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United States v. Chiles

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

April 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EMORY CHILES, Defendant.

          JUDGE KEELEY

          REPORT & RECOMMENDATION

          MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Undersigned pursuant to the District Court's order (ECF No. 50) referring Defendant's “Motion to Suppress Physical Evidence” (ECF No. 49), filed March 27, 2018, to the undersigned for consideration. On March 18, 2018, the Government filed a one-page response in opposition, stating that it “disagree[d] with the facts as presented by defendant, as well as defendant's conclusions.” (ECF No. 52). On April 2, 2018, came the Defendant, in person and by counsel, Assistant Public Defenders L. Richard Walker and Beth Gross; and the Government, by Assistant United States Attorney Zelda Wesley, for a hearing on the motion. Subsequently, on April 3, 2018, the Government filed a memorandum (ECF No. 61) in support of its response in opposition. On April 4, 2018, Defendant filed a reply memorandum. (ECF No. 65). Accordingly, this matter is now ripe for a report and recommendation. For the reasons explained below, the undersigned recommends that Defendant's motion to suppress be denied.

         I. BACKGROUND

         Defendant's motion arises out of events during a traffic stop on the evening of November 2, 2017, beginning at approximately 10:15 p.m. On that evening, Deputy Sheriff Daniel Oziemblowsky and canine (“K9”) officer Sergeant R. A. Stockett of the Monongalia County Sheriffs Department were working on 1-79 near the Pennsylvania-West Virginia border. A Volkswagen Golf passed by Oziemblowsky, who noticed that a “passenger side tail light was not functioning.” Oziemblowsky testified that at this point, he told Stockett a car had just passed with a “burned out tail light, ” they both got back into their patrol vehicles, and the two officers proceeded down I-79 South to catch up to the vehicle. Oziemblowsky called into the Monongalia Emergency Centralized Communications Agency (“MECCA 911”) dispatch center to run the vehicle's plates. After turning on his lights to initiate a traffic stop, but before the vehicles had come to a stop at the side of the road, Oziemblowsky switched on his body camera, capturing the events of the stop on video beginning at approximately 10:16 p.m.

         A MECCA 911 operator radios Oziemblowsky to advise the vehicle registration is “clear NCIC” - i.e., not stolen - and that she is “not sure what kind of make it is.” Oziemblowsky advises he is going to be “on the stop of that vehicle” on 79 southbound at mile marker 155 and a half, and that the license is displayed on a “Volkswagen, it looks like a Golf, silver in color.” Oziemblowsky exits his vehicle and approaches the vehicle to speak to the driver, advising he has pulled him over is because the passenger side tail light is out. After the driver responds, “Really?” Oziemblowsky clarifies that while the brake lights on the vehicle are working, the tail light is not. Oziemblowsky requests the driver's license, registration, and proof of insurance. The driver, Trevor Townsend, advises that he does not have a valid license, as it was suspended for a DUI five years ago and has not been reinstated. Townsend further advises that the vehicle was just purchased and does not yet have a valid registration or insurance, though there was a bill of sale in the glove compartment, which Oziemblowsky asks him to retrieve. Defendant Chiles, the passenger, informs Oziemblowsky that he is recording the stop for his protection. Oziemblowsky advises “That's fine;” that the officers' body cameras are also recording, and they all have a right to record the stop. Townsend asks if he can call his mother to come arrange to have the car towed, which Oziemblowsky tells him is fine. Oziemblowsky then turns back to his patrol car to “run everything.” On his way back, he passes Sergeant Stockett who states he will check on Defendant's identification.

