Opinion
CR. NO. 03-54-N
October 17, 2003
Kevin L. Butler, for Defendant KEVIN DEANGELO DORSEY
OPINION
This criminal case is now before the court on United States Magistrate Judge Vanzetta Penn McPherson's recommendation entered on June 16, 2003, in which she recommends that the motion to suppress, filed by defendant Kevin Dorsey on May 12, 2003, should be denied. This case is also before the court on the objections to the recommendation, filed by Dorsey on June 23, 2003, and the supplemental motions to suppress, filed by Dorsey on August 5, 2003, and October 7, 2003. After an independent and de novo review of the record and two evidentiary hearings, the court believes that the recommendation of the magistrate judge should be adopted, Dorsey's objections should be overruled, and Dorsey's motions to suppress should be denied.
I. BACKGROUND
Dorsey was pulled over in his vehicle by Officers Micah Tatum and Todd Brooks of the Montgomery, Alabama Police Department on the night of October 18, 2002. Immediately prior to the vehicle stop, Dorsey, who was traveling eastbound on Woodland Drive, passed Officers Tatum and Brooks, who were traveling westbound. Dorsey then made a right-hand turn on to Davis Street. Officers Tatum and Brooks pulled Dorsey over because he was speeding on Woodland and because he failed to use his turn signal before he turned right on to Davis. After Officers Tatum and Brooks stopped him, Dorsey volunteered that he had a pistol under the front seat of his car for which he did not have a permit. Officers Tatum and Brooks arrested Dorsey and then discovered marijuana and cocaine in his pocket. Dorsey has been charged with being a felon in possession of a firearm in violation of 18 U.S.C.A. § 922(g)(1).Dorsey has moved to suppress the fruits of the traffic stop on the grounds that Officers Tatum and Brooks lacked probable cause to stop him; Dorsey has also challenged the officers' search of his person and his car after the traffic stop.
After a hearing, the magistrate judge concluded that Officer Tatum observed Dorsey committing two traffic offenses — speeding and failing to use a turn signal — and thus the traffic stop was constitutional. In her recommendation, however, the magistrate judge expressed concern about the possibly pretextual nature of the stop.
After the magistrate judge entered her recommendation and Dorsey filed his objections, the court held two more evidentiary hearings.
II. DISCUSSION
A. Traffic Stop
A warrantless traffic stop is constitutionally reasonable when "the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772 (1996); see also United States v. Strickland, 902 F.2d 937, 940 (11th Cir. 1990)("a police officer may stop a vehicle when there is probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations relating to the operation of motor vehicles") (internal quotations and alterations omitted).
For example, police officers can constitutionally pull over a vehicle when they have probable cause to believe the car is speeding,see e.g., Riley v. City of Montgomery, 104 F.3d 1247, 1252-53 (11th Cir. 1997), probable cause to believe the car ran a stop sign, see e.g., United States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999), and probable cause to believe the vehicle turned without using a turn signal, see e.g., Whren, 517 U.S. at 808, 116 S.Ct. at 1772. The burden of proving that an exception to the search-warrant requirement applies in a given case falls on the government. United States v. Parr, 716 F.2d 796, 812 (11th Cir. 1983).
The government offers two bases for Officers Tatum and Brooks's stop of Dorsey. First, the government argues that Dorsey was speeding; second, the government argues that Dorsey failed to use his turn signal before making a right-hand turn. There was considerable testimony at the three evidentiary hearings about Officer Tatum's ability to gauge Dorsey's speed and about estimated average speeds for Dorsey. However, because the court finds that Dorsey failed to signal before he turned, the court does not need to address whether Officers Tatum and Brooks also had probable cause to stop Dorsey based on his speed.
Although the court need not resolve whether Dorsey was speeding prior to being stopped by Officers Tatum and Brooks, the court notes that there was substantial evidence that cast doubt on Officer Tatum's assertion that Dorsey was traveling at 40 mph at the time of the stop. On cross-examination during the first evidentiary hearing, Officer Tatum testified that he did not have a radar gun on the night of October 18, 2002, and that, as a member of the Montgomery Police Department's SWAT team, he had not had training in tracking speeding vehicles. Tr. of May 19, 2003, hearing, pp. 33-34.
