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United States v. Taylor

United States District Court, Eighth Circuit

November 13, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ALEX C. TAYLOR, Defendant.

FINDINGS AND RECOMMENDATION

THOMAS D. THALKEN, Magistrate Judge.

This matter is before the court on the defendant's, Alex C. Taylor (Taylor), Motion to Suppress (Filing No. 32). Taylor is charged in the Indictment with a conspiracy to distribute and possess with intent to distribute methamphetamine (Count I), in violation of 21 U.S.C. § 846, and the possession with intent to distribute methamphetamine and heroin (Counts II and III), in violation of 21 U.S.C. § 841(a)(1) and (b)(1). See Filing No. 1 - Indictment. Taylor seeks to suppress statements Taylor gave to police and items seized as a result of an automobile search. See Filing No. 32 - Motion.

The court held an evidentiary hearing on October 24, 2013. Taylor participated by telephone. Joseph L. Howard represented Taylor. The United States was represented by Assistant U.S. Attorney David M. Wear. The court received into evidence three photographs of ruse checkpoint road signs (Exs. 1-3), a Google map satellite view of the Maxwell, Nebraska, interchange on Interstate 80 (Ex. 4), Nebraska State Patrol (NSP) Sergeant Gordon Downing's (Sergeant Downing) patrol vehicle video (Ex. 5), a Jeep rental agreement (Ex. 6), a Uniform Citation and Complaint (Ex. 7), a Violation/Warning Form (Ex. 8), and Trooper Hayes' patrol vehicle video (Ex. 9). A transcript of the hearing (TR.) was prepared and filed on October 29, 2013. See Filing No. 45.

FINDINGS OF FACT

On Friday, April 19, 2013, Sergeant Downing, employed with the NSP for fifteenand-a-half years, conducted a ruse checkpoint operation east of Lincoln County, Nebraska, at the Maxwell interchange on Interstate 80 (TR. 4-10). A ruse checkpoint involves placing signs along the interstate indicating drivers should be prepared to stop a mile ahead at a NSP checkpoint (TR. 10). There is no actual checkpoint (TR. 12). The NSP places the signs near an interchange where there is minimum traffic or a rural area and troopers watch the interchange exit ramp for drivers who attempt to avoid a checkpoint by exiting the interstate prior to the checkpoint (TR. 10). Sergeant Downing would stop a vehicle if he witnessed a driver commit a traffic or law violation (TR. 10). On April 19, 2013, Sergeant Downing placed two signs before the eastbound exit on the Maxwell interchange and one sign immediately past the exit (TR. 12, 56). Sergeant Downing stationed his police vehicle southeast of the Maxwell interchange and used binoculars to monitor vehicles using the eastbound exit (TR. 13-14, 57-58). Sergeant Downing parked his patrol vehicle approximately 200 yards from the eastbound exit to avoid being seen by the drivers exiting the interstate (TR. 14, 58, 64). Sergeant Downing had an unobstructed view of the eastbound exit and the stop sign at the end of the exit (TR. 14-15, 58-59).

At 12:05 p.m., on April 19, 2013, Sergeant Downing observed a white Jeep use the eastbound exit on Interstate 80 at the Maxwell interchange, begin to turn right, and then turn left and drive north on the Maxwell link without using turn signals or coming to a complete stop at the stop sign (TR. 12-14, 60-61, 73). After witnessing two traffic violations, Sergeant Downing turned north on to the Maxwell link and followed the Jeep over the overpass (TR. 17-18). Sergeant Downing activated his patrol vehicle's video recorder as he drove onto the overpass (TR. 19). Although the video captures thirty seconds prior to activation, the video did not capture the traffic violations (TR. 19, 58). Sergeant Downing delayed in activating the camera because he had to engage his seat belt and back out of his parking spot (TR. 61-63). After Sergeant Downing drove over the overpass, Sergeant Downing followed the Jeep into a gas station and saw the Jeep drive past the west side of the east pumps and park on the east side of the east pumps (TR. 18). Sergeant Downing thought the behavior was unusual because the driver drove by both times with the driver's side facing the pumps (TR. 18). Sergeant Downing testified this indicated nervous behavior (TR. 28).

