Opinion
1:01-CR-24.
February 20, 2002.
Karen A. Springer, J. Frank Kimbrough Associates, Fort Wayne, IN. Robert D. Truitt, Federal Community Defenders, Federal Community Defenders Inc., South Bend, IN. For Defendant Maury Turner.
Robert N. Trgovich, United States Attornerys Office, Fort Wayne, IN. For U.S.
MEMORANDUM OF DECISION AND ORDER
This matter is before the Court on a Motion to Suppress filed by the defendant. A hearing on that motion was held on August 1, 2001. At the conclusion of the hearing, the parties were ordered to file post-hearing briefs, the last of those briefs being filed on October 23, 2001. After a review of those filings and the transcript of the evidence in this cause, the Court held a hearing on October 31, 2001 to address a specific issue on which the Court desired further briefing. Those briefs were filed by December 18, 2001 but unfortunately missed the primary issue upon which further edification was requested. After the issuance of an Order which presented the precise issue to be addressed, another round of briefing was ordered. The government filed its supplemental brief on January 16, 2002 and the defendant filed his on January 28, 2002. On February 12, 2002, the government filed a reply to the defendant's supplemental brief For the following reasons, the Motion to Suppress will be denied.
Factual Background and Credibility Determinations
According to the testimony at the hearing on the motion to suppress, Officer Mark Brooks and Officer Larry Tague, both of the Fort Wayne Police Department, were on patrol in a marked police car during the early morning hours of February 24, 2001. According to Officer Brooks, while at the intersection of Superior and Harrison, they observed a blue Chrysler New Yorker proceeding westbound on Superior. The front passenger of the vehicle "appeared to scrunch down out of view" as the vehicle drove by which made the officers suspicious. Officer Brooks went on to testify that he looked directly at the driver's face and then ran a license plate of the car which returned to Maury Turner, the defendant herein. The officers then pulled up a picture of Maury Turner on their onboard computer terminal and Officer Brooks was able to determine that the driver of the vehicle was in fact Maury Turner.
Officer Tague testified that his job was to run the computer and that "Officer Brooks noticed that the passenger in the vehicle appeared to be slumped down, so he pulled down Superior and got in behind the vehicle . . .". He also testified that he did not even know there was a passenger in the car until Officer Brooks pointed that out.
Officer Tague testified that he too compared his view of the driver with the picture on the computer screen and concluded that they were the same individual.
A check on the license showed that the vehicle in question was registered to Maury Turner whose address was on Hurd Street in Fort Wayne. That person, with that address, was also shown to have had his operator's license suspended as of September 1995.The computer showed that the suspension period was from February 27, 1999 until February 26, 2000 and that the unfulfilled reinstatement requirement for the reissuance of his Indiana driver's license was the payment of a reinstatement fee. Upon determining that Turner had an expired/suspended license, a traffic stop was made, since the officers believed that an individual who had failed to pay their reinstatement fee, even if the suspension period had ended, could be arrested for driving while suspended prior. Though defendant did not have a valid Indiana license at the time, he did possess an Alabama commercial driver's license.
Officer Brooks testified that the computer indicated that Turner's license was "suspended prior" which "means that the license is suspended in the form of a misdemeanor."
Both officers admitted that they did not observe any violation of the traffic laws such as speeding, driving left of center, failure to yield or an improper lane change.
Information on the onboard computer also showed that although the "record indicates [Turner] moved 05/27/98 to Alabama," he had renewed his Indiana identification card on May 12, 2000.
After the stop, Officer Brooks went to the driver's side of the vehicle and could smell the odor of alcohol on the defendant when he approached. He also observed that the defendant had watery and bloodshot eyes. As Officer Tague approached the passenger side of the vehicle, he too could smell alcohol. He also observed an open bottle of beer between the passenger's legs. Upon asking the passenger his name, the passenger replied "Breck" Queary. Officer Tague knew this to be untrue since he knew Breck Queary and this was not the same individual.
It was determined that the passenger would be removed from the vehicle since he had improperly identified himself. The passenger, who was in fact Korta Queary (and was later found to have an outstanding warrant) was handcuffed and placed in the rear of the police car on a charge of false informing.
