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United States v. McRoy

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

January 22, 2018

JEROME MCROY, Defendant.



         Pending before the court is Defendant Jerome McRoy's motion [Doc. 23] and supplemental motion [Doc. 37] to suppress evidence obtained from two cellular telephones seized from his person on February 4, 2016, resulting from a warrantless traffic stop and arrest.[1] An evidentiary hearing was held on October 12, 2017, on Defendant's motions to suppress.[2] [Doc. 54]. In his post-hearing brief in support of the motion to suppress, Defendant contends that the Government has failed to establish probable cause sufficient to arrest anyone for the offense of Interstate Interference with Child Custody and that, even if the evidence establishes that an offense was committed, the Government has not established probable cause for his warrantless arrest resulting in the unlawful warrantless search of his person and seizure of the cellular telephones. [Doc. 57]. In response, the Government contends that the initial traffic stop was lawful and that the officers had probable cause for Defendant's arrest such that he was lawfully searched incident to arrest.[3] [Doc. 60]. In reply to the Government's arguments, Defendant correctly points out that the Government's arguments rely on the direct testimony of the only government witness which was clarified on cross-examination and otherwise are not supported by the record before this court. [Doc. 26].

         After consideration of the arguments, record before the court and relevant legal authorities, the court finds that Defendant's motions to suppress are due to be granted.

         I. Background Facts

         The only witness that testified at the evidentiary hearing was Taylor Dervish, a Special Agent with the Federal Bureau of Investigation (“FBI”), [4] who was not involved in the investigation resulting in Defendant McRoy's arrest but who was subsequently contacted by Detective (“Det.”) Angie Clements with the College Park Police Department. (Tr. at 3, 6-7). Det. Clements contacted the agent after College Park law enforcement officers recovered a fifteen-year-old female juvenile (“R.O.”) and arrested Defendants McRoy and Robinson. (Tr. at 6). Agent Dervish's testimony is based on the information provided by Det. Clements. (Tr. at 6-8).

         Det. Clements advised that she had received information from the Minneapolis Police Department that R.O. had traveled from Minnesota to Atlanta. (Tr. at 7). Sergeant (“Sgt.”) Schmidt, Minneapolis Police Department, advised that R.O. was missing out of Minneapolis and that she, the sergeant, had located BACKPAGE.COM advertisements featuring R.O. and an adult female, Defendant Robinson, providing a telephone number linked to Defendant Robinson. (Tr. at 8-9). Sgt. Schmidt contacted T-Mobile, the carrier for the telephone number, and requested that T-Mobile ping the telephone to allow it to be tracked as it traveled south from Minneapolis. (Tr. at 8). The telephone eventually was stationary in College Park, Georgia, at a Travelodge Hotel located on Old National Highway. (Tr. at 8-9). Sgt. Schmidt had the BACKPAGE.COM advertisements of R.O. and Defendant Robinson as well as another photograph of R.O. (Tr. at 9).

         The College Park police observed a mini-van with a Minnesota license plate registered to Defendant Robinson parked at the Travelodge Hotel. (Tr. at 9-10). The officers observed persons looking similar to Defendant Robinson and R.O. and a male exiting the hotel and entering the mini-van. (Tr. at 10-11). After the mini-van left the hotel parking lot, officers conducted a traffic stop of the vehicle. (Tr. at 11). They then identified the occupants as R.O. and Defendants McRoy and Robinson. (Tr. at 11). When Defendants McRoy and Robinson were arrested, for interference with child custody, cellular telephones were found on their persons and seized.[5] (Tr. at 11, 19- 20). No. other testimony was provided regarding the circumstances surrounding the traffic stop or the arrest of Defendants McRoy and Robinson or any subsequent investigation conducted at the scene.[6]

