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United States v. Shuler

United States District Court, N.D. Georgia, Atlanta Division

November 7, 2017

UNITED STATES OF AMERICA,
v.
GINO SHULER, Defendant.

          MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION AND ORDER CERTIFYING THIS DEFENDANT READY FOR TRIAL [[1]]

          LINDA T. WALKER, UNITED STATES MAGISTRATE JUDGE

         Pending before this Court is Defendant Gino Shuler's Motion to Suppress (Doc. 292). This Court convened an evidentiary hearing with respect to Defendant's Motion on June 28, 2017. (Doc. 586). On August 18, 2017, Defendant filed his post-hearing brief. (Doc. 592). The Government filed its response to Defendant's post-hearing brief on September 19, 2017. (Doc. 606). Although Defendant had until October 5, 2017, to file a reply, on October 5, 2017, Defendant informed the Court that he would not be filing a reply. Accordingly this case is ripe for a ruling. For the reasons set forth below, Defendant's Motion to Suppress should be DENIED. (Doc. 292).

         DEFENDANT'S MOTION TO SUPPRESS

         I. FACTUAL BACKGROUND

         On March 11, 2015, the Grand Jury returned an Indictment charging Defendant Gino Shuler (“Defendant”) with one count of conspiracy, five counts of stealing money of the United States, and five counts of aggravated identity theft, all of which arise from an alleged scheme to cash stolen United States Treasury checks. (Doc. 1, at 1-9). Defendant argues in his Motion to Suppress that the evidence collected and seized by the police when he was stopped while driving on I-75 in Lamar County, Georgia, should be suppressed because the police detained him for questioning unrelated to the reasons for the initial stop. Defendant also argues the police officer did not have reasonable suspicion of criminal activity which would justify such extended questioning.

         At this Court's evidentiary hearing, the Court received testimony from Sergeant Brett Newman, who was the officer primarily engaged in the questioning of Defendant at the traffic stop, and the Government submitted as evidence a video of the entire stop recorded from the dashboard camera of Sergeant Newman's patrol car. (Transcript of June 28, 2017 Evid. Hrg., hereinafter “Tr., ” 8, 18-19; Gov't's Ex. A). On April 18, 2011, Sergeant Newman served as a member of the Lamar County Sheriff's Office traffic interdiction team, which was responsible for not only enforcing traffic laws and ensuring the general safety of the motoring public, but also observing whether motorist engage in other indicators of criminal activity. (Tr. 6). Sergeant Newman testified that members of the traffic interdiction team “take [a traffic] stop a little bit further than just a [traffic] ticket.” (Tr. 7). In that vein, members of the traffic interdiction team attend training and sharing of information in things that are trending in narcotic trafficking. (Tr. 7). Members are trained to “pick up heightened levels of nervousness through different body language indicators, such as hands shaking.” (Tr. 7).

         Because Sergeant Newman's position also involved handling a K-9 unit, Sergeant Newman also received a 320-hour training course on working with the K-9. (Tr. 8-9). Sergeant Newman's K-9 unit was trained to detect the odors of various narcotics, such as marijuana, methamphetamine, heroin, and cocaine, and the K-9 unit is certified in narcotics detection by the National Narcotics Detector Dog Association. (Tr. 9, 11). Sergeant Newman and the K-9 unit successfully completed courses in narcotics detection, and the dog was certified in narcotics detection by the National Narcotics Detector Dog Association in 2010. (Tr. 11-13). Sergeant Newman and the K-9 unit successfully obtained recertification every year Sergeant Newman worked at Lamar County, and Sergeant Newman and the dog typically trained for at least eight hours a month in narcotic detection and tracking. (Id.).

