United States v. Taylor

Citation963 F.Supp.2d 595
Decision Date12 August 2013
Docket NumberCriminal Action No. 2:12–00216.
PartiesUNITED STATES of America v. Marcus Wyn TAYLOR.
CourtU.S. District Court — Southern District of West Virginia

OPINION TEXT STARTS HERE

Joshua C. Hanks, U.S. Attorney's Office, Huntington, WV, for United States of America.

Rhett H. Johnson, Federal Public Defender's Office, Charleston, WV, for Marcus Wyn Taylor.

MEMORANDUM OPINION AND ORDER

JOHN T. COPENHAVER, JR., District Judge.

Pending are defendant Marcus Wyn Taylor's motion to suppress evidence, filed December 13, 2012, supplemental motion to suppress evidence, filed December 27, 2012, and second supplemental motion to suppress evidence, filed January 14, 2013.

I.

The discussion that follows assumes a familiarity with the findings of fact and conclusions of law set forth in the May 14, 2013, memorandum opinion and order, 963 F.Supp.2d 580, 2013 WL 2102698 (S.D.W.Va.2013). In summary, on October 24, 2012, Detective Wes Daniels and Corporal Owen Morris performed a traffic stop on defendant Marcus Taylor after he nearly struck their cruiser while attempting a turn.

Corporal Morris had previously witnessed Mr. Taylor on several occasions sitting on his porch “at all hours of the day and night.” (Hearing Trans. at 132). He also noted the unusual level of comings and goings from Mr. Taylor's home.1 These factors caused Corporal Morris to suspect that Mr. Taylor was involved in the drug trade. Both officers approached the vehicle. After Detective Daniels requested Mr. Taylor's driver's license, registration, and proof of insurance, Mr. Taylor immediately requested to speak with his lawyer. He avoided eye contact with Detective Daniels and he was breathing rapidly, as if he had “just ran or something.” ( Id. at 19) (He was just not acting normal for a normal person that you make a traffic stop on. He just seemed really nervous.”).

When Mr. Taylor opened his glove box, Corporal Morris, who was stationed at the passenger side window of the vehicle, noticed two large stacks of cash therein. When he attempted a closer look, Mr. Taylor looked up at Corporal Morris and started to close the glove box to halfway as if to hide from view something contained therein. He retrieved his proof of insurance and registration and handed it to Detective Daniels.

Corporal Morris alerted Detective Daniels, who then asked Mr. Taylor to step out of the vehicle. After refusing to comply, Mr. Taylor again asked to speak with his lawyer. Mr. Taylor was quite agitated and becoming angrier about not being permitted to call his lawyer. Mr. Taylor again refused to exit the vehicle. He ultimately did so only after Detective Daniels began to open the vehicle door to assist Mr. Taylor in exiting.

After Mr. Taylor admitted that he had a knife on his person, Detective Daniels asked him to turn and face the vehicle for a protective frisk. As Detective Daniels commenced the pat down, however, Mr. Taylor “turned on [him] ... real fast” and was acting aggressively. ( Id. at 21). Detective Daniels stepped back, informed Mr. Taylor he would not be reaching into his pockets and told him that he just needed to pat Mr. Taylor down for weapons. He then handcuffed him.

Corporal Morris asked Mr. Taylor about the money in the glove compartment. Mr. Taylor responded that there was approximately $3,000 therein. He stressed, however, that law enforcement did not have his consent to search the Buick. ( See id. at 116 (Corporal Morris stating as follows: “Mr. Taylor said that there was approximately 3,000 dollars in there, but we weren't getting in his car, and the conversation ended.”)).

Corporal Morris phoned Patrolman Clarence Howell. Patrolman Howell is an officer with the K–9 unit. Prior to his arrival, Detective Daniels “permeated” the Buick. ( Id. at 65). The process involves a physical entry into the vehicle by law enforcement, rolling up its windows, turning off the ignition but leaving the key in the “on” position, and then turning on the vehicle's interior fan to blow any aromas in the vehicle out to the exterior. This appears to be a standard practice for the Charleston Police Department when the K–9 unit is called. ( See Trans. at 66 (Detective Daniels stating “And as far as my experience, every other K–9 officer that I've dealt with, they have you permeate the car is what they call it like I described to you before their arrival.”); ( id. at 86 (Patrolman Howell noting that his K–9 supervisor trained him that “when you conduct a traffic stop, we permeate the vehicle.”)).

