United States District Court, N.D. Georgia, Gainesville Division
ORDER AND REPORT AND RECOMMENDATION
Clay Fuller United States Magistrate Judge.
case is before the Court on Defendant's Motion To
Suppress (Doc. 16). For the reasons discussed below, it is
RECOMMENDED that Defendant's motion be
Indictment filed July 12, 2017 (Doc. 1) charges Defendant
with possession of heroin with intent to distribute, in
violation of 18 U.S.C. §§ 841(a) and 841(b)(1)(C)
(Count One); possession of methamphetamine with intent to
distribute, in violation of 18 U.S.C. §§ 841(a) and
841(b)(1)(B)(viii) (Count Two); and possession of a firearm
in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1) (Count Three). Defendant moved to
suppress evidence seized and any statements made by Defendant
to law enforcement officers during a December 2, 2016 traffic
stop. (Doc. 16). The Court conducted a hearing on
Defendant's motion on May 17, 2018 (see Doc.
27), and the transcript was filed on June 4, 2018 (Doc.
The Government filed a post-hearing brief (Doc. 32),
Defendant responded (Doc. 34), and the Government submitted a
reply (Doc. 35). Defendant filed a sur-reply (Doc. 36), to
which the Government responded (Doc. 38). With briefing
complete, the Court now considers the merits of
County Sheriff's Deputy Brandon Holcomb is assigned to a
specialized traffic unit called the HEAT unit. (Tr. 7). That
unit's mission is to reduce the number of traffic
fatalities through education and enforcement, including
“speed enforcement, DUI detection, seat belts, and
child safety seats.” (Tr. 8-9). When he was transferred
to that unit, Holcomb received specialized training in
standardized field sobriety tests training, ARIDE (roadside
drug impairment detection) training, Intox 5000, speed
detection, lasers, radar detection, and drug interdiction.
(Tr. 9). With respect to his field sobriety tests training,
Holcomb took a three-day class and was required to
demonstrate proficiency in “determining which subjects
were under the influence and how much they are under the
influence” in order to pass the class, which he passed.
(Tr. 9-10). That class used the National Highway Traffic
Safety Administration Training Manual on Field Sobriety. (Tr.
55-56). Holcomb's ARIDE training, which he completed in
2015, was “geared towards drug impairment” and
taught him how to conduct evaluations of drug impairment,
including eye testing and effects of drugs on the human body.
(Tr. 10-11, 55). Holcomb estimates that he has done
approximately 300 sobriety tests on drivers per year in the
three years since he completed his training. (Tr. 11). He
also goes to high schools to teach students how officers do
sobriety tests and performs sobriety tests during those
sessions. (Tr. 11-12). During Holcomb's drug interdiction
training, he has learned interview techniques, how to detect
deception during a traffic stop, and how people hide things,
and he has used those techniques frequently since undergoing
that training. (Tr. 12-13).
December 2, 2016, at 11:30 p.m. Deputy Holcomb was at an
intersection on Highway 365 in the south end of Habersham
County in Cornelia, Georgia where he had just finished a
traffic stop and was turning to go back north to run speed
detection. (Tr. 14-15, 25). He was stopped at a red light
approximately 10 cars back from the light when he saw a car
in front of him that was weaving back and forth, in and out
of traffic. (Tr. 15-16). As they were traveling, he saw that
the driver-later identified as Defendant-failed to maintain
his lane by “riding way right of center, ” and he
made sudden lane changes to pass cars. (Tr. 16-17). In light
of his observations of aggressive driving and failure to
maintain lane, Holcomb began watching Defendant's car and
got behind him. (Tr. 17). There were several cars between
Holcomb and Defendant, so Holcomb flashed his headlights at
them to get them to move over to let him get directly behind
Defendant, but he did not engage his blue lights at that
time. (Tr. 17). Holcomb was able to get directly behind
Defendant and estimated his speed at 80 miles an hour and
activated his direction moving radar, which indicated that
Defendant was traveling at 78 miles per hour in a 65 mile per
hour zone. (Tr. 18). Holcomb noted that Defendant was still
failing to maintain his lane, and he would weave from one
lane to the other lane and cross center dashes without
signaling. (Tr. 19). He went left and center with both of his
left-sided tires again, so Holcomb decided to stop him and
activated his blue lights. (Tr. 19). Holcomb was driving a
marked patrol car which is equipped with a recording device
that records from two minutes before his blue lights are
activated until the deputy stops recording, and he also was
wearing a microphone that records audio. (Tr. 19-21).
Defendant and Holcomb pulled over, Holcomb got out of his
vehicle and made contact with Defendant. (Tr. 22-23). There
was also a woman in the front passenger seat. (Gov't Ex.
1). Holcomb was concerned that Defendant was impaired given
that he was speeding and failing to maintain his lane. (Tr.
