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United States v. Foster

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

July 13, 2018

UNITED STATES OF AMERICA
v.
LITTLE JOE FOSTER

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          SUSAN RUSS WALKER UNITED STATES MAGISTRATE JUDGE

         This case is before the court on defendant Little Joe Foster's motion to suppress (Doc. 25), the government's response (Doc. 32), and supplemental briefing (Doc. 40). The court held an evidentiary hearing on the motion over the course of two days - May 29 and June 12, 2018. For the reasons discussed below, the motion to suppress is due to be denied.

         FACTS [1]

         On August 25, 2017, members of the United States Marshal's Gulf Coast Regional Fugitive Task Force were assigned to serve an arrest warrant in Montgomery, Alabama on an individual named Frederick Bell. The task force is responsible for serving warrants for crimes of violence in the tri-county area, and Bell was wanted by the Montgomery Police Department (MPD) for assault first degree, shooting into an occupied building, and two counts of unlawful drug distribution. He was also on probation for distribution. The task force previously had received information that the defendant in this case, Little Joe Foster, was one of Bell's close associates. For this reason, officers obtained an address for Foster's wife, Kenyota Foster, at an apartment complex on Calmar Drive, believing that Bell might be found at that location, or that someone at the residence might have knowledge of his whereabouts.

         Members of the task force traveled to Calmar Drive to see if they could locate Bell and began to set up surveillance in several law enforcement vehicles. Some of the officers went into the apartment complex to find Kenyota Foster's apartment and determine whether her car was present. They advised the rest of the team over the radio that Foster's car, a blue Dodge Charger, was parked at the apartment complex. While the team was still setting up surveillance, two black males and two black females exited the building where Foster's car was parked and got into Foster's Dodge Charger. Task force officer Kevin Rosamond testified at the suppression hearing that the officer who saw the individuals get into the Charger did not say he knew “for a fact” that Bell was among them; thus, Rosamond characterized the stop that followed as an investigative stop. However, task force officer Kevin Byrd, who also testified at the hearing, recalled that the task force officers were advised (or “relayed”) that the driver of the Charger matched the description of Kenyota Foster, the front seat passenger matched the description of Little Joe Foster, and the passenger seated in the back behind the driver's side matched the description of Frederick Bell, based on photographs of these individuals. The officers were unable to identify the other passenger in the rear seat. The court finds Byrd's testimony credible.

         The officers who observed these individuals getting into the car radioed to other task force members that the Dodge Charger had come out of the apartment complex and turned left into Gas Light Curve heading toward Calmar Drive. Officer Kevin Byrd was positioned in that area in his Dodge Ram 1500 pickup truck, along with Rosamond. When Byrd saw the Charger, at around 9:00 a.m., he turned on his blue lights and siren and stopped it by pulling his vehicle in front of the Charger; his truck was facing the car, resting almost against the front bumper. At the same time, another officer pulled behind the Charger, and a third blocked the driver's side door with his vehicle. In all, there were ten or 12 officers at the scene.

         Byrd came out of his vehicle on the driver's side with his weapon drawn, and pointed his handgun into the car with the tactical light turned on so he could see inside through the window tint. The officers ordered the passengers to place their hands on the ceiling of the car and, according to Byrd, everyone complied except Bell. Rosamond testified that Little Joe Foster also “didn't want to put his hands up at first. He was moving towards the floor”; however, Rosamond said later in his testimony, “I remember Foster complying. Maybe a little bit slow, but, you know, not trying to hide anything.” Rosamond also said that Byrd was in the best position to see what Foster was doing. Again, the court finds Byrd's account credible.

         Byrd saw Bell reach around the vehicle and then reach toward his waistband. Byrd continued to order Bell to put his hands up, and Bell “came out with a black object” resembling “blue steel” that Byrd believed to be a handgun. Byrd said, “I think he's got a gun, ” to the other officers, and continued telling Bell to put his hands up. Byrd saw Bell reach toward the back of the driver's seat - where, as Byrd later learned, there was a seat pocket - and then start “grabbing again around his body where he was sitting, ” until he came out “with a purple bag.” Byrd saw Bell reach down and place the bag in the area of the floorboard; thereafter, Bell complied with the order to put his hands on the ceiling of the car.