         In addition to the information about the events of February 4, 2016, Agent Dervish testified that Det. Clements also advised that she was aware of information regarding a trip to engage in prostitution to D.C. involving R.O. and allegedly Defendants Robinson and McRoy. (Tr. at 16-17). On cross-examination, however, the agent clarified that Det. Clements only advised that she was told by Sgt. Schmidt that Defendant Robinson and R.O. traveled to D.C. with “J” - no further description -and that was all the information the College Park police had on February 4, 2016. (Tr. at 17-18). When asked if, “[w]hen agents arrest Mr. McRoy on February 4, 2016, at that point in time the only information that Detective Clements had and College Park had is that there was a person who had gone on a trip in August 2015 with Ms. Robinson and R.O. by the name of ‘J'”, the agent answered, “That is correct, yes.” (Tr. at 18). The agent also confirmed that all of the information that Det. Clements had about the trip from Minneapolis to Atlanta involved only Defendant Robinson and R.O. and that College Park law enforcement had no information at the time of Defendant McRoy's arrest that connected him to any act of prostitution. (Tr. at 18-19). Law enforcement, including in Minneapolis, had not identified Defendant McRoy as “J” at the time of his arrest and did not know about a third person traveling to Atlanta.[7](Tr. at 19).

         Defendants Robinson and McRoy are charged in the federal indictment, from on or about August 2015 through February 2016, with conspiring to knowingly and willfully recruit, entice, harbor, transport, provide, obtain, maintain, patronize and solicit by any means, in and affecting commerce, R.O., a minor under the age of eighteen, recklessly disregarding that R.O. was not eighteen and would be caused to engage in commercial sex acts by means of force, threats, fraud and coercion, in violation of 18 U.S.C. § 1594(c). [Doc. 1, Count One]. And Defendants are charged, during the same time frame, with knowingly and willfully recruiting, enticing, harboring, transporting, providing, obtaining, maintaining, patronizing and soliciting by any means, in and affecting commerce, R.O., a minor under the age of eighteen, recklessly disregarding that R.O. was not eighteen and would be caused to engage in commercial sex acts by means of force, threats, fraud and coercion, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(1) and (b)(2). [Id., Count Two].

         Additional facts will be set forth as necessary in discussion of the motions to suppress.

         II. Discussion

         Defendant seeks to suppress the cellular telephones and the evidence obtained from execution of the federal search warrants for the telephones seized from his person as a result of a warrantless arrest and search on February 4, 2016. He contends that the officers lacked probable cause for the stop of the vehicle in which he was riding and/or lacked probable cause for his subsequent arrest. [Doc. 57]. The Government, in opposition, contends that there was reasonable suspicion to conduct the vehicle stop and that there was probable cause for Defendant's arrest allowing for the seizure of the cellular telephones in a search incident to arrest. [Doc. 60].

         a. Traffic Stop, Detention/Arrest and Search

         “A traffic stop, which ‘is a seizure within the meaning of the Fourth Amendment, ' . . . ‘is constitutional if it is either based upon probable cause to believe a traffic violation has occurred or justified by reasonable suspicion in accordance with Terry[v. Ohio, 88 S.Ct. 1868 (1968)].'” United States v. Spoerke, 568 F.3d 1236, 1248 (11th Cir. 2009) (citations omitted); United States v. Dixon, 491 Fed.Appx. 120, 122 (11th Cir. 2012) (same). As the Eleventh Circuit Court of Appeals stated in United States v. Cooper, 133 F.3d 1394 (11th Cir. 1998), “law enforcement ‘may stop a vehicle when there is probable cause to believe that the driver is violating any one of the multitude of applicable traffic and equipment regulations relating to the operation of motor vehicles.'” Id. at 1398 (quoting United States v. Strickland, 902 F.2d 937, 940 (11th Cir. 1990)); see also United States v. Terry, 220 Fed.Appx. 961, 963 (11th Cir. 2007) (same). Additionally, “[l]aw enforcement officers may make an investigatory stop of a vehicle if they have a reasonable suspicion the occupants of the vehicle are engaged in criminal conduct” United States v. Durrah, 384 Fed.Appx. 970, 971 (11thCir. 2010) (citing United States v. Lopez-Garcia, 565 F.3d 1306, 1313 (11th Cir. 2009) (“It is by now well established that a ‘law enforcement officer may conduct a brief investigative stop of a vehicle, analogous to a Terry-stop, if the seizure is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.'”) (citation omitted)). Furthermore, pursuant to the decision in Brendlin v. California, 127 S.Ct. 2400 (2007), a passenger in a vehicle, such as Defendant McRoy, has a limited challenge to a warrantless vehicle stop and search of his person. In Brendlin, the Supreme Court held that a passenger in an automobile, stopped as the result of either a traffic offense or based on reasonable suspicion of criminal activity, is seized the same as the driver and may challenge the constitutionality of the stop. 127 S.Ct. at 2406-08, 2410.[8] Thus, a passenger may challenge the recovery of any evidence off his person or statements made as a result of the stop.

