United States v. Mitchell
| Decision Date | 04 January 2023 |
| Docket Number | 22-cr-36-wmc |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. BRIAN MITCHELL, Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN MITCHELL, Defendant.
No. 22-cr-36-wmc
United States District Court, W.D. Wisconsin
January 4, 2023
REPORT AND RECOMMENDATION
STEPHEN L. CROCKER, Magistrate Judge
REPORT
The grand jury has charged defendant Brian Mitchell with being a felon in possession of a firearm, based on a December 22, 2021 traffic stop on the Interstate during which a state trooper opened the door of Mitchell's truck, which led to the discovery and seizure of a handgun.[1] Mitchell has filed a motion to suppress the firearm, claiming that this search exceeded the scope of the traffic stop and was not supported by probable cause. Dkt. 20. The government opposes the motion, contending that the trooper smelled raw marijuana while approaching Mitchell's truck, which gave him probable cause for a vehicle search. Dkt. 37. Mitchell replies that the evidence does not support the trooper's version of events. Dkt. 41.
For the reasons stated below, I am recommending that the court grant Mitchell's motion to suppress evidence.
Applicable Law
Mitchell is not challenging the initial traffic stop, which was based on uncontested evidence that he was speeding. From there, the government acknowledges that it has the burden to establish probable cause that there was contraband in Mitchell's truck before the trooper could open the truck door. See gov't. Br. in Opp., dkt. 37 at 2; see also United States v. Cole, 21 F.4th 421, 427-28 (7th Cir. 2021)
(traffic stops must remain limited in scope; police may not detour from that mission to investigate other criminal activity); United States v. Ochoa-Lopez, 31 F.4th 1024, 1026 (7th Cir. 2022) (police may search a vehicle without a warrant if the search is supported by probable cause).[2]
Probable cause exists when, based on the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Ochoa-Lopez, 31 F.4th at 1027. Although there are challenges pending at the district court level, the current law of this circuit is that a police officer who smells the aroma of marijuana wafting from a motor vehicle has probable cause to search that vehicle. United States v. Shaffers, 22 F.4th 655, 659 (7th Cir. 2022), quoting United States v. Franklin, 547 F.3d 726, 733 (7th Cir. 2008). So, Mitchell's motion to suppress pivots on whether the trooper actually smelled the aroma of raw marijuana wafting from Mitchell's truck as the trooper approached it. I conclude that the evidence fails to support this contention.
Facts
Both sides submitted exhibits, including the trooper's January 7, 2022 testimony at a state preliminary hearing (dkt. 20-1), his March 22, 2022 testimony before the grand jury (dkt. 37-1), and the partial dash cam recording made by the trooper. This court held an evidentiary
hearing on October 4, 2022 (see transcript, dkt. 35). Having carefully considered all of the transcripts and exhibits, and having carefully considered the testimony and the demeanor of the witnesses, see United States v. Olson, 41 F. 4th 792, 802 (7th Cir. 2022), I find the following facts:
The stop and search
Keegan Williams is a Trooper with the Wisconsin State Patrol who had been with WSP for about six years at the time. Part of Trooper Williams's training included a 40-hour segment on drug investigation. He was trained to identify and detect controlled substances by sight and by smell. Trooper Williams is familiar with the odor of raw marijuana, which he deems the easiest drug to detect by smell on the roadside because of its strong, unmistakable aroma. Trooper Williams investigates drug crimes on average a couple of times a month.
Bridging the late evening of December 21/early morning of December 22, 2021, Trooper Williams was on duty on I-94 in Jefferson County, west of Johnson Creek, operating a fully-marked squad car equipped with a radar device and a front-facing video camera, often referred to as a dash cam. He was parked in the median, facing west toward Madison. At about 1:20 a.m., the radar in Trooper Williams's squad car clocked an eastbound pickup truck traveling at about 80 MPH in a 70 MPH zone. Defendant Brian Mitchell was driving this truck, accompanied by a female passenger. Trooper Williams pulled out to perform a traffic stop of the truck. Mitchell pulled over and stopped on the shoulder.
What happened next forms the factual crux of Mitchell's suppression motion: Trooper Williams contends that as he approached the truck from behind, he smelled the strong odor[3] of
raw marijuana emanating from the truck, whose windows and doors still were shut.[4] Trooper Williams testified that he questioned Mitchell through the now-open driver's window; after explaining the speeding stop and looking at Mitchell's driver's license, Trooper Williams says he asked Mitchell if there was-or ever had been-any marijuana in the truck; Mitchell said no.