At the August 5, 2003, evidentiary hearing, an engineer — retained by both the government and the defendant — testified that Officer Tatum would have had difficulty in making an estimate of Dorsey's speed as the two passed each other on Woodland Avenue; that Tatum did not have time to make two sightings of Dorsey's car on which to base a speed estimate; that Tatum, given his SWAT training, does not have a `calibrated eye' such that he could accurately estimate Dorsey's speed; and that Tatum would have had a harder time estimating Dorsey's speed at night than during the day. Tr. of August 5, 2003, hearing, pp. 14-15. The engineer's report also concluded that, given Tatum's lack of training and lack of familiarity with the Doppler effect, he could not account for the speed of his patrol car in making an estimate of Dorsey's speed. Supplemental motion to suppress, filed on August 5, 2003, exh. 1, p. 3.
The engineer did testify that (based on his review of the relevant police reports and officer Tatum's testimony before the magistrate judge, a field visit to Woodland Avenue, and a review of the acceleration capability of the police patrol car) Dorsey's car was traveling at 31.8 mph after it turned on to Davis Street. Tr. of August 5, 2003, hearing, p. 17. The engineer emphasized however that his calculation assumed a uniform speed for Dorsey's car and that his estimate would be different if he assumed that Dorsey stopped at the intersection of Woodland and Davis before turning right. Id. at 22. The engineer also testified at the second evidentiary hearing before this court that his calculations were based on the observations of Officer Tatum and that if certain initial assumptions were changed — such as the speed at which Dorsey's car was initially moving — then his estimate of Dorsey's average speed would also change. Tr. of October 9, 2003, hearing, p. 3.
The police may detain a motorist without a warrant if they have probable cause to believe the motorist violated a traffic law by turning without using a turn signal. See e.g., Whren, 517 U.S. at 808, 116 S.Ct. at 1772. Officer Tatum alleges that Dorsey's failure to use a turn signal is one of the reasons he and Officer Brooks stopped Dorsey.
At the original evidentiary hearing before the magistrate judge, Officer Tatum testified that, after Dorsey passed him going east on Woodland Avenue, Dorsey "turned on his turn signal and simply whipped around the corner heading southward" on Davis Street. At the next hearing, before this court, however, Officer Tatum testified that he actually saw that Dorsey failed to use his turn signal before he turned on Davis Street, and that he must have misspoken at the original hearing. Although it was not admitted into evidence, counsel for Dorsey did not deny that Officer Tatum's original police report stated that Dorsey failed to use his turn signal. The court credits Tatum's testimony that Dorsey failed to use his turn signal, especially in light of the fact that his original police report is consistent with this testimony. The court does not credit Dorsey's testimony that he did use his turn signal.
Tr. of May 19, 2003, hearing, p. 14.
Tr. of August 5, 2003, hearing, p. 6.
Id. at 41.
In his first supplemental motion to suppress, Dorsey argues that there is a curve in Woodland Avenue west of where it intersects with Davis Street and that Officer Tatum's view of Dorsey's vehicle would have been obscured after the officers' patrol car, heading west, passed Dorsey's car, heading east. Dorsey argues that Tatum thus could not have seen whether Dorsey used his turn signal when he turned on to Davis. The court observes that Woodland and Davis intersect in two places; the eastern intersection is closer to Woodland's intersection with Norman Bridge Road, and the western intersection is closer to Woodland's intersection with Court Street; both Court and Norman Bridge run north-to-south. The intersection the view of which Dorsey claims is blocked by a curve in the road is the eastern intersection. The view of the western intersection is not obstructed because the stretch of Woodland to the west of the intersection is straight.
