United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
matter comes before the court on Defendant Gabriel Maldonado
Cardenas' motion to suppress evidence. (Doc. 18). A
magistrate judge issued a report recommending that the court
deny the motion to suppress (doc. 31), and Mr. Cardenas filed
objections to the report and recommendation (doc. 37). As
required by 28 U.S.C. § 636, the court reviews de novo
the parts of the report and recommendation to which Mr.
Cardenas moves to suppress a gun and two cell phones that
agents seized after stopping him in his car. (Doc. 18 at 3;
Doc. 30 at 71-72). The magistrate judge held a suppression
hearing at which Agent Jason Green, a task force officer with
the Drug Enforcement Administration ("DEA") and a
detective with the Pelham Police Department, testified. (Doc.
30 at 4-5). Mr. Green testified that in August 2018, he was
providing support for a "buy/bust" operation, in
which the DEA orders drugs and makes an arrest at the scene
of the sale. (Id. at 6). The target of the operation
was Mr. Cardenas' co-defendant, Jorge Flores, and the
buy/bust was supposed to happen at a restaurant called Mundo
Latino. (Id. at 7-8, 21-22). The agents suspected
that Mr. Flores used an apartment-known as a "stash
house"-about two and a half miles away from Mundo Latino
to store the drugs. (Mat 11, 58-60).
day of the operation, Agent Green parked his unmarked car in
a church parking lot situated about 500 feet away from Mundo
Latino and waited there alone. (Doc. 30 at 8, 16). As he
waited in his car, other agents conducting surveillance
radioed that Mr. Flores had left the block where his stash
house was located, driving a maroon Nissan. (Id. at
10-11). They also stated that a Hispanic man driving an older
model black Ford Ranger with FX4 stickers had left the same
block and "appeared to be traveling in tandem" with
Mr. Flores. (Id. at 10-11, 49, 58).
Agent Green sat in his car waiting, he heard over the radio
that Mr. Flores had arrived at the restaurant. (Doc. 30 at
51). Agents reported on the radio that a cooperating source
was having a conversation with "someone."
(Id. at 52). After a few minutes had passed, agents
gave the arrest signal and Agent Green began to move his car.
(Id. at 12, 52-53). As he started to move, he saw an
older black Ford Ranger with an FX4 sticker, driven by a
Hispanic male-later revealed to be Mr. Cardenas-driving away
from Mundo Latino. (Doc. 30 at 12-13). Mr. Cardenas made eye
contact with Agent Green as he drove by, then turned
"completely around" to look back toward the
restaurant where the arrest was taking place. (Id.
at 13). Without slowing down, he made an illegal U-turn in
front of the church. (Id. at 13, 15, 41-42).
Green testified that his attention was drawn to the Ford
Ranger because of the combination of (1) the Ford Ranger
matching the description of the car traveling in tandem with
Mr. Flores and (2) Mr. Cardenas turning completely around
then pulling a U-turn without slowing down. (Doc. 30 at
41-42). He stated that in his experience, drug dealers
frequently have other people nearby during a drug sale.
(Id. at 13-14). Suspecting that Mr. Cardenas might
be involved in the drug deal or might be going back "to
do something to the officer making the arrest"
(id. at 19-20), Agent Green decided to stop the Ford
Ranger by pulling his unmarked truck out in front of it
(id. at 14-15). He wanted to make contact with Mr.
Cardenas so that the officers could investigate whether he
was involved and what his intentions were. (Id. at
Agent Green pulled his truck out in front of the Ford Ranger,
he turned on his lights and siren to ensure that Mr. Cardenas
would see and hear him. (Doc. 30 at 16). Mr. Cardenas stopped
his truck about four feet away from the driver's side of
Agent Green's truck. (Id. at 15). Agent Green
ordered Mr. Cardenas to show his hands, and decided to get
out of his truck because he worried that Mr. Cardenas might
drive the Ford Ranger into his truck and pin him inside.
(Id. at 16). He drew his weapon and moved around the
Ford Ranger while commanding Mr. Cardenas to get out of the
car. (Id.). Mr. Cardenas sat in his truck with his
hands on the steering wheel, without moving or otherwise
responding to Agent Green's commands. (Id.).
Agent Green decided that he needed to get Mr. Cardenas out of
the truck so that he could not attempt to drive away, so he
opened the driver's side door of the truck, grabbed Mr.
Cardenas' hand from the steering wheel, and pulled him
out of the truck. (Id. at 16-17).
Agent Green pulled Mr. Cardenas out of the truck, he saw a
handgun fall from between Mr. Cardenas' legs. (Doc. 30 at
17, 35-36). Agent Green finished pulling Mr. Cardenas out of
the truck, placed him on the ground, and handcuffed him.