Sergeant Downing activated his lights and parked his patrol vehicle behind the Jeep as the front passenger exited the Jeep and walked toward the gas station store and the driver exited the Jeep and walked toward Sergeant Downing (TR. 20-21). Sergeant Downing told the driver to stop, informed the driver and passenger this was a traffic stop, and asked them to return to the Jeep (TR. 21). After the driver and passenger returned to the Jeep and shut the doors, Sergeant Downing approached the Jeep and asked for their identification (TR. 21). Sergeant Downing identified the driver as Deontae Griffin (Griffin) and the passenger as Taylor (TR. 21). Sergeant Downing advised Griffin and Taylor of the reason for the traffic stop, asked to see a rental agreement (as he noticed the Jeep was a rental), and had Griffin accompany Sergeant Downing to the patrol vehicle (TR. 21-22).

Once in the Sergeant Downing's vehicle, Sergeant Downing reviewed Griffin's and Taylor's paperwork, requested background checks on Griffin and Taylor, and asked Griffin questions regarding Griffin's travel plans (TR. 24). Griffin said he was traveling to the University of Nebraska in Lincoln, Nebraska, for a football pro-day (TR. 24-26). Griffin told Sergeant Downing that Griffin did not own a car and a cousin rented the Jeep for Griffin (TR. 25-26). Sergeant Downing asked Griffin whether Griffin had a valid license and had a criminal record (TR. 27). Griffin responded he had a valid license and had never been arrested (TR. 27). Sergeant Downing asked why Griffin exited the interstate (TR. 27). Griffin stated he exited to refill his gas tank, which was half-full (TR. 27-28). Griffin said he drove around the pumps to get on the correct side for fuel (TR. 28). When Sergeant Downing pointed out Griffin kept the pumps on the same side of the Jeep both times, Griffin responded, "Well, then I don't know why I did it." (TR. 28). Griffin attempted on multiple occasions during the traffic stop to engage Sergeant Downing in a conversation regarding sports while they waited for the background checks to complete (TR. 29). Sergeant Downing noted Griffin seemed like he was trying to dominate the conversation (TR. 29-30). During their conversation, Griffin breathed heavily and his top lip and hands shook (TR. 30). Sergeant Downing considered Griffin's level of nervousness beyond the motoring public's average level of nervousness (TR. 30). Griffin's level of nervousness decreased by a small degree over the course of the traffic stop, although his nervousness was still noticeable (TR. 30).

Approximately ten minutes after Sergeant Downing initiated the traffic stop, Sergeant Downing received Griffin and Taylor's background information (TR. 31). Sergeant Downing learned Griffin had prior arrests and California had suspended Griffin's license (TR. 31). Sergeant Downing asked Griffin about the suspended license and Griffin provided a reason for the suspension; however, Sergeant Downing did not recall the reason at the hearing (TR. 31-32). Sergeant Downing noted Griffin's suspended license and criminal history as relevant because first, Griffin should not have been driving, and second, Griffin lied to Sergeant Downing twice (TR. 32). After confronting Griffin with Griffin's record, Griffin and Sergeant Downing returned to discussing Griffin's pro-day trip and the fastest route to Lincoln, Nebraska (TR. 33). In addition to discussing football, Sergeant Downing and Griffin returned to discussing Griffin's travel plans (TR. 33-40). Griffin informed Sergeant Downing that Griffin and Taylor left California on April 18, 2013, and were not staying in Lincoln, but would return to California after the pro-day (TR. 33-34). Sergeant Downing considered this an unusually quick turnaround (TR. 34). Griffin stated he was not in school and not working (TR. 35-36). Griffin stated his mother paid for the rental and rented the Jeep about two days before Griffin and Taylor's trip (TR. 35-36). Sergeant Downing asked who Mario Crumble (Crumble) was as he was listed on the rental agreement (TR. 36). Griffin said Crumble was Griffin's uncle and then corrected himself and said he was Crumble's uncle (TR. 36). Sergeant Downing also asked whether Griffin was an authorized driver as the rental agreement noted "No other drivers permitted" (TR. 37).[1]

