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United States v. Rowe

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

June 20, 2018

UNITED STATES OF AMERICA
v.
PAUL ROWE

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN UNITED STATES MAGISTRATE JUDGE

         Pending 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.

         I. BACKGROUND

         On 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.

         The 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.

         At that 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.

         Once 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.

         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, 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.[1] See Doc. 15 at 3-6.

         A. Traffic Stop

         At the 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 marks omitted).

         Sergeant 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 Act[2] 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.

         B. Vehicle Search

         “It 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 ...


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