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United States v. Clinton

United States District Court, N.D. West Virginia, Martinsburg

March 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY KEITH CLINTON, Defendant.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This case arises from Gregory Keith Clinton's (“Clinton”) Motion to Suppress and Supplemental Motion to Suppress evidence found during a traffic stop, which lasted less than twenty-three minutes, and subsequent search of his home. Clinton argues that (1) the traffic stop was unreasonably prolonged or unnecessarily delayed, and (2) he was not read his Miranda rights before giving statements that led to a subsequent search of his home. For the reasons that follow, the undersigned recommends that Clinton's motion to suppress be denied and his supplemental motion to suppress be granted in part and denied in part.

         II. BACKGROUND

         A. Facts[1]

         1. The Traffic Stop

         On July 3, 2016, Deputy Corey C. Welcome and Deputy David Ritchie of the Berkeley County Sheriff's Department were driving eastbound on Route 9 in Berkeley County, West Virginia. At the time, Deputy Ritchie was a new officer in training, and Deputy Welcome was assigned to train him. As they were driving eastbound, Deputy Welcome observed a gold Chevy Tahoe driving westbound on Route 9 that overtook (i.e., passed) two vehicles and appeared to be traveling over the posted speed limit. Knowing the speed limit was 45 mph, Deputy Welcome engaged his car's mounted radar, which recorded the Tahoe traveling at 60 mph. As the Tahoe (driving westbound) passed Deputy Welcome's patrol vehicle (driving eastbound), Deputy Welcome saw that the driver, later identified as Clinton, was not wearing his seatbelt.

         Because Deputy Welcome saw the Tahoe traveling 15 mph over the speed limit and the driver was not wearing his seatbelt, Deputy Welcome decided to initiate a traffic stop. To do so, Deputy Welcome turned his patrol vehicle around and soon caught up with the Tahoe driving westbound on Route 9, where it was stopped at a red traffic light. After the light turned green, Deputy Welcome activated his working emergency lights and audible siren and initiated the traffic stop. It was approximately 11:18 a.m.

         Once the vehicles were pulled over, the deputies approached the Tahoe on either side, with Deputy Ritchie approaching on the driver side and Deputy Welcome approaching on the passenger side.[2] As they approached, Deputy Welcome saw that the right passenger mirror was damaged.[3] At the driver-side window, Deputy Ritchie asked for Clinton's driver's license, registration, and proof of insurance. With that information in hand, Deputy Ritchie returned to the passenger side of Deputy Welcome's patrol vehicle and began the process for issuing a citation or warning. Although Deputy Ritchie was an officer in training, Deputy Welcome did not assist Deputy Ritchie with that process and left to his discretion whether to issue a citation, warning, or nothing at all. Because Deputy Welcome's patrol vehicle did not have a computer system, Deputy Ritchie had to relay his requests for information over the radio to Berkeley County Central Dispatch 911 (“Dispatch”), an entity separate and apart from the Sheriff's Department, and wait for a response.

         At 11:19:11 a.m., Deputy Ritchie, who at that time was identified as officer number “157, ” radioed Dispatch to notify them of the traffic stop and a Computer Aided Dispatch (“CAD”) Report was created. See Incident Detail Report, ECF No. 39-2 (redacted).[4] The only people with access to the CAD Report are personnel working at Dispatch; the officers on scene do not have access to the report, nor do they have the ability to enter information into the report. At 11:19:12 a.m., Deputy Ritchie radioed Dispatch and requested an automatic case number and a vehicle check. Dispatch copied and pasted the results of the vehicle check into the CAD Report at 11:19:28 a.m., but that information was not immediately available to the officers because it has to be verbally communicated to the officers by Dispatch. There is no reliable way to know when Dispatch verbally relayed that information back to Deputy Ritchie, who was waiting on scene. At 11:22:16 a.m., Deputy Ritchie requested a person check. Dispatch copied and pasted the results of the person check into the CAD Report at 11:22:32 a.m. But again, there is no reliable way of knowing when Dispatched relayed those results back to Deputy Ritchie. At 11:24:29 a.m., Deputy Ritchie radioed Dispatch and requested a person check through the National Crime Information Center (more commonly known as “NCIC”). Dispatch copied and pasted those results into the CAD Report at 11:24:41 a.m. There is no record of when that information was verbally relayed to Deputy Ritchie. Once Dispatch relayed all the requested information, Deputy Ritchie then had all the information necessary to write a citation, warning, or nothing at all for the observed violations.[5] Although Deputy Ritchie started writing the citation at approximately 11:20 a.m., there is no dispute that he did not have all of the necessary information to complete a citation or a warning until, at least, 11:24:41 a.m.[6] Whenever that information was relayed to Deputy Ritchie, particularly the results of the NCIC person check, Deputy Ritchie and Deputy Welcome (who was wearing an ear piece while he spoke to Clinton and could hear information relayed from Dispatch) learned that Clinton was on federal probation for a drug related conviction.

