JEFFREY J. HELMICK, District Judge.
Defendant Tyrone Warfield has filed a motion to suppress evidence obtained during a traffic stop. (Doc. No. 17). The government opposes. (Doc. No. 23). Following a hearing, the parties filed supplemental briefing. (Doc. Nos. 31 & 34). For the reasons stated below, Warfield's motion is denied.
A little after midnight on September 10, 2014, Ohio State Patrol Trooper Adam Hartford observed Defendant Warfield's vehicle heading eastbound on I-80 near mile marker 64 at a speed Trooper Hartford deemed too slow for the posted speed limit. He then followed the Defendant's vehicle for just under two minutes. Still suspecting Mr. Warfield was driving too slowly, Trooper Hartford paced his vehicle and determined it was traveling at 50 to 53 m.p.h. Significantly, Trooper Hartford also observed two marked lanes violations, once when Mr. Warfield's vehicle touched the solid white edge line once and again when he touched the hash line dividing the lanes.
The Trooper then signaled Mr. Warfield to pull over. Mr. Warfield complied, and Trooper Hartford explained to him he was stopping him because he was travelling too slowly and had crossed over the marked lane lines. Trooper Hartford questioned Mr. Warfield about whether he had been drinking. Mr. Warfield denied drinking any alcohol. During his testimony, the Trooper reported smelling a strong odor of alcohol from the vehicle. Based on the Trooper's observations of Mr. Warfield's behavior, Trooper Hartford asked Mr. Warfield to come to his patrol vehicle so he could better ascertain if Mr. Warfield was safe to drive.
After performing a safety check for weapons, the Trooper then questioned Mr. Warfield about his points of origin and destination. The Trooper also testified he was able to see a large quantity of cigarette cartons in the back seat of the vehicle. When asked, Mr. Warfield denied he smoked "a lot." (Doc. No. 23, Exhibit 1). Mr. Warfield told the Trooper he was visiting relatives in Cleveland. Mr. Warfield then explained that his passenger in the car, his cousin, had purchased the cigarettes.
Mr. Warfield denied having any warrants or criminal record. Those assertions were true. Based upon his observed behavior, Trooper Hartford performed a field sobriety test on Mr. Warfield, which revealed no indicators of intoxication, ultimately causing Trooper Hartford to conclude he was likely not intoxicated.
Trooper Hartford then questioned the passenger, asking him for identification, as well as inquiring about their travel plans. He also asked the passenger about the origin of the cigarette boxes in the backseat of the car. The passenger explained they bought the cigarettes at a gas station in Chicago and bought them there because they were cheap. From this point, Trooper Hartford appeared to return to his vehicle to perform record checks on both Mr. Warfield and his passenger. He also summoned a canine unit, explaining to Mr. Warfield that another Trooper would walk a dog around his vehicle to check for contraband.
The canine unit arrived soon after. In the interim, the Trooper returned to the vehicle and looked through the rear windows to estimate the number of cartons in the vehicle. The dog was led around Mr. Warfield's car but did not react to the presence of contraband.
Trooper Hartford then asked Warfield's passenger if he could see some of the cigarette cartons to confirm they were bought in Illinois. The passenger stated he bought them in Ohio, contrary to his earlier assertion the cigarettes were purchased in Chicago. Trooper Hartford expressed his concern about the passenger apparently changing his story about the purchase location of the cigarettes. Trooper Hartford also spotted an open container of alcohol in the passenger compartment of the front seat.
After returning Mr. Warfield's license, Trooper Hartford asked Warfield about where the cigarettes were purchased to which Mr. Warfield explained only that they had six or seven cartons in the car. Mr. Warfield also responded "yes" when asked by Trooper Hartford whether more cigarettes were in the trunk. (Doc. No. 23, Exhibit 1). As Trooper Hartford was escorting Mr. Warfield back to his vehicle, he asked Mr. Warfield if he would "mind popping [the trunk]." Id. Warfield replied, "No problem," and opened the trunk himself. Id.
Upon examining the trunk, it was apparent that many cartons of cigarettes were being carried in the vehicle. Warfield explained this large volume of cartons of cigarettes by claiming cigarettes were more expensive in Chicago. Upon further examination of the exterior of the cartons by the Troopers, taxation tags revealed purchase of some of the cartons in the State of Michigan. The turnpike from Chicago to Cleveland crosses through Indiana, but never through Michigan. After the trunk search, Warfield gave permission for the Troopers to search the backseat of the car. Among the cartons of cigarettes were many individual debit cards, credit cards, and gift cards.
