ORDER GRANTING DEFENDANTS' MOTIONS TO SUPPRESS EVIDENCE
Timothy S. Black, United States District Judge.
This criminal case is before the Court on Defendants' motions to suppress evidence (Docs. 24, 26), the parties' pre-hearing responsive memoranda (Docs. 27, 28, 29), and the parties' post-hearing briefs (Docs. 32, 33, 35, 36).
The Court held an evidentiary hearing over the course of two days on May 6, 2016 and May 20, 2016, and heard testimony from two City of Norwood police officers, Officers Ryan Strunk and Chadwick Webster. (Docs. 30, 31). The motions are now ripe for decision.
On November 4, 2015, Defendants Oscar Torbert III and Jeno Daniel Moore were charged by way of a four-count indictment with various firearm and drug trafficking offenses, including: possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 1); possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (Count 2); and possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) (Counts 3 and 4). The charges arise from evidence obtained by officers of the City of Norwood, Ohio Police Department (the "NPD") during a traffic stop and subsequent vehicular search. (Docs. 24 at 2, 26 at 2). Defendants move for suppression of said evidence, arguing, in large part, that it was obtained without the benefit of a warrant and in violation of their constitutional rights. (Docs. 24, 26).
For purposes of this Order, the Court will rely upon the facts as set forth in the parties' briefs (Docs. 24, 26, 27, 28, 29, 32, 33, 35, 36), as well as the testimony and evidence proffered at the May 6 and May 20, 2016 suppression hearings.
On May 30, 2015, shortly after 5:00 p.m., Defendant Torbert was driving a motor
Accordingly, Officer Strunk began following the vehicle and activated his emergency lights in order to effectuate a traffic stop. (Doc. 30 at 15). However, the vehicle did not stop immediately. (Id.) Instead, the driver of the vehicle made a left turn at the next intersection onto Andina Avenue and began accelerating in speed. (Id. at 15-16). Officer Strunk then activated his sirens and communicated by radio that he was attempting to pull over a vehicle that was refusing to stop. (Def. Ex. 6; Doc. 30 at 46). However, the vehicle ultimately pulled to the curb after approximately one and a half blocks and parked in a residential neighborhood. (Doc. 30 at 17). Officer Strunk pulled up behind the stopped vehicle. (Id.) During the suppression hearing, both officers confirmed that the vehicle was legally parked and could have remained in that location without incurring a parking ticket. (Id. at 47-48; Doc. 31 at 27).
Officer Strunk exited his police cruiser and began approaching the vehicle from the driver's side. (Def. Ex. 6). Officer Strunk testified that he had not run a check on the vehicle's license plate number prior to approaching. (Doc. 30 at 53). Accordingly, he had no information regarding the registered owner of the vehicle or the vehicle's potential occupants. (Id.) As Officer Strunk was approaching, the driver's side door of the vehicle opened and the driver, Defendant Torbert, leaned out to announce that he could not roll down his car window. (Def. Ex. 6). Officer Strunk instructed the driver to remain inside the car. (Id.) Once near the vehicle, Officer Strunk also observed an individual sitting in the front passenger's seat, later identified as Defendant Moore. (Id.)
Officer Strunk explained to Defendants that he had stopped the vehicle for excessive window tints. (Id.) He then inquired as to why Defendant Torbert had not immediately pulled over. (Id.) Officer Strunk noted that Defendant Torbert became nervous and could not offer a direct answer. (Id.) Officer Strunk then asked Defendants where they were going. (Id.) Defendant Torbert stated that they were on their way to a barbershop and indicated that it was located back on Section Avenue. (Id.) This response prompted Officer Strunk to question Defendant Torbert as to why he had
Officer Strunk then asked Defendant Torbert for his identification. (Id.) As Defendant Torbert was producing his identification, Officer Strunk noticed Defendant Moore was not wearing a seatbelt and asked him for his identification as well.
While Officer Strunk was running Defendants' identifications, his partner, Officer Chadwick Webster, arrived on the scene to assist. (Webster Camera at 0:20). Officer Strunk testified that Officer Webster arrived approximately two to three minutes after the stop was initiated. (Doc. 30 at 48). Further, Officer Strunk testified that Officer Webster's arrival was pursuant to NPD policy, which calls for available units to be dispatched immediately as back-up at the scene of any traffic stop. (Id.)