         The task force officers proceeded to remove everyone from the vehicle for officer safety, based on their belief that there was a gun inside. Byrd opened the front passenger door where defendant Little Joe Foster was sitting, grabbed Foster by the wrist, and began to bring him out of the Charger. Foster said, “I have a gun, I have a gun.” The officers placed Foster face down on the ground beside the car, handcuffed him for officer safety, rolled him over on his side, and patted him down for weapons. They found a loaded Taurus Millennium 9mm handgun in the right front pocket of Foster's shorts, which he was wearing underneath his pants. Byrd and Rosamond both believed that Foster was a convicted felon, [2] and Byrd, at least, considered Foster to be under arrest at this time for unlawful possession of the weapon.[3]

         All the doors of the Charger were open, and the officers could smell a strong odor of “fresh” (that is, unburnt) marijuana emanating from the vehicle.[4] Byrd testified that “no matter where you stood around that vehicle, you could smell it.” Byrd walked around to the open door on the rear driver's side, and observed the butt of a handgun in the back pocket of the driver's seat, where Bell had been sitting. Byrd also could see the purple bag - a Crown Royal bag, which he had often seen used before to store narcotics - on the floorboard. Byrd testified that “[i]t looked like he [Bell] was trying to maybe push it with his foot or something under the seat[.]” After the firearm and the bag were photographed in place by Rosamond, Byrd collected the firearm, which was a revolver; a second firearm which he discovered in the seat pocket under the first one; and the Crown Royal bag. Byrd opened the purple bag and found a “green leafy substance, ” which smelled like marijuana, wrapped in individual clear plastic bags.

         Byrd then walked around to the passenger side where defendant Foster had been sitting. He could see a black rectangular box with one end resting on the passenger side floorboard and the other leaning against the seat. After the box was photographed in place by Rosamond, Byrd removed it and looked inside. He did this because the box was placed in such a way that “it would have been sitting in between Mr. Foster's legs, ” which Byrd considered unusual, and because officers “had already found drugs in the back seat, so it's very likely that there could be other drugs in that vehicle. And we can still smell marijuana, so there was an idea of - the amount of odor of marijuana, that there was more than just that little bag.”[5] Rosamond also testified to his understanding that the box was opened because of the smell of marijuana, and also because of the gun found on Foster and the history of the person (that is, Bell) whom the officers were there to arrest.[6] The box contained what the officers believed to be marijuana, crack cocaine, powder cocaine, ecstasy pills, and hydrocodone pills, which were individually packaged in clear plastic bags.

         By this time, all the passengers in the Charger had been handcuffed and secured for officer safety.[7] They were placed in law enforcement vehicles and transported to the MPD's special operations division, where the narcotics bureau was located. One of the task force officers drove the Dodge Charger there as well for further investigation, including a more thorough search,[8] a check for ownership, and possible seizure because of the drugs and weapons found.

         Sometime before noon on the same day, at the MPD special operations division, officer Jeffrey Ioimo and Detective R. Jackson advised defendant Little Joe Foster of his Miranda[9] rights prior to conducting an interview. A contemporaneous audio recording reflects that Jackson read Foster the rights form and asked Foster, “You understand that?” Government Exhibit 4. Foster replied, in the affirmative, “Uh-huh.” Id. Jackson signed the rights form under the first paragraph, indicating that this part of the form had been read to Foster. Government Exhibit 3. Jackson then read Foster the second paragraph, containing a waiver of rights, as follows: “I fully understand the foregoing statement [that is, the explanation of rights] and do willingly agree to answer questions. I understand and know what I am doing. No promise or threats have been made to me by anyone and no pressure of any kind has been made against me by anyone.” Government Exhibit 4. Jackson asked Foster, “Is that a true statement, ” and Foster said, “Yes, sir.” Id. Foster then signed the waiver, and Ioimo signed as a witness. Government Exhibit 3. Ioimo testified that Foster may have asked what was going to happen with Kenyota Foster, but said he could not recall specifically; however, the audio recording does not reflect any such query during the interview. Government Exhibit 4. Ioimo also testified that he did not believe that Kenyota Foster would have been charged with the narcotics, due to their location in the vehicle. In addition, he said that to his knowledge no threats or promises were made to Foster to persuade him to make a statement or waive his Miranda rights, and that Foster did not mention anything of that kind to him. During the interview, and after being Mirandized, Foster said that all of the items that were located in the front seat of the vehicle belonged to him, but not those found in the back seat.

         Defendant Foster testified at the suppression hearing that, while he was on the scene of the traffic stop, and prior to the custodial interview, “one of the officer[s]”[10] told him, “[I]f you don't own up to it, everybody in the car [is] going to jail.” Defendant said that he understood this to mean, “if I don't say this is mine, everybody [is] going to jail.” Defendant testified that in response to this statement, he said “on the scene, ” “it['s] mine.” When asked what “stuff was [his], ” defendant said, “that they said was in the box.” He testified that if he had not been told that “everybody [is] going to jail, ” he would not have made a statement indicating that the drugs were his during the custodial interview, and that the only reason he made the statement was to protect his wife.