23). Holcomb began talking with Defendant and “started
assessing him as a driver, ” i.e., “look[ed] at
his eyes, his body language, how he talks to [Holcomb],
” whether he looked at Holcomb while talking and was
responsive to Holcomb's questions. (Tr. 23-24). Holcomb
did not smell alcohol or marijuana. (Tr. 59). Holcomb asked
Defendant for his driver's license, asked him
“what's your hurry, ” and told Defendant he
was “all over the road.” (Gov't Ex. 1).
Holcomb asked Defendant where he was headed, and Defendant
initially said he was going to Gainesville, but that did not
make sense to Holcomb because they were already north of
Gainesville and Defendant was heading north. (Tr. 24).
Holcomb asked Defendant where he was staying, and he said he
was on vacation and visiting family in Gainesville. (Tr. 25).
Defendant also told Holcomb he was going to Walmart in
Cornelia, which Holcomb also found dubious because Defendant
could have gone to a Walmart in Gainesville where he was
staying rather than drive to a Walmart in Cornelia that was
25 miles away. (Tr. 24-25).
spoke, Holcomb observed a cellphone on Defendant's
dashboard with what appeared to be GPS software displaying
“52 miles to your destination” and “a line
going straight northbound, ” i.e., the GPS was not
“telling them to turn around and go back towards
Atlanta or Gainesville.” (Tr. 25-26, 62). That raised
Holcomb's suspicions because it was not consistent with
what Defendant said about where he was going. (Tr. 26). He
asked Defendant about it, and Defendant responded that it
wasn't his phone, it was his female passenger's
phone. (Tr. 26). Holcomb also observed that Defendant would
not look at him while they were talking but just looked at
the steering wheel. (Tr. 26). Defendant appeared to be
“getting aggravated with [Holcomb] asking those
questions, ” which indicated “[c[riminal activity
of some sort, deception” to Holcomb. (Tr. 27). Based on
his training and experience, Holcomb suspected the criminal
activity could involve narcotics. (Tr. 27).
then decided to separate Defendant from the passenger to
interview them independently about where they were coming
from and where they were staying. (Tr. 27-28). He opened the
door and repeatedly told Defendant he wanted to speak with
him outside the car and asked him to step outside, but
Defendant asserted that he did not do anything wrong and did
not exit the vehicle. (Tr. 28; Gov't Ex. 1). Holcomb
repeated that he wanted to speak with Defendant outside the
car, but Defendant again did not exit the car and instead
continued to question why he needed to get out of the car.
(Gov't Ex. 1). Holcomb then told him “I'm not
giving you an option, you're going to get out of the car
and get back here and talk to me ok?” (Gov't Ex.
1). Defendant did not immediately exit the car but said,
“I understand all that, you've got my driver's
license, ” and Holcomb repeated, “You're
going to come back here and speak with me further ok?”
and explained that Defendant was “all over the road,
you can't drive, can't maintain your lane, and
you're driving 78 miles per hour, ” so Holcomb
“want[ed] to get back here and do a few tests with you
and make sure you're safe to drive. That's your
options right now, so how about stepping back here.”
(Tr. 29, 63-64; Gov't Ex. 1). Defendant then got out and
put his hands on the roof of the car pursuant to
Holcomb's direction. (Gov't Ex. 1). Holcomb did not see
anything inside the car at that point that aroused suspicion,
but he did find Defendant's reluctance to get out of the
car to be suspicious because in his experience when he asked
someone to step out of a vehicle during a traffic stop, they
“normally . . . just step out” if they have
nothing to hide. (Tr. 28-30).
asked Defendant for consent to search his person to make sure
he did not have any weapons on him, and after telling Holcomb
he did not have “anything” on him, Defendant gave
his consent. (Tr. 30, 64; Gov't Ex. 1). Holcomb had not
withdrawn his firearm or Taser at that point, and he spoke
with Defendant in a conversational tone. (Tr. 30-31;
Gov't Ex. 1). Holcomb noticed a bulge in one of
Defendant's pockets and asked him what it was, and he
responded that it was money, “500 bucks.” (Tr.
31). Holcomb found that carrying $500 in cash in one's
pocket to be unusual. (Tr. 31).
asked Defendant to step back to the front of his patrol
vehicle, but Defendant “didn't want to do
that.” (Tr. 32). He “kept facing” Holcomb
and asked, “Why, why are you doing this? What are you
doing?” (Tr. 32). Because he was dealing with Defendant
as well as the passenger in Defendant's vehicle, Holcomb
felt the need to control the situation and raised his voice
and told Defendant “Move to the front of my patrol
vehicle, ” and Defendant then backed up to the back of
Defendant's car but “kept putting his hand on the
car and kept standing there.” (Tr. 32; Gov't Ex.
