Opinion
No. 05-4004-01-CR-C-NKL.
May 24, 2006
REPORT AND RECOMMENDATION
This case was referred to the undersigned United States Magistrate Judge for processing in accord with the Magistrate Act, 28 U.S.C. § 636, and W.D. Mo. R. 22.
On February 24, 2006, defendant Brady R. Long filed a motion to suppress all evidence seized during the traffic stop of October 28, 2004, and all evidence obtained after that stop. The United States responded in opposition to the motion and a hearing was held on May 3, 2006. At the beginning of the hearing, defendant Long sought leave to amend his motion on the basis that the officer did not have probable cause to make the traffic stop. The motion to amend was granted and evidence was taken.
The United States called Lake Ozark Police Officer Dale Heiser to testify. Officer Heiser testified that he was working his regular shift on October 27, 2004, and was patrolling an area in the vicinity of a business known as People Brokers. He noticed a vehicle turning down the road toward People Brokers, which was unusual at that time of night. He had been informed by other law enforcement personnel that they suspected drug activity at People Brokers, so Heiser stopped his patrol car in a nearby parking lot for observation. Four or five minutes later, he saw the same car returning on Oakwood Lane and then turning left on Bagnell Dam Boulevard.
There were very few businesses or buildings on Oakwood Lane and they were all closed for the night.
Officer Heiser pulled in behind the vehicle and followed it. He saw the driver swerve across the yellow line, and so he turned on a video recording system in his patrol car. The car returned to the center of the lane and then drifted toward the white fog line on the right side of the roadway. Shortly after that, the driver turned on a left turn signal at an inappropriate place and then disengaged the signal. Heiser activated the patrol car's siren and emergency lights to make a traffic stop. He testified he was concerned, based upon his training and experience, that the driver in the car might be intoxicated.
The driver responded to the siren and emergency lights, stopped his car and produced a driver's license and insurance card on request. Officer Heiser noticed Mr. Long, the driver, was extremely nervous and his hands were trembling. Although appearing nervous, Long cooperated, got out of the car, and participated in a horizontal gaze test. The short test did not indicate signs of intoxication.
Heiser then asked Long why he was so nervous and if he could search the vehicle. Long said it wasn't his vehicle, and the officer told Long he had control of the vehicle so could consent to a search. Long consented to a search of the vehicle, and Heiser started to conduct an officer-safety pat-down search. Heiser asked Long if he had anything in his pockets. Long put his hands in his pockets, Heiser told him to take them out, and when Long did so, a piece of paper fell or was dropped to the ground. Heiser picked it up, unfolded it, and found what he believed to be narcotics.
Heiser testified he has seen narcotics concealed in many different types of containers and has seen individuals try to discard narcotics prior to a pat down or search. After seeing what was in the paper, Heiser arrested and cuffed Long. Another officer arrived at the scene and took custody of the defendant. Heiser then went to do a search of the interior of the vehicle. On the front passenger floor board, Heiser found a yellow container with a large amount of money and white substance in it. He is heard on the tape shouting something like "no wonder he's so nervous."
Heiser called other officers and/or supervisors and then Mirandized Long. Officers asked Long some brief questions and defendant made some statements.
The encounter was videotaped, beginning with the vehicle drifting toward the white line on the roadway. The officer testified that the recorder takes a short time to engage, and so the tape does not show Long's vehicle swerving over the yellow line when it was first turned on. The videotape was available and the relevant portion of it was played during the hearing.
Defendant challenges the traffic stop on the basis that the officer lacked reasonable suspicion or probable cause to support the stop.
The Fourth Amendment permits police to make an investigative stop of a vehicle if they have a "reasonable suspicion that the vehicle or its occupants are involved in criminal activity."United States v. Potts, 275 F.3d 714, 718 (8th Cir. 2002) (citing United States v. Bell, 183 F.3d 746, 749 (8th Cir. 1999)); Terry v. Ohio, 392 U.S. 1, 20-22 (1968). Police must have a particularized objective basis for suspecting criminal activity at the time the stop is made; however, such basis need not rise to the level of probable cause. United States v. Potts, 275 F.3d at 718.