The officers then returned to the New Yorker, with Officer Tague approaching on the driver's side and Officer Brooks approaching on the passenger's side. Officer Brooks noticed a baggie containing a white powdery substance which he believed to be cocaine near the armrest and reached in and retrieved the same. As Officer Brooks was doing this, Officer Tague asked the defendant to step out of the vehicle and to turn around and place his hands on the roof As Officer Tague was telling defendant that he was being placed under arrest for driving while suspended prior, Officer Brooks showed Officer Tague the baggie. Defendant then ran. He was chased for a couple blocks and then apprehended. After being apprehended, cocaine base crack and marijuana were found in the defendant's possession.
The officers testified that they believed that defendant's falling to the ground supported their supposition that he had been drinking.
Actually, Officer Tague testified that as he was attempting to handcuff the defendant, the defendant brought his arm out quickly and attempted to throw a bag of cocaine off to the side but that Tague managed to grab his arm and the cocaine landed only about two feet away.
On March 28, 2001, defendant was charged with possessing a mixture or substance which contained more than five grams of a mixture or substance containing a detectable amount of cocaine base crack in violation of 21 U.S.C. § 844. The motion to suppress followed.
Defendant points out in his initial brief, "[t]he government's case . . . rests on the credibility of Officers Brooks and Tague," (rec. 56, p. 11), a proposition with which the Court agrees. Having viewed the police officers' testimony and considering their interest and bias, the Court finds the officers' testimony to be credible, save on one issue.
During the course of the evidentiary hearing, the officers' testimony was that as the New Yorker was proceeding through the intersection, they saw the driver's face and were able to recognize it sufficiently that when they ran the plate and received information on the registered owner, they also received a picture of that individual and could identify that individual as the driver. In this Court's view, that is somewhat suspect for several reasons. First, the incident occurred at night and it is far from clear that the lighting was such that such an identification was made. Second, the New Yorker traveled was traveling through the intersection when the driver was observed and it is doubtful under such circumstances that a clear view of the driver was made. Third, the picture display which appeared on the in-car computer was small-approximately an inch by an inch. Fourth, and somewhat relatedly, defendant (who the Court was able to observe on several occasions in the courtroom) is a dark-skinned black male who has no readily apparent distinguishing facial characteristics.
In fact, at a hearing, Officer Rivera of the Fort Wayne Police Department parked his police vehicle behind the federal building and brought up a picture of the defendant on his in-car computer. Although the Court had just observed the defendant in the courtroom, the Court would be hard-pressed to say that one could identify the person on the computer as the defendant. In making this observation, the Court is wholly cognizant of the government's arguments about the dissimilarity between the viewing made by the Court and that which the officers made such as the fact that the Court's observation was made during daylight hours and the computer screen would therefore have been less clear. The Court also notes that after the hearing, the government submitted a tape which purports to replicate the events of the night in question. In that tape, Officer Rivera is driving a vehicle through the intersection while being taped presumably from approximately where the officers' car had been stopped. Leaving aside the fact that it appears that Officer Rivera was almost creeping through the intersection, leaving aside the fact that it appears his driver's window was down (something which probably did not occur on the February night in question), leaving aside that it is not clear that the videocamera was seeing what the naked eye would see as opposed to being in a zoom mode, and leaving aside that Officer Rivera is much lighter in complexion than the defendant, the tape is not very strong evidence for the government's position that the officers' could clearly make the identification since this Court would not have known that the individual driving the car was Officer Rivera without the government saying so in its brief even though the Court has observed Officer Rivera on many occasions.
In sum, on this issue, the Court concludes as a matter of fact that the officers could not, and did not, identify Turner as matching the picture of the person whose face came up on the computer search in relationship to being the registered owner of the vehicle but instead that the computer run produced a "hit" and it was for this reason that the officers stopped the New Yorker. That said, this Court has considered defendant's other attempted attacks on the officers' credibility and is not persuaded by the same.
For example, defendant asserts that "a fair reading of the evidence of the record compels the conclusion that on February 24, 2001, neither Officer Brooks' nor Officer Tague's analysis of the defendant's status as a driver extended beyond a determination that he was subject to being stopped for driving while his Indiana license was suspended" and furthermore "[t]here is nothing in the record to reflect that, at the time of the traffic stop, the officers had noted any putative significance of the computer-available data showing that the defendant had obtained an Indiana resident Identification Card in May 2000." (Rec. 56, p. 6). While the record may be read as suggesting that the officers may not then have known the "putative significance" of the defendant having an Indiana resident identification card because they were under the impression that the defendant could be stopped for driving while suspended even though the period of suspension had run and were not disabused of that notion until after the Assistant United States Attorney explained the case law to them, the point is that Officer Brooks testified that that information was available on the night in question and there is no evidence that he was not aware of that information.