         A. Sergeant Newman Pulled Over Defendant on I-75

         On October 22, 2012, Sergeant Newman, accompanied by his supervisor, Lieutenant Chad Payne, and his K-9 unit, Paco, was monitoring traffic on I-75 south near mile marker 201 in Lamar County in the daytime, when he pulled over Defendant for following another car too closely. (Tr. 4-6, 8, 16-17, 44; see generally Gov't's Ex. A). While Sergeant Newman's patrol car was positioned perpendicular to the highway, he noticed a black vehicle traveling in the center lane and following another vehicle at less than a car length's distance. (Tr. 17). Once there was a break in the traffic, Sergeant Newman pulled out, accelerated to catch up to the black vehicle, and activated his blue lights. (Tr. 18). The driver of the black vehicle immediately signaled and pulled over into the right shoulder of the road. (Tr. 18, 51; Gov't's Ex. A, at 00:20). Sergeant Newman testified that while he was driving his patrol car behind the black car, something burning flew out of the car and hit the windshield of his patrol car. (Tr. 20-21; Gov't's Ex. 3). The video showed Sergeant Newman commenting, “He just hit my windshield with something, ” and Lieutenant Payne responding, “Yeah, sure did.” (Tr. 20; Gov't's Ex. 1, at 00:27).

         Sergeant Newman, who was uniformed and wearing a gun on his side which was visible, exited the patrol car approached the black vehicle on the passenger side. (Tr. 21, 53-54). Sergeant Newman's partner, Lieutenant Payne, also exited the patrol car and was wearing his uniform and armed with a holstered gun. (Tr. 53-54, 69; Gov't's Ex. 1, at 01:21). Sergeant Newman, while at the passenger side window, leaned down and asked Defendant, who was driving, for his driver's license. (Tr. 21-22). The passenger, who was the driver's brother, Maurice Shuler, asked Sergeant Newman whether Sergeant Newman wanted his license, and Sergeant Newman clarified that he wanted Defendant's license because he was driving. (Tr. 22, 29; Gov't's Ex. A, at 01:09). Sergeant Newman testified that he noticed an overwhelming odor of a fruity air freshener, which Sergeant Newman referred to as a masking agent because it is typically used in drug trafficking to conceal the odor of marijuana. (Tr. 22).

         When the driver of the vehicle, Defendant Gino Shuler, reached across the passenger to offer his license, Sergeant Newman waited a moment before taking Defendant's license so that he could observe Defendant's demeanor. (Tr. 23-24). According to Sergeant Newman, law enforcement officers are trained not to immediately take the license and to make the driver hold out their hand. (Tr. 23). Sergeant Newman noticed that Shuler's arm was shaking and he appeared extremely nervous. (Tr. 23-24). In the mean time, the passenger “was breathing heavily and just pretty much [had] a blank stare straight out of the windshield.” (Tr. 24). Sergeant Newman states that after the stop, the driver never turned off the turn signal even though it continued its audible clicking sound during the duration of the traffic stop, which indicated to Sergeant Newman that the driver was extremely nervous. (Tr. 25). Neither Defendant nor his brother threatened Sergeant Newman in any way. (Tr. 51).

         B. Sergeant Newman Asked Defendant a Number of Questions About the Smell Emanating From the Car, What Defendant Had Thrown Out of the Car, and Where Defendant and His Brother Were Headed

         Sergeant Newman directed Defendant to exit the vehicle and come around to the back side of the black car. (Gov't's Ex. A, at 01:15). While Sergeant Newman was waiting for Defendant to exit the vehicle, Lieutenant Payne remarked to Sergeant Newman that the occupants of the car had sprayed air freshener in the car, and Sergeant Newman agreed that something had been sprayed in the car. (Gov't's Ex. A, at 01:18). Once Defendant joined Sergeant Newman at the back of the black car, Sergeant Newman advised Defendant that the reason he stopped Defendant was because Defendant was following too closely. (Tr. 25; Gov't's Ex. A, at 01:38). Sergeant Newman also asked Defendant what he threw out the window. (Tr. 26). Defendant denied throwing anything out of the window. (Tr. 26; Gov't's Ex. A, at 1:30). Sergeant Newman responded, “Yes, you did; you hit the windshield of my car.” (Gov't's Ex. A, at 01:39). Defendant then admitted that he had thrown a cigarette out of the car. (Tr. 26; Gov't's Ex. A, at 01:45).

