United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN, UNITED STATES DISTRICT JUDGE.
before the court is the defendant's Motion to Suppress
[ECF No. 20]. The court held a hearing on this Motion on
April 24, 2019, and ordered additional briefing. The
defendant and the government have submitted additional
briefs, and the matter is now ripe for review. For the
following reasons, the Motion is DENIED.
defendant seeks to suppress several items of evidence that he
claims were unlawfully seized. At the suppression hearing,
the court heard testimony of Paul Martin, Defendant Jason
Buzzard, and Officer Tyler Dawson. The parties agree that on
October 12, 2018, the defendant was leaving a gas station at
approximately 1:36 a.m. when Officer Dawson stopped the
defendant because of a defective brake light.
Dawson testified that he made contact with Defendant Buzzard,
the driver, and testified that during these kinds of traffic
stops, he “[a]lways advise[s] [the driver] why [he]
stopped them and then [he] always ask[s] for license and
registration, proof of insurance.” Tr. Mot. Suppress
8:3-4. Officer Dawson testified that while Defendant Buzzard
was searching for the vehicle's registration and
insurance, Defendant Buzzard stated that the vehicle was not
his. Id. at 8:9-10. Officer Dawson testified that he
observed the passenger, Mr. Martin, appearing as if he were
about to run. Id. at 15:1-3. Officer Dawson
explained that Mr. Martin was moving and looking around and
not making eye contact, but interrupting him while he was
speaking with Defendant Buzzard by saying things like
“Hey, you know me, we're not up to anything.
It's just me.” Id. at 10-11. He stated
that Mr. Martin would lean forward, back, look right and look
left. He explained that it was uncommon for passengers to act
the way that Mr. Martin was acting; most people, he said,
would sit still in their seat and listen to and watch the
officer. Id. at 11:7-24. He testified that he knew
Mr. Martin from three other encounters. One included Mr.
Martin riding his bike around some vehicles late at night,
where Officer Dawson suspected that Mr. Martin might be
breaking into cars. Id. at 8. The second was a run
in at Thomas Memorial Hospital where Mr. Martin was being
treated for drug addiction. Id. at 9. And the third
was when Officer Dawson responded to a domestic dispute
involving Mr. Martin. Id. at 35:13-24. He explained
that at the time of the stop, he knew that Mr. Martin had a
history of drug addition, that he just got out of prison, and
that he had prior felonies. Id. at 9-10.
Dawson went on to testify that the area where he pulled over
the defendant was what he believes to be a high crime area,
commonly involving narcotics, noting dozens of arrests made
by him alone. Id. at 12. He explained a drug trade
practice of using the gas station wi-fi to set up deals and
noted a known drug house within a block of the stop.
Dawson testified that in a normal situation, he would run the
driver's information-i.e., Defendant Buzzard's
driver's license information and a warrant check. He did
not, however, run these routine checks. Id. at 14.
Officer Dawson testified that because there were two persons
in the car, he decided to wait for an additional officer.
Id. at 14-15. Notably, he did not call for backup
specifically as much as he hoped for a second officer to
arrive. He explained that when someone begins a stop, his
shift's practice is to say, “Hey, I've got two
occupants in the vehicle, ” and normally, another
officer listening in will come to the scene. Id. at
15. Assuming that a second officer would arrive, Officer
Dawson decided to wait, and while waiting, he asked Defendant
Buzzard a single question: Is there anything illegal in the
vehicle? Indeed, Officer Dawson's field case report
states as follows:
I made contact with the driver/suspect Jason Buzzard . . . .
I observed the other suspect, Paul Martin . . ., sitting in
the front passenger seat of the suspect vehicle. While
speaking with Buzzard, I asked if he had anything illegal in
Report [ECF No. 32-1] 2. When defense counsel asked Officer
Dawson why he asked that single question, Officer Dawson said
that he asked it based on the time of night, the location,
Mr. Martin's history, and Mr. Martin's behavior. Tr.
Mot. Suppress 15.
other hand, Defendant Buzzard and Mr. Martin, after being
sequestered, separately testified that the first question
that Officer Dawson asked immediately after approaching the
car for the first time was whether there was anything illegal
in the car. Regardless of the timing, once asked, Defendant
Buzzard produced a bowl of marijuana that was hidden under
his shirt. Mr. Martin told Officer Dawson that he had one too
and would eventually surrender a syringe. After a search of
the car, Officer Dawson found two firearms, one hidden under
the driver's seat and the other hidden under the
passenger's seat. The police arrested Defendant Buzzard
and Mr. Martin and also confiscated Defendant Buzzard's
Buzzard moved to suppress the contraband. He argues that the
question “Is there anything illegal in the
vehicle?” was beyond the scope of the purpose of the
stop and that by asking it, the question unlawfully prolonged
the stop. Consequently, he argues that in order to ask the
“unrelated” question, Officer Dawson needed
reasonable suspicion or the defendant's consent. The
defendant does not challenge the lawfulness of the traffic
stop. Both parties agree that Officer Dawson lacked consent.
The court is presented with two questions: whether the single
question was related to the mission of the stop, and if not,
whether the single question unlawfully prolonged the stop.
deciding a motion to suppress, the district court may make
findings of fact and conclusions of law. United States v.
Stevenson, 396 F.3d 538, 541 (4th Cir. 2005). During the
hearing, “the credibility of the witness[es] and the
weight to be given the evidence, together with the
inferences, deductions and conclusions to be drawn from the
evidence, are all matters to be determined by the trial
judge.” United States v. McKneely, 6 F.3d
1447, 1452-53 (10th Cir. 1993) (quoting United States v.
Walker, 933 F.2d 812, 815 (10th Cir. 1991)). See
also Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co.,
56 F.3d 556, 567 (4th Cir. 1995) (“[I]n the usual case,
the factfinder is in a better position to make judgments
about the reliability of some forms of evidence than a
reviewing body acting solely on the basis of a written record
of that evidence. Evaluation of the credibility of a live
witness is the most obvious example.”) (quoting
Concrete Pipe & Prods. of Cal., Inc. v. Constr.
Laborers Pension Tr. for S. Cal., 508 U.S. 602, 623
(1993)). The burden of proof is on the party who seeks to
suppress the evidence. United States v. Dickerson,
655 F.2d 559, 561 (4th Cir. 1981). Once the defendant
establishes a basis for his motion to suppress, the burden
shifts to the government to prove the admissibility of the
challenged evidence by a preponderance of the evidence.
United States v. Matlock, 415 U.S. 164, 177 n.14