United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN UNITED STATES MAGISTRATE JUDGE
before the court is the motion to suppress evidence (Doc. 15)
filed by Defendant Paul Rowe. The court held an evidentiary
hearing on the motion on May 24, 2018, and has reviewed the
Government's response to the motion. See Doc.
22. 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 motion to
suppress (Doc. 15) be DENIED.
March 14, 2018, a Grand Jury sitting within the Middle
District of Alabama indicted Rowe on two counts: (1)
possession of marijuana with intent to distribute and (2)
possession of a firearm in furtherance of a drug trafficking
crime. Doc. 1. Rowe claims in his motion to suppress that the
Government obtained the critical evidence supporting the
charges-two handguns and four bags of marijuana-by unlawfully
stopping and searching his vehicle. See generally
Doc. 15. During the evidentiary hearing, the court received
testimony from Joseph Dunn (“Sergeant Dunn”), a
Montgomery, Alabama police officer. Doc. 32. After the
hearing, Rowe filed a supplemental brief expanding on
arguments made in the original motion to suppress and raising
new issues, including his contention that Sergeant Dunn
illegally seized his personal effects.
testimony and evidentiary materials offered at the hearing
established the following facts. On the afternoon of July 17,
2017, Sergeant Dunn was conducting traffic interdiction near
Exit 3 on Interstate 85 in Montgomery, Alabama. Doc. 32
(“Tr.”) at 5. Sergeant Dunn regularly conducts
interdiction activities to identify and arrest “major
criminals” including those involved in drug trafficking
and white collar crimes. Tr. at 4. He does so by enforcing
traffic laws and “pay[ing] attention to the driver,
passengers, [and] the vehicle for any and all signs of
possible criminal activity.” Tr. at 4. On the date of
the incident in question, Sergeant Dunn was positioned in his
marked police vehicle on the shoulder of the northbound lanes
of Interstate 85. Tr. at 5. Sergeant Dunn had just completed
a traffic stop of another vehicle when he observed a small
black car with a Louisiana license plate traveling northbound
slower than the flow of traffic. Tr. at 7. While Sergeant
Dunn did not know exactly how fast the vehicle was traveling,
it was moving significantly slower than both the vehicles
around it and the posted speed limit. Tr. at 7. As the
vehicle passed Sergeant Dunn's car, it decelerated,
forcing the vehicle behind it to brake to avoid a collision.
Tr. at 7. The trailing vehicle had been traveling the same
speed as the rest of traffic. Tr. at 8. The small black car
was not traveling in the far-right lane- that is, the one
closest to the shoulder on which Sergeant Dunn's vehicle
was parked. Tr. at 23.
point, Sergeant Dunn decided to stop the black car for
impeding the flow of traffic. Tr. at 8. Sergeant Dunn had to
catch up with the vehicle after it passed him, and he
eventually stopped it about five miles later, at mile marker
8, and approached from the passenger side. Tr. at 8.
Immediately upon making contact with the driver and sole
occupant, later determined to be Rowe, Sergeant Dunn could
smell marijuana and could see small pieces of marijuana on
the passenger seat and center console. Tr. at 9. He also saw
a backpack on the backseat. Tr. at 10. Sergeant Dunn began
speaking with Rowe and observed that his behavior was
aggressive. Tr. at 10. Rowe accused Sergeant Dunn of pulling
him over “because of what he looked like” and
told Sergeant Dunn that he was going to record him with his
cell phone. Tr. at 10. This behavior lead Sergeant Dunn to
conclude that Rowe was attempting to intimidate him. Tr. 10.
Based on the smell of marijuana, the visible pieces of
marijuana on the passenger seat and the center console, and
Rowe's behavior, Sergeant Dunn suspected that Rowe was
involved in drug trafficking. Tr. at 11.
Sergeant Dunn suspected criminal activity, he asked Rowe to
exit the vehicle and stand at the front of his police vehicle
while he checked Rowe's identification. Tr. at 11. Rowe
“continued to be aggressive” and continued to
film Sergeant Dunn. Tr. at 11. Sergeant Dunn then patted Rowe
down for weapons and took Rowe's phone from him because
Sergeant Dunn did not want Rowe to contact other people who
might drive to the location of the traffic stop. Tr. at 11.