The significance of this information relates to whether the presentation of an Alabama driver's license might perhaps be irrelevant if defendant was again an Indiana resident.
Somewhat relatedly, defendant also calls into question the veracity of the in-car computer information since it conflicts with a printout from the Fort Wayne Police Department (which was entered into the record as defendant's exhibit C) relative to the record of the defendant. True, that exhibit shows defendant with having an Alabama address in August of 2000, a date after the issuance of the Indiana identification card in May of that year. Tellingly, however, that exhibit has not been shown to have been available to the officers at the time of the stop and indeed must have been created after it since it records defendant's arrest on February 24, 2001.
Another example of alleged credibility problems relates to the assertion that defendant was viewed as having been intoxicated with defendant attacking that assertion on the grounds that the charge written by the officers was a traffic violation that did not include alcohol charges; no alcohol test were performed; and the beer bottle was not retained as evidence. Such assertions do not make the officers' assertions not credible. After all, once the drugs were discovered traffic offenses become somewhat superfluous and if the police were not inclined to pursue the possibility that defendant was driving while intoxicated, preservation of the beer bottle would not be necessary.
Defendant also argues that the suggestion he was intoxicated was belied by the fact that "the officer stated that defendant ran two blocks before falling down due to his drunkeness." (Rec. 56, p. 8) (underline in original). While Officer Tague only testified that defendant was pursued and that defendant "actually stumbled and fell he was so intoxicated during the foot pursuit, and he was apprehended," (Tr. Supp. Hrg. p. 43) it entirely ignores the other officer's testimony. Officer Brooks testified that the foot pursuit covered "one hundred, 200 yards" and during that chase defendant "tripped on his own twice." (Tr. Supp. Hrg. p. 17). Regardless, the Court is not convinced that a person who can run two blocks before falling down supports the notion that he is sober.
One final example of defendant's attempt to discredit the officers' testimony relates to their testimony regarding the alleged discovery of the cocaine near the armrest. As the defendant points out, Officer Brook's narrative of that night did not indicate that he saw a baggie in plain sight when he approached the vehicle after Queary was placed in the squad car. During his testimony at the suppression hearing, he affirmatively stated that he saw the baggie underneath the arm rest in plain view and conceded that he should have noted that in his report. He also indicated, however, that the affidavit from Tague, which was written that same evening, indicated that "upon removing the front seat passenger, Korta Queary, Off M. Brooks 1624F found a small baggie of powder cocaine on the center console/seat." (Govt. ex. 3). While Officer Brooks' narrative may not have been as complete as it could have been (he also neglected to note the smell of alcohol upon approaching the vehicle although during the suppression hearing he testified that he smelled alcohol), as the government notes Officer Brooks' report appears to be primarily concerned with the traffic stop and flight. Moreover, while defendant is correct in observing that the "transcript shows each officer stated that he was the one who asked the passenger to identify himself' (rec. 56, p. 12) (underline in original), it does not follow perforce, as defendant seems to suggest, that one of them is lying for, as the government observes, both officers very well could have asked the passenger for his name.
That Detective Rivera's subsequent report suggests that the cocaine was found during an inventory search does not impeach Officer Brooks' testimony first because the report was written by a person who was not present at the scene and second because it is a summary of the events and not an event-by-event description. Indeed, if it was meant to suggest that the discovery of the cocaine was made during an inventory search after defendant had been pursued and apprehended then it is in direct conflict with the affidavit prepared by Officer Tague on the night in question. Moreover, Detective Rivera who was present throughout the suppression hearing testified that nothing Officer Brooks testified to at the hearing was inconsistent with what he had learned in preparing the report.
Indeed, in its brief, the government asserts that "[t]he defense is well aware that the probable cause affidavit for Korta Queary indicates that Queary failed to respond to the name `Breck' three (3) times." (Rec. 61, p. 6). While that may be so, the Court has been unable to locate a probable cause affidavit related to Queary in the Court's file.