Patrolman Howell reiterated that one must enter the detained vehicle in order to permeate it. There are no state or national standards respecting permeation and Patrolman Howell has never read nor received any literature concerning the process. Interestingly, Patrolman Howell suggested that permeation was unnecessary for an effective K–9 sniff. He testified as follows: “On some of our training we do unpermeated, some we do permeated, and he detects unpermeated and permeated.”( Id. at 88; see also id. at 91). 2 When asked why permeation is performed if it is unnecessary for finding contraband, Patrolman Howell responded “That's what I do. If it's available, we permeate the vehicle. If he has a key and they state they have a key, we permeate the vehicle.” ( Id. at 91).

Patrolman Howell arrived with his K–9, Jux, and commenced an exterior search of Mr. Taylor's vehicle a short time later. Detective Daniels characterized the sniff as the “moment of truth.” ( Id. at 59). If an alert occurred, the investigation would continue. If Jux failed to alert, the officers would have returned Mr. Taylor's driver documents, issued a warning citation for reckless driving, failure to maintain his lane, or driving too fast for conditions and sent Mr. Taylor on his way. After Jux alerted, Detective Daniels and Corporal Morris approached the vehicle to search it.

Corporal Morris opened the glove compartment and retrieved the currency. Detective Daniels searched underneath the driver's seat and saw a handgun. He alerted Corporal Morris. Mr. Taylor confirmed that he was on federal probation for a prior drug charge, in actuality a term of supervised release. The officers informed Mr. Taylor that he was under arrest for being a felon in possession of a firearm. Corporal Morris searched Mr. Taylor's person following his arrest, finding two large wads of currency in each front pocket. He was placed in a nearby cruiser. Corporal Morris continued the search, moving to the Buick's trunk. There he found a duffel bag. He unzipped it and saw a large grocery-type bag full and tied at the top. He looked closer and saw additional stacks of currency. The total amount of currency recovered was $93,157.

On November 15, 2013, the United States filed a single-count indictment charging Mr. Taylor with possessing the recovered firearm after having previously been convicted in 2005 of possessing with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). On December 13, 2012, Mr. Taylor moved to suppress all fruits of the October 24, 2012, traffic stop. First, he asserted that the officers lacked probable cause to stop him. Second, he contends that law enforcement exceeded the customary scope of a traffic stop and instead pursued a criminal investigation that measurably prolonged the stop without reasonable suspicion. The May 14, 2013, memorandum opinion and order rejected Mr. Taylor's challenges on these two points.

On December 27, 2012, Mr. Taylor filed a supplemental motion to suppress. Relying upon United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), he asserted that the permeation of his vehicle resulted in an impermissible trespass in violation of the Fourth Amendment. On January 14, 2013, Mr. Taylor filed a second supplemental motion to suppress. He asserts that Jux did not alert during the sniff contrary to Patrolman Howell's testimony.

On January 22 to January 24, 2013, the court held an evidentiary hearing attended by counsel for the parties and Mr. Taylor. On February 1, 2013, Mr. Taylor moved to file additional briefing and to supplement the record. On February 4, 2013, the court permitted the parties to file additional briefing respecting the mobile phone records at issue in the case, with the final brief arriving on February 15, 2013.

On February 26, 2013, after having not earlier received a substantive response from the United States respecting Mr. Taylor's February 6, 2013, brief, the United States was directed to file a substantive response on or before March 11, 2013, with any response from Mr. Taylor filed by March 18, 2013. On March 18, 2013, the final brief was received, and the court deemed the matter submitted.

On March 26, 2013, the Supreme Court entered its decision in Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), which, in combination with the recent decision in United States v. Jones, –––U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), bore directly upon the issues under consideration in this action. The court noted that the United States had not responded to Mr. Taylor's earlier invocation of Jones. Accordingly, on April 3, 2013, the court directed the parties to submit cross briefs no later than April 12, 2013, respecting the application of both Jones and Jardines to this matter, with responses thereon filed no later than April 19, 2013. Those dates were extended, at the United States' request, to April 16, 2013, for cross briefs and April 21, 2013, for responses.

On May 14, 2013, the court entered its findings of fact and conclusions of law. In sum, the warrantless entry into Mr. Taylor's vehicle, resulting in an unreasonable search, was deemed to transgress the Fourth Amendment boundaries recently discussed in Jones and Jardines. Noting that the parties had not briefed the remedy, if any, that should result, the United States was given leave to address the question by May 28, 2013, with Mr. Taylor's response by ...

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