U.S. v. Stewart

• Citation: 149 F.Supp.2d 236
• Decision Date: 27 June 2001
• Docket Number: No. CRIM. 01-144-A.,CRIM. 01-144-A.
• Parties: UNITED STATES of America v. Allen Edward STEWART, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

149 F.Supp.2d 236

UNITED STATES of America v. Allen Edward STEWART, Defendant.

No. CRIM. 01-144-A.

United States District Court, E.D. Virginia, Alexandria Division.

June 27, 2001.

Patricia M. Haynes, Morris R. Parker, Jr., U.S. Attorney's Office, Alexandria, VA, for Plaintiff.

Jeffrey Daniel Zimmerman, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Defendant Allen Edward Stewart has moved to suppress all evidence recovered pursuant to a traffic stop that resulted in his arrest and the seizure of marijuana, weapons, and drug paraphernalia in his possession. The questions presented by defendant's motion are (i) whether the police officer had a reasonable, articulable suspicion warranting the initial traffic stop; (ii) whether the officer was justified in requiring defendant to step out of his car; and (iii) whether the officer was justified in conducting a pat-down search of defendant and in arresting him when a distinct odor of marijuana was released from his coat pocket during the search.

I.¹

In the afternoon of February 28, 2001, Officer James Berling of the Fairfax County Police Department observed defendant driving a car in the parking lot of the Chantilly Public Library. Officer Berling is a school resource officer for Chantilly High School, which is located across the street from the Chantilly Library. Because many Chantilly High School students park their cars in the library parking lot on school days, Officer Berling was there to facilitate the flow of traffic exiting the lot at the end of the school day. Shortly after arriving at the library parking lot at approximately 2:30 p.m., Officer Berling noticed that the traffic exiting the parking lot had stopped. He then drove his patrol cruiser to the entrance of the lot to investigate the cause of the congestion and, in doing so, observed that defendant's vehicle was blocking traffic from exiting the parking lot. At this point, Officer Berling asked defendant what he intended to do, and defendant responded that he intended to back into a parking place, which he proceeded to do. In the course of this encounter, Officer Berling, whose cruiser was facing the front of defendant's 1984 Buick, observed that the Buick had no front license tag; he was not able to see the rear license tag because defendant backed into the parking slot. Officer Berling also noticed that the two rear passenger windows and the rear window on the Buick were very darkly tinted.

After watching defendant park his car in the library parking lot, Officer Berling drove his car to the rear of the library to investigate another matter.² Within five minutes, Officer Berling returned to the area of the lot where defendant parked his car and noticed two high school students seated with defendant in the Buick. Aware that Virginia law required a front license tag and prohibited the operation of a motor vehicle with windows tinted beyond a certain degree of opacity, and believing that the absence of a front tag on the Buick and the tinting on the car's windows violated these prohibitions,³ Officer Berling decided to conduct a traffic stop of defendant. He maneuvered his cruiser directly in front of the Buick, blocking it in the parking space. Officer Berling then approached defendant's car on foot and asked for defendant's license and registration. As defendant retrieved his license and registration, a pit bull terrier began to bark and growl menacingly at Officer Berling from the rear passenger compartment of the Buick. After defendant handed the officer the requested documents,⁴ Officer Berling conveyed to defendant that, because of the barking dog he felt uncomfortable conducting the stop with defendant in the car. Accordingly, Officer Berling directed defendant to step out of the car. Defendant, who, in Officer Berling's view, began to appear very nervous, initially expressed reluctance to exit his car and explained to the officer that, despite the barking and growling, the dog was friendly. Officer Berling was not persuaded and repeated his request that defendant exit the vehicle. Defendant ultimately complied, and also agreed to close the driver's side window to prevent the dog from further interfering with the encounter.