Legal Discussion
In light of the foregoing recitation of facts and credibility determinations, this Court's inquiry is essentially two-fold. The initial question is whether the traffic stop was proper. If that question is answered in the affirmative then the next question is the propriety of continuing the traffic stop. Each will be considered in turn.After listening to the testimony at the suppression hearing and reviewing the record, this Court was concerned with the propriety of the traffic stop in the first instance. The reason for that concern was this Court's view that the officers could not, as they testified, have identified the driver as being the defendant leading them to stop the vehicle after pulling his picture up on the on board computer and seeing that he had a suspended license in Indiana. While recognizing that the Supreme Court in Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769 (1996), clarified the proper test for determining whether a temporary traffic stop was a pretext for a search holding that "the constitutional reasonableness of traffic stops" is to be determined through "an ordinary, probable-cause Fourth Amendment analysis" and that it matters not what the ulterior motives of the officers may have been provided that there existed "probable cause to believe that a violation of law has occurred" id. 116 S.Ct. at 1773 4, the Court requested further briefing on a precise legal issue to wit, if the Court did not credit the officers' statements regarding their identification of defendant would the stop not then be pretextual and consequently everything that flowed from it a nullity?
In response, the government (after repeatedly arguing that the officers could in fact identify defendant as the driver) has argued that even if the Court discounts the officers' testimony, there was still a valid reason for the stop since the officers could run the tag even if they did not see the driver. Defendant, for his part, "concede[s] . . . that the current state of the law in this circuit regarding the legal concept of pretextual arrest' is comprehensively and accurately set forth in the Government's January 2002 Second Supplemental Brief' and "[t]hus, the current analysis of a pretextual arrest' issue employs an objective test to determine whether there was any probable cause or reasonable suspicion for the arrest or stop, regardless of the "pretextual activity.'" (Rec. 75, p. 2). With some reservation, this Court must conclude that even with a finding that the officers could not identify defendant as the driver as they so testified, the stop was not therefore automatically pretextual.
"The underlying principle is clear: If an arrest or a traffic stop is used merely as a pretext to search for evidence, that search constitutes a violation of the Fourth Amendment." United States v. Willis, 61 F.3d 526, 530 (7th Cir. 1995) citing United States v. Lekowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424 (1932). "However, [the Seventh C]ircuit' s test for reviewing the lawfulness of a stop or arrest that is alleged to be pretextual has been set forth clearly in United States v. Trigg, 878 F.2d 1037 (7th Cir. 1989)." Willis, supra at 530. "That case requires an objective analysis of the circumstances; if there was probable cause to make the stop, and if the stopping officer was acting with authority, the stop was not pretextual." Id. "`[S]o long as the police are doing no more than they are legally and objectively authorized to do, an arrest [or stop] is constitutional.'" Id. quoting Trigg at 1041.
Put somewhat differently, "[w]hether a traffic stop violates the Fourth Amendment must be evaluated in the same manner as other alleged violations of that amendment: by undertaking "an objective assessment of an officer's actions in light of the facts and circumstances then known to him. The language of the amendment itself proscribes only "unreasonable' searches and seizures.' Scott v. United States, 436 U.S. 128, 137.98 S.Ct. 1717, 1723 (1978)." United States v. Ferguson, 8 F.3d 385, 388 (6th Cir. 1993). "And "the fact that the officer does not have the state of mind which is hypothecated [sic] by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.'" Id.
Such language, though providing basic guidance in determining the propriety of a stop, does not address the precise issue of concern to this Court-that being when the officers testify as to one thing and the Court finds otherwise can the stop nevertheless still be valid. A couple of passages from Seventh Circuit decisions, however, answer the inquiry.
In United States v. Williams, 106 F.3d 1362 (7th Cir. 1997), the Seventh Circuit wrote:
By arguing that the stop was pretextual, Williams seeks to exploit a wrinkle in our probable cause jurisprudence. The law, however, is clear. Courts have essentially equated the pretextual with the unreasonable, so that if an arrest or traffic stop is used as a pretext to search for evidence, the search constitutes a violation of the Fourth Amendment. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932); United States v. Willis, 61 F.3d 526, 530 (7th Cir. 1995); United States v. Trigg, 878 F.2d 1037, 1039 (7th Cir. 1989). Despite our suggestively subjective terminology, we use an objective test to discern whether a search is unreasonable. Whren, 517 U.S. at ___, 116 S.Ct. at 1774. Therefore, only pretext that can be objectively exposed. i.e. where no proffered circumstance could cause a prudent person to suspect a crime or moving violation to have occurred, results in the suppression of evidence. Accordingly, the ulterior motives of an officer, where an objective justification exists, do not invalidate a search. Id.
