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United States v. Kenyon

United States District Court, N.D. West Virginia

March 8, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
STEPHANIE LEE KENYON, Defendant.

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On August 9, 2017, the Grand Jury named Stephanie Lee Kenyon (“Defendant”) in a two-count indictment. Count One of the indictment charges her with identity fraud. Count Two charges her with interstate transportation of stolen property. There is also a forfeiture allegation.

         The Defendant filed two motions to suppress; one motion to suppress statements, and one motion to suppress a vehicle search; as well as a supplemental motion to suppress the traffic stop leading to the search. ECF Nos. 16, 17, and 25. The Court held a hearing regarding these motions. The hearing was split between February 7, and February 21, 2018. At both portions of the hearing, the Defendant appeared in person and by her counsel Brendan S. Leary, Esq. The Government appeared through its counsel David J. Perri, Esq. Corporal Sean Brantley and Officer Erick Burke testified on behalf of the Government.

         For the following reasons, the Count recommends that Defendant's Motion [ECF No. 16] to Suppress Statements and Motion [ECF No. 17] to Suppress Search of Vehicle for Unreasonable Extension of Traffic Stop be GRANTED; and that Defendant's Supplemental Motion [ECF No. 25] to Suppress Search of Vehicle for Illegal Traffic Stop and Unreasonable Extension of the Traffic Stop be DENIED in part and DENIED AS MOOT in part.

         II. FINDINGS OF FACT

         On May 13, 2017, Corporal Sean Brantley of the Wheeling Police department conducted a traffic stop of a white Ford Expedition which was traveling east on Interstate 70. After pursuing the vehicle for roughly ten miles, the stop was effectuated around mile marker seven at 10:16 a.m. on that date. The occupants of the vehicle were a male driver, Mr. Gilmore; a female passenger, Ms. O'Brien; and the Defendant, who was initially lying across the back seat with a blanket draped over her.

         Corporal Brantley, after speaking briefly to the front seat passengers, asked for their registration and proof of insurance for the vehicle, as well as identification for all three occupants. During this time, he also began asking other questions about where they had been, why they had been there, and where they were going. The front seat passengers produced identifications, but informed Corporal Brantley that the backseat passenger did not have an Id. Ms. O'Brien said that she was from Florida, her name was Leah Whitmil, and provided a date of birth. They were also able to produce registration and proof of insurance for the vehicle, which was a rental vehicle, but were not able to produce a rental agreement.

         Corporal Brantley was able to verify that the identifications provided by both Mr. Gilmore and Ms. O'Brien were valid, but was unable to find any record under the name and date of birth he had been provided for the back seat passenger, the Defendant.

         At approximately 10:28 a.m., Officer Burke arrived on the scene. Corporal Brantley filled him in on his observations of what was taking place, and Officer Burke went and spoke to the passengers as well. After Officer Burke spoke with the passengers, he went and spoke with Corporal Brantley again. At this point, they decided to conduct a canine sniff of the vehicle. It was also around this time when all passengers were asked to exit the vehicle. Corporal Brantley then walked his canine around the vehicle. The canine alerted by sitting down near the rear passenger side of the vehicle.

         After the canine alerted, Corporal Brantley proceeded to perform a search of the vehicle. Corporal Brantley found various types of large bags in the rear of the vehicle. He asked the passengers to identify which bags belonged to whom. The passengers all did so until it came to two Nike duffel bags, which appeared to be new and had tags still on them. Corporal Brantley described these bags as being very heavy. When asked who the duffel bags belonged to, none of the passengers initially claimed ownership, eventually claiming it belonged to all of them. Corporal Brantley asked them what was inside. Mr. Gilmore responded that it was electronics. Corporal Brantley eventually opened the bags and discovered many Apple products such as laptops, phones, and watches; all in what appeared to be their original packaging. At some point while Corporal Brantley was going through the electronics, Ms. O'Brien claimed ownership of the duffel bags containing the electronics, and claimed to have purchased them on eBay.

         At approximately 11:34 a.m. Corporal Brantley attempted to question Ms. O'Brien about the contents of the bags, but aside from claiming ownership, Ms. O'Brien declined to answer Corporal Brantley's questions. Shortly thereafter, at approximately 11:37 a.m., Corporal Brantley and the Defendant had a conversation at the front of the rental vehicle in which the Defendant gives Corporal Brantley her true name, and tells him that she is wanted by law enforcement. After going to his cruiser to check with dispatch regarding the name and date of birth provided to him by the Defendant, Corporal Brantley returned to the front of the vehicle and continued speaking with the Defendant. This ultimately led the Defendant to make several incriminating statements, including claiming that the Apple products actually belonged to her, and that her bags also contained several fake IDs and credit cards, as well as a device used for producing the fake credit cards.