         While Deputy Ritchie began the process of writing a citation and warning, Deputy Welcome remained at the passenger side of Clinton's vehicle and made small talk. Initially, Deputy Welcome asked Clinton how his passenger-side mirror was damaged.[7]Clinton said that he had swerved off the road and hit a tree but never reported the accident. Then, Deputy Welcome asked Clinton where he was traveling that day. At first, Clinton said that he was on his way to Harpers Ferry, West Virginia, but this struck Deputy Welcome as odd because Clinton was driving westbound on Route 9, not eastbound towards Harpers Ferry. When Deputy Welcome brought this discrepancy to his attention, Clinton reversed course and said that he was heading to Gabe's first, a discount retailer less than a mile away (if he continued driving westbound). However, Clinton said that he didn't have any plans to go inside or purchase anything. What was striking to Deputy Welcome, at the time, was not that Clinton was going to Gabe's, but that Clinton specifically said that he was going to Gabe's with no intention of going inside or to purchase anything; Deputy Welcome knew that the Gabe's parking lot was frequently used to traffic drugs and prostitutes and was a place where he himself had conducted numerous arrests.

         With his curiosity heightened, Deputy Welcome asked about a plastic bag that he saw sitting between Clinton's leg and the center console. Clinton pulled out the bag, which turned out to be a bag of cough drops. After Clinton popped a few cough drops into his mouth, Deputy Welcome asked Clinton if he had any drugs in the car. In response, Clinton said that he did not have any marijuana in his vehicle. This too struck Deputy Welcome as particularly odd. Instead of saying yes or no, Clinton denied having a drug in the car that he was not asked about specifically. So, Deputy Welcome continued: “Do you have any other illegal drugs in the car? Do you have any heroin?” “No, ” Clinton replied. But then, when Deputy Welcome asked if there was any crack cocaine in the car, he observed an immediate change in Clinton's demeanor: He stared blankly and began “aggressively” chewing cough drops, [8] breathy heavily, and sweating. Deputy Welcome also saw Clinton's carotid artery visibly pulsating and his heart beating through his shirt.[9] Soon, Clinton began looking around and rummaging through his vehicle, pulling out and fumbling with various papers. When Deputy Welcome asked what Clinton was doing, he said, “Now, you've got me nervous, and you've got me wondering if there's anything in this vehicle.” At some point during this conversation, Clinton offered two other pieces of information: that he liked to “party” with alcohol and had previously been convicted of a crime related to marijuana. When Deputy Welcome asked what kind of conviction-possession or distribution-Clinton said that they both “go hand in hand.” Clinton, however, denied Deputy Welcome consent to search the vehicle.

         Armed with this information but without consent to search Clinton's vehicle, Deputy Welcome, who at that time was identified as officer number “122, ” walked back towards his patrol vehicle and radioed Dispatch at 11:31:53 a.m. to request a K-9 unit. Although Deputy Ritchie was still busy writing Clinton's citation and warning, Deputy Welcome, as his training officer, interrupted him to explain the situation and what to do in the future during other traffic stops. Then, Deputy Welcome asked for his cell phone so he could reach out to K-9 handlers he had previously worked with to see if they were available to respond. In his experience, it is sometimes faster to request a K-9 directly, rather than going through Dispatch. After explaining the situation and the procedure to Deputy Ritchie and getting his cell phone, Deputy Welcome directed Deputy Ritchie to continue working on the citation and warning. Deputy Welcome then radioed Deputy Brandon Humphrey, who at that time was identified as officer number “147, ” to assist because he was nearby, and Deputy Welcome called a K-9 handler who he frequently works with to see if he was available to respond. By the time Deputy Humphrey arrived on scene at 11:35:03 a.m., Dispatch had received three negative K-9 responses from other local law enforcement agencies at 11:32:33 a.m., 11:33:24 a.m., and 11:34:52 a.m. Upon arrival, Deputy Welcome briefed Deputy Humphrey on the situation and asked him to watch Clinton because Deputy Welcome thought Clinton had drugs in the vehicle but couldn't tell what Clinton was holding in his hand. Specifically, Deputy Welcome said he thought Clinton was holding something in his right hand, clenched between his pinky and ring fingers and his palm, leaving his other fingers extended.

