U.S. v. Delano

• Decision Date: 26 February 2008
• Docket Number: No. 1:07-cr-00566.,1:07-cr-00566.
• Parties: UNITED STATES, Plaintiff, v. Randy S. DELANO, Loreal S. Johnson, Defendants.
• Court: U.S. District Court — Northern District of Ohio

543 F.Supp.2d 791

UNITED STATES, Plaintiff, v. Randy S. DELANO, Loreal S. Johnson, Defendants.

No. 1:07-cr-00566.

United States District Court, N.D. Ohio.

February 26, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Russell W. Tye, Tye & Associates, John B. Gibbons, Cleveland, OH, for Defendants.

Rebecca C. Lutzko, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.

OPINION & ORDER

[Resolving Doc. 25, 26]

JAMES S. GWIN, District Judge.

In this Opinion and Order, the Court determines the admissibility of tangible evidence and statements obtained after a June 3, 2007 traffic stop. The United States seeks to offer this evidence against Defendants Randy Delano and Loreal Johnson. Specifically, the Defendants challenge the initial stop and the seizure of Johnson. Defendant Johnson also says that subsequent statements that she made should be suppressed as fruits of the poisonous tree. For the reasons stated below, the Court DENIES Defendant Delano's motion and GRANTS Defendant Johnson's motion.

I. Background

The events surrounding the challenged search occurred in the course of a traffic stop. On June 3, 2007, Deputy George Taylor Cleveland, an Ashtabula County Sheriffs Office deputy sheriff, patrolled in a marked police car on Fortney Road, in Windsor Township, Ohio. Although Fortney Road is in a very rural and sparsely populated part of Ashtabula County, Deputy Taylor testified it is a hot-spot for drug and illegal activity in Ashtabula County. While he drove up Fortney Road, he observed a 1987 Chevrolet Camaro preparing to back from the driveway of a house occupied by a known drug dealer, Larry Adams, aka "Navigator J." [Tr. at 13-15].

Traveling toward the Camaro, Deputy Cleveland observed the vehicle stop abruptly as the deputy's car approach. When he drove by, Deputy Cleveland said that the driver of the car, later identified as Defendant Delano, shielded his face and looked away. Deputy Cleveland testified that the driver had ample time to pull out of the driveway before he passed, and he surmised the driver was avoiding him. [Tr. at 17-20].

After passing the residence and driveway, Deputy Cleveland slowed down and continued to drive south down the road, keeping an eye on the Camaro in his rearview mirror. Approximately three minutes later, when Deputy Cleveland estimated that he was about a mile down Fortney Road, the Camaro exited the driveway and began heading north, in the opposite direction from Deputy Cleveland's vehicle. Deputy Cleveland turned his car around, and drove approximately 60 miles an hour to catch up to the Camaro. [Tr. at 18-19, 79]. He was successful in catching up to the Camaro as the Camaro approached the intersection of U.S. Route 322 and Fortney Road. After catching up with the Camaro, Deputy Cleveland drove "a couple of car lengths behind it. [Tr. at 20].

From this vantage point, Deputy Cleveland testified that he could observe that the driver was not wearing a seatbelt.¹ Deputy Cleveland also testified that although he was two car lengths behind he could see the driver continuously look at his rear view mirror and he improbably testified that he could see the passenger raise her waist up in her seat and "[h]er arms were pushing something down to her middle section and her back was creating a leverage." [Tr. 106]. Acknowledging that a Camaro "sits low to the ground," Deputy Cleveland gave no credible explanation how he could see what a passenger was doing in her waist area. [Tr. 80].

Deputy Cleveland acknowledged that he "didn't believe that [his] observations at that point were substantial enough to make the stop independent of a traffic violation." [Tr. at 102] Therefore, Deputy Cleveland decided to follow-the vehicle, check the license plates for warrants, and observe the vehicle to develop probable cause. [Tr. at 104].

After following the Camaro to an intersection, Deputy Cleveland stated that he observed two moving traffic violations: the driver did not stop until well after the stop sign at the intersection of Fortney and OH-322 and the driver initiated his turn signal less than 100 feet before the intersection. [Tr. at 24]. Relative to the distance a vehicle is required to stop with regards to a stop sign, Deputy Cleveland apparently misunderstood Ohio law. Cleveland testified that "in the State of Ohio you also have to stop specifically at the stop sign, and then move past, if you need to." [Tr. 23]. Actually, Ohio law does not direct drivers to stop opposite the stop sign but instead requires: "(A) ... every driver of a vehicle [] approaching a stop sign shall stop at a clearly marked stop line, but if none, [] then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it." O.R.C. § 4511.43(A).

