U.S. v. Burke

• Decision Date: 10 March 2009
• Docket Number: Criminal No. RWT-08-367.
• Citation: 605 F.Supp.2d 688
• Parties: UNITED STATES of America v. Dennis Egbert BURKE, Defendant.
• Court: U.S. District Court — District of Maryland

605 F.Supp.2d 688

UNITED STATES of America v. Dennis Egbert BURKE, Defendant.

Criminal No. RWT-08-367.

United States District Court, D. Maryland.

March 10, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Stacy Dawson Belf, United States Attorneys Office, Greenbelt, MD, for United States of America.

Joanna Silver, Office of the Federal Public Defender, Greenbelt, MD, for Dennis Egbert Burke.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

In United States v. Hassan El, the defendant sought to suppress evidence recovered during a valid traffic stop, arguing that the police "used the minor traffic violation (failing to stop at stop sign) ... as a pretext to conduct a stop of the [car] and to search, without justification, for more serious criminal activity." 5 F.3d 726, 729 (4th Cir.1993). He claimed that the "true motivation for stopping the car was [an] unsubstantiated hunch that the passengers were involved in some sort of criminal activity or that the car had been stolen." Id. The Fourth Circuit rejected Hassan El's claims, holding that when an officer observes a traffic offense and thus has probable cause to stop a vehicle, the seizure is reasonable regardless of whether the traffic violation is being used as a "pretext" to investigate "intuitive suspicions" of unrelated criminal activity. Id. at 730. Three years later, in Whren v. United States, the Supreme Court endorsed this result, holding that the reasonableness of a traffic stop does not depend on whether or not the stop is pretextual, because "subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

This case presents a slight, but critical variation on the scenario in Hassan El and Whren. The issue before the Court today is whether a traffic stop that is clearly pretext for investigation of unrelated criminal activity may still be upheld as reasonable under the Fourth Amendment when the Government fails to meet its burden of demonstrating probable cause for the pretext. The Court concludes that it may not, and therefore will GRANT the Defendant's motions to suppress.

I. PROCEDURAL HISTORY

The Defendant, a lawful permanent resident of the United States, has been charged by indictment with one count of making a false statement in an application for a passport in violation of 18 U.S.C. § 1542; two counts of falsely and wilfully representing oneself to be a citizen of the United States in violation of 18 U.S.C. § 911; and one count of identity theft in violation of 18 U.S.C. § 1028A(a)(1). The Defendant was arraigned on August 26, 2008 and has entered pleas of not guilty on all counts. The Defendant filed motions to suppress all tangible and derivative evidence and statements stemming from an allegedly illegal traffic stop on October 19, 2005 in Baltimore, Maryland. [Paper Nos. 11 & 13].

The Court held an evidentiary hearing on the pending motions on November 25, 2008. At that hearing, the Government's witnesses were unable to articulate their specific basis for believing that there was probable cause to stop Defendant's car for a traffic infraction. Upon the conclusion of the hearing, at the parties' request, the Court permitted supplemental briefing on the limited issue of the validity of the traffic stop. The Court then conducted a second hearing in this matter on February 19, 2009, to hear argument on the motions in light of the additional round of briefing.

II. FINDINGS OF FACT

Prior to the date of the traffic stop at issue in this case, a confidential source (CS) informed Immigration and Customs Enforcement (ICE) agents that a Jamaican man known as "Blessid" was involved with an organization smuggling cocaine through Baltimore-Washington International (BWI) airport. The CS provided a physical description of Blessid and advised he was living at 3120 Saint Paul Street, Baltimore, Maryland. The CS also identified a vehicle or vehicles used by Blessid. The agents ran a DMV database search on the license plate number of one of the specified vehicles, and discovered it was registered to "Paula Davis" at an address in Silver Spring, Maryland. ICE agents then ran a search of the address associated with the vehicle through the ICE database, and learned that Paul Davis, an ICE fugitive, was living at that address. According to the ICE database, Paul Davis was a Jamaican national with a history of smuggling cocaine into the United States.