During the pat down, Sergeant Dunn felt a wad of cash in
Rowe's pocket. Tr. at 11. While Rowe was standing at the
front of Sergeant Dunn's vehicle, he repeatedly looked at
his own car then back at Sergeant Dunn before starting to
walk toward his vehicle. Tr. at 11. Sergeant Dunn was
concerned that Rowe could be attempting either to flee or to
grab a weapon from his car, and after repeatedly telling him
to stand still Sergeant Dunn eventually placed him in
handcuffs. Tr. at 11-12. Without asking for Rowe's
consent, Sergeant Dunn then searched the vehicle and the
backpack on the passenger-side backseat. Tr. at 12. In the
backpack, he found a large amount of marijuana and a firearm.
Tr. at 12. He found a second firearm in the pocket behind the
front passenger seat. Tr. at 12. While Sergeant Dunn searched
the vehicle, Rowe remained standing in handcuffs near the
front of Sergeant Dunn's police vehicle, but was not
under arrest. Tr. at 34. Sergeant Dunn arrested Rowe only
after discovering the marijuana and firearms. Tr. at 34.
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, Rowe asserts that the officer's
stop and search of his vehicle on Interstate 85 was not
lawful for two reasons: (1) Sergeant Dunn did not have
probable cause of a traffic violation, and (2) the
warrantless search of his car was unreasonable. See Doc.
15 at 3-6.
evidentiary hearing, Sergeant Dunn testified that he had
probable cause to believe Rowe violated Alabama Code §
32-5A-174. This provision prohibits drivers from operating a
vehicle “at such a slow speed as to impede the normal
and reasonable movement of traffic except when reduced speed
is necessary for safe operation or in compliance with
law.” Ala. Code § 32-5A-174. “Probable cause
to arrest exists when the totality of the facts and
circumstances support a reasonable belief that the suspect
had committed or was committing a crime.” United
States v. Lindsey, 482 F.3d 1285, 1291 (11th Cir. 2007)
(internal quotation marks omitted). Importantly,
“probable cause does not require the same standard of
conclusiveness and probability as the facts necessary to
support a conviction.” Id. (internal quotation
Dunn testified that Rowe's vehicle was traveling
significantly slower than the flow of traffic when he first
observed it driving northbound on Interstate 85. Tr. at 7.
Then, as the vehicle passed him, it slowed even more, causing
the vehicle behind it to brake to avoid a collision. Tr. at
7-8. The car's speed, combined with the fact that it
slowed down further as it passed Sergeant Dunn's vehicle,
impeded the flow of traffic. Tr. at 8. There is no evidence
suggesting that Rowe's reduced speed was necessary for
the safe operation of his vehicle. And because Rowe was not
traveling in the lane closest to the shoulder where Sergeant
Dunn was parked, he was not required by the Alabama Move Over
to slow down as he passed Sergeant Dunn's police vehicle.
See Ala. Code § 32-5A-58.2. Sergeant Dunn's
testimony, which is undisputed, is sufficient to establish
that he had probable cause to believe Rowe impeded traffic in
violation of § 32-5A-174. The initial traffic stop
comports with the Fourth Amendment.
is a basic principle of Fourth Amendment law that searches
and seizures . . . without a warrant are presumptively
unreasonable.” Brigham City, Utah v. Stuart,
547 U.S. 398, 403 (2006) (internal quotation marks omitted).
“Nevertheless, because the ultimate touchstone of the
Fourth Amendment is reasonableness, the warrant requirement
is subject to certain exceptions.” Id.
(internal quotation marks omitted). One long-recognized and
broadly-applied exception to the warrant requirement occurs
“when the exigencies of the situation make the needs of
law enforcement so compelling that a warrantless search is
objectively reasonable under the Fourth Amendment.”
Kentucky v. King, 563 U.S. 452, 460 (2011) (internal
quotation marks omitted). One such exigency exists in the
case of motor vehicles. This exception, known as the
“automobile exception, ” relies upon two
justifications: (1) the “ready mobility” of motor
vehicles and (2) “the pervasive regulation of vehicles
capable of traveling on the public highways.”
Collins v. Virginia, __ S.Ct. __, 2018 WL 2402551,
at *4 (May 29, 2018) (internal quotation marks omitted).
“When these justifications for the automobile exception
‘come into play,' officers ...