United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S REPORT, RECOMMENDATION, AND
RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE
Shyam Agarwal (“Agarwal”) is charged in a
one-count indictment with intent to distribute a Schedule I
controlled substance, AB-PINACA, AB-CHMINACA, and XLR11, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
[Doc. 1]. Agarwal has moved to suppress evidence
obtained following a traffic stop that occurred on April 14,
2015. [Docs. 15 & 43]. After an evidentiary hearing held
on November 30, 2017,  the parties filed post-hearing briefs on
the motion. See [Docs. 48, 51, & 52]. For the
reasons that follow, it is RECOMMENDED that
Agarwal's motions to suppress, [Docs. 15 & 43], be
STATEMENT OF FACTS
connection with an investigation centered on the distribution
of synthetic drugs in the Atlanta metropolitan area, Drug
Enforcement Administration (“DEA”) Special Agent
Sherezad Dunn (“Agent Dunn”) met with a
confidential source (“CS”) sometime in 2014. (Tr.
at 7, 23, 53). The CS was introduced to Agarwal via a
third party, who informed the CS that Agarwal was able to
sell synthetic marijuana to interested buyers. (Tr. at 7, 56).
Agent Dunn then instructed the CS to contact Agarwal and
inquire about obtaining synthetic marijuana. (Tr. at 8).
the first call, which was recorded and preserved,
CS told Agarwal that he had a buyer-Agent Dunn, acting in an
undercover capacity-interested in buying 2, 000 small packets
and 1, 000 large packets of synthetic marijuana. (Tr. at
9-10); see also (Gov. Ex. 8). During the call,
Agarwal and the CS referred to the synthetic marijuana as
“chargers, ” and Agent Dunn testified that the
reference to “chargers” was initiated by Agarwal.
(Tr. at 10-11, 25; Gov. Ex. 8). Agarwal seemed surprised at
the large amount requested, and he told the CS that he had
already arranged to obtain 2, 000 packets from his supplier
and would have to ask for the additional 1, 000 packets. (Tr.
at 11-12; Gov. Ex. 8 at 3). Agarwal proposed to conduct the
sale on Sunday, but the CS suggested they meet on Tuesday.
(Tr. at 12-13; Gov. Ex. 8 at 4-6). At the end of the
conversation, the CS asked Agarwal if his synthetic marijuana
was the old one, and Agarwal said that it was “all
good, ” and that the CS could open one or two packets
to check. (Tr. at 13-14, 29; Gov. Ex. 8 at
16-17). In a subsequent recorded call, Agarwal and
the CS discussed whether the sale of the synthetic marijuana
would happen on Sunday or Tuesday. (Tr. at 15); see
also (Gov. Ex. 9). The CS explained that the supposed
purchaser needed the extra time to collect the money for the
purchase. (Tr. at 15; Gov. Ex 9 at 3). The CS and Agarwal
ultimately agreed, in a later unrecorded phone call, to
conduct the transaction on Tuesday. (Tr. at 16,
the CS and Agarwal settled on the meeting date, DEA agents
contacted a supervisor at the Georgia State Patrol
(“GSP”) to request assistance on the day of the
drug deal. (Tr. at 16). GSP Trooper Jeremy Lipham
(“Trooper Lipham”) of the Criminal Interdiction
Unit contacted Agent Dunn, and she asked him to attend the
DEA briefing the morning of the scheduled buy between the CS
and Agarwal. (Tr. at 16, 30-31, 63). On the morning of April
14, 2015, Trooper Lipham and GSP Trooper Nick Wilson
(“Trooper Wilson”) attended the DEA briefing and
were informed that Agarwal and the CS were going to meet at a
designated location, at which the CS would check to see if
Agarwal had the synthetic marijuana, and that both the CS and
Agarwal would drive to a second location, where the CS's
buyer was supposed to be waiting, to drop off the synthetic
marijuana and pick up the money. (Tr. at 17, 29, 31, 65-66,
97). Trooper Lipham was instructed to wait in the general
area of the meeting, and once he was alerted that Agarwal was
driving to the second location, Trooper Lipham would follow
Agarwal's vehicle and eventually conduct a traffic stop.