We underscored last year that the argument that ulterior motives invalidate a police stop for a traffic violation is a "tired argument in this circuit, . . . and this country." United States v. Murray, 89 F.3d 459, 461 (7th Cir. 1996) ( citing United States v. Trigg, 878 F.2d 1037 (7th Cir. 1989) and Whren, 517 U.S. at ___, 116 S.Ct at 1774, respectively). The repetition of this argument may be due, in part, to the judicial adherence to the term "pretextual" in the face of a Supreme Court sanctioned test that has abandoned the every-day use of the term. Post Whren, pretext is devoid of its traditional sense; what remains is to look for the absence of an objective rationale for a search.Id. at p. 1365 (emphasis added). In United States v. Cervantes, 19 F.3d 1151 (7th Cir. 1994), the Seventh Circuit, after noting that "[t]he [police officer's] lie, if it was a lie, was gratuitous" wrote:
No warrant is required to search a car, including its closed compartments, if there is probable cause to believe that contraband or evidence of crime will be found in it. California v. Acevedo, 500 U.S. 565, 579-80, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991). It seems to us that if the government has a right. whether based on reasonable suspicion or probable cause. to search one's car, and does so. one has no right to complain even if the ostensible ground for the search was different and improper. United States v. Ferguson, 8 F.3d 385, 391-92 (6th Cir. 1993) (en banc); United States v. Cannon, 15 F.3d 896, 898-901 (9th Cir. 1994). This is a corollary of the principle that the existence of reasonable suspicion or probable cause depends not on what the particular officers involved believed but on what a reasonable officer in their position would have believed. Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978); Horton v. California, 496 U.S. 128, 142, 110 S.Ct. 2301, 2310, 110 L.Ed.2d 112 (1990). The exclusionary rule is intended to protect the privacy and property rights of the citizen, rather than to punish law enforcement officers for trickery, deceit, or even telling lies under oath.Id. at 1153-54 (emphasis added).
Given circuit precedent, it would seem to matter not a whit as to whether this Court discounts the officers' stated rationale (i.e. they identified Maury Turner as he drove through the intersection) provided that they had a different, legal basis, for making the stop. This Court must conclude that they did.
Even if they did not recognize the driver, the officers ran the plates which were in plain view and seen from a place where the officers were entitled to be. That was not inappropriate. See, United States v. Jones, 2001 WL 704428 (8th Cir. 200 1) (officer stopped two door vehicle after running license plate and noting that car was listed as four door), State v. Mills, 458 N.W.2d 395 (Ia. 1990) (officer routinely ran registration checks on vehicles with out-of-state license plates when they were located in areas of high crime); People v. Barnes, 505 N.E.2d 427, 428 (Ill.App. 1987) (officer regularly ran plates on a random basis to check the validity of vehicle registrations) Upon a determination that the vehicle is registered to a driver's whose license is suspended, police officers may stop the vehicle to inquire further. See, Minnesota v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) ("the knowledge that the owner of a vehicle has a revoked license is enough to form the basis of a "reasonable suspicion of criminal activity' when an officer observes the vehicle being driven); Iowa v. Mills, 458 N.W.2d 395, 396 (Ia. 1990)("Once the officers determined the vehicle's owner had a suspended driver's license, they had a reasonable suspicion sufficient to justify a stop [since] [i]t was reasonable to infer the vehicle was being driven by its owner given the absence of evidence to the contrary"); Illinois v. Barnes, 505 N.E.2d 427, 28 (Ill. 1987) (where "the car owner is known to possess a suspended driver's license, a reasonable inference from that fact is that the owner is driving the vehicle. While other people may drive an owner's vehicle, it is clear that the owner will do the vast amount of driving"); Oregon v. Panko, 728 P.2d 1026, 1027 (Or. 1990) ("It certainly is reasonable for the officer to suspect that the registered owner of a vehicle is driving it. If he knows that the owner is suspended, he may make a stop under [state law], unless other circumstances put him "on notice that the driver is not the vehicle's owner.'").
As noted in this Court's December 27, 2001 Order, the slip opinion in Jones was vacated. See, United States v. Jones, 255 F.3d 628 (8th Cir. 2001) (noting that opinion published in advance sheets was vacated and that amended opinion would be issued); United States v. Jones, 266 F.3d 804 (8th Cir. 2001) (superseding opinion). The superseding opinion does not discuss the issue relevant here and even though the earlier panel opinion was vacated and is not of precedential value, it can fairly be said that at least three federal appellate judges had no problem with the officer merely running the plates and based on information received via computer making a stop.
