United States v. Jacques

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE

         Defendant Raymond David Jacques, III (“Jacques” or “Defendant”), is charged with violations of 21 U.S.C. § 841(a)(1), possession with intent to distribute methamphetamine, and 18 U.S.C. § 924(c)(1)(A), possession of a firearm in furtherance of a controlled substance crime. Doc. 1. Evidence of those alleged crimes was seized from Defendant's vehicle as part of a controlled delivery involving a confidential informant (“CI”). Defendant filed a Motion to Suppress (Doc. 18), which is currently pending before the Court. In the motion, Defendant argues that his Fourth Amendment rights were violated because the police did not have reasonable suspicion or probable cause to stop or arrest him and that the evidence retrieved from his vehicle should be suppressed. Doc. 18 at 1.

         I. FINDINGS OF FACT^[1]

         On February 7, 2018, Detective Robert Hubbard (“Detective Hubbard”) conducted a search warrant at the residence of Erin Hurst (“Hurst”) located on Texas Court in Montgomery, Alabama. Supp. Hr'g. Tr. (Doc. 37) at 4. The search warrant followed a controlled buy in which Hurst had sold methamphetamine. Id. at 58. While being interviewed by the police after her arrest, Hurst agreed to provide the names of several people from whom she was purchasing methamphetamine. Id. at 4. Hurst did not sign a contract setting forth her duties in acting as a confidential informant, and Detective Hubbard had not previously worked with her. Id. at 16.

         One of the individuals identified by Hurst was the defendant in this case, Raymond Jacques, whom she calls “Bubba.” Id. at 6-7. Ms. Hurst told the police that Jacques lived on Forest Hills Drive and drove a white Nissan Titan truck. Id. at 7. Detective Hubbard used the computer systems available to the police department to verify Jacques' address and vehicle information given to him by Hurst. Id. at 7-8. Hurst also identified Jacques from a photo shown to her by Hubbard. Id. at 8. Upon verifying Jacques' residence address, Hubbard sent officers to Jacques' home to begin surveillance. Id. at 10.

         Hurst indicated to Detective Hubbard that she could arrange to buy half an ounce of methamphetamine from Jacques. Id. The interview between Detective Hubbard and Hurst was videotaped. The Government produced copies of the videotapes of the interview to the undersigned following the suppression hearing. The videos show that Hurst spoke to Jacques on the phone and that they texted over a span of almost four hours while Hurst was in custody at the police department.^[2] Below is a summary of the relevant activity from the video tapes.

         At the beginning of the video, Detective Hubbard asks Hurst, “Who are you getting your dope from?” See Video dated Feb. 27, 2018 at 15:50:48.^[3] Hurst was reluctant to answer the question, so Detective Hubbard told her that it was her choice and that she could “eat her [drug] charges” if she wanted. Id. Hurst then responds that her “dope” comes from someone named Cody Mobley but that Mobley had instructed her to go through Jacques for the last couple of weeks. Id. Hurst usually goes to Jacques' house to make the purchase, and the house is located in Forest Hills next door to Mobley. Id. She said she normally buys a “half ounce" at a time, and her most recent purchase was two nights earlier.^[4] Id. She also explained that it was about time for her to purchase again and that Jacques was “probably waiting on [her] now.” Id. She stated that she usually pays him $300.00, that she was short on money the last time she purchased from him, and that he has been adding $50.00 to each purchase to make up for the money she owes. Id.

         Approximately thirty minutes later, Detective Hubbard told Hurst to send Jacques a text message to see if “he's up and able to bring it to you.” Id. at 16:21:19. He tells her to say that she will be at her house on Texas Court in the next hour. Id. He further instructs her to tell Jacques that she will have some of his money and that she needs “to get a half.” Id. Hubbard watches over Hurst's shoulder as she types, and he continues to monitor each message that she types throughout the entire videotaped interview. Id. When Jacques does not immediately respond, Hurst asks if she should call him, but Hubbard says not to call him yet. Id. Hubbard eventually takes the phone and leaves the room. Id.

         Later, Hubbard comes back into the room and says Jacques responded by texting “did you find her” and that Jacques was asking whether Hurst had found any drugs. Id. at 18:00:30. Hubbard tells Hurst to ask Jacques to bring it to her house. Id. A few minutes later, Hurst calls Jacques and says that she needs to get up with him, is on Texas Court, and does not have a vehicle. Id. Jacques then says to give him about thirty minutes. Hubbard tells two other officers who are in the room with him to “get people in place.” Id.

         Approximately twenty minutes later, Hubbard tells Hurst to text Jacques and ask whether he is sure that he is going to be on his way. Id. at 18:23:54. He also said to tell Jacques that she has his money and that she already has “got some sold.” Id. He then tells Hurst to do whatever she has to do to “finalize the sale.” Id.

         A few minutes later Hurst and Hubbard discuss money again. Id. at 18:30:26. Hurst confirms that she normally pays Jacques $300 for a “half.” Id. Because Hurst already owes Jacques money, Hubbard suggests telling Jacques that she “hit a casino” and has $450.00. Id. They then discuss whether to call Jacques, but Hubbard tells her to text him and say that she “hit a little bit at the casino last night” and has $400.00. Id.

         About fifteen minutes later, Hubbard walks back in the room and tells Hurst that Jacques has responded by saying that he is home with his little girl and for Hurst to have someone drive her to his house. Id. at 18:46:25. Hubbard directs Hurst to tell Jacques that she is at her house alone, that it will be quick, and all he has to do is drop it off. Id.