Based on this information, ICE agents then set up surveillance at 3120 Saint Paul Street on October 19, 2005. At some point that evening, ICE agents observed the Defendant, who matched the CS's description of Blessid, enter one of the vehicles identified by the CS. Agents suspected that the Defendant was the fugitive Paul Davis, and/or Blessid. ICE Special Agent Willie Crump then contacted Baltimore police officer Konstantine Passamichalis, who in turn instructed officer Timothy Blasko, also of the Baltimore Police Department, to follow the vehicle and pull it over if he observed a traffic infraction. (Transcript of Evidentiary Hearing held November 25, 2008, at 108) (hereinafter, "Hr'g Tr.").

Shortly thereafter, Officer Blasko stopped Defendant's car. Defendant presented a Washington, D.C. driver's license bearing the name John Marque Pollard. The license listed the individual's height and weight as 5'6" and 165 pounds, which matched the physical appearance of the Defendant. At some point after the stop, Officer Passamichalis arrived on the scene and requested that dispatch perform a criminal history check on John Marque Pollard.¹ This information indicated that Pollard was 6'3" and 230 pounds.

Armed with this inconsistency, Agent Crump, who arrived after the traffic stop, approached Defendant and told him they believed he was Paul Davis, a Jamaican wanted for cocaine smuggling. (Hr'g. Tr. 23, 29). Defendant adamantly denied being Paul Davis, and a search of his vehicle did not turn up anything incriminating. Agent Crump contends that he then told the Defendant he was free to go and was not detained in any way, but that Burke voluntarily consented to accompany Agent Crump to the ICE offices to prove that he was not Paul Davis. The entire stop lasted approximately ten to fifteen minutes. (Hr'g Tr. 31). Defendant was never issued a traffic citation for speeding or any other violation. Defendant was then transported in Agent Crump's car to the ICE offices where he was fingerprinted.

Defendant testified that he was handcuffed at the scene of the traffic stop and did not feel free to leave. He stated that when Agent Crump asked him whether he would come with him to get fingerprinted, he stated he did not want to go. (Hr'g Tr. 143). At the time, Defendant was aware that he was wanted on a pending murder charge in West Virginia and that he was using a driver's license issued under someone else's name. He testified that he did not want to go with the officers because "I knew if I went to take my fingerprints, they would know exactly who I was," and he feared they would discover this incriminating information about him. (Hr'g Tr. 143, 147).

The testimony also differs on what happened when the Defendant arrived at the ICE office. Mr. Burke contends he was placed in a holding cell that was locked from the outside while the agents waited for the results of his fingerprinting. Had he been free to leave, Defendant stated that "I would have left. That's all I wanted to do." (Hr'g Tr. 147). In contrast, Agent Crump testified that after Davis submitted his fingerprints, he was free to roam about the office, make telephone calls, drink water and use the restroom facilities.

Ultimately, Defendant's fingerprint analysis revealed that he was Dennis Egbert Burke, and that there was an outstanding warrant for his arrest for a murder in West Virginia.

III. ANALYSIS

When a consensual search is preceded by a Fourth Amendment violation, the government must prove not only the voluntariness of the consent under the totality of the circumstances, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), but also must "establish a break in the causal connection between the illegality and the evidence thereby obtained" so that the consent cannot be considered an exploitation of the illegal act. United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir.1994) (quoting United States v. Recalde, 761 F.2d 1448 (10th Cir.1985)); 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(d) (4th ed. 2004). Thus, if relying on consent to justify a search or seizure, "the government has a heavier burden to carry when the consent follows an illegal stop." Melendez, 28 F.3d at 1054. The two requirements (voluntariness and exploitation) will often overlap to a considerable degree, but they address separate constitutional values and they are not always coterminous. Id. "In short, there is an exclusionary purpose as well as a fairness purpose in depriving police of the fruit of an illegal arrest or search." Id. at 1055.

A. Government Has Failed to Show Probable Cause for Traffic Stop

When police stop a vehicle, they conduct a seizure within the meaning of the Fourth Amendment, and that seizure must be reasonable. See Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Regardless of the officers' subjective intentions, the decision to stop a vehicle is reasonable if the police had "probable cause to believe that a traffic violation has occurred." Id. at 810, 116 S.Ct. 1769. In United States v. Hassan El, the Fourth Circuit held that a traffic stop does not violate the Fourth Amendment when police officers use an observed traffic violation as "pretext" for stopping a vehicle, "regardless of the fact that the officer would not have made the stop but for some hunch or inarticulable suspicion of other criminal activity." 5 F.3d 726, 730 (4th Cir.1993). The Government bears...