The Court in the December 27, 2001 Order noted that these and other cases were inapposite. In its brief in response to that Order, the government chides the Court for reaching that conclusion. The point in the earlier Order, which is still a valid point, is that such opinions were inapposite to the question of whether a statement found to be untrue by the Court would invalidate the stop. That is, while those cases may support the notion that an officer may run a license plate to determine a driver's status and issues of similar ilk, they do not address the issue of whether an officer's initial misstatement would make the actions which followed improper.
Noting such cases, the government in its supplemental brief takes issue with this Court's statement in its December 27, 2001 Order that "the driving while suspended offense was driver specific and would hinge on the ability of the officers to identify the driver." Tellingly, that statement by the Court was made while distinguishing a case where the officer had before him a vehicle that did not match the description registered with the bureau of motor vehicles. Moreover, the offense of driving while suspended has to be driver specific-one cannot be arrested merely because he is driving another's car whose owner has his license suspended. The question of whether an officer may make a stop of a vehicle because that vehicle is shown to be owned by a driver who has had his license suspended is an entirely different issue.
Defendant refers to no cases which quarrel with these propositions. He does, however, take serious issue with the notion that the officers had any right to stop him for driving while suspended or to continue the stop once he had presented a valid Alabama license. This Court must reject such arguments.
"A traffic stop is similar to an investigative detention and is thus governed by the principles set forth in Terry v. Ohio, [ 392 U.S. 1 (1968)]." United States v. Finke, 85 F.3d 1275, 1278 (7th Cir. 1996). Officers making a Terry stop must articulate specific facts that gave rise to the officers' reasonable suspicion that a suspect is involved in criminal activity. United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994). Reasonable suspicion while requiring some minimal level of objective justification "requires less than the quantum of proof constituting probable cause." United States v. Mancillas, 183 F.3d 682, 695 (7th Cir. 1999). This involves probabilities and therefore reasonable suspicion is determined according to the totality of the circumstances. Id., at 696. "The real issue is whether the police conduct-given their suspicions and the surrounding circumstances-was reasonable.'" Id. quoting, United States v. Tipton, 19 F.3d 1221, 1224 (7th Cir. 1994).
In this case, upon running the plate, the officers discerned that the registered owner of the vehicle, Turner, had an Indiana address and that his driving status was suspended, his Indiana driver's license having expired in September of 1995. The suspension period was from February 27, 1999 until February 6, 2000 and at the time of the stop, even though the suspension period had lapsed, Turner had not paid the reinstatement fee to have his Indiana license re-issued. The in-car computer showed that defendant was reported to have moved to Alabama in May 1998 but further that he had obtained an Indiana identification card and registered his vehicle in Indiana long after having reportedly moved to Alabama.
These factors make clear to the Court that a reasonable officer would have grounds to stop the vehicle on the assumption that defendant was the driver. As the defendant argues, and the government candidly concedes, a person whose driver's license suspension period has passed but who has not paid the reinstatement fee cannot be charged with driving while suspended since such a license "was no longer suspended, even though it had not been reissued." Frink v. State, 568 N.E.2d 535, 538 (md. 1991). However, in such a situation a person can be charged "with operating without a valid operator's license in violation of Ind. Code. § 9-1-4-26." Id. Moreover, IC. §§ 9-18 2-1 and 9-24-1-1 read in tandem indicate that within sixty days of moving to Indiana a person must register his or her vehicle in Indiana and Indiana residents must have a valid Indiana operator's license to legally operate a vehicle in the state.
Clearly there was more than a sufficient basis to effectuate the stop in this case given that "the Fourth Amendment is no bar to the police "stopping and questioning motorists when they witness or suspect a violation of traffic laws, even if the offense is a minor one.'" United States v. Tipton, 3 F.3d 1119, 1122 (7th Cir. 1993) (quoting United States v. Mitchell, 951 F.2d 1291, 1295 (D.C. Cir. 1991) cert. denied ___ U.S. ___, 112 S.Ct. 1976 (1992)). This remains so even if other officers may not have made the stop. Whren v. United States, 116 S.Ct. 1769 (1996). "[T]he issue here is not whether he would have been convicted of a violation in a traffic court. The issue is whether there was probable cause that a traffic law had been violated." United States v. Smith, 80 F.3d 215, 219 (7th Cir. 1996). Here there was, and hence the stop was proper.
