would not have been in compliance with the Georgia law in force in July of 2004, or in 2005, and Officer Whitsey would have been justified in making his stop based upon this noncompliance, to determine if the vehicle was in violation of 0.C.G.A. § 40-2-8(b)(2)(A). This does not end the inquiry, however.
Defendant argues that vehicles not purchased from dealers are not governed by the temporary tag law. Defendant further submits that vehicles purchased in non-dealer transactions bearing paper tags are not required to have a validation sticker and are, therefore, immune from being stopped by the police solely to determine if the registration laws have been complied with. This proposition, however, cannot be sustained.
While the Georgia law prescribes specific requirements for dealer drive-out tags, and permits such tags, it makes no provision for any such tags in non-dealer transactions. The absence of a provision should not, however, be read to immunize non-dealer sales from investigative scrutiny by law enforcement. To the contrary, this Court concludes that the absence of a provision for a temporary tag in non-dealer transactions does the opposite: it subjects such vehicles to being stopped on the same basis as any other vehicle that is facially noncompliant with the tag registration laws. In other words, even though a vehicle may be exempt from registration for the thirty-day initial registration period, that exemption does not carry with it any blanket exemption from law enforcement stopping such vehicles to investigate whether or not the tag registration law has been complied with. Otherwise, the police would be prohibited from stopping any vehicle, even one with no tag, because of the possibility that it might be within the thirty-day initial registration period.
An exception would be for vehicles bearing temporary dealer tags in compliance with the requirements of O.C.G.A. § 40-2-8(b). Such a vehicle could not be stopped for the sole purpose of ascertaining whether it was in compliance with registration laws.Accord, Bius v. State, 254 Ga. App. 634 (Ga.App. 2002).
Accordingly, since reasonable suspicion of a violation is all that is required to make a stop, and this standard requires less than a showing of probable cause and considerably less than a preponderance of the evidence, the standard would be met here, where the officer testified that the temporary paper tag bore no expiration date. The fact that the vehicle may have been sold in a non-dealer transaction makes no difference.
2. The Search and Seizure
Because this Court has determined that the initial stop of Berry was legal, the search incident to that stop must also be upheld, along with the admissibility of any statements, since Defendant challenges only the stop. Wong Sun v. United States, 371 U.S. 471 (1963); Brown v. Illinois, 422 U.S. 590, 598 (1975). Neither the search of the vehicle nor the seizure of the gun were tainted by the stop. Any statements later made by the Defendant after he was legally arrested would likewise be admissible.
IV. Conclusion
In conclusion, this Court finds that the initial stop was not in violation of the Fourth Amendment and that, as a result, the motion to suppress the evidence, [Doc. 14], and statements, [Doc. 15], filed on behalf of the Defendant should be DENIED. In addition, it appearing that there are no further pretrial or discovery matters to bring before the undersigned, it is therefore ORDERED that this case be and is hereby CERTIFIED as ready for trial.
SO REPORTED AND RECOMMENDED.