(Id. at 17-18). At this point, other officers
appeared. (Doc. 30 at 18). Those officers seized the gun and
eventually two cell phones found in Mr. Cardenas'
pockets. (Id. at 18, 71-72).
Fourth Amendment guarantees "[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. "[T]he general rule [is] that Fourth
Amendment seizures are reasonable only if based on probable
cause to believe that the individual has committed a
crime." Bailey v. United States, 568 U.S. 186,
192 (2013) (quotation marks omitted). But "the police
can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported
by articulable facts that criminal activity 'may be
afoot,' even if the officer lacks probable cause."
United States v. Sokolow, 490 U.S. 1, 7 (1989)
(quoting Terry v. Ohio, 392 U.S. 1, 30). Courts
refer to that kind of stop as a "Terry
stop." The magistrate judge recommended this court find
that Agent Green conducted a Terry stop for which
the government had established reasonable suspicion. (Doc. 31
at 9-10). In the alternative, the magistrate judge stated in
a footnote, Agent Green had probable cause to believe Mr.
Cardenas was involved in drug trafficking. (Id. at
10 n.6). Mr. Cardenas objected to the report and
recommendation, conceding that if the stop were an
investigative stop, the facts would support a finding of
reasonable suspicion, but arguing that this was actually a
full arrest, and the government had not met its burden of
establishing probable cause. (Doc. 37 at 2-3). Thus, the
question before this court is whether Agent Green's
actions constituted a Terry stop or an arrest.
deciding whether a stop was a Terry stop or an
arrest, the Eleventh Circuit has applied "four
non-exclusive factors . . . .: the law enforcement purposes
served by the detention, the diligence with which the police
pursue the investigation, the scope and intrusiveness of the
detention, and the duration of the detention."
United States v. Acosta, 363 F.3d 1141, 1146 (11th
Cir. 2004). "[A]n investigatory stop is not an arrest
despite the fact that a reasonable person would not believe
he was free to leave." United States v.
Blackman, 66 F.3d 1572, 1576 (11th Cir.1995) (emphasis
first factor is the law enforcement purpose served by the
stop. Acosta, 363 F.3d at 1146. In this case, the
purpose was to allow Agent Green to prevent Mr. Cardenas from
returning to the scene of Mr. Flores' arrest and to
question him about whether he was involved in the drug deal.
Agent Green did not stop Mr. Cardenas in order to search him
or the car. See Acosta, 363 F.3d at 1146. ("In
analyzing the first factor ... we have stated that the most
important consideration is whether the police detained the
defendant to pursue a method of investigation that was likely
to confirm or dispel their suspicions quickly, and with a
minimum of interference.") (quotation marks and
alterations omitted). Accordingly, the first factor weighs in
favor of finding that this was a Terry stop.
court will address the second and fourth factors together.
The second factor is the diligence with which the police
pursue the investigation, and the fourth factor is whether
the duration of the detention was reasonable.
Acosta, 363 F.3d at 1146. Agent Green acted promptly
when he stopped Mr. Cardenas and removed him from the car.
These factors also weigh in favor of finding that this was a
third and final factor in this case is the scope and
intrusiveness of the detention. Acosta, 363 F.3d at
1146. In analyzing this factor, the court must "ask
whether the scope and intrusiveness of the detention exceeded
the amount reasonably needed by police to ensure their
personal safety." Id. As long as an officer
possesses "an articulable and objectively reasonable
belief that the suspect is potentially dangerous," the
officer may "take reasonable steps to ensure [his]
safety." Id. at 1146-47 (citing Michigan v.
Long, 463 U.S. 1032, 1051 (1983). The fact that an
officer draws his weapon or handcuffs a suspect does not by
itself cause a Terry stop to become an arrest.
Cardenas concedes, Agent Green had reasonable suspicion to
believe Mr. Cardenas was involved in wrongdoing, and
specifically the drug deal set to occur 500 feet away in the
Mundo Latino parking lot. (See Doc. 37 at 3). Agent
Green testified that he pulled out in front of Mr. Cardenas
and yelled for him to show his hands and get out of the
vehicle. (Doc. 30 at 15-16). Mr. Cardenas' hands remained
on the steering wheel and he did not respond to Agent
Green's commands. (Id.). With Mr. Cardenas'
truck stopped only four feet from the driver's side of
Agent Green's truck, Agent Green feared that Mr. Cardenas
might try to either ram his truck or drive away.
(Id.) at 15-17). Based on these facts, the court
finds that Agent Green had an articulable and reasonably
objective belief that Mr. Cardenas was dangerous. S ...