United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
W.
KEITH WATKINS UNITED STATES DISTRICT JUDGE
Defendant
Robert Williams, Jr. has moved to suppress incriminating
evidence revealed during a search incident to a traffic stop.
(Doc. # 22.) The Magistrate Judge recommended that his motion
be denied. (Doc. # 33.) Defendant objected. (Doc. # 38.)
After an independent and de novo review of the
record, the Recommendation, and the objections, the court
will adopt the Recommendation and deny Defendant's motion
to suppress.
I.
DISCUSSION
A.
Defendant consented to the search of the cigarette
pack.
Defendant
first argues that, contrary to the Recommendation's
conclusion, he did not consent to the search of the cigarette
pack. The court disagrees. The totality of the circumstances
shows that Defendant consented to the search.
To
begin, it is undisputed that the officer asked if he could
have the cigarette pack, and Defendant told his female
passenger to give it to the officer. (Doc. # 33, at 4.) That
action was voluntary. There were only two officers at the
scene, and they did not have their weapons drawn. Defendant
was not physically restrained. And there is no evidence that
the officer asked for consent in a threatening manner or
retained Defendant's driver's license so that he
could not leave. See United States v. Perry, 522
Fed.Appx. 821, 826 (11th Cir. 2013) (holding that consent
search was voluntary when only three officers were present,
their weapons remained holstered, and they did not ask for
consent in a threatening manner, even though officer retained
defendant's license).
Defendant
argues that his passenger's becoming “frozen”
and noncompliant when the officer asked for the cigarette
pack shows that she and Defendant perceived the
officer's conduct as threatening. But Defendant cites no
authority suggesting that, under these objective
circumstances, his consent to the search was not voluntary.
Once
the officer discovered the drugs in the cigarette pack, he
had probable cause to arrest Defendant and search his person
as a search incident to that arrest. See United States v.
Anderson, 131 Fed.Appx. 212, 215 (11th Cir. 2005)
(“Once the Terry frisk revealed the concealed
weapon . . . [the officer] had probable cause to arrest [the
defendant] and to conduct a more thorough search incident to
that arrest.”). Thus, the officer's search of
Defendant's person that revealed the pistol was also
lawful.
The
analysis could end there. But since the Recommendation (and
the objections) address alternative grounds for denying the
motion to suppress, the court will do so as well.
B.
The officer had reasonable suspicion to conduct a Terry
protective search of the cigarette
pack.
Defendant
next contends that the officer lacked reasonable suspicion to
conduct a Terry protective search of the cigarette
pack and of Defendant's person.
These
objections fall short, too. First, the circumstances
surrounding the stop would have raised the suspicion of a
reasonable officer.[1] The stop occurred in the middle of the
night. As the officer approached Defendant, he observed that
Defendant was wearing apparel identifying him as a member of
a motorcycle club known to be involved in violent criminal
activity. Just one hour earlier, the officer helped arrest a
member of the same club who was carrying three handguns.
(Doc. # 33, at 3-4.)
Second,
Defendant's actions were suspicious. The officer observed
him hand the cigarette pack to his female passenger, who then
hid it between her legs. (Doc. # 33, at 4.) The officer
believed the pack could contain a weapon such as a
pocketknife or razor blade (Doc. # 33, at 4), or even a small
Derringer pistol (Doc. # 31, at 32). When asked what was in
the pack, Defendant gave an evasive answer. See Devenpeck
v. Alford, 543 U.S. 146, 155-56 (2004) (noting that
officers' suspicion that individual was not being
truthful supported probable cause to arrest). Under these
circumstances, it was reasonable for the officer to do a
Terry protective search of the pack.
Defendant
objects that the officer had no specific information about
the motorcycle club using pocketknives or razor blades as
weapons or hiding them in cigarette packs. But the officer
did know that the club members had a history of violence and
that one had just been arrested with three ...