Reasonable suspicion requires that an officer be able to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. at 21. An "inchoate and unparticularized suspicion or hunch" is insufficient. Id. The totality of circumstances in a particular case determines whether there was reasonable suspicion to make a valid investigatory stop of a vehicle. United States v. Potts, 275 F.3d at 718.
In this case, the officer watched Long drive across the centerline, veer toward the white line and then signal to turn at an inappropriate place. It was late at night and the vehicle had just left an area where drug trafficking was suspected. Under these circumstances, the officer had a reasonable suspicion to believe the driver might be intoxicated or under the influence of alcohol or narcotics. Driving while intoxicated or under the influence is a violation of the traffic laws. Thus, the officer had a reasonable and articulable suspicion that a traffic violation had occurred, which justified an investigatory stop pursuant to Terry v. Ohio.
Although the tape recording does not show Long driving across the centerline, it does show the officer telling Long that was why he was stopped.
After Heiser determined that Long did not show signs of alcohol intoxication, he asked Long why he was so nervous and if he would consent to a search of the vehicle. This additional very brief investigation was warranted because of Long's extreme nervousness during the stop. Heiser testified Long's hands were shaking, he was perspiring and he was showing more signs of nervousness than the average person stopped for a traffic violation.
Heiser did not conduct any search prior to Long's consent. Once Long consented to the vehicle search, Heiser asked him some questions regarding weapons and contraband in the car and on his person. Heiser then began an officer-safety pat-down search in preparation for the search of the vehicle. It was at that point Long put his hands in his pockets, pulled them out, and a piece of paper was either dropped or fell to the ground.
Heiser knew from his training and law enforcement experience that small amounts of narcotics could be stored in paper, that some individuals attempt to discard drugs when stopped, and that Long had just been to a location suspected of drug activity. Once the paper fell to the ground and was in plain view, Long did not have a reasonable expectation of privacy in the paper. Additionally, as pointed out in the Government's supplemental suggestions, there is substantial evidence that Long voluntarily abandoned the property. Under these circumstances, a reasonable officer would check the paper to determine whether to discard it in a proper container or keep it as evidence. In either event, because defendant did not have a reasonable expectation of privacy in it, the search, without a warrant, is reasonable, and the evidence should not be suppressed.
The court did not find any case law finding that an individual had a reasonable expectation of privacy in a piece of paper that fell to the ground and was retrieved from the ground during a pat-down search.
There is no reasonable expectation of privacy in voluntarily abandoned property and a warrantless search is permissible. See United States v. Caballero-Chavez, 260 F.3d 863, 866 (8th Cir. 2001).
The search of the paper, however, was irrelevant to the search of the car. Long clearly consented to the search of the car prior to the pat-down search or search of the paper. His consent is heard on the videotape and was freely and voluntarily given. The large amounts of narcotics and cash were found in the vehicle and would have been discovered pursuant to the consent, even if the small quantity of narcotics had not been found on the paper which came out of Long's pocket and dropped to the ground.
Based upon the credible evidence presented, the court finds no basis for suppressing the evidence seized during and after the traffic stop on October 28, 2004. Therefore, it is
RECOMMENDED that defendant Brady R. Long's motion of February 24, 2006, to suppress evidence be denied [71].
Under 28 U.S.C. § 636(b)(l), the parties may make specific written exceptions to this recommendation within ten (10) days. If additional time is needed, a motion for an extension of time must be filed within ten days. The motion should state the reasons for the request. See Nash v. Black, 781 F.2d 665, 667 (8th Cir. 1986) (citing Thomas v. Arn, 474 U.S. 140 (1985));Messimer v. Lockhart, 702 F.2d 729 (8th Cir. 1983). Failure to make specific written exceptions to this report and recommendation may result in a waiver of the right to appeal.