U.S. v. Fleming

• Decision Date: 25 April 2002
• Docket Number: No. 01-CR-80162-DT.,01-CR-80162-DT.
• Citation: 201 F.Supp.2d 760
• Parties: UNITED STATES of America, Plaintiff, v. Dejuan FLEMING, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

201 F.Supp.2d 760

UNITED STATES of America, Plaintiff, v. Dejuan FLEMING, Defendant.

No. 01-CR-80162-DT.

United States District Court, E.D. Michigan, Southern Division.

April 25, 2002.

COPYRIGHT MATERIAL OMITTED

Michael Bolotta, Asst. U.S. Attorney, Detroit, MI, for Plaintiff.

Richard Helfrick, Federal Defender, Detroit, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

ROSEN, District Judge.

I. INTRODUCTION

Defendant Dejuan Fleming is charged in a one-count indictment for being a felon-in-possession of a firearm. The charge arises out of the search of his car after he was detained by Detroit Police officers on January 10, 2001 and questioned about having what appeared to be an altered temporary license tag in his rear window. This matter is presently before the Court on Defendant's Motion to Suppress Evidence. Counsel for the parties appeared for a hearing on Defendant's Motion on April 4, 2002 at which time, Defendant stipulated to the facts as presented by the Government in its March 2, 2002 Supplemental Response Brief with the exception of one fact alleged by the Government — whether, at the time the police officers first observed Defendant in his car on January 10, 2001, the motor of the car was running.¹ In light of this stipulation, the Court took the matter under advisement.

Having now had the opportunity to review and consider the parties' briefs and the applicable law, the Court is now prepared to rule on Defendant's Motion. This Opinion and Order sets forth the Court's ruling.

II. PERTINENT FACTS

At approximately 5:10 p.m. on the evening of January 10, 2001, Detroit Police Officers Jerry Jones and James Woodside were patrolling in a marked Detroit Police Department patrol car. According to the officers, it was still light outside at the time and visibility was good. While they were headed north on Field Street approaching Preston Street, the officers observed a black Lexus stopped next to the curb on Field Street. According to the officers, the Lexus' engine was running. (They observed emissions coming from the car's exhaust.)² Defendant Dejuan Fleming was seated in the driver's seat of the Lexus.³

As their patrol car approached the Lexus, the officers observed what appeared to be an altered temporary license tag in the rear window of the car. It appeared to the officers that the date on the tag had been altered as it appeared that the expiration date "1-31-01" had been changed to read "3-31-01" with the "3" appearing to be written over the "1" with a different marker. The officers then saw Defendant look in his rear view mirror (apparently observing them), and then bend forward in the vehicle as if he might be hiding something under his seat. The officers then saw Defendant reach back towards the back of the car.

At this point, the officers were aware of the possibility of two crimes having been committed: operating a vehicle without a valid registration plate (a misdemeanor under M.C.L.A. § 257.255), and altering a public certificate with intent to defraud (a felony under M.C.L.A. § 750.248). Based upon their experience, the officers also suspected that the car might be a stolen vehicle as they had in the past encountered invalid temporary tags used to conceal the fact that cars were stolen. Therefore, the officers decided to investigate.

They turned on their patrol car's lights and conducted a traffic stop of Defendant and the Lexus. Officer Jones approached the car on the driver's side and asked Fleming for his driver's license, registration and proof of insurance. Fleming stated that he did not have a driver's license, but had other paperwork relating to the car. Officer Jones then asked Fleming to step out of the vehicle and Fleming complied.

Once Fleming was out of the vehicle, Officer Jones placed him under arrest for operating a vehicle without a license, a violation of M.C.L.A. § 257.904a, which states, in pertinent part:

Any person, not exempt from license under this act, who shall operate a motor vehicle upon the highways of this state and who is unable to show that he or she has been issued a license to operate a motor vehicle by any state or foreign country valid within the 3 years preceding is guilty of a misdemeanor, and upon conviction shall be punished by not more than 90 days, or by a fine of not less than $50.00 more mor than $100.00, or both.

Officer Jones placed Fleming in the back of the patrol car, and pursuant to the policy of the Detroit Police Department, Officer Woodside began to conduct a brief search of the vehicle to ensure that there were no weapons in it prior to its impound. At this time, Defendant Fleming, without being prompted, told Officer Jones that there was a gun inside of the car.

Under the driver's seat, Officer Woodside found a loaded, semi-automatic Ruger 9 mm handgun and an additional loaded magazine containing 10 bullets in a map pocket on the driver's side of the seat.