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." Any evidence acquired, in violation of the Fourth Amendment, must be excluded as a matter of law. Mapp v. Ohio, 367 U.S. 643 (1961).
Warfield contends the evidence found in the vehicle should be suppressed because the stop itself and investigation following was not supported by reasonable suspicion, probable cause, or voluntary consent. The government states that the vehicle was stopped for a legitimate traffic violation and the search that followed was justified by reasonable suspicion and Warfield's voluntary consent.
A. Initial Traffic Stop
Traffic stops are considered to be seizures of the person and are reasonable when there is "probable cause to believe that a traffic violation has occurred" or "reasonable suspicion supported by articulable facts that criminal activity may be afoot." Delaware v. Prouse, 440 U.S. 648, 653 (1979); Whren v. United States, 517 U.S. 806, 810 (1996); United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal citations omitted) (applying the finding of Berkmer v. McCarty, 468 U.S. 420, 439 (1984) that traffic stops are analogous to Terry stops). The subjective motive of the stop is immaterial if it is supported by the necessary probable cause or reasonable suspicion. Whren, 517 U.S. at 809-13.
Trooper Hartford claimed he pulled out behind Warfield after witnessing him drive 17 to 20 m.p.h. under the speed limit. While pacing Warfield's vehicle for approximately two minutes, Trooper Hartford stated that he watched as Warfield committed more than one marked lane violation and weaved within the lane. Trooper Hartford also cited Warfield's rigid style of driving, with hands in the 10:00 and 2:00 position, as unusual. (Doc. No. 23, Exhibit 2 at GOVT00028; Doc. No. 27 at 44-45).
1. Probable Cause
Under Ohio Revised Code Section 4511.22, one can be charged for a minor misdemeanor if he travels "at such an unreasonably slow speed as to impede or block the normal and reasonable movement of traffic." In this case, Trooper Hartford stated that Warfield was not impeding traffic by travelling at such a slow speed. (Doc. No. 27 at 46). Therefore, no traffic violation for slow speed was committed to satisfy probable cause for the stop. See United States v. Valadez-Valadez, 525 F.3d 987, 992 (10th Cir 2008) ("[D]riving at a speed moderately below the speed limit does not, without more, constitute obstructing or impeding traffic.") (surveying various state law cases); State v. Cockrell, 1994 WL 390360, at *3 (Ohio Ct. App. July 25, 1994) (holding a stop for slow speed is justified when "seriously impeding traffic or going unreasonably slow to create a safety risk"); State v. Hagerty, 2002 WL 1400828, at *3 (Ohio Ct. App. June 28, 2002) (holding that a person travelling eighteen miles per hour under the speed limit on a four lane highway did not commit a slow speed violation because she was not impeding traffic).
With respect to the marked lanes violation, Ohio Revised Code Section 4511.33 requires that, when driving on a roadway with more than one lane, a driver must maintain one lane at a time. Trooper Hartford cited two marked lanes violations: (1) when he pulled out behind Warfield, Warfield "veered over towards the white solid edge line, actually touched it with his tires"; and (2) Warfield "touched the white hash line for the lane divider" as Trooper Hartford was pacing him. (Doc. No. 27 at 12-13). The video does not reveal whether or not a marked lanes violation occurred. (Doc. No. 23, Exhibit 1). Warfield was travelling in the far right lane of the highway. Because of the angle of the video, I cannot clearly ascertain whether Mr. Warfield crossed the solid white edge line when Trooper Hartford pulled out, as purported. Additionally, while it appears Warfield was travelling within his lane while driving alongside the patrol car, I do not find the footage so clear as to discredit Trooper Hartford's testimony. Though the video does not definitively show a marked lanes violation, it does not exclude the possibility that one occurred. I find probable cause that a marked lanes violation occurred, but do find Mr. Warfield's drifting over the marked lines to be at odds with the careful driving Trooper Hartford described.