There is some question as to whether Dorsey turned at the eastern or western intersection. At the second evidentiary hearing before this court, when asked which direction Dorsey was traveling when he saw Dorsey, Tatum testified, "The defendant was coming south off of Court Street making an easterly turn on to Woodland." Then, referring to a map, Officer Tatum testified that Dorsey turned right at the western intersection of Woodland and Davis. This is the only direct testimony on the issue of where Tatum observed Dorsey make the right hand turn on to Davis. Counsel for Dorsey directs the court's attention to Dorsey's testimony at the second evidentiary hearing in this matter that, after he turned right on Davis, he pulled over after passing five houses on Davis. Counsel argues that this testimony supports a finding that Dorsey turned at the eastern intersection because the house on Davis Street at which Dorsey stopped is located about five houses away from the eastern intersection but many more houses away from the western intersection. The court finds Officer Tatum's testimony to be more probative on the question of where Dorsey turned and finds Officer Tatum's testimony to be credible. For this reason, the court concludes that Dorsey turned at the western intersection. Because Dorsey turned at the western intersection, the view of which is not blocked by a curve in Woodland Avenue, the court finds that Officer Tatum was able to see Dorsey as he made the right-hand turn on to Davis without using his turn signal.
Tr. of October 9, 2003, hearing, p. 26.
Id.
Tr. of August 5, 2003, hearing, P. 29.
Dorsey also argues that he was not actually required to use his turn signal under Alabama law and that the officers thus did not have probable cause to stop him. Citing 1975 Ala. Code § 32-5A-133, Dorsey argues that, under Alabama law, he was excused from using his turn signal because he could turn with reasonable safety without signaling. Section 32-5A-133 provides in relevant part that, "No person shall turn a vehicle right or left upon a roadway unless and until such movement can be made with reasonable safety nor without giving an appropriate signal in the manner hereinafter provided." The statute plainly does not support Dorsey's argument. Rather than creating an exception to the turn signal requirement when a turn can be executed safely, the statute provides that a driver must both turn only when it is safe to do so and signal his turn before making it.
Tr. of October 9, 2003, hearing, p. 29.
For the above reasons, the court finds that Officers Tatum and Brooks had probable cause to believe that Dorsey had committed a traffic violation by failing to use his turn signal. Thus, the officers' stop of Dorsey's vehicle was constitutionally permissible.
B. Search of Dorsey's Car and Person
Dorsey also argues that the officers' search of his person and his car after the traffic stop was unconstitutional. After Officers Tatum and Brooks pulled Dorsey over, Dorsey got out of his vehicle and began walking away from the vehicle. Although Tatum recognized Dorsey's face, he did not know anything about him. Officers Tatum and Brooks told Dorsey to return to the vehicle, and they had to physically take hold of Dorsey to return him to the vehicle. At that point, Dorsey appeared nervous and repeatedly attempted to put his hand in his front pants pocket. Officer Tatum asked Dorsey why he was nervous, and Dorsey volunteered that he had a pistol under the front seat of his car. At that point, Officer Tatum retrieved the pistol from under the front seat of the car and then asked whether Dorsey had a permit for the gun. After Dorsey said that he did not have a permit, Officer Tatum put him under arrest. Officer Brooks then searched Dorsey's pocket and recovered a small amount of marijuana and cocaine.
Tr. of May 19, 2003, hearing, pp. 15-16.
Id. at 56.
Id. at 16.
Id. at 16.
Id. at 16, 63.
Id. at 63.
Id.
Id. at 16.
Dorsey challenges the search of the car and the search of his person, arguing that, at the time of the search, Officers Tatum and Brooks did not have any information that Dorsey had engaged in any criminal conduct and that Dorsey did not pose a threat to the safety of the officers. Law enforcement officers may conduct an investigatory stop of a suspect as long as they have a reasonable and articulable suspicion that the suspect has engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880 (1968). A suspect's flight from the police can create such reasonable suspicion. See United States v. Gordon, 231 F.3d 750, 756 (11th Cir. 2000). Here, Dorsey fled his vehicle after Tatum and Brooks pulled him over. This was enough for Officers Tatum and Brooks to detain Dorsey.