Upon his arrival, and before approaching the stopped vehicle, Officer Webster went to Officer Strunk, who was still seated in his police cruiser. (Webster Camera at 0:35). The officers conferred regarding the traffic stop and the circumstances that presented. (Id.) Officer Strunk advised Officer Webster that Defendant Torbert was "suspended." (Id. at 0:47). In response, Officer Webster told Officer Strunk to "get him [Defendant Torbert] out in cuffs, search him real good."
Officer Webster then asked about the passenger of the vehicle, to which Officer Strunk replied, "He's good. Doesn't have anything." (Id. at 0:52). Finally, Officer Webster asked Officer Strunk who the registered owner of the vehicle was, and Officer Strunk replied "Jasmine [Moore]." (Id. at 1:00). Officer Webster then told Officer Strunk, "Make sure you keep good control of this guy," presumably referring to Defendant Torbert. (Id. at 1:07).
Officers Strunk and Webster approached the vehicle from the driver's side and passenger's side, respectively. (Id. at 1:10). Officer Strunk immediately asked Defendant Torbert to exit the vehicle and placed him in handcuffs.
Officer Webster then asked Defendants "Whose car is this?" to which Defendant Torbert replied, "His [Defendant Moore's] sister's." (Webster Camera at 2:01). Officer Webster then asked Defendant Moore for his sister's name, and Defendant Moore responded, "Jasmine Moore." (Id. at 2:06). Officer Webster did not hear the response and, accordingly, repeated the question, which appeared to have confused Defendant Moore, prompting the officers to repeat the question again. (Id.) Despite these difficulties, however, the owner of the vehicle was identified to the officers as Defendant Moore's sister, and her name, Jasmine Moore, was repeated by one or both of the defendants no less than three times during the brief fifteen-second exchange with the officers. (Id. at 2:01-2:18).
Officer Strunk walked Defendant Torbert to the rear driver's side door of Officer Strunk's police cruiser and proceeded to conduct a search of Defendant Torbert's person. (Id. at 2:19). Officer Webster followed, leaving Defendant Moore seated in the car. (Id. at 2:19). While Officer Strunk conducted the search, Officer Webster went to the front passenger's side of Officer Strunk's cruiser and checked the MDC. (Id. at 2:39). Thereafter, Officer Webster walked toward Officer Strunk who was concluding his search of Defendant Torbert. (Id. at 3:14). Officer Strunk commented on the amount of cash Defendant Torbert had (presumably in Defendant Torbert's pockets). (Id. at 3:20). Upon completing his search of Defendant Torbert, Officer Strunk placed Defendant Torbert, still handcuffed, in the back of his police cruiser. (Id. at 3:30).
Officers Strunk and Webster then walked to the rear of the police cruiser and discussed how they intended to proceed. (Id. at 3:30). Officer Webster suggested to Officer Strunk that he should have the vehicle towed based on Defendant Torbert's FRA suspension, as well as Defendants' alleged difficulty in communicating the registered owner of the vehicle (which Officer Webster described to Officer Strunk as Defendants "playing games"). (Id. at 3:42). Officer Webster then informed Officer Strunk, "I don't know if
Officer Webster told Officer Strunk to get Defendant Moore out of the car and "try to get consent to search him ... and then we're going to do an inventory search." (Webster Camera at 4:07). Officer Webster further instructed Officer Strunk to notify Defendant Moore that the car would be towed because no licensed driver was present. (Id.) At the suppression hearing, Officer Webster confirmed that the officers did have options available to them short of towing the vehicle, including leaving the car parked (as Defendant Moore had earlier suggested) or contacting the registered owner of the vehicle. (Doc. 31 at 35-36). Officer Webster testified, however, that the decision was made to forego any alternative options entirely, because the officers wanted to conduct an inventory, thereby allowing them to search the car. (Id.)
As instructed by Officer Webster, Officer Strunk approached the vehicle and asked Defendant Moore to step outside. (Webster Camera at 4:20). Officer Strunk twice assured Defendant Moore that he was not in any trouble. (Id. at 4:30, 4:46). Officer Strunk obtained Defendant Moore's consent to search his person. (Id. at 4:40). Unlike Defendant Torbert, Defendant Moore was not placed in handcuffs for the search. (Id.) Officer Strunk immediately proceeded to reach in and empty Defendant Moore's pockets (as opposed to conducting a pat-down search). (Id. at 4:44). Officer Strunk asked Defendant Moore how much money he had on him and noted that Defendant Moore was in possession of three cellular telephones. (Id. at 5:00). While Officer Strunk conducted his search of Defendant Moore, Officer Webster proceeded to walk around the perimeter of the stopped vehicle. (Id. at 4:45-4:58). Notably apparent are the darkened windows and front windshield of the vehicle. (Id.)