(Tr. at 17-18, 30-31). Agent Dunn requested that Trooper
Lipham attempt to find an independent reason to stop
Agarwal's vehicle, if possible, after his meeting with
the CS. (Tr. at 30, 32). At the time of the DEA briefing on the
morning of April 14, 2015, law enforcement was not aware of
what make and model vehicle Agarwal would be driving. (Tr. at
18). Therefore, Trooper Lipham had to have “radio
communication” with the DEA agents as the drug deal
unfolded in order to learn the description of Agarwal's
vehicle, as well as the timing of the transaction and the
location of the vehicle in order to attempt to make the stop.
(Tr. at 17-18).
that day, Agent Dunn conducted surveillance near the CS and
Agarwal's planned meeting spot. (Tr. at 18). Agent Dunn
was also listening to DEA radio communications to stay
apprised of Agarwal's activity. (Id.). Trooper
Lipham was also in the area, receiving updates from the DEA
agents, who were monitoring the scene. (Tr. at 17-18, 33-34,
67). Trooper Lipham testified that he typically stayed in
touch with DEA agents during these type of operations via a
DEA radio, and while he did not recall if his patrol car had
a DEA radio that day, he did recall that he had cellular
telephones designated for communication with each particular
agency or group. (Tr. at 66-67).
and the CS both arrived at the predetermined location, which
was a gas station close to Agarwal's home, on April 14,
2015. (Tr. at 18-19). Agarwal arrived driving a Toyota
Sienna, (Tr. at 19-20), and asked the CS to leave the gas
station and drive to Agarwal's nearby apartment complex,
(Tr. at 18, 51). Agent Dunn saw Agarwal and the CS, in their
respective vehicles, drive to the complex and park in parking
spaces near a white Toyota Matrix. (Tr. at 19). She also saw
three males standing outside the vehicles talking, and she
then observed a cardboard box, which she believed contained
synthetic marijuana, be moved from the white Toyota Matrix to
Agarwal's vehicle. (Tr. at 19-20, 52-53, 57). Agent Dunn
subsequently observed all three men return to their own
vehicles and leave the apartment complex. (Tr. at 20). This
was consistent with the plan previously established between
the CS and Agarwal. (Tr. at 20-21). Via the DEA radio, Agent
Dunn communicated that the vehicles were leaving the
apartment complex, and she or another agent announced over
the radio which vehicle Agarwal was driving. (Tr. at 21).
After momentarily remaining at the scene, Agent Dunn drove in
the same direction as Agarwal's vehicle. (Id.).
time, Trooper Lipham headed in the direction of Agarwal's
vehicle. [Doc. 51 at 7]. Tooper Lipham followed Agarwal's
vehicle, and as they were preparing to get onto the
interstate, he observed that the driver's side brake
light on the vehicle was not functioning. (Tr. at
68). While traveling north on Interstate 85,
Trooper Lipham activated his blue lights to initiate a
traffic stop. (Gov. Ex. 10; Tr. at 68). Agarwal pulled to the
side of the road, and Trooper Lipham parked behind
Agarwal's vehicle, exited his patrol car, and approached
the passenger side window of Agarwal's vehicle. (Tr. at
69; Gov. Ex. 1 at 00:53-00:59). Trooper Lipham identified
himself to Agarwal and told Agarwal why he had stopped his
vehicle, and he asked for Agarwal's license,
registration, and insurance. (Tr. at 69; Gov. Ex. 1 at
1:00-1:25). It took several minutes for Agarwal to locate
these documents, and as he was looking for them, Trooper
Lipham asked him several questions, including if the Toyota
Sienna was his vehicle, if he had been drinking, what he did
for a living, if he was on probation or parole, and
“why he was so nervous.” (Tr. at 70; Gov. Ex. 1
at 1:25-5:30). Agarwal answered the questions, stating, among
other things, that his brake light was loose, (Gov. Ex. 1 at
1:10); see also (Tr. at 74-75), and that he owned a
convenience store in Arkansas, (Gov. Ex. 1 at 3:15-3:35).
After about four minutes, Agarwal handed all of the requested
documents to Trooper Lipham, who reviewed them, and asked
Agarwal what was in the boxes in his back seat, (Gov. Ex. 1
at 5:30-5:38), and Agarwal said that he had pills in them,
but that he was not a pharmacist, (Gov. Ex. 1 at 5:40-6:20).
