Opinion
Case No. 01-40014-01/03-RDR.
July 27, 2001.
MEMORANDUM AND ORDER
The court has conducted hearings on the pretrial motions filed by defendants Alvis Jay O'Neal and Dominik Tarae Johnson. Having carefully reviewed the evidence and arguments of the parties, the court is now prepared to rule.
The defendants are charged in a nine-count indictment. In Count 1, the defendants are charged with conspiracy to possess with the intent to distribute crack cocaine in violation of 21 U.S.C. § 846. In Count 2, they are charged with distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1). In Counts 3, 6, 7 and 9, they are charged with carrying firearms during and in relation to drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A). In Count 4, they are charged with conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 846. In Count 5, they are charged with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). In Count 8, they are charged with possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1).
Since the hearings on the pretrial motions, a superseding indictment has been filed in this case. The superseding indictment mirrors the original indictment except for Count 2. In Count 2 of the superseding indictment, the defendants are now charged with possession of crack cocaine with intent to distribute in violation of 18 U.S.C. § 841(a)(1).
This case arises out of a traffic stop on December 12, 2000 in Lincoln County, Kansas on Interstate 70. Kansas Highway Patrol trooper Craig Davis stopped a vehicle driven by Harold Stinnett allegedly for speeding. Defendants O'Neal and Johnson were passengers. Subsequent searches of the vehicle led to the discovery of illegal narcotics and firearms.
Stinnett was originally a co-defendant in this case. He has pled guilty.
O'Neal has filed the following pretrial motions: motion to issue subpoena requiring pretrial production of documents pursuant to Fed.R.Crim.P. 17(c); motion to suppress evidence; motion for bill of particulars; motion for discovery; motion for disclosure of Rule 404(b) and relevant conduct evidence; and motion to dismiss. Johnson has filed the following motions: motion to suppress co defendant's statements; motion to suppress evidence derived from unreasonable car stop; motion for disclosure of Rule 404(b) evidence; motion for severance at trial; and motion to join pretrial motions filed by co-defendant.
MOTIONS TO SUPPRESS
Both defendants filed motions to suppress the evidence and statements obtained as a result of the traffic stop. Both defendants contend that the stop of the vehicle was illegal and that the subsequent search of the vehicle was illegal. They argue that any statements made must be suppressed as fruit of the prior unlawful searches and seizures.
The court heard considerable evidence on the traffic stop. After careful consideration of that evidence, the court makes the following findings of fact and conclusions of law.
Findings of Fact
1. Craig P. Davis, a Kansas Highway Patrol Trooper, was conducting stationary radar on Interstate 70 in Lincoln County, Kansas on December 12, 2000. Davis has been a Kansas Highway Patrol Trooper since 1989. At approximately 8:30 a.m., he observed a black Chevrolet Blazer pass two vehicles as it was traveling east. Trooper Davis' radar indicated that the Blazer was traveling 80 miles per hour. The designated speed limit in that area was 70 miles per hour. Prior to conducting radar on that day, Trooper Davis had tested the radar unit and found it to be operating properly.
2. Trooper Davis pursued the Blazer and made a traffic stop. When the Blazer initially passed him, Trooper Davis noticed that the vehicle contained young, African-American men. As Trooper Davis pursued the vehicle, he observed that the Blazer had a Colorado license plate. Upon stopping the Blazer, Trooper Davis told the driver that he had been stopped for speeding. Trooper Davis asked the driver for his driver's license. The driver told him that his name was Harold Stinnett. He gave Trooper Davis his date of birth and his driver's license number. Stinnett did not have his driver's license with him. Trooper Davis also asked for the vehicle papers. He told Stinnett to bring them back to his patrol car.
3. Stinnett brought the papers to the patrol car which was parked behind the Blazer. Trooper Davis sought to confirm the information provided by Stinnett about his driver's license with his dispatcher. He asked Stinnett about the purpose of his trip. Stinnett told Trooper Davis that they were on their way to Topeka to get "Ebby's" son and take him back to Colorado. "Ebby" was identified as a passenger in the car. "Ebby" was later identified as Alvis Jay O'Neal. Stinnett also told Trooper Davis that the owner of the car was Ebby's girlfriend. As Stinnett sat in the patrol car, Trooper Davis smelled burnt marijuana. Trooper Davis left the patrol car to talk with O'Neal. He asked O'Neal, who was seated in the front passenger seat, about the purpose of their trip. O'Neal confirmed the details provided by Stinnett.