After Officer Strunk finished searching Defendant Moore, he asked Officer Webster to begin arranging a tow of the vehicle. (Id. at 5:22). Officer Webster walked to his police cruiser to obtain the necessary paperwork, leaving Officer Strunk and Defendant Moore standing on the sidewalk next to the stopped vehicle. (Id.) Upon finding the paperwork in his cruiser, Officer Webster walked back toward the vehicle and took Officer Strunk's place on the sidewalk next to Defendant Moore while Officer Strunk began the inventory search of the vehicle.
(Def. Ex. 3 at 2). Indeed, in being asked what the purpose of an inventory search was, Officer Webster replied that it was "to look for valuable items in the vehicle so if anything was to happen at the tow yard, or things along those lines, we [the NPD] would have accountability of those items." (Doc. 31 at 65). He further confirmed that inventory searches, "[a]bsolutely" served a "safekeeping" function. (Id.)
For approximately three minutes, Officer Strunk searched the vehicle, while Officer Webster stood on the sidewalk with Defendant Moore. (Webster Camera at 6:40-9:30). During that time, Officer Strunk's search focused solely on the driver's seat area of the vehicle. (Id.; Doc. 30 at 70). Thereafter, a third officer, Officer Kenneth Devers, arrived on the scene to assist. (Doc. 31 at 45). Upon Officer Devers' arrival, Officer Webster joined Officer Strunk to search the vehicle. (Webster Camera at 9:30).
Officer Webster began searching the interior of the vehicle from the passenger's side, while Officer Strunk continued his search on the driver's seat. (Id. at 9:50). Officer Webster utilized a flashlight during his search and can be seen checking the center console, looking in the cup holders, pulling up on the center paneling (attempting to lift it out of place), and searching through the glove compartment. (Id. at 9:50-10:05).
During the search, Officer Strunk expressed to Officer Webster his belief that Defendants were likely engaged in drug trafficking, stating, "I'd say he's got drugs and cash on him," to which Officer Webster replied, "Oh I definitely think something's up." (Id. at 10:06). Officer Strunk attributed his inclination to the amount of cash Defendants had on hand, as well as Defendant Torbert's initial reluctance to stop the vehicle. (Id.) Officer Webster noted that the presence of the box of sandwich bags alone gave him pause. (Id. at 10:18). Officer Webster then reached into the box and removed two knotted, torn off sandwich bags, before proceeding to pull out all of the sandwich bags (most of which were intact), thereby revealing an additional torn bag. (Id. at 10:18-10:42).
Next, Officer Webster reached under the front passenger's seat briefly, but found nothing. (Webster Camera at 10:44). He then moved to the interior paneling
Officer Webster then asked Officer Devers, who had arrived at the scene just minutes earlier, to take pictures of the evidence. (Id. at 11:25). As to the evidence, Officer Webster informed Officer Devers, "I popped that panel off. It's in there." (Id. at 11:29). Officer Webster later explained to Officer Devers that the panel "came off real easy." (Id. at 13:32). He also told Officer Strunk that he ran his hand along the panel because it appeared to be sticking out and was slightly "ajar," which caught his attention. (Id. at 26:10). During his testimony,
While taking pictures, Officer Devers noticed a second firearm and more drugs in the hidden compartment. (Devers Camera at 1:42, 2:14, 2:35). Officer Webster inspected both firearms (a Keltec and a Bersa) at the scene, confirming that they were both loaded and had one round in the chambers.
Officer Devers completed the vehicle impound report, which he confirmed with Officers Webster and Strunk before finalizing. (Devers Camera at 8:00, 20:35). The final impound report was signed by Officer Webster. (Def. Ex. 8). Under "Reason for Impoundment," the officers listed "Driver Arrested." (Id.) Moreover, under "Remarks & Inventory of Personal Property in Vehicle," the officers listed "2 Pistols, Digital Scale, 2 Bag Containing Brown Substance, Sandwich Baggies." (Id.)
At Officer Webster's instruction, Officer Strunk administered Miranda warnings to Defendants at the scene. (Webster Camera at 15:38). Both Defendants stated at various times that they had no knowledge of the drugs or firearms. (Doc. 27 at 3). The vehicle was ultimately impounded and Defendants were taken to the Justice Center for booking.
III. STANDARD OF REVIEW
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. IV. "[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnotes omitted).