Trooper Lipham then asked Agarwal to step out of his vehicle
to better communicate with Agarwal because Trooper Lipham was
having trouble hearing Agarwal due to loud road noise and a
“slight language barrier.” (Tr. at 70; Gov. Ex. 1
Trooper Lipham was speaking with Agarwal outside the vehicle,
he could see “three very large cardboard boxes”
in the Toyota Sienna. (Tr. at 71, 93). Agarwal told Trooper
Lipham that sexual enhancement pills were inside the large
boxes in his vehicle and repeated that he was not a
pharmacist. (Tr. at 71-72, 93; Gov. Ex. 1 at 6:46). Trooper
Lipham could also see that one of the cardboard boxes inside
Agarwal's vehicle was open and contained pills. (Tr. at
72). Based on his training and experience, Trooper Lipham
testified that items marketed as sexual enhancement pills
sometimes had their original contents removed and were
refilled with controlled substances, including
methamphetamine, heroin, cocaine, and synthetic marijuana.
(Id.). He also testified that the information he
received at the briefing with the DEA contributed to his
level of suspicion because he was told Agarwal “would
have a large quantity of synthetic marijuana, ” and he
“didn't know if it was synthetic marijuana that was
contained within those capsules in the large package.”
Lipham left Agarwal standing beside his vehicle and returned
to his patrol car to run a check on Agarwal's
driver's license, insurance, and vehicle registration.
(Tr. at 73; Gov. Ex. 1 at 7:00). Trooper Lipham also
confirmed that his GPS location and video camera were working
properly. (Tr. at 74). While Trooper Lipham was in his
patrol car, Trooper Wilson arrived on the scene. (Gov. Ex. 1
at 7:35). After a few minutes, Trooper Lipham received the
confirmation regarding Agarwal's license, tag, and
insurance status. (Tr. at 74; Gov. Ex. 1 at 10:26). Trooper
Lipham exited his patrol car, (Gov. Ex. 1 at 11:05), and
approached Agarwal and asked if he had a bulb to fix the
brake light, (Tr. at 75; Gov. Ex. 1 at 11:10-11:30). Although
he had earlier acknowledged that his brake light had a loose
wire, Agarwal claimed that his brake light had never been
out. (Tr. at 75; Gov. Ex. 1 at 11:33). Trooper
Lipham asked Agarwal where he got the pills and if the pills
in his vehicle were illegal, and Agarwal responded that they
were legal in America. (Tr. at 76; Gov. Ex. 1 at
11:51-12:15). Trooper Lipham then asked Agarwal if he cared
if he took a look at them, and Agarwal responded, “No,
” and “pointed at the vehicle.” (Tr. at
76-77); see also (Gov. Ex. 1 at 12:20). Trooper
Lipham went to Trooper Wilson's patrol car to get a copy
of a written consent to search form. (Tr. at 77; Gov. Ex. 1
at 12:26). He obtained the form and returned to Agarwal, told
him it was a consent to search form that gave them permission
to look at the stuff in his vehicle, confirmed that Agarwal
could understand and read English, and asked Agarwal to read
the form and, if he agreed with it, to sign it. (Tr. at 78;
Gov. Ex. 1 at 14:05-14:30).
signed the written consent to search form, (Tr. at 78; Gov.
Ex. 1 at 15:04; Gov. Ex. 4), which had a time stamp of 12:35,
(Tr. at 81; Gov. Ex. 4). While Trooper Wilson stood at the
patrol car, Trooper Lipham searched Agarwal's vehicle and
located three cardboard boxes, inside which he found what
appeared to be synthetic marijuana in bags, as well as
purported sexual enhancement pills. (Tr. at 80-81, 84, 98;
Gov. Exs. 6 & 7); see also (Gov. Ex. 1 at
15:26-53:50). After gathering the evidence from Agarwal's
vehicle, Trooper Lipham returned his license, gave him an
inventory form listing everything that was taken, told him
that anything that was not illegal would be returned to him,
and allowed Agarwal to leave. (Tr. at 84; Gov. Ex. 1 at
2:40-4:30). At some point, Trooper Lipham also
gave Agarwal a courtesy warning, with a time stamp of 12:33.