         At the suppression hearing, the government asked defendant Foster whether he had been read his rights prior to his giving a statement during the custodial interview. Foster affirmed that he had. The government then asked if he understood his rights, and defendant answered, “Not really.” Foster also testified that he did not understand the court's warning that he had the right to remain silent prior to his taking the stand at the evidentiary hearing. When the government asked whether his testimony in court was voluntary, Foster said that it was not.

         DISCUSSION

         Defendant moves to suppress the drugs found in the front seat of the car and the statement he made after he was arrested.[11] The court takes each of defendant's arguments in turn.

         The Stop

         As an initial matter, it is unclear from the briefing whether defendant asserts that the officers lacked reasonable suspicion or lacked probable cause to stop Kenyota Foster's vehicle. The government maintains that because the officers had a warrant for Bell's arrest, and they believed Bell was in the vehicle, there was probable cause to effect the stop. See Doc. 32 at 5. The court agrees.

         A sister district court was confronted with this question in United States v. Provens, 2009 WL 10695199, *3 (N.D. Ala. 2009). That court explained:

Little authority is required to support the conclusion that police may conduct a traffic stop for the purpose of executing an arrest warrant for someone in the car. See United States v. Rosario, 305 Fed.Appx. 882, 885 (3rd Cir. 2009) (“[T]he Government established probable cause to stop the vehicle to execute the ... arrest warrant.”); United States v. Helton, 232 Fed.Appx. 747, 749 (10th Cir. 2007) (traffic stop was a reasonable investigative stop for purposes of executing an arrest warrant, even though passenger in car turned out not to be subject of warrant); see also Rodriguez v. Farrell, 280 F.3d 1341 (11th Cir. 2002) (no violation of the Fourth Amendment where mistaken identity led to arrest of wrong person under valid warrant)). At the very least, the admitted existence of the Marshall County arrest warrant provided the Scottsboro police with reasonable suspicion to make the traffic stop for investigative purposes. Indeed, given that Officer Manning knew the defendant and knew his automobile, there was express authority under the warrant to make the stop, just as any arrest warrant expressly authorizes the seizure of the subject of the warrant. By definition, a valid arrest warrant is a finding of probable cause to arrest. Consequently, the initial traffic stop raises no constitutional issue.

Id.

         In this case, as in Provens, an arrest warrant had been issued for an occupant of the car - passenger Bell.[12] Prior to the date in question, the task force officers had learned that Bell was closely associated with defendant. The officers obtained an address for defendant's wife, Kenyota Foster, at an apartment complex on Calmar Drive, believing that Bell might be found at that location, or that someone at the residence might have knowledge of his whereabouts. During the officers' surveillance of the property, they observed four individuals getting in a Dodge Charger which they believed belonged to Kenyota Foster. The officers were advised that the driver of the Charger matched the description of Kenyota Foster, the front seat passenger matched the description of defendant, and the passenger seated in the back behind the driver's side matched the description of Bell, based on photographs of these individuals. Because the officers believed that Bell may be in the vehicle, they had express authority, pursuant to the arrest warrant, to make the traffic stop for the purpose of executing the warrant. See id. Alternatively, based on the same facts outlined above, the officers had “at the very least … reasonable suspicion to make the traffic stop for investigative purposes.” See id. Thus, to the extent that defendant's motion challenges the legality of the stop, it is due to be denied. The court finds no constitutional violation here.

         The Detention

         Defendant argues that his detention amounted to an unlawful seizure because the officers lacked reasonable suspicion that he was engaged in wrongdoing.[13] The government does not specifically address this argument in its response to the motion to suppress, but in the “facts” section of that response maintains that “[p]ursuant to training and practice, [the task force officers] moved to secure all of the occupants.” See Doc. 32 at 2. Consistent with this statement, the government elicited testimony during the evidentiary hearing that defendant was initially detained for the purpose of officer safety.

         The court agrees with defendant that he was seized for the purpose of the Fourth Amendment when the officers stopped the car he was traveling in, ordered him to put his hands on the ceiling, grabbed him by the wrist, pulled him out of the vehicle, placed him face down on the ground, handcuffed him, rolled him over on his side, patted him down for weapons, and kept him secured until the conclusion of the encounter. See United States v. Mendenhall, 446 U.S. 544, 553-554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (“a person is ‘seized' ... when, by means of physical force or a show of authority, his freedom of movement is restrained. ... Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.); West v. Davis, 767 F.3d 1063, 1070 (11th Cir. 2014) (“‘[t]he Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.'”) (citation omitted).

         However, not all seizures violate the Fourth Amendment. When a car has been lawfully stopped, the Fourth Amendment permits the detention of a passenger for the safety of the officers, even if the passenger is not suspected of any wrongdoing, pending completion of the stop. ...


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