         Back at his patrol car, Oziemblowsky again radios with MECCA 911 and asks the operator if she “ever got any return on that 28 that I ran? I know you said that it didn't provide what make it was or model.” The operator advises that it “came back with a name, ” as well as a Vehicle Identification Number (“VIN”). “I'm not sure what that means, ” she states, “but it doesn't have any [inaudible] on it.” Oziemblowsky asks for the last four numbers of the VIN, which she provides. Oziemblowsky returns to the Volkswagen momentarily, says “Okay, that's not the right plate, ” and walks back to his patrol car. “Give me the plate again, ” the operator radios back; “maybe I ran it wrong.” Oziemblowsky responds “No, there's nothing legal on this vehicle, MECCA; it doesn't belong on it.” Stockett is conversing with Defendant at his window, getting his identification and asking where the two had come from. Oziemblowsky gets back in his patrol car and provides Townsend's identification information for MECCA to run. After clarifying the number, MECCA responds that it is “showing expired, to a Trevor Townsend.” Oziemblowsky then converses with a male about needing a “shift cars” and provides his location. Stockett approaches the window of Oziemblowsky's patrol car. “Tell me you're going to run the dog on this one, ” Oziemblowsky says. Stockett responds “Yeah, ” advising Oziemblowsky that Defendant told him he had spent eighteen years in the pen for “drug stuff.” “Did you see where he's from?” Oziemblowsky asks - “the Bronx.” Stockett advises when Oziemblowsky is ready, i.e., able to watch the two while Stockett conducts a canine sniff, he will run the dog around the car. Oziemblowsky tells Stockett that he is still waiting for 1) a unit (the shift car) to arrive, 2) a return on Townsend, and 3) to run Defendant's identification, which he had not had a chance to do yet. Stockett advises he will stay with the two at the Volkswagen to watch them until Oziemblowsky is free.

         Oziemblowsky then radios in Defendant's identification to have that run as well, which comes back suspended. “Any luck on [Townsend]?” Oziemblowsky asks. After waiting for a short time, Oziemblowsky gets out of his patrol car and advises Stockett that he is “still waiting on returns and such, so, while we're waiting on that, if you want to run the dog…” Stockett confirms that he does: “[Defendant] is already telling me his rights and stuff, he wants to get out of the car, and stand, and…” Stockett is interrupted by the radio, confirming Townsend's license was revoked for a DUI offense.

         Stockett approaches the Volkswagen and has Townsend get out and come back to stand with Oziemblowsky, who asks Townsend if he has had any luck reaching his mother to arrange to have the vehicle towed. Townsend advises he has not been able to reach her or his brother yet, who he texted, but was slow to respond. Oziemblowsky asks Townsend if he has any weapons on him; Townsend responds that he had only the pocketknife, which he left in the car. Oziemblowsky conducts a pat-down of Townsend, who is standing next to him, “just to make sure [he] didn't have any weapons on [him].” Townsend then places a call to his brother on his cell phone.

         At this time, Stockett brings Defendant over to the area where Oziemblowsky and Townsend are standing, though Defendant is a few feet further away. Defendant holds his phone up and speaks into it, “This is Emory Chiles, I'm recording a traffic stop as a passenger. Travis got pulled over for a tail light being out; he had a suspended license...” Townsend converses on the phone with his brother, telling him that they have been pulled over and the Volkswagen has to be towed, and asking him to have his mother call him. Oziemblowsky asks Defendant to stay back from the highway for his safety, due to passing vehicles. Stockett runs the dog around the vehicle, where it can be heard barking. Oziemblowsky asks if there is anything in the vehicle, which Townsend and Defendant deny. Townsend explains that he has not had anything in the vehicle, as it has been parked in a garage, but that he has “been around weed smoke often.” Stockett goes back to the Volkswagen to search it pursuant to the canine alert.

