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United States v. Hardie

United States District Court, M.D. Georgia, Columbus Division

July 21, 2017

UNITED STATES OF AMERICA,
v.
NICHOLAS J. HARDIE, Defendant.

          ORDER

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE

         On December 15, 2016, the Court held a hearing on Defendant's motion to suppress and in limine to exclude Defendant's field sobriety tests and refusal of a chemical test (ECF No. 8). For the reasons explained below, Defendant's motion to suppress is denied and his motion in limine is denied in part and granted in part.

         FINDINGS OF FACT

         Defendant Nicholas Hardie is charged with one count of driving while under the influence, less safe, and one count of speeding. Information 1, ECF No. 1. On July 1, 2016, at a little after midnight, Lieutenant Maynard observed-confirmed via radar-a vehicle going 66 miles per hour in a 45 miles per hour zone. Hr'g Tr. 5:12-15; Gov't's Ex. 1 at 1, ECF No. 12-1. Officer Maynard stopped the vehicle. Hr'g Tr. 5:14-15.

         Officer Maynard approached the vehicle and noticed a “strong odor of alcoholic beverage both from the driver and the vehicle itself.” Hr'g Tr. 5:25-6:2. The driver, Defendant Hardie, told Officer Maynard that he went to pick up two friends who had been drinking. Id. at 6:2-3. Officer Maynard asked Hardie to step out of the car and to the rear of the vehicle so that he could separate any odor of alcohol coming from the car and passengers. Id. at 6:4-12; Gov't's Ex. 1 at 1. After Hardie exited the vehicle, Officer Maynard smelled a strong smell of alcohol coming from Hardie's person. Hr'g Tr. 6:16-18. Additionally, Officer Maynard observed that Hardie's “eyes were bloodshot and watery[, ]” that Hardie “was unsteady on his feet” and “wavering side to side and forward and back[, ]” and that Hardie “was a little bit thick-tongued[.]” Id. at 6:22-24. Hardie also admitted to Officer Maynard that Hardie consumed “two drinks a couple of hours ago.” Id. at 7:2-4.

         Officer Bracey-who Officer Maynard called for back-up-arrived at the scene and performed two field sobriety tests (FSTs) on Defendant Hardie. Hr'g Tr. 7:15-21. Hardie demonstrated several clues or signs of impairment during both the walk and turn test and the one legged stand test. Id. at 9:6-17. Officer Maynard then performed an additional FST, the horizontal gaze nystagmus (HGN) test. Id. at 9:22. Officer Maynard observed “distinct signs, all six clues, both eyes . . . [w]hich led [him] to believe that [Hardie] was under the influence of alcohol.” Id. at 10:19-21. The officers then read Hardie the federal implied consent and performed the portable breath test. Hr'g Tr. 11:3-5. The portable breath test showed positive for alcohol. Id. at 11:14-15. Defendant Hardie was then arrested for suspicion of driving under the influence and taken to the station. Id. at 11:19-21.

         At the MP station, Officer Maynard again read Hardie the federal implied consent and had him sign it. Id. at 11:23-24. Maynard observed Defendant Hardie during the twenty minute observation period. Id. at 11:24-12:1. Officer Maynard then took Hardie to the Intoxilyzer 9000 for breath testing. Hr'g Tr. 12:2. Defendant Hardie refused to provide a breath sample. Id. at 12:3-7.

         DISCUSSION

         Defendant seeks to have the FSTs and his refusal to consent to testing suppressed. Def.'s Mot. to Suppress 2-10, ECF No. 8. Defendant asserts that he was arrested without probable cause. He has made multiple arguments to show that the arresting officer lacked probable cause: (1) the field sobriety test was improperly performed; (2) the HGN is a scientific test that should be excluded; (3) the officers performing the FSTs failed to comply with military regulations; and (4) the failure to comply with the regulations violates due process. Defendant further argues that the federal implied consent waiver is unconstitutional and that his refusal to consent to testing cannot be used against him.

         I. Probable Cause

         “An officer has probable cause to arrest a person when he has sufficient knowledge, based on reasonably trustworthy information, for a prudent person to believe that the suspect has committed or is committing an offense.” United States v. Harrell, 603 F. App'x 877, 879 (11th Cir. 2015). “Although probable cause requires more than suspicion, it does not require convincing proof, and need not reach the [same] standard of conclusiveness and probability as the facts necessary to support a conviction.” Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002) (internal quotation marks and citation omitted). Furthermore, this test is an objective one, see, e.g., Whren v. United States, 517 U.S. 806, 813 (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”), that “depends on the totality of the circumstance.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citation omitted).

         It is clear that, based on the totality of the circumstances, Officer Maynard had probable cause to arrest Defendant for driving while under the influence of alcohol. Officer Maynard stopped Plaintiff's vehicle for speeding. When he approached Defendant's car, he noticed a strong smell of alcohol. Officer Maynard then separated Defendant from the car and his passengers; he found that the smell of alcohol was coming from Defendant's person. Officer Maynard also observed that Defendant's eyes were “bloodshot and watery, ” that Defendant was “unsteady on his feet” and “wavering, ” and that the Defendant “was a little bit thick-tongued[.]” Hr'g Tr. 6:22-24. Defendant Hardie also told Officer Maynard that Defendant had consumed a couple of drinks earlier in the evening. At this point, Officer Maynard had probable cause to arrest Defendant for DUI. See, e.g., Schmerber v. California, 384 U.S. 757, 768-69 (1966) (finding that the officer “plainly” had probable cause when he observed an odor of alcohol and driver's eyes were “bloodshot, watery, [and] . . . glassy”).

         Officer Maynard already had probable cause at the time that he conducted the FSTs with the assistance of Officer Bracey. Defendant contends generally that the FSTs were improperly administered because they failed to comply with 32 C.F.R. § 634. He argues that the regulations at § 634, specifically sections 634.1, 634.33, 634.36, create a liberty interest such that the failure to specifically comply with the regulations violates due process. This Court previously held that the failure to comply with the regulations cited by Defendant does not require suppression of the FSTs. United States v. Henderson, 2015 WL 3477005 at *3 (Jun. 2, 2015).[1] The Court similarly finds that these regulations fail to create a liberty interest in this case.[2]

         Defendant cites to no legal authority for the proposition that the federal regulations at question bestow rights on a Defendant such that a liberty interest is implicated. To the contrary, the cases cited by Defendant cut against his argument and show that internal regulations and procedural rules do not implicate the Due Process Clause. See, e.g., United States v. Caceres, 440 U.S. 741, 753 (1979) (“Nor is this a case in which the Due Process Clause is implicated because an individual has reasonably relied on agency regulations promulgated for his guidance or benefit and has suffered substantially because of their violation by the agency.”) Defendant states that these regulations were created for his benefit-“to protect its personnel and civilians on post from an unjust and incorrect determination of intoxicated ...


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