US v. Smith

• Decision Date: 16 December 2009
• Docket Number: Case No. 2:09-cr-128-MEF.
• Citation: 694 F. Supp.2d 1242
• Parties: UNITED STATES of America v. Rasheen Jahmal SMITH.
• Court: U.S. District Court — Middle District of Alabama

694 F. Supp.2d 1242

UNITED STATES of America v. Rasheen Jahmal SMITH.

Case No. 2:09-cr-128-MEF.

United States District Court, M.D. Alabama, Northern Division.

December 16, 2009.

Kent B. Brunson, Tommie Brown Hardwick, U.S. Attorney's Office, Montgomery, AL, for Plaintiff.

Federal Defender, Federal Defenders, Middle District of Alabama, Montgomery, AL, for Defendant.

ORDER

MARK E. FULLER, Chief Judge.

After an independent review of the file, it is the ORDER, JUDGMENT and DECREE of the court that:

1. The defendant's Objection to the Report and Recommendation of the Magistrate Judge (Doc. # 60) filed on November 30, 2009 is overruled;

2. The Recommendation of the United States Magistrate Judge entered on November 16, 2009 (Doc. # 57) is adopted;

3. The defendant's motion to suppress (Doc. # 28) is GRANTED as to the statements made in connection with the November 6, 2008 stop and DENIED as to all issues.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

TERRY F. MOORER, United States Magistrate Judge.

This cause is before the Court on a Motion to Suppress and Citations of Authority (Doc. 28, filed September 28, 2009) filed by Defendant Rasheen Jahmal Smith ("Defendant" or "Smith").¹ The United States filed its Response to Motion to Suppress (Doc. 35, filed October 13, 2009). An evidentiary hearing was conducted on October 27, 2009. The parties also filed a Post-Hearing Supplement on Defendant's Motion to Suppress (Doc. 51, filed October 30, 2009) and Supplemental Response to Motion to Suppress (Doc. 53, filed November 3, 2009). After due consideration of the briefs, arguments, and applicable law, the Magistrate Judge concludes the warrantless search passes Constitutional muster and recommends that the District Court DENY the motion to suppress with the exception of the statements made after the November 2008 search, which undersigned recommends SUPPRESSION of those statements.

I. FACTUAL BACKGROUND AND MOTION TO SUPPRESS

Smith is charged in a four count indictment with possession with the intent to distribute crack cocaine, possession of marijuana, and possession of a firearm in furtherance of a drug-trafficking crime. Each charge stems from two separate traffic stops which occurred on November 6, 2008 and January 20, 2009. Each stop will be discussed below.

A. November 6, 2008 Traffic Stop

On November 6, 2008, Alabama State Troopers Tracey McCord and Phillip Faulkner stopped Smith on Alabama Highway 10 when Trooper McCord saw Smith's window tinting was darker than Alabama law allows. A tint meter confirmed that the tint was too dark. While he was looking for his insurance, Smith told the officers he had a firearm in the car and that he had a license for it. Trooper McCord testified that while talking to Smith he detected the odor of green marijuana coming from the vehicle. At this stage, Trooper McCord asked Smith to exit the vehicle and conducted a pat down of Smith. Trooper McCord then asked Smith about the smell of marijuana. Smith tried to flee, but advanced only a few feet before being tackled by the troopers. Because he continued to struggle, Trooper McCord first warned and then shot Smith with a taser which subdued him to where they could handcuff him. Troopers McCord and Faulkner conducted another search of Smith and found approximately 2 grams of marijuana, 12-14 grams of crack cocaine, and a set of scales in the front pocket of Smith's pants. The police removed the taser prongs and placed Smith in the police car. An additional bag of cocaine was found in the center console of Smith's vehicle. The troopers also found a 9 millimeter handgun along with 13 rounds of ammunition between the front seat and center console.

While waiting for a supervisor to arrive, Trooper McCord asked Smith his age and then inquired as to what Smith had been doing. The clear implication of the question was to inquire as to what motivated Smith to possess the contraband. Smith responded to the questions by Trooper McCord. No Miranda warnings were given to Smith at that time even though Smith was clearly not free to leave. Smith was cited for a window tint violation and arrested for possession of a controlled substance, possession of marijuana, and resisting arrest.