Trooper Williams testified that he asked Mitchell to step out of the truck, but Mitchell declined. Trooper Williams testified that this caused him to pull open the driver's side door in order to detain Mitchell on a drug charge and to search the truck for drugs. Upon opening the door, Trooper Williams saw a handgun with an attached drum magazine on the floorboard by Mitchell's left foot. Trooper Williams grabbed the gun for his own safety. This is the firearm charged against Mitchell in this federal prosecution.
Mitchell sped away, but about 1JZ miles down the highway he pulled over on his own, exited his truck and prostrated himself on the highway shoulder. Trooper Williams caught up to Mitchell and soon was joined by other troopers and deputy sheriffs. They arrested Mitchell and searched the truck.
Mitchell disputes Trooper Williams's claim that he smelled raw marijuana as he approached Mitchell's truck; Mitchell asserts that Trooper Williams did not have any evidence of a drug violation that would have justified opening the door of Mitchell's truck to detain him and to search the truck.
The physical circumstances attendant to the traffic stop
The challenged search took place after midnight on December 22, 2021. It was cold and a steady wind was blowing.[5] The truck was a Dodge Ram crew cab with four passenger doors and an interior back seat.
When the state troopers encountered and arrested Mitchell following his brief flight, they searched his truck. This search resulted in the seizure of a Crown Royal Bag containing MDMA pills and about three ounces of fentanyl and cocaine. Also found on the floor of the backseat of the truck was a backpack.[6] In this backpack was “just a small amount” of marijuana: according to Trooper Williams,
It wasn't contained in any sort of bag. It was just kind of what was left from maybe something once being in there, but it was scattered all around the bag, and there was-it was such a small amount that I - there would be no value in seizing it as evidence.
Ev. H'ing Tr., dkt. 35, at 19.[7]
No other marijuana was detected-visually or by aroma-during this on-the-scene search of the truck.
Either later that same night, or more likely the next night, Trooper Danny Daniels was tasked with searching Mitchell's impounded truck for a set of keys that belonged to the passenger. The truck was parked indoors at an impound lot. Trooper Daniels didn't find the keys, but he testified that he found a small “personal use” amount of marijuana in a plastic bag that was twisted closed and cached in a cup holder in the driver's side door. This bag of marijuana had not been discovered or reported by the two officers who had searched the truck-including its driver's door[8]-the night of the traffic stop. Trooper Daniels testified that he could not smell this marijuana before he opened the truck door, and that even then, the odor was “faint.” He testified that he did not seize this marijuana, he left it where it was in the truck. He did not photograph it. He did not report it until Trooper Williams asked him to later.
Based on the remarkably small amount of marijuana discovered-but never seized, photographed, or preserved by the State Patrol-inside a backpack inside the closed truck, and inside a closed baggie inside a cup holder inside the closed truck-which was not detected at all by Trooper Williams (or the assisting deputy sheriff) during their December 22 search-in conjunction with the cold, windy weather that night, I find and conclude that Trooper Williams's claim that he smelled the odor of raw marijuana as he approached Mitchell's truck is incredible.[9]
True, this was not impossible, in the sense that it would violate the immutable laws of nature, see United States v. Kuzniar, 881 F.2d 466, 471 (7th Cir. 1989). However, as the court observed in Sandoval v. Acevedo, 996 F.2d 145, 150 (7th Cir. 1993), “anything is possible but this is distinctly unlikely.” Cf. Olson, 41 F.4th at 802 (appellate court may deem a lower court's credibility determination clearly erroneous where a magistrate judge “credited exceedingly improbable testimony”), quoting United States v. Wendt, 465 F.3d 814, 816 (7th Cir. 2006).
Many judicial officers-including this one-will, when the circumstances justify it, give law enforcement officers the benefit of the doubt when they testify, because the officers have training and experience in their field,[10] and as trial and hearing witnesses.[11] But as noted in the following sections, the circumstances here do not justify crediting Trooper Williams's account of what he claims to have smelled.
No marijuana was seized or photographed
The state troopers did not seize or contemporaneously document their discovery of the marijuana that Trooper Williams claimed to have smelled and that Trooper Daniels claimed to have found in the cup holder. Both troopers testified that they viewed these small amounts of marijuana...
To continue reading
Request your trial