         Twenty minutes into the stop, Townsend talks to his mother on the phone explaining where the Volkswagen is so that she can try to arrange to get it off the highway. Stockett is still searching the Volkswagen at this time. As soon as Townsend hangs up, Oziemblowsky asks Defendant, who has been facing away from him recording Stockett searching the vehicle, if he has any weapons on him. Defendant responds in the negative, stating he had a pocketknife but it was left in the vehicle earlier when talking to Sergeant Stockett. Oziemblowsky asks Defendant if he minds if he pats him down for safety reasons, since they are now in close proximity. Defendant does not consent to the pat down. After Oziemblowsky and Defendant debate this and Defendant continues to insist there is no legal basis for the pat down, Oziemblowsky advises that he can pat Defendant down and calls Sergeant Stockett over to assist him in so doing. Up to this point, at 22:37:29, Oziemblowsky's camera points back towards the patrol vehicle and no other officers are visible or appear to be on scene yet. At 22:37:41, Townsend can be seen standing in front of the patrol vehicle, but no other officers are visible still. Approximately twenty one minutes into the stop, at 22:37:44, Oziemblowsky pats Defendant down and finds a gun on his person.

         At 22:37:49, Oziemblowsky's body camera shows another officer standing next to the parked patrol vehicle - presumably, the officer from the requested “shift car” who has recently arrived. After cuffing Defendant and putting the gun in a patrol vehicle, Oziemblowsky continues the pat down and finds what are alleged to be bags of “dope” in Defendant's pocket. Subsequently, based on these events, Defendant was indicted on one count of Possession with Intent to Distribute Heroin, in violation of 18 U.S.C. § 924(c)(1)(A)(i); one count of Use of a Firearm During and in Relation to a Drug Offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and one count of Unlawful Possession of a Firearm, in violation of 18 U.S.C. §922(g)(1) and 924(a)(2). (ECF No. 5).

         II. THE PARTIES' CONTENTIONS

         1. Defendant's Motion to Suppress

          In his motion, Defendant raises four arguments. First, Defendant argues that the officers lacked probable cause to stop the Volkswagen for two reasons: 1) because the left “tail light” of the vehicle was not out; rather, the light was visibly - albeit less brightly - illuminated on the video of the traffic stop; and 2) because the discrepancy in the registration was not known to the officers until after the Volkswagen was stopped. (ECF No. 49 at 9-10). Second, Defendant argues that the officers lacked reasonable suspicion to detain him because he was merely a passenger and was uninvolved in the alleged violations of law committed by the driver of the vehicle which led to the stop in the first instance. Id at 10-11. Third, Defendant argues that the stop was “unlawfully and unnecessarily extended . . . in order to conduct a search with a dog.” Id Fourth, Defendant argues that the officers lacked reasonable suspicion to believe he was armed and dangerous, and thus lacked grounds to conduct the Terry pat-down of Defendant's person. Id at 12.

         2. Government's Opposition

         The Government argues that the traffic stop was justified based on the “burned out taillight, and also because the plate did not match the vehicle, ” and that the officers' actions were reasonably related in scope to the basis for the detention. (ECF No. 61 at 11-12). Second, the Government argues that the officers had a “reasonable articulable suspicion of criminal activity” because the Defendant was “making a 'bigger deal' than necessary” about recording the stop, had called Townsend by the wrong name, was from the Bronx, had recently gotten off parole after serving eighteen (18) years in prison, and the plate on the Volkswagen did not belong to that car. Id at 12. Third, the Government argues that the traffic stop was not extended because it “never concluded before Defendant was arrested, ” as the officers were still “address[ing] the issue” of how to transport Townsend, Defendant, and the Volkswagen away from the scene of the stop on I-19. Id at 12-13. Moreover, the stop could not have been extended to permit the K9 sniff around the vehicle because the K9 unit was already on scene. Id at 13. Fourth, the Government argues that the officers had a reasonable belief that Defendant was armed due to Defendant's criminal history, the K9's alert on the vehicle, and Defendant's statement that he had had a knife on him, because Oziemblowsky did not know for certain it had been left in the vehicle and did not have to take Defendant at his word. Id at 13-14.

