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United States v. Smith

United States District Court, M.D. Alabama, Northern Division

June 1, 2018

UNITED STATES OF AMERICA
v.
CEDRICK SMITH, ANTONIO FLYNN

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN, UNITED STATES MAGISTRATE JUDGE

         Pending before the court are motions to suppress evidence filed by Defendants Cedrick Smith (Doc. 33) and Antonio Flynn (Doc. 34). The Government has filed an opposition brief (Doc. 44), and the court held an evidentiary hearing on the motions on May 9, 2018. After careful consideration of the parties' submissions, the evidence heard at the hearing, and the relevant law, and for the reasons stated herein, the undersigned Magistrate Judge RECOMMENDS that the motions to suppress (Docs. 33 & 34) be DENIED.

         I. BACKGROUND

         A Grand Jury sitting within the Middle District of Alabama indicted Smith and Flynn on two counts: (1) possession with intent to distribute marijuana and (2) possession of a firearm in furtherance of a drug trafficking crime. Doc. 1. The defendants claim in their motions to suppress that the Government obtained the critical evidence supporting the charges-three bags of marijuana and a handgun-by conducting an unlawful stop of their vehicle. The defendants do not dispute the propriety of the search or the voluntariness of their consent, so the lawfulness of the stop is the only issue before the court.

         During the evidentiary hearing on the motions to suppress, the court received testimony from Corporal Robert J. Brown, a Montgomery, Alabama police officer; and Orlando Gonzalez, an investigator for the Federal Defender's Office. Doc. 49. Their testimony established that officers from the Montgomery Police Department (“MPD”) executed a search warrant at a residence located at 2461 Brooks Court in Montgomery on the afternoon of July 20, 2017. Tr. at 4. While on scene, Corporal Brown and MPD officer Bernie Knight were assigned to secure a perimeter around the residence by conducting surveillance in an unmarked police car. Tr. at 4-5. MPD had previously received a tip from an informant that a black vehicle would be delivering approximately one to two pounds of marijuana to the residence. Tr. at 13. The officers were positioned in their vehicle on Brooks Court near the stop sign at the intersection with Brooks Street, close to the residence being searched and in a line of several marked and unmarked police vehicles parked along the street's shoulder. Tr. at 8-9. While stationed at this location, the officers observed traffic and stopped several vehicles traveling along Brooks Street, which runs perpendicular to Brooks Court (see Doc. 15-5), based on their belief that the drivers of the vehicles had committed traffic offenses. Tr. at 10. They did not issue any citations or written warnings as a result of these traffic stops. Tr. at 21-22.

         At approximately 1:30 p.m., the officers saw a white Ford Explorer traveling northbound on Brooks Street toward East Fifth Street. Tr. at 10-11. They watched as the vehicle veered left, across the center of the roadway and at least midway into the southbound lane of travel, before beginning to make a right turn eastbound onto Brooks Court. Tr. at 11 & 37. At that point, the vehicle suddenly changed course, returning to Brooks Street and continuing northbound. Tr. at 11-12. The officers initiated a traffic stop and pulled the vehicle over in a parking lot off of Brooks Street. Tr. at 11.

         The officers approached the vehicle and immediately smelled raw marijuana. Tr. at 29. Officer Knight asked the driver, Smith, if there was anything illegal in the vehicle and told him that they smelled marijuana. Tr. at 17. Smith immediately stated that there was marijuana in the center console and passenger-side back seat. Tr. at 17. The officers then asked Smith and Flynn to exit the vehicle. Tr. at 17. After the defendants got out of the Explorer, Flynn told Corporal Brown that he had placed a handgun underneath the passenger seat. Tr. at 17. The officers searched the vehicle and found three bags of marijuana: two small bags in the center console and a larger bag on the back seat. Tr. at 18. They also found a handgun under the front passenger seat. Tr. at 18.

         II. DISCUSSION

         The Fourth Amendment to the United States Constitution ensures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The temporary detention of individuals during a traffic stop, “even if only for a brief period and for a limited purpose, constitutes a ‘seizure' of ‘persons' within the meaning” of the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10 (1996). Thus, every stop of a vehicle by police must be reasonable. Id. at 810. “A traffic stop . . . is constitutional if it is either based upon probable cause to believe a traffic violation occurred or justified by reasonable suspicion [of criminal activity].” United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008) (citation omitted). “[A]n officer's motive in making the traffic stop does not invalidate what is otherwise objectively justifiable behavior under the Fourth Amendment.” United States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999) (citations and internal quotation marks omitted). Here, the defendants assert that the officers' stop of their vehicle on Brooks Street was not reasonable because (1) the officers did not have probable cause of a traffic violation and (2) the officers did not have reasonable suspicion that the defendants were engaged in criminal activity. Docs. 33 & 34 at 3-4.

         A. Probable Cause of a Traffic Violation

         At the evidentiary hearing, Corporal Brown testified that he stopped the driver of the Ford Explorer (later determined to be Smith) for a violation of Alabama Code § 32-5A-80(a). That provision provides, in relevant part:

(a) Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway, except . . .
(2) When an obstruction exists making it necessary to drive to the left of the center of the highway; provided, any person doing so shall yield the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard . . . .

Ala. Code § 32-5A-80. Here, the defendants contend that under § 32-5A-80(a)(2) their vehicle was not restricted to the right half of the roadway while traveling on Brooks Street because it is “too narrow to have lanes” due to “heavy vegetation” on both sides of the street, ...


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