(Tr. at 81; Gov. Ex. 10). Agent Dunn took possession of
the synthetic marijuana seized from Agarwal's vehicle and
sent it to the crime lab for testing. (Tr. at 21); [Doc. 51
contends that “all evidence obtained pursuant to law
enforcement's search of [his] vehicle should be
suppressed because  the initial traffic stop was made
without any reasonable articulable suspicion that any crime
had occurred; and  troopers impermissibly extended the
scope and duration of the traffic stop[.]” [Doc. 43 at
11]. The government responds that “law enforcement had
probable cause to both stop and search . . . Agarwal's
vehicle for contraband.” [Doc. 51 at 1]. In particular,
the government asserts that “Trooper Lipham had
probable cause to stop Agarwal's vehicle based on the DEA
investigation, as those facts are imputed to him via the
collective knowledge doctrine” and that “even if
probable cause did not exist based on the DEA investigation,
there was at least reasonable suspicion to stop Agarwal's
vehicle, the length of the stop was reasonable under the
Fourth Amendment, and [he] consented to the search of his
vehicle.” [Id. at 1-2].
Probable Cause to Initiate the Traffic Stop
“The Fourth Amendment protects individuals from
unreasonable search and seizure.” United States v.
Rowls, 402 Fed.Appx. 467, 468 (11th Cir. 2010) (per
curiam) (unpublished) (citation and internal marks omitted).
The “[t]emporary detention of individuals during the
stop of an automobile by the police, even if only for a brief
period and for a limited purpose, constitutes a
‘seizure' of ‘persons' within the meaning
of [the Fourth Amendment].” Whren v. United
States, 517 U.S. 806, 809-10 (1996) (citations omitted);
see also United States v. Purcell, 236 F.3d 1274,
1277 (11th Cir. 2001); United States v.
Edenilson-Reyes, Criminal Action File No.
1:09-CR-00361-RWS-AJB, 2010 WL 5620439, at *9 (N.D.Ga. Oct.
26, 2010), adopted by 2011 WL 195679, at *1 (N.D.Ga. Jan. 20,
traffic stop is reasonable if the officer had probable cause
to believe that a traffic violation has occurred, or if the
traffic stop is justified by reasonable suspicion in
compliance with Terry v. Ohio, 392 U.S. 1 (1968).
Edenilson-Reyes, 2010 WL 5620439, at *9 (citing
United States v. Spoerke, 568 F.3d 1236, 1248 (11th
Cir. 2009); Purcell, 236 F.3d at 1277); see also
United States v. Monzon-Gomez, 244 Fed.Appx. 954, 959
(11th Cir. 2007) (per curiam) (unpublished); United
States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999);
United States v. Sierra, Cr. No. 2:10cr183-MEF, 2011
WL 1675217, at *2 (M.D. Ala. Apr. 19, 2011), adopted by 2011
WL 1675180, at *1 (M.D. Ala. May 4, 2011), aff'd
by 501 Fed.Appx. 900 (11th Cir. 2012) (per curiam)
(unpublished). Thus, “[a] traffic stop . . . is
constitutional if it is either based upon probable cause to
believe a traffic violation has occurred or justified by
reasonable suspicion. . . .” Edenilson-Reyes,
2010 WL 5620439, at *9 (alterations in original) (citations
and internal marks omitted); see also United States v.
Boyd, 388 Fed.Appx. 943, 947 (11th Cir. 2010) (per
curiam) (unpublished); United States v. Woods, 385
Fed.Appx. 914, 915 (11th Cir. 2010) (per curiam)
(unpublished). The government bears the burden of presenting
facts to establish that the traffic stop is supported by
reasonable suspicion or probable cause. See Welsh v.
Wisconsin, 466 U.S. 740, 749-50 (1984); see also
United States v. Kelly, No. 1:13-cr-108-WSD-JSA, 2014 WL
1153375, at *8 (N.D.Ga. Mar. 21, 2014), adopted at *4
officer's subjective intentions and motives are
irrelevant where the officer has probable cause for the stop.
See United States v. Mwangi, Criminal File No.