After approximately 25 minutes from initial contact with Griffin and Taylor, Sergeant Downing explained Griffin would receive a citation for not having a valid operator's license and a warning for failure to stop and signal (TR. 31, 38, 66). Sergeant Downing informed Griffin due to Griffin's suspended license, he would not be able to continue to drive the Jeep (TR. 39-40, 67-68, 70-71). Sergeant Downing provided Griffin with the citation and warning documents, Griffin's driver's license, and the rental agreement and asked Griffin to wait outside the passenger door of the Sergeant Downing's patrol vehicle while Sergeant Downing spoke with Taylor (TR. 40-41).

Sergeant Downing approached Taylor, who was sitting in the front passenger seat of the Jeep, and advised Taylor of Griffin's suspended license and asked Taylor whether he was comfortable driving (TR. 41). Sergeant Downing also asked Taylor about Taylor's travel plans (TR. 41-42). Taylor said he was going to visit a college and would stay in Nebraska until Sunday and did not mention attending a pro-day (TR. 42). Taylor stated Griffin's cousin or uncle rented the Jeep (TR. 42).

Sergeant Downing noted Taylor's responses were inconsistent with Griffin's (TR. 43, 68-69). Sergeant Downing asked Taylor if there was anything illegal in the vehicle (TR. 43-44). Taylor shook his head and said "no" (TR. 44). Sergeant Downing asked if he could search the Jeep (TR. 44). Taylor said "it was not his vehicle" (TR. 44). Sergeant Downing asked again if he could search the Jeep and Taylor said "yes" (TR. 44). Sergeant Downing had Taylor step out of the Jeep and went to speak with Griffin (TR. 44). Sergeant Downing asked Griffin if Griffin had drugs or anything illegal in the Jeep (TR. 44). Griffin responded "no" to both questions (TR. 44). Sergeant Downing asked if he could search the Jeep and Griffin responded "yeah, go ahead" (TR. 44-45). Sergeant Downing did not yell, threaten, brandish his weapon, or make promises to Griffin or Taylor when he asked for their consent (TR. 45-46). Griffin and Taylor did not appear intoxicated and did appear to understand Sergeant Downing's questions (TR. 46-47). When Sergeant Downing asked for consent, there were no other officers present (TR. 46-47).

Sergeant Downing subsequently searched the Jeep (TR. 45). Griffin and Taylor did not object to Sergeant Downing's search or limit their consent (TR. 48-49). Shortly after commencing the search, Trooper Hayes arrived on the scene (TR. 49). Sergeant Downing advised Trooper Hayes that Sergeant Downing was conducting a consent search of the Jeep but had only done a quick pat-down of Griffin and Taylor and not a search of their persons (TR. 49). Trooper Hayes proceeded to search Griffin and Taylor after obtaining their consent and placed them in his patrol vehicle (TR. 49-50). Trooper Hayes had his video recorder activated in his patrol vehicle and captured communication between Griffin and Taylor (TR. 50-51).[2] After securing Griffin and Taylor, Trooper Hayes assisted Sergeant Downing's search of the Jeep (TR. 51).

Sergeant Downing noticed an old and out of place portable stereo in the Jeep and remarked the screws on the bottom of the stereo had tool marks (TR. 51-52). Sergeant Downing opened the CD hatch to look inside the stereo and saw plasticwrapped packages inside (TR. 52). Sergeant Downing opened the stereo and found four packages of suspected drugs (TR. 52). After discovering the packages, Sergeant Downing informed Taylor of the discovery and advised Taylor of his Miranda rights (TR. 52-54). Taylor requested to have an attorney present (TR. 54-55). Trooper Hayes ...


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