Deputy Cleveland radioed to his dispatch that he was going to stop the car. [Tr. at 28]. The radio log shows that he radioed his intention to stop the car at 6:47 pm. [Ex. 12].

Deputy Cleveland approached the car, and asked Defendant Delano, the driver, for his license, proof of insurance, and registration. He recognized Defendant Delano from a prior arrest for receiving stolen property — a firearm. As he spoke to Defendant Delano, Cleveland says Delano and the passenger acted nervously, allegedly sweating and tapping their feet. Deputy Cleveland also says that he observed three cell phones in the car, and testified that drug couriers often have more cell phones than people.

Deputy Cleveland then asked Defendant Delano to come to the back of the Deputy's patrol car. Deputy Cleveland testified that Defendant Delano was compliant.² After patting Delano down to insure that he possessed no weapons, Deputy Cleveland placed Defendant Delano into the back of his patrol car. Deputy Cleveland's patrol car had no door handles that would have allowed Delano to exit and he could not leave the back seat area without Cleveland's assistance. Deputy Cleveland did not handcuff Defendant Delano and allowed Delano to make calls on his cell phone, which he did.

At 6:54 pm, Deputy Cleveland radioed in both Defendant Delano's and Defendant Johnson's social security numbers for a warrant check. He then called for a K-9 drug dog unit at 7:03 pm. He further testified that Defendant Delano became extremely irate upon learning of the call for the drug dog. [Tr. at 38-40, Ex. 12].

Deputy Cleveland testified that he left Delano locked in the back seat of his patrol car and went to go talk to the passenger Defendant Johnson, to ask her for her information so he could write a ticket. Later introduced evidence, the Ashtabula County Sheriff Department radio log, proves that this testimony was untrue — Deputy Cleveland had already received and radioed her social security number to the Ashtabula Sheriffs Department before approaching Defendant Johnson. Deputy Cleveland also testified that he intended to give her the ticket for the seatbelt violation. As indicated, Deputy Cleveland already knew Defendant Johnson's social security number for purposes of writing any ticket for a set belt violation.

Deputy Cleveland testified that when he went to talk to her he had safety concerns because of the movements that he testified he had seen when they were driving. The Court finds this testimony not credible. It is not believable that from a distance of two car lengths Cleveland could see through the back of the Camaro seats, seats that are high relative to the roof, to see Johnson attempting to put something into her pants. [Tr. at 40-44].

Upon approaching Defendant Johnson, Deputy Cleveland testified:

My initial focus when I go up to talk to her specifically on her waistband that's the place where — that would be the danger area where I saw her moving her hands towards. I looked down and could see the belt was partially undone and her button was flipped down below the belt like somebody would have if they just buttoned it back up below the waistband of the pants right front pocket I could see very large bulge, bigger than two fists together in the front pocket like thigh area of her pants. Her pants were extremely tight, and you wouldn't have been able to hide anything in those pants let alone the size bulge down there, looked like a can of soup down there it was that big and that obvious.

[Tr. at 45]. Defendant Johnson's jeans were extremely tight-a picture of her in them reveals that an observer can see the outline of her pockets through the tightened denim material. [Ex. 3A].

Deputy Cleveland claimed that he could see a bulge and that he believed the bulge could be a gun. He asked her if she put something down her pants, but he received no response. Instead, "she looked straight ahead and didn't say anything to that first question. [] She started to even cry." [Tr. 46].

Deputy Cleveland told Johnson to exit the Camaro. After Defendant Johnson left the vehicle at Deputy Cleveland's direction, he handcuffed her behind her back. Although he claims that he handcuffed her out of a concern regarding her dangerousness, he never patted her down for the presence of weapons. Despite claiming that she had a bulge in a front pocket, he never sought to determine whether the bulge contained a firearm.

After handcuffing Johnson, Deputy Cleveland read her the Miranda warnings. He testified that he was "taking you to jail, and if you are found with any items on you in jail, that's a felony offense? ..." [Tr. 133]. He told her this although he testified that "I had no basis to arrest her at that point in time." [Tr. 133]. He inconsistently also testified that he would never have taken her to jail without determining what the bulge was, as a safety precaution. [Tr. at 45-50, 133].

He then asked Defendant Johnson whether she had a gun in her pants, to which she answered no. He asked her if she had drugs and she answered yes. He asked her how much and she said she thought about two ounces. At this time, he...