In fact, a stop "may be perfectly reasonable even if the police officer ultimately does not charge the suspect for the offense giving rise to the officer's probable cause determination." United States v. Woody, 55 F.3d 1257, 1268 (7th Cir. 1995).
Having "determine[d] that the stop was based on a reasonable suspicion or probable cause, and that the officer was authorized by law to make the stop, the stop is constitutionally valid." Willis, supra at 530. The inquiry then becomes whether the stop exceeded its proper scope. "Once the purposes of the initial traffic stop were completed, there is no doubt that the officer could not further detain the vehicles or the occupants unless something that occurred during the traffic stop generated the necessary reasonable suspicion to justify a further detention." United States v. Mesa, 62 F.3d 159, 162 (6th Cir. 1995). An officer has probable cause to search a car "if under the "totality of the circumstances' there is a "fair probability' that the car contains contraband or evidence." United States v. Nielson, 9 F.3d 1487, 1489-90 (10th Cir. 1993) (quoting Illinois v. Gates, 462 U.S. 213, 328, 103 S.Ct. 2317, 2332 (1983))."
Here, something did occur during the traffic stop which generated the necessary reasonable suspicion to justify a further detention. That "something" was the smell of alcohol in the vehicle and Korta Queary falsely informing the officers that he was Breck Queary, something the officers knew to not be true. At that point, Queary was removed from the car and upon reapproaching the car, cocaine was observed. Obviously, defendant was properly asked to step from the car and at this point he ran.
In concluding that the stop was proper in scope, this Court is not unmindful of defendant's argument that "[w]hen the defendant presented to Officer Brooks his Alabama Commercial Driver's License, the only legitimate purpose of the traffic stop-to determine whether the defendant was driving with a valid operator's license — was completed [and] [d]etention beyond that point constituted a violation of the Fourth Amendment of the United States Constitution." (Rec. 56, pp. 6-7). Leaving aside the fact that the information on the in-car computer showed the vehicle registered to defendant at an Indiana address and suggested that defendant had moved back from Alabama (given his receipt of an Indiana Identification Card in May of 2000) and hence the officers could reasonably conclude that defendant was once again an Indiana resident required to be properly licensed in the state, the chronology of events supported a continuation of the investigation. This was so because there was a smell of alcohol in the vehicle, Queary Korta had lied about his identity, and cocaine was seen on the seat.
While the Court concludes that the motion to suppress must be denied, it should be obvious that it is troubled with aspects of this case. As noted, the Court simply does not believe that the officers were able to identify defendant as the driver. While the Court has rejected some other credibility issues, this is not to say that they do not suggest a cause for concern. It is in fact troubling that Officer Brooks did not state in his narrative that he saw the cocaine on the seat and this absence is only compounded by Officer Rivera's summary which suggested that the cocaine was found as a part of the inventory process. It is also somewhat disconcerting that while the officers testified at the suppression hearing that they smelled alcohol upon approaching the vehicle the reports of that night do not mention the smell of alcohol in the car, nor was the driver charged with an alcohol related offense.
While those are legitimate concerns, the problem for the defendant is that even were the Court to conclude that the officers did not smell alcohol upon approaching the car and even if the Court were to conclude that Officer Brooks did not see the cocaine as he re-approached the vehicle, the outcome would still be the same. This is because no one disputes that after the car was stopped (and lawfully so the Court must conclude), Queary lied about his identity. Queary was thus subject to arrest for false informing a crime under I.C. § 35-44-2-2(c)(1). See, Howell v. Indiana, 684 N.E.2d 576, 577 (Ind.App. 1997). Once Queary was taken out of the car, his person and the area immediately within his control was subject to search even though he was not the driver of the vehicle. See, United States v. Myers, 102 F.3d 227, 232 (6th Cir. 1996) (where passenger was arrested on outstanding warrant, driver's objection to search of passenger compartment rejected since "there is simply no precedential support for the proposition that an officer who has arrested a suspect m an automobile may not continue his search of the area in the vehicle within the suspect's immediate control."). The cocaine therefore would inevitably have been discovered.
Conclusion
On the basis of the foregoing, the Motion to Suppress filed by the defendant Maury Turner is hereby DENIED.
SO ORDERED