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United States v. Burwell

United States District Court, N.D. Alabama, Eastern Division

June 29, 2018




         Cantrell Burwell is charged in a three-count indictment with possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A), possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc. 1, pp. 1-3). Mr. Burwell has asked the Court to suppress all evidence obtained as a result of what Mr. Burwell characterizes as an unconstitutional search of his vehicle following a traffic stop. (Doc. 25). For the reasons discussed below, the Court grants Mr. Burwell's motion to suppress.

         I. BACKGROUND

         On September 16, 2016, at approximately 2:46 a.m., Anniston Police Department Officer Josh Powers conducted a traffic stop of a black Chevrolet Tahoe that Mr. Burwell was driving. (GX-1, 00:00).[1] Officer Powers informed Mr. Burwell that he pulled him over for failure to maintain lane. (GX-1, 00:17-00:23). Mr. Burwell handed Officer Powers his driver's license, registration, and proof of insurance. (GX-1, 00:23-00:25). Mr. Burwell informed Officer Powers that he and his passenger, Kelly Boucher, were returning home to Toney, Alabama after fishing in LaGrange, Georgia. (GX-1, 00:34-01:13). Officer Powers collected Ms. Boucher's license. (GX-1, 02:03-02:07).

         Officer Powers returned to his patrol car to check whether Mr. Burwell or Ms. Boucher had outstanding warrants. Neither did. (GX-1, 02:11-09:22). Officer Collins then arrived on the scene. (GX-1, 09:30). Officer Powers told Officer Collins that he thought that Mr. Burwell was “real nervous.” (GX-1, 09:33-09:34). Officer Powers added that Mr. Burwell had a temporary insurance card. (GX-1, 09:55-10:23). Officer Powers said, “so I can't write him for not having proof to tow it, so I'm gonna try and get in that car.” (GX-1, 10:19-10:24). Officer Powers said, “I'm gonna get him out and explain to him and write him a warning and try to sweet talk my way in.” (GX-1, 10:51-10:58).

         Officer Powers told Officer Collins that Mr. Burwell had prior drug possession charges. (GX-1, 10:58). Officer Powers stated that he doubted that Mr. Burwell was returning from a fishing trip because it was 2:30 a.m., and other than fishing poles, Mr. Burwell did not have fishing gear in his car. (GX-1, 10:58-11:18).[2] Officer Powers said that he did not understand why Mr. Burwell would leave LaGrange, Georgia at midnight or 1:00 a.m. to drive to Toney, Alabama, and he did not understand why Mr. Burwell had to travel so far to find a place to fish. (GX-1, 11:18-11:30). Officer Powers commented that Mr. Burwell could have been driving that particular route to avoid “the gauntlet, ” a stretch of I-20 that law enforcement routinely monitors. (GX-1, 11:33-11:56).[3]

         Officer Powers said “here we go” and returned to Mr. Burwell's car to launch his effort to “sweet talk” his way into consent. (GX-1, 12:02-12:14). Officer Powers told Mr. Burwell that he was giving him a warning for improper lane usage and asked Mr. Burwell to step out of the car. (GX-1, 12:14-12:25). Mr. Burwell complied, and Officer Powers patted him down. (GX-1, 12:33-13:26). Officer Powers discovered about $600 in cash from Mr. Burwell's pocket. (GX-1, 12:46-12:59). Mr. Burwell followed Officer Powers back to the patrol car so that Officer Powers could explain the warning. (GX-1, 13:31-13:38). Using a friendly tone, Officer Powers told Mr. Burwell that he was just “giv[ing him] a warning on that - I know it's late.” (GX-1, 13:33-13:36). Mr. Burwell thanked Officer Powers. (GX-1, 13:46-13:50). As Officer Powers filled out the warning paperwork, using a friendly tone, he asked Mr. Burwell about the fishing trip and questioned Mr. Burwell's decision to leave at an odd hour. (GX-1, 13:38-15:34). Mr. Burwell answered all of Officer Powers's questions. (GX-1, 13:38-15:34).

         Officer Powers returned Mr. Burwell's and Ms. Boucher's licenses to them. (GX-1, 15:34-15:45). Officer Powers and Mr. Burwell spoke briefly, Officer Powers joking about the number of times he accidentally kept someone's license. (GX-1, 15:37-15:56). Officer Powers then said, “all right man, here's that warning. Like I said, that's for when I had you pulled over, you were swerving a little bit, not terrible but you come over on that fog line a couple times. So I was just making sure you was alright.” (GX-1, 15:56-16:05). Officer Powers handed Mr. Burwell the warning and said “there's that back.” (GX-1, 16:09).

         As Mr. Burwell turned and began to walk towards his car, (GX-1, 16:10), Officer Powers said, “hey before you go, you care if I ask you a few more questions?” (GX-1, 16:10-16:12). Mr. Burwell said “sure.” (GX-1, 16:12). Officer Powers said, “all right, man. Our boss has been on us pretty bad about being productive and trying to, you know, do work -- they like to see us out here working. Part of our job is to, you know, find drugs, large amounts of money, firearms, anything -- stuff like that. You don't have anything like that in the car do you?” (GX-1, 16:13-16:32). Mr. Burwell responded, “no sir, you can check.” (GX-1, 16:33). Officer Powers asked, “you don't care if I search it real quick?” and Mr. Burwell gave consent. (GX-1, 16:34-16:35).