4. Trooper Davis returned to his patrol car. He had learned that Stinnett did have a valid driver's license and that the vehicle belonged to Nicole McBride. Trooper Davis believed that the occupants were in the lawful possession of the Blazer. Trooper Davis told Stinnett he could return to the Blazer. Trooper Davis then called Trooper Mike Weigel for assistance because he had smelled marijuana.
5. Trooper Weigel arrived approximately fifteen minutes later. Trooper Davis told Trooper Weigel what had occurred. Trooper Davis then went to the Blazer and told Stinnett to come to the back of the vehicle. Trooper Davis gave Stinnett a warning ticket for speeding and not having his driver's license. He also returned all of the papers that Stinnett had provided. Trooper Davis then asked Stinnett if he had been smoking marijuana because Trooper Davis smelled marijuana. Stinnett replied that he had not been smoking marijuana. Trooper Davis then asked for permission to search the Blazer. Stinnett said that Trooper Davis would have to talk to O'Neal about permission to search.
6. Trooper Davis and Trooper Weigel approached the front passenger window. O'Neal rolled down the window. The troopers immediately smelled the strong odor of burnt marijuana emanating from the interior of the vehicle. Both Davis and Weigel were very familiar with the smell of marijuana. They asked O'Neal and the other passenger, who was subsequently identified as Dominik Tarae Johnson, to step out of the vehicle so they could search the interior. Trooper Davis asked them if they had any marijuana. O'Neal said there were some roaches in the ashtray. Roaches are small marijuana cigarette butts. Trooper Davis located some roaches in the ashtray in the front console of the vehicle. Some roaches were also found in the ashtray in the rear of the vehicle. Trooper Weigel and Trooper Davis then searched Stinnett, O'Neal and Johnson. They found a small baggie of marijuana on Stinnett.
7. Trooper Davis and Trooper Weigel began searching the luggage in the Blazer. They found two guns, one loaded and one unloaded. Trooper Davis then asked, "What is going on with the weapons?" O'Neal said that they were taking them to Topeka because his uncle was having some problems with some people.
8. The troopers continued to search the vehicle. They found another firearm and some bricks of cocaine. The troopers then placed handcuffs on Stinnett, O'Neal and Johnson. They were then given Miranda warnings. Each one indicated that he understood his rights.
9. Stinnett, O'Neal and Johnson were then transported to the Lincoln County Jail. Troopers Davis and Weigel talked with each suspect individually. Each was given another Miranda warning. O'Neal signed a written waiver of his Miranda rights. The signing of the waiver occurred at approximately 10:30 a.m. Prior to signing the waiver, O'Neal understood what charges he would be facing as a result of the traffic stop. O'Neal then talked with the officers. The troopers made no threats or engaged in no coercion prior to O'Neal's decision to waive his Miranda rights and talk with them. Trooper Davis thought that O'Neal showed signs of marijuana usage, but that he did not appear to be under the influence. He thought that O'Neal understood his rights and readily agreed to talk with them. Trooper Davis did not discern any mental or intellectual defect in O'Neal.
10. Stinnett, O'Neal and Johnson were initially charged with various crimes in the District Court of Lincoln County, Kansas. They were incarcerated at the Lincoln County jail while the state charges were pending. During this period, Stinnett, O'Neal and Johnson often asked to talk with Trooper Weigel. Trooper Weigel visited them whenever he was at the jail and learned of their requests. Stinnett, O'Neal and Johnson complained to him about the conditions at the jail. O'Neal also raised questions about his case.
Conclusions of Law
1. The defendants seek to suppress evidence that was seized on December 12, 2000 from the Chevrolet Blazer in which they were passengers. They also seek to suppress statements that were made during the stop and following their arrests. The defendants initially contend that Trooper Davis did not have probable cause to stop the vehicle for speeding. The defendants next argue that even if the stop was lawful, the troopers did not have probable cause to continue to detain them. Finally, the defendants assert that the troopers did not have probable cause to search the luggage and tire compartment area of the vehicle.
2. The government initially suggests that defendant Johnson does not have standing to object to the seizure of the vehicle because he asserts no expectation of privacy in the vehicle. The government is correct that Johnson, as a passenger in the vehicle who admits that he has no property or possessory interest in the vehicle or the items seized, lacks standing to contest the search of the vehicle directly. United States v. Eylicio-Montoya, 70 F.3d 1158, 1162 (10th Cir. 1995). However, he does have standing to "challenge a constitutionally improper traffic stop, detention, or arrest on Fourth Amendment grounds even though, when the seizure occurred, he had no possessory interest or ownership interest in either the vehicle in which he was riding or in its contents." Id. at 1164. Accordingly, the court finds that defendant Johnson has standing to challenge the illegal stop and his subsequent detention.