During a subsequent more thorough inventory search⁴ of the Lexus after it was impounded, officers found a box of 9 mm ammunition (40 count), and a box of .380 ammunition (50 count).

On November 13, 2001, Fleming was indicted by a federal grand jury for being a felon-in-possession of a firearm based upon the semi-automatic Ruger found under the seat of Defendant's Lexus.

Subsequent to Fleming's indictment (apparently sometime between January 7 and March 7, 2002, i.e., after the instant Motion to Suppress was filed), the Government learned through further investigation that the temporary license tags on the Lexus were Louisiana temporary tags and had not been fraudulently altered, as Officers Jones and Woodside had thought. Further investigation revealed that the Lexus had been purchased from a dealer in Louisiana on January 3, 2001, i.e., a week prior to Defendant's arrest, and registered in Defendant's mother's name. The Government also has learned that temporary vehicle tags issued in Louisiana are valid for 60 days from the date the vehicle is purchased.

On December 19, 2001, Defendant Fleming moved to suppress his statement as to the presence of a firearm in the car and the firearm itself contending that the stop of his vehicle and his detention were not based upon probable cause or reasonable suspicion of criminal activity and his statement and the officer's discovery of the firearm are fruits of the illegal stop and seizure.

III. DISCUSSION

A. THE OFFICERS HAD A REASONABLE SUSPICION THAT DEFENDANT WAS OPERATING A VEHICLE WITHOUT A VALID LICENSE TAG AND HAD ILLEGALLY ALTERED THE TEMPORARY TAG

It is well-settled that police may briefly stop an individual for investigation if they have a "reasonable suspicion" that the individual has committed a crime. Terry v. Ohio, 392 U.S. 1, 28, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); Houston v. Clark County, 174 F.3d 809, 813 (6th Cir.1999). In United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), the Supreme Court held that "reasonable suspicion" entails only "some minimal level of objective justification" for making an investigative stop — that is "something more than an inchoate and unparticularized suspicion or `hunch', but less than the level of suspicion required for probable cause." Id. at 7, 109 S.Ct. 1581. See also, United States v. Hurst, 228 F.3d 751, 757 (6th Cir.2000) ("While an officer making a Terry stop must have more than a hunch, `reasonable suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.'")

Here, Officers Jones and Woodside had reasonable suspicion to believe that two violations had occurred which prompted their stop of Defendant: operating a vehicle without a valid registration plate, a misdemeanor under Michigan law;⁵ and altering a public certificate with intent to defraud, a felony.⁶ The stop was not based upon a "hunch," but rather on the officers' observation of a temporary tag upon which a "3" had been marked over a "1" in the month space of the tag, which appeared to have been an attempt to extend the expiration date of the tag. While it ultimately turned out that the vehicle was lawfully registered in Louisiana, the officers' observations at the time would have given a reasonable officer cause to stop the vehicle to investigate the expiration date of the tag and whether it had been illegally altered. See United States v. Bradshaw, 102 F.3d 204 (6th Cir.1996), cert. denied, 520 U.S. 1178, 117 S.Ct. 1453, 137 L.Ed.2d 558 (1997) (officer's observation of altered temporary tag justified stop of automobile); United States v. Sanders, 196 F.3d 910 (8th Cir.1999) (officer had reasonable suspicion to conduct traffic stop of trailer where he reasonably but mistakenly believed the vehicle was manufactured after 1973 and therefore required a second red tail light). See also, Delaware v. Prouse, 440 U.S. 648, 662, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (motorist subject to seizure where there was an articulable and reasonable suspicion that the automobile was not lawfully registered).

Defendant contends that the officers lacked reasonable suspicion to stop him for operating a vehicle without a valid registration plate because he was not technically "operating" the vehicle at the time of the stop as the car was stationary. The Michigan Vehicle Code defines "operate" and "operating" as "being in actual physical control of a vehicle regardless of whether or not the person is licensed under this act as an operator or chauffeur," M.C.L. § 257.35a. Furthermore, the Michigan Supreme Court has expressly recognized that "a conscious person in a stationary vehicle might have `actual physical control' and thus operate it" for purposes of the Michigan motor vehicle statutes. See People v. Wood, 450 Mich. 399, 403, 538 N.W.2d 351 (1995). In Wood, the court determined that, in the context of a drunk driving prosecution, a defendant who was found passed out and unconscious in a McDonald's drive-through lane with his...