Once Dorsey was detained, he appeared nervous, reached repeatedly into his pocket, and then volunteered that he had a pistol under the front seat of his car. Based on Dorsey's conduct and statement, Officer Tatum reached under the seat of Dorsey's car to retrieve the gun. InMichigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469 (1983), the court considered the constitutionality of a Terry-type search of a vehicle following a traffic stop. According to the Court, "the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." 463 U.S. at 1049, 103 S.Ct. at 3481. In this case, Dorsey fled the police after the traffic stop, he appeared nervous, he reached repeatedly into his pocket while the police questioned him, and he said he had a handgun in the car. These facts reasonably warranted Officer Tatum in believing that Dorsey was dangerous. Further, Officer Tatum's search of Dorsey's vehicle was limited to the area underneath the front seat of the car, where he had been told there was a gun. Thus, the court concludes that the search of Dorsey's car was permissible and the gun is not due to be suppressed.
After Officer Tatum found the gun and placed Dorsey under arrest, Officer Brooks searched the front pant pocket into which Dorsey had repeatedly reached. When a police officer has made a valid arrest, the officer is permitted to search the suspect's person for weapons or evidence. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040 (1969). Thus, Officer Brooks's search of Dorsey's pocket was valid as a `search incident to arrest,' and thus Dorsey's motion to suppress is denied with respect to the marijuana and cocaine.
C. Dorsey's Objections
At the evidentiary hearing before the magistrate judge, Officer Tatum testified that, as a member of Montgomery's SWAT team, his primary focus is on making felony arrests, and he testified upon questioning by the court, that he makes traffic stops in order to uncover felony offenses. The court asked why Officer Tatum spent time on traffic stops, and Officer Tatum responded candidly.
"That's where most of your felony arrests will come from. It has to come from something lower for a — a felony offender is not going to be out walking on the street saying, hey, I've got dope in my car. Hey, I just stole this car. That's how you find your felony arrests. You stop them for something, say, as a traffic violation. You never know what you are going to get on a traffic stop. And that's how a majority of arrests are made in the city or anywhere else in the United States."
Tr. of May 19, 2003, hearing, pp. 69-70.
The magistrate judge's recommendation expresses concern about Officer Tatum's testimony: "It is precisely that approach that leads to the profiling of certain areas of the city and certain individuals on the assumption that criminal activity is occurring or that a given person is committing it. At some point, an officer's motivation goes beyond `subjective' and becomes impermissible." The magistrate judge concluded, however, that the law makes Dorsey's subjective intent irrelevant and that the traffic violation provided the officers with objective justification for their stop.
Recommendation of the Magistrate Judge, filed on June 16, 2003, p. 6.
Dorsey contests the magistrate judge's reading of the relevant law. Dorsey acknowledges that, under Whren, an officer's subjective intent in making a traffic stop is not relevant to the probable-cause determination, 517 U.S. at 810, 116 S.Ct. at 1772, but he argues thatCity of Indianapolis v. Edmond, 531 U.S. 32, 41, 121 S.Ct. 447, 454 (2000), forbids traffic stops for which the purpose is general crime control. In Edmond, however, the Supreme Court made clear thatWhren is the rule that applies to individual traffic stops by individual officers. 531 U.S. at 45-46, 121 S.Ct. at 456-57. InEdmond, on the other hand, the Court was considering the City of Indianapolis's use of programmatic suspicionless stops to look for evidence of crime generally. See id. Thus, the magistrate judge was correct in concluding that as long as there was objective probable cause for Officer Tatum to stop Dorsey's car, Officer Tatum's subjective motive to uncover evidence of felonies is not relevant under Whren.
III. CONCLUSION
The recommendation of the magistrate is adopted, Dorsey's objections are overruled, and Dorsey's motions to suppress evidence are due to be denied.
An appropriate order will be entered.
DONE.