         III. DISCUSSION

         The Defendant filed two motions to suppress, as well as a supplemental motion to suppress. All told, they raise four distinct issues: 1. The legality of the initial traffic stop, 2. The legality of the extension of the traffic stop, 3. The search of the vehicle, and 4. The failure of Corporal Brantley to mirandize the Defendant prior to speaking with her. The Court will address these issues separately in the listed above.

         A. The Initial Traffic Stop

         In her Supplemental Motion, the Defendant challenges the basis for the traffic stop, arguing that no traffic infraction was committed and that “[o]fficer Brantley saw a new model Ford Expedition with a New York license plate and nothing more.” ECF No. 25 at 4. Corporal Brantley contends that multiple traffic infractions he saw the vehicle commit was the basis for the initial traffic stop. Further, he says he did not notice the New York license plate until he caught up to, and pulled the vehicle over.

         An officer's “decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 809 (1996). Corporal Brantley was in the median of the interstate turning around when the vehicle in which the Defendant was a passenger caught his attention. He testified that the vehicle initially garnered his attention because it started to cross over the center line, then jerked back into the lane it was originally in. Because of this, he began to pursue the vehicle. While pursuing the vehicle, he also observed the vehicle following too closely; and, in his estimation, speeding. All three are violations of West Virginia law. W.Va. Code §§ 17C-7-10, 17C-7-6, 17C-6-1.

         The Court finds this issue to be straightforward and the traffic stop, at its inception, to be routine. The Defendant presents no evidence; rather, they make only assertions and suggestions to support their claim that Corporal Brantley did not have probable cause to believe a traffic violation had occurred. For instance, Defendant makes much of the fact that Corporal Brantley did not confirm with a radar gun that the vehicle was speeding. They also point to the fact that none of the infractions can be seen in the dash cam video from Corporal Brantley's patrol car. Indeed, this is true. However, due to the location of the dash cam, the vehicle is not even visible on the dash cam footage until Corporal Brantley is directly behind the vehicle as it pulls over. Up until that point, there are either vehicles in between the dash cam and the vehicle the Defendant was in, or the vehicle is too far ahead to be seen. You can, however, hear Corporal Brantley on the video commenting about some of the infractions he sees taking place. Additionally, the left of center infraction that led Corporal Brantley to initiate the pursuit of the Expedition to begin with happens when Corporal Brantley's cruiser is parked in the median. The angle is such that it would be difficult to see even if the camera were pointed directly at the vehicle the Defendant was in.

         As for Corporal Brantley not confirming the speeding violation with a radar gun, it is worth noting that Corporal Brantley needed only probable cause to believe a traffic violation had occurred under Whren, not irrefutable proof. Due to the foregoing, the Court finds that Corporal Brantley had probable cause to believe multiple traffic violations had occurred, thus rendering the initial traffic stop valid.

         B. Extension of the Traffic Stop

         The Defendant takes issue with several issues regarding the length of the stop. ECF No. 17. First, the stop lasted for nearly two hours. Additionally, the canine, despite being at the scene of the nearly two hour stop in Corporal Brantley's cruiser the entire time, was not led around the vehicle until over 35 minutes after the stop had been made, another issue of contention for the Defendant. The Defendant also takes issue with Corporal Brantley, and later Officer Burke, taking time to ask numerous questions that clearly had motives beyond the reason for the initial traffic stop and the issuance of tickets or warnings. The Defendant says that “[t]hroughout the entire exchange before the dog was used to sniff the exterior of the Expedition, both officers were questioning the occupants of the vehicle and gathering information that they could use to justify their conclusion that reasonable suspicion existed that criminal activity was afoot.” ECF No. 17 at 6. All this, Defendant says, constitutes an unconstitutional extension of the traffic stop culminating in an unlawful search and seizure under the Constitution.

         In determining whether a traffic stop is reasonable under the Fourth Amendment, the Court applies the standard articulated in Terry v. Ohio, 392 U.S. 1 (1968), wherein the court asks 1. if the stop was “legitimate at its inception, ” United States v. Hill, 852 F.3d 377, 381 (4th Cir. 2017), and 2. if “the officer's actions during the seizure were reasonably related in scope to the basis for the traffic stop, ” United States v. Williams, 808 F.3d 238, 244 (4th Cir. 2015). The Court found; supra, that the stop was legitimate ...


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