         Later, Hubbard tells Hurst to ask Jacques what time he thinks he will be at her house because she is not going to have a ride. Id. at 18:54:48. After a couple of minutes, Hurst calls Jacques to ask when he will be leaving. Id. At the end of the phone conversation, Jacques asks about his money and Hurst replies that she has all of it. Id.

         Hubbard then instructs Hurst to “tell him to make sure you bring what you need.” Id. at 18:59:10. Thirty minutes later, Hubbard instructs her to ask Jacques if he has left yet. Id. at 19:30:40. Hurst calls but Jacques does not answer. Id. Jacques then calls Hurst, says he is on Atlanta Highway, and confirms that she is on Texas Court. Ten minutes later at 19:40:41. Shortly thereafter, Hurst leaves the interview room and the video ends. Id.

         As the deal between Hurst and Jacques was being set up, Hubbard relayed information to the officers doing surveillance. Doc. 37 at 28. In total, there were four detectives and five or six SWAT operators, not including supervisors, on the streets for the surveillance and the arrest. Id. at 29. Because the purpose of the operation was a “takedown” after a controlled delivery, ^[5] the police had no intentions of pulling Jacques over for a traffic stop after he left his residence. Id. at 30. The plan was to wait for Jacques to deliver the narcotics to 1806 Texas Court and then take him into custody. Id. at 37.

         Officer R.T. Jackson is one of the officers who surveilled Jacques' residence while the police were waiting for him to leave. Id. at 63. When Officer Jackson began the surveillance, he already knew that Jacques would be driving a white Nissan Titan truck. Id. at 63-64. Officer Jackson parked approximately fifty yards from Jacques' house and identified a vehicle matching that description at Jacques' residence. Id. at 64. While there, Jackson was in contact with the other officers involved in the investigation. Id. When Jacques left the residence, Jackson maintained visual on him as he traveled to Hurst's home. Id. at 64-65. Jacques lived three to four miles from Hurst and took a direct route to Hurst's home. Id. at 65. Officer Jackson followed Jacques until he turned onto Texas Court. Id. at 64-65. While following, he maintained contact with the other officers and relayed information to them. Id. at 66. He verified the vehicle description, advised that Jacques was speeding and driving erratically, and let them know the direction of travel. Id. Additional officers were located on Texas Court. Id. at 66-67.

         SWAT Operator Lee Alley was on standby a block or two away from the residence on Texas Court until Jacques' vehicle approached. Id. at 68-70. He had been given a vehicle description and a description of the suspect, and he observed the vehicle and suspect arrived on Texas Court at the same residence where he had conducted a search warrant earlier. Id. at 69. All of the information he received while on standby came from Detective Hubbard. Id. at 74. He and another officer waited approximately two or three hours before receiving information that the suspect was en route. Id. at 70. When Jacques' vehicle pulled into Hurst's driveway on Texas Court, Alley and his partner pulled in behind him with the blue lights and sirens, and Alley's partner approached the driver's side of the vehicle. Id. at 71. They asked to see Jacques' hands. Id. at 72. Jacques complied and was handcuffed. Id. He was placed in the back of the patrol car and transported back to the Specials Ops Division. Id. This took approximately three to five minutes, and neither Alley nor his partner searched the vehicle. Id. at 73.

         Corporal Todd Oliver was part of the SWAT team involved in the takedown. Id. at 77. He was parked several blocks away on the west side of Texas Court waiting for an undercover officer to advise that Jacques had arrived. Id. at 77-78. By the time Corporal Oliver arrived at the residence on Texas Court, officers from another vehicle had already made contact with Jacques and taken him into custody. Id. at 78-79. Corporal Oliver conducted a wingspan search of the driver's side of the vehicle to look for needles.^[6] Id. at 79. Corporal Oliver located a black handgun but did not touch it. Id. at 79, 81. The police were not aware of any criminal history for Jacques and did not know if he had a permit to carry a pistol. Id. at 32-33. After conducting the wingspan search, Corporal Oliver drove the vehicle to the office and turned it over to an investigator. Id. 81.

         Detective Hubbard testified that, when someone is arrested, vehicles are searched so valuables can be removed and then impounded. Id. at 49-50. When Jacques' truck was searched, the police located 66 grams of methamphetamine in a cowboy boot that was “behind the passenger seat, right underneath the child's car seat, up underneath the - where their feet would sit.” Id. at 14.

         When Detective Hubbard prepared the police report for this case, he wrote in the report that methamphetamine was discovered during the wingspan search. Id. at 31. While testifying, Detective Hubbard said more than once that the drugs were not found until the vehicle was taken back to the office and searched. Id. at 31. He admitted that the statement in the police report about the drugs being found during the wingspan search is incorrect. Id. at 32. Thus, there is no dispute that the methamphetamine was found after the vehicle was searched at the police department and not as part of the wingspan search conducted at the scene.

         II. DEFENDANT'S ARGUMENTS

         Defendant makes several arguments in his motion. First, he argues that, because the police report states that certain traffic violations were committed but no citations were issued, there can be no reasonable suspicion. Doc. 18 at 1-2. Next, he argues that the stop of Defendant was unlawful under Rodriguez v. U.S., 135 S.Ct. (2015) because the stop was prolonged beyond the reasonable time to complete the issuance of a ticket. Id. at 2. He also argues that the officers conducted a wingspan search after Jacques was taken into custody and after the police took his vehicle to the police department, but it was unnecessary because Jacques was cuffed immediately and was placed away from ...