         Law enforcement officers may briefly detain individuals found in the vehicle for purposes of investigating a crime if they have a reasonable, articulable suspicion based on objective facts that individuals in the vehicle have engaged in, or are about to engage in, criminal activity. See United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008); United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007). “[T]he ‘reasonableness' standard requires that a police officer ‘be able to point to specific and articulable facts, which, when taken together with rational inferences from those facts, reasonably warrant that intrusion.'”[9] United States v. Mikell, 102 F.3d 470, 474-75 (11th Cir. 1996) (citing Terry, 88 S.Ct. at 1880); see also United States v. Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995) (“The reasonableness of the officers' conduct must be judged against an objective standard: would the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate.”) (citations and internal quotation marks omitted)).

         At the time of the stop of Defendant Robinson's mini-van, the College Park police officers had a reasonable suspicion that, at least as to Defendant Robinson, she had or was engaging in criminal conduct involving the juvenile R.O. The court notes that, as is true with the subsequent probable cause discussion, it is not material whether the officers advised Defendants McRoy and Robinson of the nature of the charges for which they were being initially detained and subsequently arrested or incorrectly identified the offenses supporting the detention and arrests. “Quite simply, ‘[t]he validity of an arrest does not turn on the offense announced by the officer at the time of the arrest.'” Lee v. Ferraro, 284 F.3d 1188, 1195-96 (11th Cir. 2002) (quoting Bailey v. Bd. of County Comm'rs of Alachua County, 956 F.2d 1112, 1119 n.4 (11thCir. 1992)). “Indeed, ‘[w]hen an officer makes an arrest, which is properly supported by probable cause to arrest for a certain offense, neither his subjective reliance on an offense for which no probable cause exists nor his verbal announcement of the wrong offense vitiates the arrest.'” Id. at 1196 (quoting United States v. Saunders, 476 F.2d 5, 7 (5th Cir. 1973)); see also United States v. Porter, 2016 WL 8674273, at *3 n.5 (S.D. Ga. December 23, 2016) (“an officer's subjective reason for making a stop need not be the criminal activity for which the objective facts furnish a reasonable suspicion[; i]n other words, if a police officer make a temporary detention on one basis, later determined to be insufficient, the stop may be upheld on another basis shown by the facts known to the officer”) (citation and internal quotation marks omitted).

         Accordingly, while the court agrees with Defendant that, at the time of the stop of the vehicle, the record does not support a detention based on reasonable suspicion that Defendant Robinson had interfered with R.O.'s custody, see O.C.G.A. § 15-5-45(b)(1)(A); Thompson v. State, 245 Ga.App. 396, 537 S.E.2d 807 (2000), [10] the record does support a finding of reasonable suspicion that Defendant Robinson was potentially engaging in a number of other violations of state law, such as, pimping, see O.C.G.A. § 16-6-11; Creighton v. State, 327 Ga.App. 825, 828, 761 S.E.2d 373, 376 (2014), [11] or trafficking a person for sexual servitude, see O.C.G.A. § 16-5-46(c); Pepe-Frazier v. State, 331 Ga.App. 263, 264 n.2, 770 S.E.2d 654, 657 n.2 (2015), [12] enticing a child for indecent purposes, see O.C.G.A. ยง ...

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