United States v. Sellers
| Docket Number | 2:21-cr-438-ECM-JTA |
| Decision Date | 08 July 2022 |
| Parties | UNITED STATES OF AMERICA v. BRIAN KEITH SELLERSs |
| Court | U.S. District Court — Middle District of Alabama |
(WO)
RECOMMENDATION OF THE MAGISTRATE JUDGE
This cause is before the court on Defendant Brian Keith Sellers' motion to suppress (Doc. No. 20), the government's response in opposition (Doc. No. 25), and Sellers' reply thereto (Doc. No. 31). After due consideration of the parties' arguments, evidence and applicable law, the court concludes that the motion to suppress is due to be denied.
Brian Keith Sellers was arrested by Millbrook police officers after a warrantless search of his vehicle on June 10, 2021. He was charged by a grand jury in the Middle District of Alabama in a three-count indictment on October 27, 2021. (Doc. No. 1.) The indictment charges Sellers with three federal firearms offenses. (Id.) Sellers entered a plea of not guilty to each count during his arraignment on December 15, 2021. (Doc. No. 11.)
Sellers filed his motion to suppress evidence and statements on February 11, 2022. (Doc. No. 20.) After receiving the United States' response and Sellers' reply thereto, the undersigned conducted an evidentiary hearing on the motion on March 1, 2022. (Doc. No. 38, Transcript of Evidentiary Hearing.) The motion is ripe for review.
The testimony from the hearing demonstrates that shortly before 8:00 a.m. on June 10, 2021, Millbrook Police Officer Duntrevious Esco[1] encountered a black sedan.[2] He ran a license plate check on the vehicle, discovered that the plate was registered to another vehicle, and initiated a traffic stop near the intersection of Magnolia Drive and Deatsville Highway in Millbrook, Alabama. (Doc. No. 38, Tr. at 8, 9, 14-15, 21.) When Esco initiated his emergency equipment in his vehicle, he observed the driver of the black vehicle reach around the vehicle cabin. When that vehicle came to a rest, Esco observed the driver reach under his seat with his right hand and remove his seat belt with his left hand. Esco suspected the driver may have been reaching for a firearm in the vehicle, so he requested assistance for officer safety purposes.
Esco exited his vehicle and approached the black vehicle. As Esco stood next to the black vehicle, he observed a jumper cable box, a compound bow and a bag of tools which included drills, a Sawzall[3] and a flashlight, on the back seat. Esco greeted the driver of the black vehicle and the driver immediately explained that he lost his current license but had an old one. The driver held the license outside of his window and dropped it on the ground. (Govt. Ex. C at 13:00:00 - 13:00:09.) Esco picked up the license and the license identified the driver as Nathaniel Smith.[4] Esco wrote down the driver's license number of the female passenger and explained that the tag on the car “comes back to” a different vehicle. (Govt. Ex. C at 13:00:09 - 13:00:51.) The driver responded that “his girl” recently bought the vehicle and put the tag from another vehicle on that vehicle. (Govt. Ex. C at 13:00:54 -13:01:59.) Esco asked if there were any weapons in the vehicle and the driver quietly said “no, sir” while looking down. The driver then gave Esco an Alabama Title for Motor Vehicle and a handwritten bill of sale. (Govt. Ex. C at 13:01:02 - 13:01:20.) Upon inspection of the documents, Esco asked the female passenger her name. She responded that her name was Kaila Bringhurst and clarified that she was not the owner of the vehicle. With the documents in hand, Esco returned to his vehicle. (Govt. Ex. C at 13:01:40 -13:01:59.)
Using the equipment in his vehicle, Esco immediately determined that on June 1, 2021, he arrested the registered owner of the black vehicle, Tammy Wellman. Esco had conducted a traffic stop on Wellman for a switched tag and arrested her for an outstanding warrant and possession of methamphetamine. Esco called his supervisor, Lieutenant S. Youngblood, to explain that he was conducting a stop on the same car Wellman was driving when she was arrested, that the occupants of the car were “showing signs of ‘other things'[5]” and that the driver “was reaching a lot” and had “a lot of tools.[6]” As Esco was reporting these signs to Youngblood,[7] he ran the license of Nathaniel Smith. Esco's system reported a high alert warning[8] for Smith because he had 20 felony charges and no active warrants. (Govt. Ex. C at 13:02:19 - 13:04:36.) Esco's observation of a Sawzall and flashlight in the back seat of the black vehicle indicated to him that the occupants of the vehicle may have been involved in the theft and sales of catalytic converters, a common activity of methamphetamine users who sell the stolen items to get money for narcotics. At the time of the stop, “a lot” of catalytic converter thefts from vehicles were being reported in Millbrook.