3. A traffic stop is a seizure coming within the purview of the Fourth Amendment to the United States Constitution. United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (en banc), cert. denied, 518 U.S. 1007 (1996). A traffic stop is proper if the officer has probable cause to believe a traffic law has been violated, regardless of pretext or ulterior motive on the part of the officer. United States v. Whren, 517 U.S. 806, 813 (1996).
4. During a routine traffic stop, the detaining officer is permitted to ask such questions, examine such documentation, and run such computer verifications as necessary to determine that the driver has a valid license and is entitled to operate the vehicle. United States v. Miller, 84 F.3d 1244, 1250 (10th Cir.), cert. denied, 519 U.S. 985 (1996). The officer may detain the driver and his vehicle as long as reasonably necessary to make these determinations and to issue a citation or warning. United States v. Martinez, 983 F.2d 968, 974 (10th Cir. 1992), cert. denied, 508 U.S. 922 (1993). "When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning." United States v. Lee, 73 F.3d 1034, 1038 (10th Cir. 1996). However, if the officer wants to detain the driver for further questioning he may do so if "(1) `during the course of the traffic stop the officer acquires an objectively reasonable and articulable suspicion that the driver is engaged in illegal activity'; or (2) `the driver voluntarily consents to the officer's additional questioning.'" United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997) (quotingUnited States v. Sandoval, 29 F.3d 537, 540 (10th Cir. 1994)). If the officer continues to question the driver in the absence of either of these two circumstances, then "any evidence derived from that questioning (or a resulting search) is impermissibly tainted in Fourth Amendment terms." Id. (internal quotations and citation omitted).
5. The defendants contend that there was no probable cause to believe that a violation of the motor vehicle laws had occurred when the Blazer was stopped by Trooper Davis. We disagree. The evidence was uncontroverted that the vehicle was proceeding in excess of the speed limit prior to the stop.
6. Under the Fourth Amendment, the police may conduct a warrantless search where they have probable cause to search the area in question and exigent circumstances exist to make the warrant requirement impractical. See Carroll v. United States, 267 U.S. 132 (1925). In the context of vehicle searches, a warrantless search is permissible if there is probable cause to believe that the vehicle contains contraband.See California v. Carney, 471 U.S. 386, 392 (1985); United States v. Crabb, 952 F.2d 1245, 1246 (10th Cir. 1991).
7. The Tenth Circuit has long recognized that the emanating odor of controlled substances certainly provides reasonable suspicion that criminal activity has or is occurring and also probable cause to search a vehicle or luggage without a warrant.See United States v. Morin, 949 F.2d 297, 300 (10th Cir. 1991) (citing United States v. Bowman, 487 F.2d 1229, 1231 (10th Cir. 1973)). During the stop, Trooper Davis acquired objectively reasonable and articulable suspicion that the driver was or had been engaged in illegal activity when he smelled burnt marijuana emanating from Stinnett while Stinnett sat in the patrol car. This allowed Trooper Davis to detain Stinnett and the vehicle and to ask him additional questions about his activities. Then, once the troopers approached the Blazer and smelled burnt marijuana emanating from inside the vehicle, they had probable cause to search the interior. United States v. Parker, 72 F.3d 1444, 1450 (10th Cir. 1995) (smell of burnt marijuana produces probable cause to search passenger compartment of vehicle); United States v. Louck, 806 F.2d 208, 209-10 n. 1 (10th Cir. 1986) (when officer detects odor of marijuana in passenger compartment, he then has probable cause to search passenger compartment). Since the troopers had probable cause to search the interior of the vehicle, then they had probable cause to search any containers in the interior that might contain contraband. Parker, 72 F.3d at 1450; United States v. Ross, 456 U.S. 798, 825 (1982).