         After being briefed by Deputy Welcome, Deputy Humphrey approached the passenger-side door of Clinton's vehicle to watch him as instructed. There, Deputy Humphrey immediately sensed that Clinton was not only nervous, but also did not appreciate Deputy Humphrey's presence. But unlike his earlier interactions with Deputy Welcome, Clinton now offered Deputy Humphrey no small talk. Instead, Clinton kept fidgeting and continuously looked into his rearview and driver-side mirrors to see what Deputy Welcome was doing. Deputy Humphrey interpreted Clinton's curiosity with Deputy Welcome actions as consistent with criminal activity because suspects often monitor police to see if they (the suspect) have an opportunity to hide something.

         Meanwhile, Deputy Ritchie continued writing Clinton's citation and warning, and Deputy Welcome continued to reach out to K-9 handlers using his cell phone. The first K-9 handler Deputy Welcome called didn't answer but soon responded via text. The handler said he couldn't assist because he was in church but suggested that Deputy Welcome call another K-9 handler who, the first handler thought, was on duty. The first handler also said that he would assist, if Deputy Welcome didn't have any success reaching out to other handlers. Taking his advice, Deputy Welcome started contacting the second K-9 handler that was possibly on duty. But before Deputy Welcome could get in touch with him, Deputy Humphrey called for help.

         As Deputy Humphrey continued to watch Clinton, Deputy Humphrey noticed that Clinton kept moving his hands. Perceiving the movement as a possible threat to officer safety, Deputy Humphrey repeatedly instructed Clinton to keep his hands on his lap.

         Ignoring those instructions, Clinton kept moving his hands and finally rested his left arm on the driver-side door with his hand out the window. Then, with Clinton's hand still in view, Deputy Humphrey saw Clinton manipulating his hand and dumping an off-white substance out of the window. Without hesitation, Deputy Humphrey immediately called for assistance from Deputy Welcome and rushed around the front of Clinton's vehicle to the driver-side door to secure his arm. At that time, Deputy Ritchie, who was still seated on the passenger side of the patrol vehicle, had completed writing Clinton's citation for not wearing his seatbelt but was still actively writing his warning for speeding. When Deputy Ritchie heard the call for assistance, he saw Deputy Welcome run past him and in front of the patrol vehicle toward Clinton's driver-side door. Deputy Ritchie immediately set his ticket book aside and rushed to assist his fellow officers.

         2. The Arrest and Subsequent Detention

         When the deputies arrived, Deputy Humphrey secured Clinton's left arm and found a glass “tooter” in his hand. A tooter is a glass vile with a plastic top that is often used to conveniently store and snort cocaine. Although the tooter in Clinton's hand was now empty-its contents dumped onto the asphalt below-it still contained a white residue. Then, Deputy Welcome and Deputy Ritchie removed Clinton from his vehicle and placed him under arrest. Meanwhile, Deputy Humphrey put on plastic gloves and tried to recover as much of the dumped substance as possible. Based on his experience, it appeared to be crack cocaine because it was a rock-like substance that was broken into smaller pieces. As Deputy Welcome guided Clinton back to the patrol vehicle, Deputy Welcome said to Clinton, “I knew you had drugs in the vehicle; we got you now!” In response, Clinton said, “What did you expect? I'm a convicted felon; I have five years over my head.” With Clinton secured, Deputy Ritchie radioed Dispatch at 11:42:28 a.m. to inform them that Clinton had dumped drugs out of the window while Deputy Welcome searched for a K-9 and Deputy Ritchie was writing Clinton's warning. The deputies, then, proceeded to search Clinton's person and vehicle. There, they found large sums of money in various locations and denominations, two ripped plastic baggies, and one clear plastic baggy containing a white, powdery rock substance that was tied off. The substance field tested positive for cocaine base, the evidence was documented, and Deputies Welcome and Ritchie transported Clinton back to the station for processing. Meanwhile, Deputy Humphrey stayed on scene until Clinton's vehicle was towed away.