As defendant stepped out of his car, Officer Berling noted that, although the weather was unseasonably warm, defendant wore bulky, layered clothing, including a heavy flannel coat with obviously bulging pockets. He also noted that defendant appeared nervous, his eyes darting back and forth, and that defendant had started to pace about anxiously. Defendant's nervous behavior prompted the officer to ask defendant if he had any weapons, which defendant denied. The officer then asked defendant if he could perform a pat-down search, but defendant refused, denying that the officer had any right to conduct a pat-down and demanding to speak with Officer Berling's supervisor. Officer Berling again noticed defendant's nervous behavior and asked defendant if he intended to run. Defendant replied that he just wanted to speak with the officer's supervisor. At this point, Officer Berling called for a backup police officer to assist him in conducting the stop.

When the backup police officer arrived shortly thereafter, Officer Berling conducted a pat-down search of defendant. As Officer Berling ran his hands along defendant's waistband, he felt a large, compact object contained in a plastic bag in one of defendant's pockets that, when felt during the course of the protective search and without further manipulation, emitted an odor that Officer Berling recognized at once as that of marijuana.⁵ He then placed defendant under arrest and retrieved the object from defendant's pocket. It was, on closer inspection, a one-pound "brick" of marijuana. Officer Berling then continued the pat-down search and recovered, inter alia, additional, separately packaged marijuana and a knife. Following the pat-down search, defendant was placed in Officer Berling's cruiser for transport to the police station.

Detective Martin Nachtman arrived at the library parking lot shortly thereafter to drive the Buick to the police station. Prior to doing so, he searched the area immediately surrounding the driver's seat as a safety precaution and found no contraband. When Detective Nachtman arrived at the police station, he and another detective conducted an inventory search of defendant's car, pursuant to department procedures. This inventory search disclosed that the Buick's trunk contained, inter alia, plastic packaging material, ziploc bags, film canister containers, a scale, a red jacket that contained another marijuana brick in the lining, and an unlocked backpack that contained a sawed-off shotgun with the serial number filed off and some shotgun ammunition.

As a result of the pat-down search and the inventory search incident to the arrest, defendant has been charged with five counts of possession with intent to distribute marijuana and various firearms offenses.⁶ He now moves to suppress all evidence seized pursuant to the traffic stop on the grounds that the officer (i) had no reasonable, articulable suspicion to support the initial traffic stop; (ii) impermissibly expanded the scope of the traffic stop by ordering defendant to exit his car; (iii) conducted an invalid pat-down search of defendant; and (iv) did not have probable cause to arrest defendant after detecting an odor of marijuana in the course of the pat-down search.

II.

A. The Traffic Stop

Because a "[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons'" under the Fourth Amendment, automobile stops must be reasonable under the circumstances in which they occur. Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); see also Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). To pass muster under the Fourth Amendment, an automobile stop must be "justified by probable cause or a reasonable suspicion, based on specific and articulable facts, of unlawful conduct."⁷ As one court put it, "a traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring."⁸

These principles, applied to the totality of the circumstances in this case, compel the conclusion that Officer Berling had an objectively reasonable suspicion based on specific and articulable facts that defendant had violated or was violating Virginia law. Specifically, the officer had an objectively reasonable suspicion based on his observation of the Buick that its rear and side windows violated Virginia Code Section 46.2-1052, which makes it unlawful for any person "to operate any motor vehicle on a highway with ... colored or tinted film ... on .. [the] rear side mirrors, or rear windows of such motor vehicle," if the tinting film "reduce[s] the total light transmittance of such window to less than thirty-five percent."⁹ At the suppression hearing, the officer testified that based on his experience, car windows tinted within the limits prescribed by Virginia law allow observers located outside the vehicle to see into the passenger compartment. In this instance, however, Officer Berling testified that the rear windows on defendant's car were "blackened out" and did not permit him to see through these windows at all. Based on these facts, and "crediting the practical experience of officers who observe on a daily basis what transpires on the street," the officer clearly had an objectively reasonable suspicion that the tinting on the rear windows of defendant's car was in violation of Virginia law.¹⁰ Indeed, a subsequent test of the windows confirmed that they did not conform to Section 46.2-1052, as the total light...