8. The Tenth Circuit has noted in a series of cases that although the smell of burnt marijuana emanating from the interior of a vehicle provides probable cause to search the passenger compartment of a vehicle, if that search fails to uncover corroborating evidence of contraband, probable cause to search the trunk of the vehicle does not exist. United States v. Downs, 151 F.3d 1301, 1303 (10th Cir. 1998); Parker, 72 F.3d at 1450; United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993). This rule is premised on the commonsense proposition that the smell of burnt marijuana is indicative of drug usage, rather than drug trafficking, and because it is unreasonable to believe people smoke marijuana in the trunks of cars, the mere smell of burnt marijuana does not create the fair probability that the trunk contains marijuana. See Downs, 151 F.3d at 1303. The court need not apply this principle to this case because the vehicle involved here did not have a trunk. The vehicle involved here, a Chevrolet Blazer, does not have a trunk. A Blazer is an SUV-type vehicle where the entire interior is open and accessible from the passenger compartment, including the area in the rear where luggage and other gear can be stowed. Of course, even with the application of this principle, the troopers could have searched the trunk if the Blazer had a trunk because the troopers found marijuana during their search of the passenger compartment.
9. Accordingly, the court finds that the Blazer was lawfully stopped by Trooper Davis. The court further finds that the subsequent detention and searches were lawful. Accordingly, the court shall deny defendants' motions to suppress.
MOTIONS FOR DISCLOSURE OF 404(B) AND RELEVANT CONDUCT EVIDENCE/MOTION FOR DISCOVERY
Both defendants have filed motions seeking an order requiring the government to disclose any evidence that the government intends to introduce at trial pursuant to Fed.R.Evid. 404(b). The defendants also seek an order directing the government to disclose any relevant conduct evidence. Finally, the defendants seek the following items of discovery from the government: (1) videotape from troopers' cars; (2) photographs; (3) waiver of Miranda rights; and (4) Bureau of Alcohol, Tobacco and Firearms reports on firearms referred to in the indictment.
The government has responded that it does not at this time intend to offer any Rule 404(b) evidence against the defendants. The government further indicates that it understands its continuing obligation to provide such information if circumstances change. The government has also indicated that the defendants have all relevant conduct evidence in their possession. As to the specific requests made by the defendants, the government has responded that this is a full discovery case and, therefore, the motion for these items should be denied as moot.
The court shall grant these motions with the understanding that some of the materials requested by the defendants were addressed during the hearing on the pretrial motions. The court is concerned that the government has not been prompt in responding to the requests made by the defendants. The court expects the government to provide all the requested materials promptly, and certainly no later than twenty days prior to the trial of this matter.
JOHNSON'S MOTION TO SUPPRESS CO-DEFENDANT'S STATEMENT
The defendant seeks an order suppressing any statement or statements made by co-defendant O'Neal on or after December 12, 2000. The defendant suggests that these statements were "involuntary confessions." The government has responded that the defendant lacks standing to challenge the statements of a co-defendant.
The Tenth Circuit has determined that a defendant can challenge a coerced confession of a co-defendant because its use against the defendant implicates the defendant's due process rights. Clanton v. Cooper, 129 F.3d 1147, 1157-58 (10th Cir. 1997). Accordingly, the government's argument that the defendant lacks standing must be rejected.
The voluntariness of statements is generally determined by an application of the following principles.
A statement "is involuntary if the government's conduct cause[d] the [witness'] will to be overborne and `his capacity for self-determination critically impaired.'" United States v. McCullah, 76 F.3d 1087, 1100 (10th Cir. 1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)), cert. denied 520 U.S. 1213, 117 S.Ct. 1699, 137 L.Ed.2d 825 (1997). In determining whether a statement was freely and voluntarily given, the courts consider the totality of the circumstances. Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The relevant circumstances embrace "both the characteristics of the accused and the details of the interrogation." Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041; Lucero v. Kerby, 133 F.3d 1299, 1311 (10th Cir. 1998). Relevant factors include the suspect's age, intelligence, and education, the length of detention and questioning, the use or threat of physical punishment, whether Miranda warnings were given, the accused's physical and mental characteristics, the location of the interrogation, and the conduct of the police officers. Lucero, 133 F.3d at 1311.United States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir. 1999) (footnote omitted).
The court finds no support for defendant Johnson's argument that the statement given by defendant O'Neal was coerced. Defendant Johnson was unable to point to any circumstances that suggested that O'Neal's statement was made involuntarily. The court heard no evidence that O'Neal was threatened or coerced into making a statement. The evidence showed that O'Neal was properly given his Miranda warning, and then he voluntarily signed a waiver of his rights and agreed to talk with Troopers Davis and Weigel. These circumstances demonstrate that O'Neal's statement was made freely and voluntarily. Accordingly, defendant Johnson's motion to suppress co-defendant O'Neal's statement shall be denied.