2. Reasonable Suspicion
While the traffic violations cited are not obvious from the video, the stop was supported by reasonable suspicion. In United States v. Little, 178 F.3d 1297, 199 WL 196515, at *3-*4 (6th Cir. Mar, 24, 1999), the Circuit held that, considered individually, slow speeds, fluctuating speeds, and weaving onto the shoulder of the highway were not enough to be "significant," but "taken as a whole they create more than a mere suspicion that the driver was impaired by alcohol." See also United States v. Noonan, 745 F.3d 934, 936 (8th Cir. 2014) ("Deputy Kennedy was concerned the car's unusually slow speed meant the driver was impaired. . . . Together, the overly-cautious driving, time of night, evasive maneuvers, and rash of recent burglaries gave Deputy Kennedy reasonable suspicion."); United States v. Phillips, 1 Fed. App'x 847, 849 (10th Cir. 2001) (affirming "twice crossing the line plus the vehicle's exceptionally slow speed justified the officer's suspicion that the driver was either fatigued or impaired."); State v. Bacher, 170 Ohio App.3d 457, 462 (Ohio Ct. App. 2007) (finding reasonable suspicion "when a driver is travelling well below the speed limit and is engaged in other unusual behavior that would suggest intoxication, such as swerving, driving on the shoulder of the road, straddling a lane, crossing the center line, or weaving.").
In pulling Warfield over, Trooper Hartford cited slow speed in addition to weaving, marked lanes violations, and the driver's rigid position with hands at "ten and two." (Doc. No. 23, Exhibit 2 at GOVT 00028). Again, because of the angle, I am not able to discern from the video whether or not the marked lanes violation occurred. While it is somewhat suspect that a person who was noted as driving rigidly would weave within and outside of the lane, the evidence is not so clear as to effectively discredit Trooper Hartford's testimony. In combination, the factors cited by Trooper Hartford are sufficient to justify a finding of reasonable suspicion. The traffic stop was a reasonable seizure under the Fourth Amendment.
B. Scope and Length of the Traffic Stop
The government asserts that the scope and length of the traffic stop was reasonable given the totality of the circumstances. Warfield disagrees.
If a traffic stop is objectively reasonable, it is lawful so long as it is not "prolonged beyond the time reasonably required to complete that mission." Illinois v. Caballes, 543 U.S. 405, 407 (2005). Generally, the "mission" of a traffic stop is "to address the traffic violation that warranted the stop." Rodriguez v. United States, 135 S.Ct. 1609, 1614 (2005). Inquiries normally related to a traffic stop include "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Id. at 1615. Unrelated inquiries are permitted so long as they "do not measurably extend the duration of the stop." Arizona v. Johnson, 555 U.S. 323, 333 (2009); see also Rodriguez, 135 S. Ct. at 1616 (applying this principle to dog sniffs).
The stop may be extended if beyond the scope of the original mission if "something happened during the stop to cause the officer to have a reasonable and articulable suspicion that criminal activity is afoot." United States v. Davis, 430 F.3d 345, 353-54 (6th Cir. 2005) (internal citations omitted). The court evaluates "reasonable suspicion" based on the totality of the circumstances. United States v. Richardson, 385 F.3d 625, 630 (6th Cir. 2004). The analysis is extremely fact dependent with factors ranging from nervousness and criminal history to an "overly friendly" attitude. See United States v. Calvetti, 836 F.3d 654, 666-67 (6th Cir. 2016); United States v. Stepp, 680 F.3d 651, 665-67 (6th Cir. 2012); United States v. Garrido, 467 F.3d 971, 977, 982 (6th Cir. 2006) (surveying cases). While the officer must have more than a hunch, his "experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person'" is considered. United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)); Calvetti, 836 F.3d at 666.
When Trooper Hartford approached the vehicle, he noted the presence of a large quantity of cigarette cartons in the backseat. Because of his experience in a prior case dealing with illegally trafficked cigarettes discovered during a routine traffic stop, Trooper Hartford's suspicions were aroused. The odor of alcohol coming from the vehicle and the occupants' nervous behavior only enhanced his suspicions.