         Sergeant Newman next asked Defendant whether he had just sprayed a bunch of air freshener in the car, and Defendant denied doing so. (Tr. 26; Gov't's Ex. A, at 01:49). Sergeant Newman insisted, “Why am I smelling it then?” (Tr. 26; Gov't's Ex. A, at 01:51). Defendant responded, “Smelling what?” (Tr. 26; Gov't's Ex. A, at 01:52). Sergeant Newman testified that he took Defendant's response “smelling what” as another indicator that Defendant was avoiding his question because it pertained to the concealment of an odor that Defendant did not want him to smell. (Tr. 26). Sergeant Newman replied, “The air freshener.” (Gov't's Ex. A, at 01:50). Defendant then stated, “I ain't sprayed nothin in my car.” (Gov't's Ex. A, at 01:56).

         Approximately one minute into the stop, Sergeant Newman next asked Defendant where he was headed. (Tr. 27; Gov't's Ex. A, at 02:00). Defendant stated that he was going to a friend's house. (Gov't's Ex. A, at 02:03). Sergeant Newman asked where the friend's house was. (Gov'ts Ex. A, at 02:04). Defendant responded, “Macon, ” and made a gesture with his hand pointed in the direction that he was going. (Tr. 27; Gov't's Ex. A, at 02:05). Sergeant Newman states that in his experience it is another indicator of involvement in criminal activity if a suspect points and directs because doing so is an indicator that the suspect is attempting to persuade the listener to believe what he is saying. (Tr. 27). Sergeant Newman testified that, based on his conferences and his experiences stopping the everyday motoring public, individuals involved in criminal activity typically direct the police to the next large city they are coming into contact with. (Tr. 27). Sergeant Newman explains that in such cases, the suspect does not know how to answer the questions, is trying to do the best that he can, but wants the officer to believe him. (Tr. 27). Sergeant Newman testified that he believes these behaviors to be an indicator of nervousness and evasion of the question. (Tr. 27).

         Sergeant Newman asked Defendant what was the address where he was headed. (Gov't's Ex. A, at 02:06). Defendant responded, “1877.” (Gov't's Ex. A, at 02:15). At the same time, Defendant interlocked either his left hand over his right wrist or his right hand over his left wrist behind him. (Tr. 28; Gov't's Ex. A, at 02:14). Sergeant Newman testified that Defendant's body language suggested that he was extremely nervous about the questions and that he did not know the answer to the questions. (Tr. 28). Sergeant Newman pressed further, “What street?” (Gov't's Ex. A, at 02:17). Defendant responded, “Davidson.” (Gov't's Ex. A, at 02:19). Sergeant Newman asked Defendant where in Macon was Davidson Street located. (Gov't's Ex. A, at 02:20). Defendant responded, “I don't know. I'm supposed to be meeting him.” Gov't's Ex. A, at 02:26). Sergeant Newman then asked, “Where you meeting him at?” (Gov't's Ex. A, at 02:28). Defendant allegedly hedged, “Davidson Street or something.” (Gov't's Ex. A, at 02:30). Sergeant Newman asked Defendant what was the name of his friend in Macon. (Gov't's Ex. A, at 02:38). Defendant responded that his friend's name was Rick. (Gov't's Ex. A, at 02:39). Sergeant Newman then asked Defendant, “Who is this you've got in the car with you?” (Gov't's Ex. A, at 02:40). Defendant responded, “My brother.” (Gov't's Ex. A, at 02:42). Sergeant Newman asked Defendant what his brother's name was. (Gov't's Ex. A, at 02:43). Defendant responded, “Maurice.” (Gov't's Ex. A, at 02:45). Sergeant Newman then asked Defendant whether the car he was ...


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