JOHNSON'S MOTION FOR SEVERANCE
Johnson seeks a severance from his co-defendant because (1) the evidence against the other defendant is much stronger; (2) O'Neal has made an incriminating statement and this statement tends to incriminate him; (3) the jury may be confused as to differing standards of responsibility and to whom differing pieces of evidence apply; (4) the defenses of the defendants appear to be antagonistic to each other; and (5) the jury may cumulate the evidence of the various offenses charged.
Initially, the government filed a response in which it objected to severance. However, the government subsequently advised the court that it has no objection to severance. The government now recognizes that a Bruton problem might exist if these defendants were tried together.
Given the government's latest response, the court shall grant the defendant's motion. The court shall sever these defendants for trial.
Johnson has filed a motion to join this motion. This motion shall be granted.
O'Neal seeks dismissal of the indictment based upon preindictment delay. He asserts that he was arrested on December 12, 2000 and held in the Lincoln county jail until March 20, 2001, when he was transferred to federal custody. He points out that he was held in state custody without a preliminary examination in violation of Kansas state law. The defendant further argues that since the federal indictment in this case was not filed until March 14, 2001 and hid first appearance was not until March 20, 2001, then this preindictment delay violates his Fifth Amendment right to due process. He suggests that he has suffered actual prejudice because certain luggage, where some of the firearms were found, that was in the vehicle, has been released and is now missing. The defendant further argues that the delay was to gain unfair advantage for the government by breaking his spirit. The defendant indicates that Highway Patrol Trooper Weigel repeatedly visited him at the jail asking for information and telling him that he would remain in jail forever if he did not cooperate. The defendant also suggests that the Lincoln county jail has been described as the "worst jail in the state of Kansas."
The government contends that the motion to dismiss is filled with false or misleading allegations. The government points out that the contents of the vehicle, including the luggage, were released by the place of business where the vehicle had been towed to Ms. McBride, the owner of the vehicle. The government notes that the luggage and its contents were photographed prior to their release. The government also disputes the fact that Trooper Weigel repeatedly visited O'Neal to ask for information. The government points out that O'Neal requested visits with Trooper Weigel. The government also argues that there have been no efforts to delay this case.
"`[T]he Due Process Clause has a limited role to play in protecting against oppressive [pre-indictment] delay.'" United States v. Trammell, 133 F.3d 1343, 1351 (10th Cir. 1997) (quoting United States v. Lovasco, 431 U.S. 783, 789 (1977)). "Preindictment delay is not a violation of the Due Process Clause unless the defendant shows both that the delay caused actual prejudice and that the government delayed purposefully in order to gain a tactical advantage." Id. (quoting United States v. Johnson, 120 F.3d 1107, 1110 (10th Cir. 1997)). "Vague and conclusory allegations of prejudice resulting from the passage of time and the absence of witnesses are insufficient to constitute a showing of actual prejudice. Defendant must show definite and not speculative prejudice, and in what specific manner missing witnesses would have aided the defense." Id.
The court is extremely reluctant to engage in any extended discussion of this motion. The defendant has wholly failed to provide any factual support for the allegations contained in his brief. The court notes absolutely no factual support for the following allegations: (1) the delay by the federal government in indicting the defendant was done to gain an unfair advantage by "breaking his spirit;" (2) Trooper Weigel repeatedly visited the defendant at the Lincoln County Jail in order to obtain information from him and to tell him that he would remain in jail forever if he did not cooperate; (3) the Lincoln County Jail has been described as the "worst jail in the state of Kansas." Frankly, the court has concerns about the reckless use of such statements if there is no intention to provide any support for them. The court finds it unnecessary to proceed to the prejudice prong because we find no evidence that the federal government sought to unduly delay this prosecution to gain a tactical advantage. Even if we were to reach the prejudice prong, we would find that the defendant has not sufficiently demonstrated any prejudice.
O'NEAL'S MOTION FOR BILL OF PARTICULARS
O'Neal seeks the following information in a bill of particulars: (1) the specific acts which constitute the offense alleged in Count 2 of the indictment; (2) the specific time and place of each alleged act; and (3) the name and address of each person to whom the defendant is alleged to have distributed cocaine base. The defendant points out that there is nothing in the discovery that has been provided that supports this charge.
At the hearing on this motion, the government acknowledged that Count 2 contained mistakes. The government indicated that it would seek a superseding indictment in order to properly assert the allegations of Count 2. As pointed out previously, a superseding indictment has been filed since the hearing. With the filing of the superseding indictment, the court finds that this motion is now moot.