         At the station, Deputy Welcome and Deputy Ritchie processed Clinton. There, Clinton was finally given the completed citation and warning. At some point during processing, Clinton informed the deputies that his stomach was upset because of the stress or nerves from the day's events. Although his upset stomach led to one or two bowel movements, Clinton appeared to be in good health. After being placed into a holding cell, Clinton eventually expressed willingness to speak voluntarily to law enforcement. But when Deputies Welcome and Ritchie transported Clinton to an interview room and provided him with a Miranda waiver to execute, Clinton struck a line through the document, indicating that he was no longer willing to cooperate. Because Clinton struck a line through the waiver, Deputy Welcome began to transport Clinton back to his holding cell. This realization, however, prompted Clinton to again express his willingness to speak to the deputies voluntarily. Deputy Welcome then read Clinton his Miranda rights, [10] Clinton executed a new written waiver of said rights, and Clinton gave a statement to Deputies Welcome and Ritchie. Specifically, Clinton said that there were more drugs and two firearms at his residence.

         3. The Search Warrant and Other Relevant Information

         Deputy Welcome relayed that information to another officer who applied for a warrant to search Clinton's residence. That search warrant was executed by a number of deputies, including Deputies Welcome and Humphrey. There, they found two firearms, drugs, drug paraphernalia, and weighing and packing materials. Despite assisting with the search, Deputy Humphrey could not later recall whether additional drugs were found at Clinton's residence. He was, however, sure that two firearms were recovered.

         After the search was completed, Deputy Welcome began completing all of the necessary paperwork. Until that paperwork was completed, he kept it at the corner of his desk-right above his trash can-with Clinton's Miranda waiver sitting on top. To date, the Berkeley County Sheriff's Department has not been able to locate the missing Miranda waiver. In addition, the Sheriff's Department has not been able to recover the audio-video recordings of Clinton's July 3, 2016 traffic stop or interview. The former was unrecoverable because Deputy Welcome's car was operating with a faulty hard drive, and the latter was unrecoverable because audio-video recordings of interviews are overwritten if there is no request to produce them within six months.[11]

         B. Clinton's Motion to Suppress and Supplemental Motion to Suppress

         In his motion to suppress, Clinton argues that “Deputy Ritchie or one or more law enforcement officers either purposely or improperly extended the traffic stop, or did not diligently pursue the mission of the stop, thereby enabling Deputy Welcome to conduct an investigation of [Clinton] unrelated to the mission of the stop.” Def.'s Mot. to Suppress, ECF No. 39 at 5. Because the officers extended the stop, or did not diligently pursue the stop's mission, Clinton argues that his seizure, which “lasted well beyond the time reasonably necessary to issue a warning or ticket . . . for speeding and not wearing a seatbelt, ” was unlawful and any resulting statements or evidence should be suppressed as fruit of an unconstitutional traffic stop. Id.

         In addition, Clinton argues that he was never read his Miranda rights-evidenced by the lack of any written waiver of said rights-and, therefore, any firearms found as a result of his unwarned statements should, too, be excluded as fruit of the poisonous tree. Id. at 6 n.1. In his supplemental motion to suppress, Clinton further argues that all evidence (including drugs, drug paraphernalia, and the like) found as a result of his unwarned statements should be excluded as fruit of the poisonous tree, not just the firearms and statements related to said firearms, as argued in his earlier motion. Def.'s Supp. Mot. to Suppress, ECF No. 47 at 1-2.

         The Government's response is two-fold: First, it argues that “the officers did not prolong the stop beyond the time reasonably required to issue Clinton with the ticket and warning.” Resp. in Opp. to Mot. to Suppress, ECF No. 54 at 1. Second, even if they did, the Government argues that any extension beyond the stop's original purpose was supported by “‘reasonable suspicion' that Clinton was engaged in illegal activity . . . .” Id. at 2.

         The undersigned addresses each argument, in turn, below.

         III. ...


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