"The exclusionary rule prohibits the admission of evidence seized in searches and seizures that are deemed unreasonable under the Fourth Amendment, as well as derivative evidence acquired as a result of an unlawful search." United States v. Kennedy, 61 F.3d 494, 497 (6th Cir.1995) (citing Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The exclusionary rule serves to deter law enforcement from obtaining evidence by unconstitutional means. Nix v. Williams, 467 U.S. 431, 442-43, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
A defendant may seek the suppression of evidence by filing a pretrial motion with the court. Fed. R. Crim. P. 12(b)(3)(C). "It is well settled that in seeking suppression of evidence the burden of proof is upon the defendant to display a violation of some constitutional or statutory right justifying suppression." United States v. Patel, 579 Fed.Appx. 449, 453 (6th Cir.2014) (citing United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003)). However, "[t]he Government has the burden of proof to justify a warrantless search." United States v. Haynes, 301 F.3d 669, 677 (6th Cir.2002); Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ("The burden is on those seeking the exemption to show the need for it") (quotation marks and citations omitted).
Defendants move for suppression of all evidence obtained as a result of the warrantless search of the vehicle, arguing that: (A) the initial stop was improper; (B) the search of the vehicle was improper; and (C) the search was not otherwise justified by probable cause. (Docs. 24, 26, 32).
A. The Initial Traffic Stop
Defendants argue at length that the initial traffic stop was improper because Ohio's window tint statute (i.e., the basis for the stop) is impermissibly vague. (Docs. 26, 32). Specifically, Defendants take issue with the language of Ohio Rev. Code § 4513.241, arguing that the statute's reliance upon a person of "normal vision" imposes too arbitrary a standard to give adequate notice of the prohibited conduct and, further, invites inconsistent and subjective application. However, Defendants' arguments fail for one critical reason. That is, Defendants cite to the wrong statute.
Specifically, Ohio Rev. Code § 4513.241, which Defendants argue is impermissibly vague, states in relevant part as follows:
Ohio Rev. Code § 4513.241(A) (emphasis added). Stated simply,
The actual Ohio law which sets forth the specific parameters of permissible tinting is Ohio Admin. Code 4501-41-03. Section 4501-41-03 states:
Ohio Admin. Code 4501-41-03(A)(2), (3) (emphasis added). Further, the City of Norwood's Codified Ordinance § 337.34 utilizes the precise language and specifications set forth in Ohio Admin. Code § 4501-41-03. And as defense counsel effectively concedes, and this Court agrees, a tint law which sets forth such specific transparency percentages (e.g., 50% transparency for front windows, 70% transparency for front windshield, etc.) is constitutionally permissible. (See Doc. 35 at 3).
The Court acknowledges that Defendants' reliance on Ohio Rev. Code 4513.241 was prompted by the code's reference in the traffic citation issued by Officer Strunk to Defendant Torbert. However, the erroneous citation is not controlling here. Having identified the correct statutory citation, and having determined that Ohio Admin. Code 4501-41-3 (adopted by the City of Norwood in its Codified Ordinance § 337.34) sets forth a sufficiently specific standard, the Court finds that Defendants' arguments as to the constitutionality of Ohio's tint law is moot and, further, without merit.
The Court finds that Officer Strunk had sufficient probable cause to believe that Defendants were in violation of an existing and constitutionally valid traffic law (i.e., excessive window tints), thereby permitting him to effectuate a traffic stop in order to issue a citation. Accordingly, the initial traffic stop was not improper.
B. The Search of the Vehicle
Defendants also argue that the search of the vehicle was unreasonable because: (1) the initial decision to impound the vehicle was in contravention of the NPD's tow policy; (2) the decision to impound was merely a pretext for the officers to gain access to the vehicle; and (3) the search conducted far exceeded the scope of a permissible inventory search.
A warrantless search is presumptively unreasonable unless a recognized exception to the warrant requirement applies. Katz, 389 U.S. at 357, 88 S.Ct. 507. To that end, "inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment." Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). Indeed, "[i]t is settled law that the police may conduct an inventory search of an automobile that is being impounded without running afoul of the Fourth Amendment." United States v. Jackson, 682 F.3d 448, 455 (6th Cir.2012) (citing United States v. Smith, 510 F.3d 641, 650 (6th Cir.2007)).
Discretion as to impoundment is permissible "so long as that discretion is exercised according to standard criteria
Here, it is uncontested that the officers did not have a warrant to search the vehicle. Indeed, Officer Webster testified that the officers could have obtained a warrant, but chose not to because, "it wasn't necessary." (Doc. 31 at 56).
1. The NPD Tow Policy Did Not Authorize Impoundment
Defendants argue that the officers' decision to impound the vehicle was in clear contravention of the NPD tow policy. Specifically, the NPD tow policy includes a section entitled "
(Id.) (bold emphasis added).