O'NEAL'S MOTION FOR LEAVE TO ISSUE SUBPOENA REQUIRING PRETRIAL PRODUCTION OF DOCUMENTS PURSUANT TO FED.R.CRIM.P. 17(C)
The defendant seeks an order granting leave to issue a Rule 17(c) subpoena to the Kansas Highway Patrol to produce the following: (1) copies of all citations written by Troopers Davis and Weigel during the past year on I-70 in Lincoln County; (2) dispositions of all citations written by Troopers Davis and Weigel on 1-70 in Lincoln County; (3) ethnicity of all drivers issued citations by Troopers Davis and Weigel during the past year on I-70 in Lincoln County; (4) state of origin of all vehicles stopped by Troopers Davis and Weigel during the past year on I-70 in Lincoln County; (5) reports of all searches of vehicles conducted and written by Troopers Davis and Weigel during the past year on I-70 in Lincoln County; and (6) disposition of any litigation related to searches of vehicles conducted and written by Troopers Davis and Weigel during the past year on 1-70 in Lincoln County.
The defendant seeks this information to provide support for his motion to suppress in which he alleges Fourth Amendment violations. Defendant's counsel indicates, based upon information she has received, that she has a good faith basis that Troopers Davis and Weigel have engaged in a pattern of pretextual stops on 1-70 in Lincoln County, and that many of those stops involved African-Americans and Hispanics.
The government contends that the defendant has requested a "sweeping and broadly phrased" subpoena for the purpose of securing a "tremendous array of materials." The government suggests that the defendant's request is a "fishing expedition" designed only to delay this case.
Rule 17(c) of the Federal Rules of Criminal Procedure provides that "[a] subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein." However, the rule is "not intended to provide an additional means of discovery," but merely "to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials." Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951) (citation omitted). Thus, to require production prior to trial, the moving party must demonstrate: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial, and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition." United States v. Nixon, 418 U.S. 683, 699-700 (1974).
The court finds that this motion must be denied because the defendant has failed to provide any support for the accusations made here. In considering this motion, the court has had the benefit of testimony from Troopers Davis and Weigel. The testimony of Trooper Davis suggested that most of the contentions were without any substance. Moreover, the evidence was uncontroverted that the vehicle in which the defendant was riding was speeding prior to the stop. The court will not allow this type of discovery request based upon such an inadequate showing. The court expects counsel to provide the court with some showing why this amounts to something more than a fishing expedition. The court is quite confident at this point that this request is nothing more than a fishing expedition. Accordingly, the motion shall be denied for the aforementioned reasons.
The motion filed by the defendant requested information concerning both officers. The court would limit any discovery, if we found it warranted, to Trooper Davis. He made the stop of the vehicle. There is no indication that Trooper Weigel had any part in the decision to stop the Blazer. The defendants seek this information to support a claim that the Blazer was not lawfully stopped. The information sought by the defendant would only be relevant to Trooper Davis, the individual who made the stop.
IT IS THEREFORE ORDERED that defendant Johnson's motion to suppress co-defendant statement (Doc. # 46) be hereby denied.
IT IS FURTHER ORDERED that defendant Johnson's motion to suppress (Doc. # 47) be hereby denied.
IT IS FURTHER ORDERED that defendant Johnson's motion for disclosure of 404(b) evidence (Doc. # 48) be hereby granted. The government is directed to promptly disclose any such evidence when it obtains it.
IT IS FURTHER ORDERED that defendant Johnson's motion for severance (Doc. # 49) be hereby granted.
IT IS FURTHER ORDERED that defendant Johnson's motion to join pretrial motions filed by co-defendant (Doc. # 59) be hereby granted.
IT IS FURTHER ORDERED that defendant O'Neal's motion for leave to issue subpoena requiring pretrial production of documents pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure (Doc. # 52) be hereby denied.
IT IS FURTHER ORDERED that defendant O'Neal's motion to suppress evidence (Doc. # 53) be hereby denied.
IT IS FURTHER ORDERED that defendant O'Neal's motion for bill of particulars (Doc. # 54) be hereby denied as moot.
IT IS FURTHER ORDERED that defendant O'Neal's motion for discovery (Doc. # 55) be hereby granted. The government is directed to promptly produce the requested materials that were not addressed during the hearing on the pretrial motions.
IT IS FURTHER ORDERED that defendant O'Neal's motion for disclosure of 404(b) and relevant conduct evidence (Doc. # 56) be hereby granted. The government is directed to promptly disclose any such evidence when it obtains it.
IT IS FURTHER ORDERED that defendant O'Neal's motion to dismiss (Doc. # 57) be hereby denied.