         After having Ms. Boucher exit the car, Officer Powers searched inside the car. (GX-1, 16:36-27:54). After searching the passenger compartment for more than 10 minutes, Officer Powers opened the hood of the car. Under the hood, he found a handgun and methamphetamine. (GX-1, 27:52-28:08, 29:23-30:25). Officer Powers arrested Mr. Burwell. (GX-1, 28:08-29:23).

         In his motion to suppress, Mr. Burwell argues that Officer Powers's search under the hood of the car exceeded the scope of the consent that he (Mr. Burwell) provided. (Doc. 25, pp. 3-6). In response, the United States argues that Officer Powers reasonably interpreted Mr. Burwell's consent to extend beyond the interior of the car. (Doc. 26, pp. 4-7). In reply, Mr. Burwell argues that his consent was ineffective because Officer Powers improperly elicited consent after the traffic stop ended, and the interaction had not become a consensual encounter. (Doc. 29, pp. 1-5).

         II. ANALYSIS

         A. The traffic stop was complete before Officer Powers asked for permission to search Mr. Burwell's car.

         “A seizure justified only by a police-observed traffic violation, [] ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission' of issuing a ticket for the violation.” Rodriguez v. United States, 575 U.S. ---, 135 S.Ct. 1609, 1612 (2015) (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005)). “On-scene investigation into other crimes [] detours from that mission.” Rodriguez, 135 S.Ct. at 1616. “Highway and officer safety are interests different in kind from the Government's endeavor to detect crime in general or drug trafficking in particular.” Id.[4]

         When conducting a traffic stop, “[b]eyond determining whether to issue a traffic ticket, an officer's mission includes ‘ordinary inquiries incident to [the traffic] stop.'” Rodriguez, 135 S.Ct. at 1615 (quoting Caballes, 543 U.S. at 408). Such inquiries “involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.” Rodriguez, 135 S.Ct. at 1615. These incidental checks ensure “that vehicles on the road are operated safely and responsibly, ” and therefore “serve the same objective as enforcement of the traffic code” and do not unconstitutionally prolong the traffic stop. Id.

         The officer in Rodriguez stopped a car that the driver was operating on the shoulder of the road. The officer gathered the driver's license, registration, and proof of insurance, performed a records check on the driver, identified the vehicle's passenger, and issued a written warning to the driver for driving on the shoulder. The officer testified that at that point, the driver and passenger “had all their documents back and a copy of the written warning. I got all the reason[s] for the stop out of the way[, ] . . . took care of all the business.” Rodriguez, 135 S.Ct. at 1613. Nevertheless, the officer continued to detain the driver and walked a drug dog around the car, even though the driver had declined the officer's request for permission for a dog sniff. Finding that a “dog sniff is not fairly characterized as part of the officer's traffic mission, ” the Supreme Court held that the drug dog search was unconstitutional because it unlawfully prolonged the detention. Id. at 1615.[5]

         There may be aspects of an officer's traffic mission that may legitimately prolong a traffic stop. In United States v. Vargas, the Eleventh Circuit established that a police officer may lawfully prolong a traffic stop after issuing a citation for the traffic violation to resolve the disposition of the stopped vehicle. 848 F.3d 971, 974-75 (11th Cir. 2017). In Vargas, a police officer stopped a car for following too closely behind another car and issued a written warning for the violation. Because neither the driver nor the passenger had a driver's license, the officer questioned the occupants to determine how to safely and legally move the car. During this inquiry, the driver gave the officer consent to search the car. The Eleventh Circuit found that even though the police officer continued to detain the driver after he issued the warning ticket, the officer did not unlawfully prolong the traffic stop. Vargas, 848 F.3d at 875. The Eleventh Circuit explained that “[p]reventing them from driving off without a license is lawful enforcement of the law, not unlawful detention. What prolonged the stop was not [the officer's] desire to search the vehicle but the fact that both occupants of it could not lawfully drive it away.” Id. at 974-75.

         Here, “[w]hat prolonged the traffic stop” was Officer Powers's “desire to search the vehicle.” The traffic stop was complete before Officer Powers asked to search Mr. Burwell's car. There was a clear end to the traffic stop for failure to maintain the lane of traffic when Officer Powers returned Mr. Burwell's license, explained the warning to Mr. Burwell, and gave Mr. Burwell the written warning. At this point, Officer Powers's traffic mission was complete. The break in the chain was clear when Officer Powers began discussing the pressure he was under to be “productive.” That new conversation related solely to Officer Powers's desire to search Mr. Burwell's vehicle and his goal of obtaining consent from Mr. Burwell for a search.

         Unlike the officer in Vargas, Officer Powers did not have to resolve additional matters with the car after he gave Mr. Burwell a warning. Officer Powers observed no evidence of criminal conduct in the vehicle; he saw no guns or drugs - he smelled no marijuana. He noted that Mr. Burwell seemed nervous, but there is nothing particularly remarkable about a driver being nervous during a traffic stop. During the suppression hearing, Officer Powers acknowledged that drivers typically are nervous during a traffic stop; even he gets nervous when a police officer pulls him over. As the body camera footage reveals, Officer Powers prolonged the stop because he wanted to “sweet talk ...

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