Approximately six minutes after the stop began, Youngblood arrived with Corporal K. Bryant. Esco explained to Youngblood that he noticed Bringhurst repeatedly reaching over to the driver and the armrest/seat area of the vehicle before it came to a stop. Esco then turned the traffic stop over to Youngblood for the issuance of citations. Esco returned to the driver side of the black vehicle and Bryant positioned himself on the passenger side. Esco requested the driver to exit the vehicle and the driver responded by asking why the car was being searched and telling Esco that he needed probable cause or a warrant to conduct a search. Esco testified that he had not decided to search the car at that point but wanted the driver to exit the vehicle so he could conduct a pat down due to the driver's suspicious movements, which was standard procedure for officer safety. (Doc. No. 38, Tr. at 32-33, 35.) Following the driver's refusal to exit the vehicle, Esco asked the driver and Bringhurst to exit while counting to three repeatedly. After directing Bringhurst where to stand upon her exit from the car, Bryant returned to the passenger side of the black vehicle, drew his taser and pointed it at the driver, stating “hey man, step out the car.” (Govt. Ex. A at 13:05:57 - 13:06:20.) The driver exited the vehicle and continued to ask whether probable cause existed for a search while Esco placed him in handcuffs. (Gov. Ex. C at 13:05:42 - 13:06:59.)
Esco escorted the driver to the rear of the black vehicle where Bringhurst, who was not handcuffed, stood next to Bryant. (Govt. Ex. C at 13:06:59 - 13:07:08.) Esco then walked to his vehicle, told Youngblood to open the trunk and then retrieved rubber gloves. (Doc. No. 38, Tr. at 35; Govt. Ex. C at 13:07:19-13:07:44.) Esco returned to stand by the driver, began placing his hands in the gloves, and inquired if anything was inside the vehicle he should know about. The driver responded that he did not know the contents of the car because it was not his car. Esco testified this response caused him to decide to search the car because he believed that the driver was “attempting to hide evidence.” (Doc. No. 38, Tr. at 36; Govt. Ex. C at 13:07:51 - 13:08:13.) The driver continued to move nervously about while Esco asked him questions about the contents of the vehicle. (Govt. Ex. C at 13:08:02 - 13:08:24.) Bryant then walked the driver away from the black vehicle and toward a police vehicle while Esco asked Bringhurst if there was anything in the vehicle he should know about because he saw “a lot of movement” as he was pulling them over. Bringhurst responded that she was reaching for her phone and did not have anything. (Govt. Ex. C at 13:08:24 - 13:09:16.) Esco then walked to the driver side of the black vehicle, reached inside, and recovered a black bag from the floor of the driver's seat. (Govt. Ex. C at 13:09:18 - 13:09:33.) A firearm was discovered in the black bag. (Govt. Ex. A at 13:09:24 - 13:09:34.)
During the same time frame, Bryant conducted a pat down search of the driver and discovered a syringe in one of his pants pockets. (Govt. Ex. A at 13:08:42 - 13:09:03.) As Bryant completed his search of the driver, Esco can be seen in the top left of Bryant's body camera video shortly before Esco searched the vehicle and discovered the firearm.[9] (Govt. Ex. A at 13:09:14.) At this point, Bringhurst revealed after more thorough questioning that she was in possession of a “bowl” or glass pipe commonly used to consume narcotics. Bringhurst removed the item from her pants and provided it to Bryant.
The officers arrested the driver and transported him to the Elmore County Jail. While being booked into the jail, the driver revealed his true identity to law enforcement as Brian Keith Sellers.
Sellers does not challenge the lawfulness of the traffic stop. (Doc. No. 20 at 6-7.) He asserts, however, that the search of his person and the vehicle violated the Fourth Amendment because (1) there was no probable cause to believe the vehicle contained contraband and no exigent circumstances necessitated a warrantless search; (2) the search of his person cannot be defended on officer safety grounds; and (3) the discovery of the firearm cannot be justified as the product of inevitable discovery during an inventory search.[10] (Id. at 6-7, 8, 9-11.)
The Government argues that the search of Sellers' person was undertaken for officer safety purposes. The Government also argues that the vehicle search[11] was lawful under the automobile exception to the warrant requirement of the Fourth Amendment. Alternatively, the Government argues that the firearm would have inevitably been discovered after the officers found the syringe on Sellers and the drug paraphernalia on Bringhurst. The Government contends...
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