         3. Defendant's Reply

         In his reply, Defendant first reiterates that the stop was not justified because “portions of the [officers' body camera] videos seem to show both tail lights emitting red light, ” and because the officers did not learn about the license plate discrepancy until after he had initiated the stop. (ECF No. 65 at 1-2). Defendant further argues that although Oziemblowsky testified that he observed a tail light out on the vehicle, Oziemblowsky's credibility was at issue because he 1) admitted that he had intentionally covered his microphone during the stop in order to prevent it from recording a conversation about the illegality of the search; and 2) denied having any involvement in prior cases where a Fourth Amendment violation was found, which is objectively false per State v. Feicht. (ECF No. 65 at 2, referring to ECF No. 65-1). Second, Defendant reiterates a lack of reasonable articulable suspicion of criminal activity, arguing that there is nothing suspect about Defendant recording a police interaction or Defendant confusing Townsend's name slightly. Id at 3-4. Moreover, Defendant's New York identification likewise is not suspect because the Government provided no specific evidence that the Bronx is a “source city” of narcotics for West Virginia, and even if it was, 1-79 is not a route that would be traveled between the Bronx and Morgantown. Id at 4-5. Third, Defendant reiterates that the officers' actions clearly exceeded the scope of the basis for detention, given that all of the alleged traffic violations were committed by Townsend, and Defendant was merely a passenger who was not involved. Id at 7. Moreover, when Defendant asked if he was being detained and indicated a desire to leave, he was not permitted to. Id Fourth, Defendant reiterates that Oziemblowsky lacked a reasonable belief that he was armed and dangerous warranting a Terry pat down because Oziemblowsky did not know about Defendant's prior firearm possession conviction at the time the pat down occurred, and while Oziemblowsky did know about Defendant's prior drug conviction, that is not a reasonable basis on which to conclude Defendant was armed. Id at 8. Defendant argues that the K9 alert likewise cannot provide reasonable suspicion that he was armed, as those dogs are trained to detect narcotics, not weapons. Id In addition, Defendant argues that the fact that Defendant had a pocketknife on him at the time of the stop, which he left in the center console of the Volkswagen upon being made to exit, provides no logical basis to assume that he had, or needed to be searched for, additional weapons. Id at 9-10.

         III. ANALYSIS

         Detaining persons during a traffic stop by the police, even briefly and for a limited purpose, is a “seizure” under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1994). It is the Government's burden to demonstrate that seizure it seeks to justify on basis of reasonable suspicion was sufficiently limited in scope and duration to satisfy conditions of investigative seizure. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319 (1983). The propriety of a traffic stop is considered under the two-pronged inquiry articulated in Terry v. Ohio, 392 U.S. 1. (1968). The first prong is “whether the police officer's action was justified in its inception.” U.S. v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992). The second prong is “whether the police officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop.” Id If the occupants of a vehicle are detained beyond the scope of a routine traffic stop, the officer must be able to articulate “reasonable suspicion that criminal activity is afoot.” U.S. v. Brugal, 209 F.3d 353, 357 (4th Cir. 2000) (en banc), quoting Rusher.

         1. The stop was justified in its inception because the officers had reasonable suspicion that the tail light of the Volkswagen was not in proper working condition under West Virginia law.

         “Observing a traffic violation provides sufficient justification for a police officer to detain the offending vehicle for as long as it takes to perform the traditional incidents of a routine traffic stop.” U.S. v. Branch, 537 F.3d 328, 335 (4th Cir. 2008) citing Illinois v. Caballes, 369 F.3d 776, 407 (2005). Under the first prong of the Terry inquiry, whether the law enforcement action was 'justified in its inception' in this instance hinges on whether the officers observed a traffic violation sufficient to initiate the stop. “Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time, and not on the officer's actual state of mind at the time the challenged action was taken.'” U.S. v. Rusher, 966 F.2d 868, 875 (4th. Cir. 1992), quoting Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2783 (1985).

         The Government argues that the stop was justified “based on the burned out taillight and also because the plate did not match the vehicle.” (ECF No. 61 at 11). However, as Defendant argues, and as Oziemblowsky's body camera video shows, Oziemblowsky initiated the traffic stop before receiving information about the plate/registration of the Volkswagen from MECCA 911 dispatch.[1] Thus, the only “facts and circumstances ...


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