1:09-CR-107-TWT, 2010 WL 520793, at *3 n.9 (N.D.Ga. Feb. 5,
2010), adopted at *1 (citations omitted); see also United
States v. Arango, 396 Fed.Appx. 631, 632-33 (11th Cir.
2010) (per curiam) (unpublished) (citation and internal marks
omitted) (“Where objectively reasonable conditions
permit a stop, the officer's motive in making the traffic
stop does not invalidate what is otherwise objectively
justifiable behavior under the Fourth Amendment.”);
Miller v. Harget, 458 F.3d 1251, 1260 (11th Cir.
2006) (citations omitted) (“It is well-settled that an
officer's subjective motivations do not affect whether
probable cause existed”); United States v.
Jimenez, No. 2:06-cr-74-FtM-29DNF, 2006 WL 2927477, at
*2 (M.D. Fla. Oct. 11, 2006) (holding that “an
officer's belief that he has probable cause or does not
have probable cause is simply not a pertinent factor”
in determining whether an arrest is lawful). That is,
“if the driver of a car has broken a traffic law, no
matter how relatively minor, a motion to suppress evidence
cannot be based on the argument that the stop was
pretextual.” United States v. Wright, No.
CR210-022, 2010 WL 4967468, at *1 (S.D. Ga. Nov. 5, 2010),
adopted by 2010 WL 4967838, at *1 (S.D. Ga. Dec. 1, 2010)
addition, “[t]he propriety of the traffic stop  does
not depend on whether the defendant is actually guilty of
committing a traffic offense.” United States v.
Sicairos-Sicairos, Criminal Action File No.
4:10-CR-054-HLM, 2011 WL 2710031, at *5 (N.D.Ga. July 11,
2011) (citation omitted). “Instead, the relevant
question is whether it was reasonable for the officer to
believe that a traffic offense had been committed.”
Id. (citation omitted).
argues that the traffic stop was not supported by probable
cause or articulable suspicion. [Doc. 43 at 13]. In
particular, he asserts that “there simply is nothing
substantiating  Trooper[ Lipham's] claim [he] was
speeding or failing to maintain his lane” and “it
is clear [Trooper Lipham] did not notice [his] faulty brake
light until after the stop had been initiated.”
law states that if a ‘motor vehicle is manufactured
with two brake lights, both must be operational.'”
United States v. Terry, 220 Fed.Appx. 961, 963 (11th
Cir. 2007) (per curiam) (unpublished) (quoting O.C.G.A.
§ 40-8-25(b)). Trooper Lipham testified that the reason
he stopped Agarwal's vehicle was because it had a brake
light out. (Tr. at 68). Contrary to Agarwal's assertion,
Trooper Lipham testified that he observed that Agarwal's
brake light was out before he initiated the stop.
(Id.). Agarwal has made “no showing  that
the taillight of [his] vehicle was operational on April [14,
2015], and, therefore, no evidence that [Trooper
Lipham's] testimony is not entitled to deference.”
United States v. Mackey, 149 Fed.Appx. 874, 879
(11th Cir. 2005) (per curiam) (unpublished). Based on this
uncontradicted testimony, Trooper Lipham “had probable
cause to stop [Agarwal] on the basis that he was violating
[a] traffic regulation.” Terry, 220
Fed.Appx. at 963.
Lipham's testimony established that he had probable cause
to believe that Agarwal had violated Georgia law, which is
“all that is necessary to conduct a traffic
stop.” United States v. Alvardo, No.
8:10-CR-348-T-30TGW, 2010 WL 5262736, at *5 (M.D. Fla. Nov.
17, 2010), adopted by 2010 WL 5262735, at *1 (M.D. Fla. Dec.
17, 2010) (citing Whren, 517 U.S. at 810). Having
considered the evidence and testimony presented at the
evidentiary hearing, the “Court finds [Trooper
Lipham's] testimony [that he observed that Agarwal's
brake like was out] reliable and credible.” United
States v. Abarca, No. 1:12cr29-MW/GRJ, 2014 WL 12641951,
at *6 (N.D. Fla. Nov. 20, 2014); see also United States
v. Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004)
(recognizing that credibility determinations are
“within the province of the factfinder”).
Therefore, Trooper Lipham had probable cause to stop
Scope and Duration ...