As to Provision (h), the body camera footage belies any claim that the vehicle could not have been "released to another or parked legally or safely." The vehicle was pulled to the curb in a residential neighborhood where parking was permitted and where other vehicles were lawfully parked. Indeed, both officers conceded during their testimony that the vehicle was legally parked and could have remained so without incurring a parking violation. (Doc. 30 at 47-48; Doc. 31 at 27). Alternatively, the officers could have allowed Defendant Moore to arrange for someone to pick up the car, including the registered owner of the vehicle, Jasmine Moore, as he expressly offered to do early in the stop. (Webster Camera at 1:45-1:53). Accordingly, Provision (h) did not authorize the impoundment of the vehicle.
As to Provision (j), the express language evidences that it was not applicable in the instant case. Specifically, Defendant Torbert violated Ohio Rev. Code § 4510.16 by driving while under an FRA suspension. However, while provision (j) lists certain offenses, including Ohio Rev. Code §§ 4510.11, 4510.14, 4511.203, it
Regardless, the Government argues that impoundment of the vehicle was required under provision (j) because Ohio Rev. Code § 4510.11 (which
Thus, Ohio Rev. Code § 4510.16 is in fact specifically
Accordingly, the Government's assertion that Ohio Rev. Code § 4510.11 includes violations of § 4510.16 is inaccurate.
Additionally, the language of provision (j) specifically states that impoundment is authorized under the following circumstances:
Finally, as previously stated, supra, the relevant section of the NPD tow policy is entitled "
Accordingly, the Court finds that the NPD tow policy, which was controlling on the officers' conduct, specifically identifies the circumstances under which impoundment is authorized. Here, impoundment of the vehicle was in direct contravention of the NPD tow policy and, therefore, was improper.
2. The Officers' Decision to Impound the Vehicle was Improper
Beyond being unauthorized to tow the vehicle, Defendants also argue that the officers' decision to impound the vehicle was a pretext used merely to gain access to the vehicle. The Court agrees.
As the officers' decision to tow the vehicle was impermissibly based upon their suspicion that criminal activity was afoot, and no other valid basis for the impoundment existed, the Court finds that the decision to impound the vehicle, apart from lacking authority, also constituted an improper exercise of the officers' discretion.
3. Scope of the Inventory Search
In conducting an inventory search, officers are permitted to exercise a reasonable degree of discretion as to how to conduct the search without running afoul of the Fourth Amendment. Jackson, 682 F.3d at 455 (citing Smith, 510 F.3d at 650). An officer's "exercise of judgment
Here, the officers far exceeded the scope of a permissible inventory search. Indeed, while the officers acknowledged in their testimony that the purpose of the inventory search is to secure personal property and to note any pre-existing vehicular damage,
The Government argues that the removal of the interior panel was permissible as part of an inventory search because the interior space behind the plastic paneling was a location where someone might have placed valuable personal property. The Government cites to, inter alia, the Sixth Circuit's decision in United States v. Jackson, 682 F.3d 448 (6th Cir.2012), to support its proposition. The Court is entirely unpersuaded.
As an initial matter, the Government's argument is undermined by Officer Webster admission during his testimony that the hidden panel compartment would
C. Probable Cause to Search
The Government argues in the alternative that the officers had sufficient probable cause, based upon their observations, to conduct a warrantless search of the vehicle under the automobile exception to the warrant requirement. The Court disagrees.
"Under the automobile exception to the warrant requirement, an officer may perform a warrantless search of a detained vehicle should the officer have probable cause to believe the vehicle contains contraband or evidence of criminal activity." United States v. Lyons, 687 F.3d 754, 770 (6th Cir.2012). "Probable cause is a reasonable ground for belief supported by less than prima facie proof
However, the officers had nothing more to rely upon than their belief that Defendants appeared nervous, the miscommunication in articulating the registered owner of the vehicle, and Officer Webster's observation of the sandwich bag box in the front console. This Court simply cannot agree that these factors rise to the level of probable cause, such that the officers were justified to conduct a warrantless search of the vehicle.
Accordingly, the officers' warrantless search of the vehicle was not supported by probable cause and was not permissible under the automobile exception.
In sum, the Court finds that while the initial traffic stop was valid, the officers
Accordingly, the Court holds that the search of the vehicle in the instant case was unconstitutional under the Fourth Amendment and suppression of the evidence obtained as a result of the unlawful search is proper. Based upon the foregoing, Defendants' motions to suppress evidence (Docs. 24, 26) are hereby