United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
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.
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). 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).
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).
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). 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,
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).
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).
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).
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,
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).
The traffic stop was complete before Officer Powers asked
for permission to search Mr. Burwell's car.
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.
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.
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.
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
“[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.
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 ...