B. January 20, 2009 Traffic Stop

On January 20, 2009, Trooper McCord, Trooper Terry Nelson, Barbour County Deputy Sheriff Paul Motzenbecker, and several other law enforcement officers were conducting a traffic roadblock/checkpoint on Alabama Highway 10 near the 190 mile marker. Trooper Nelson testified earlier that same day he applied for and received approval to set up the road block from Corporal John Helms. The road block was set up to check whether the cars operated in the area of the checkpoint were in compliance with Alabama law—i.e. whether the driver had a driver's license, insurance, and registration of the vehicle. If the person could not produce them immediately, he or she was instructed to pull off to the side of the road to find the item or receive a citation.

While returning from a state court appearance stemming from the November 6, 2008 stop, Smith was stopped at the roadblock. He was driving a different vehicle than the one he used on November 6, 2008. Smith was unable to immediately produce all the requested documents. He was instructed to pull off to the side to continue looking for the necessary documents. At this point, the officers heard a gunshot go off, but they were uncertain initially where it came from. It was later determined that the gun shot came from a handgun that was run over by another vehicle approximately 75 yards before the roadblock. Just prior to hearing the gun shot, Trooper McCord recognized Smith from the prior November 2008 interaction. After hearing the gunshot, Trooper McCord asked Smith to exit the vehicle and testified that because he knew Smith had a propensity to carry firearms, he did a quick pat down for officer safety. He then instructed Trooper Nelson to follow up with a more thorough frisk to include a removal of the defendant's shoes. Trooper McCord further testified that he could again detect the smell of marijuana in Smith's vehicle. During the second pat down, Trooper Nelson found a digital scale and a bag of marijuana. The officers then searched Smith's vehicle and found 2 plastic bags of crack cocaine in the center console. Officer Motzenbecker also went to the area where they heard the gunshot and found 5 rounds of .380 caliber ammunition and a .380 caliber firearm than had been crushed by a tractor trailer. Smith was given his Miranda warnings and then put Smith on the phone with Agent Tim Fitzpatrick. Smith was then arrested for possession of a controlled substance.

C. Motion to Suppress

On September 28, 2009, Smith filed his motion to suppress wherein he asserts (1) his statements were obtained in violation of the Fifth Amendment and (2) the searches of his person and vehicle violated the Fourth Amendment. Therefore the evidence obtained from the search and any subsequent statements should be suppressed. Specifically, Smith asserts no probable cause existed to search Smith's person or vehicle at either stop and that because he was not given Miranda warnings, all the statements must be suppressed.

At the suppression hearing on October 27, 2009, Trooper McCord, Trooper Faulkner, Trooper Nelson, and Dr. Richard Doty all testified. Dr. Richard Doty is the director of the Smell and Taste Center at the University of Pennsylvania School of Medicine in Philadelphia and a professor within the Department of Otolaryngology, Head, and Neck Surgery. In addition to the testimony, numerous exhibits were presented including a videos of both stops. The pleadings, testimony, and exhibits were all considered in the Court's review of the suppression motion.

II. DISCUSSION AND ANALYSIS OF FIFTH AMENDMENT ASSERTIONS

It has long been held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Commonly known as a Miranda warning, prior to interrogation a defendant must be given a warning about his constitutional rights.

As to the November 6, 2008 stop, no Miranda warnings were given to Smith while in custody prior to the questioning. The United States concedes that all the statements made by Defendant Smith are therefore inadmissable. The Court agrees.

As to the January 20, 2009 stop, the video evidence clearly shows that Trooper McCord read Smith his rights after handcuffing him at the stop. Therefore, the statements are not due suppression due to Fifth Amendment violations. Smith acknowledged this when he amended his original motion to suppress and again in his post-hearing brief. As such, the Court turns to Smith's assertions of Fourth Amendment violations.

III. DISCUSSION AND ANALYSIS OF FOURTH AMENDMENT ASSERTIONS

Smith seeks suppression under the Fourth Amendment, which guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. AMEND. IV. Warrantless searches and seizures are per se unreasonable unless an exception applies. Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)). Because there are two separate searches in this case, the Court will address each in turn.

A. November 6, 2008

The record is clear that Smith was lawfully stopped by Trooper McCord for a window tint violation. As such, the legitimacy of the stop itself is not in question. See Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996) ("As a general matter, the decision to stop an automobile is reasonable...