Because of the smell of alcohol and the driving behavior witnessed, Trooper Hartford asked Warfield to step out of the vehicle for a field sobriety test. Warfield sat in the passenger seat of the patrol car as Trooper Hartford conducted a license check and sobriety test. The license check did not result in any adverse findings, and Warfield was found to be sober. Other inquiries during this interaction included simple questions about travel plans, the cigarettes in the back of the car, and the relationship to his passenger, Mr. Knox. Warfield told Trooper Hartford that he and his cousin were traveling to Cleveland to visit relatives. Warfield also stated that the cigarettes were purchased by his cousin and that he himself did not smoke "a lot."
Before releasing the men, Trooper Hartford decided to question Mr. Knox to confirm Warfield's story. Mr. Knox affirmed that he had purchased the cigarettes in Ohio, but also claimed that he had purchased some for Warfield who did not smoke "a lot." He was also unclear about the travel plans and stated that he was just "along for the ride." (Doc. No. 27 at 28). Because of the discrepancies between the statements of Mr. Warfield and Mr. Knox, Trooper Hartford concluded that further investigation was necessary. He requested a complete background check from dispatch on both men and a dog sniff from his partner who was in the area.
Only twenty minutes elapsed from the time of the initial stop to the time the complete background checks of both men were returned from dispatch. During that time, the dog sniff was conducted; the dog did not alert to the presence of contraband. Trooper Hartford also questioned Mr. Knox again while waiting for the background check. During the subsequent conversation, Trooper Hartford asked to see some of the cigarette cartons to determine their origin. Mr. Knox then changed his story and asserted some were purchased in Illinois. Trooper Hartford also noticed an open container between Mr. Knox's legs and asked him to dump it out.
The background checks came back within a minute of discovering the open container; both were devoid of any criminal history. Troopers Hartford and Stroud discussed the continued suspicion about the cartons of cigarettes for the next few minutes, but proceeded to give Mr. Warfield back his license and release him from the patrol car.
Prior to Mr. Warfield's consent to search the trunk, approximately twenty-two minutes had elapsed from the time of the initial stop. Trooper Hartford called for a dog sniff when he did not suspect the presence of drugs, justifying the request as "exhaust[ing] what options [he had] available to [him]." (Doc. No. 27 at 56). I also acknowledge Trooper Stroud's testimony that, in his two years of being in the K-9 unit, dog sniffs were relatively rare in cases of suspected DUI and much more common when the suspect was a person of minority. (Doc. No. 27 at 92, 99-101). While these assertions raise skepticism, under the totality of the circumstances, I find that Trooper Hartford had adequate reasonable suspicion to justify the scope and duration of the traffic stop.
C. Voluntary Consent
The government asserts that Warfield gave voluntary consent to search the trunk of the vehicle, but there is some discrepancy as to whether Warfield was still detained at the time consent was given. Trooper Hartford stated that Warfield had been given his identification and was free to leave when he requested consent. (Doc. No. 27 at 65-66). Trooper Stroud disagreed, stating that the investigation was ongoing and that Warfield was not free to leave. (Doc. No. 27 at 97-98). While I consider this an important distinction in most cases, the evidence here clearly indicates that Warfield voluntarily opened the trunk.
The government bears the burden of proving consent was voluntary by the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 233 (1973); see also Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). The "knowledge of the right to refuse consent" is a non-dispositive factor in this analysis. Schneckloth, 412 U.S. at 227. Additionally, a once lawfully seized defendant may give voluntary consent even if he has not been advised that he is "free to go" following a traffic stop. Ohio v. Robinette, 519 U.S. 33, 35 (1996). The primary inquiry is whether the defendant gave consent under coercion or duress such that his will was overborne. Calvetti, 836 F.3d at 664-65 (citing Schneckloth, 412 U.S. at 225-26).
As noted above, I find this traffic stop to be lawful under the Fourth Amendment. With respect to the final issue of voluntary consent, it is apparent that Warfield's will was not overborne. Regardless of whether Warfield knew he was in fact free to leave, Warfield did not appear coerced when he gave consent to the search of the trunk. Warfield possessed his identification at the time the consent was given, and responded "No problem" to the request, and opened the trunk himself. (Doc. No. 23, Exhibit 1). Under the totality of the circumstances, I find consent was freely given for the search.
Although some aspects of the facts of this case give me pause, the seizure was lawful given the totality of the circumstances. Further, Mr. Warfield voluntarily consented to the search of the trunk of the vehicle. Mr. Warfield's Fourth Amendment rights were not violated. Defendant's motion to suppress is denied. (Doc. No. 17).