1). Holcomb repeatedly told him to move to the front of his
patrol vehicle but he did not comply, so Holcomb pointed his
Taser at Defendant and again told him to move to the front of
the patrol vehicle. (Tr. 32-33, 66; Gov't Ex. 1).
Defendant put his hands in the air and backed up to the front
of the patrol car. (Tr. 33, 66; Gov't Ex. 1). Holcomb
then re-holstered his Taser. (Tr. 33). Holcomb asked him why
he was being difficult and not complying with him, and
Defendant responded, “I wasn't trying to do nothing
like that. My question about what I was, I thought I did
something wrong, ” and Holcomb again told him why he
was investigating, i.e., whether Defendant was safe to drive.
(Tr. 34; Gov't Ex. 1). Holcomb also told Defendant,
“When an officer tells you to do something you do it.
You don't do what you think you want to do.”
(Gov't Ex. 1). Holcomb explained at the hearing that he
wanted Defendant to move to the front of his patrol car
because he intended to administer field sobriety tests and
that area provided the best view for the camera, and it was
the safest place for him and Defendant. (Tr. 33). Holcomb did
not think he had probable cause to search Defendant's car
at that point. (Tr. 70-71).
officer arrived, and Holcomb told him why he pulled Defendant
over and that Defendant was nervous, giving evasive answers,
the GPS indicated he was not being truthful about where he
was going, and he would not comply with getting out of the
car and moving to the front of the patrol car. (Tr. 33-34;
Gov't Ex. 1). Holcomb asked the other officer to speak
with the female passenger while he dealt with Defendant. (Tr.
34). Holcomb then asked Defendant whether he was on probation
or parole, what he did for a living, and whether certain
illegal substances or weapons were in the vehicle, including
methamphetamine or heroin in the car. (Tr. 34-35, 71-72;
Gov't Ex. 1). Defendant responded that there were not
any, but Holcomb testified that “[e]very other question
[Holcomb] asked him he added something to it. He either
slurred his voice, he laughed, he giggled [but with] [t]hose
two substances he stated no.” (Tr. 34-35). Holcomb
found Defendant's manner of answering his questions
deceptive based on his training and experience. (Tr. 35,
72-73). Holcomb still did not think he had probable cause to
search Defendant's car. (Tr. 73-74). Holcomb asked for
consent to search the car, but Defendant refused, and Holcomb
responded, “okay.” (Gov't Ex. 1).
explained to Defendant that he wanted to administer field
sobriety tests to Defendant because of how he was driving and
asked him again about his travels. (Gov't Ex. 1).
Defendant said that he was staying at a hotel in Gainesville
and had been driving to Cornelia to go to Walmart because his
passenger needed to get some toiletries, and that they
planned to return to the hotel in Gainesville after going to
the Walmart. (Gov't Ex. 1). Holcomb prepared to begin the
horizontal gaze nystagmus evaluation, but the second officer
approached and also asked Defendant for consent to search the
car, and Defendant again refused. (Gov't Ex. 1).
then moved to the passenger near the front passenger side of
Defendant's vehicle and began questioning her to see if
her story differed from Defendant's about where they were
going. (Tr. 36-37, 73-75; Gov't Ex. 1). She told Holcomb
she did not know where they were going, she had been asleep.
(Tr. 36, 61). Holcomb responded that Defendant “says
you're going to Walmart, ” and she said that
Defendant said they were going to Walmart to get condoms and
snacks. (Tr. 36; Gov't Ex. 1). The passenger denied that
she needed anything at Walmart. (Tr. 37). The passenger did
not know the name or location of the hotel where they were
staying. (Gov't Ex. 1). Holcomb believed that the
passenger's version about going to Walmart differed from
Defendant's, which further heightened Holcomb's
suspicions. (Tr. 37). The passenger also said that the phone
was hers and that the GPS had been on since she left Atlanta
earlier in the day, but Holcomb found the information the GPS
was displaying, i.e., indicating that the destination was 52
miles north of the traffic stop, was inconsistent with the
information Defendant and the passenger gave about where they
were going (Tr. 25-26, 62), i.e. to a Walmart in Cornelia and
then back to Gainesville.
was walking back from questioning the passenger, Holcomb
looked inside Defendant's vehicle through the window,
shined a light in the car, and saw behind the passenger seat
two to three inches of a tightly wrapped cellophane bundle
with a square top sticking out of what appeared to be a bag
underneath a jacket. (Tr. 38, 75). Given how the bundle was
wrapped he immediately suspected it was narcotics, probably
methamphetamine, based on his training and experience,
although he could not see through the cellophane. (Tr.
38-39). Holcomb then placed Defendant in handcuffs and told
him he was detaining him for the officers' safety and
left him leaning up against the front of the patrol car. (Tr.
42, 78; Gov't Ex. 1). That occurred approximately 14
minutes after he pulled over Defendant. (Gov't Ex. 1).
Defendant then pointed the bundle out to other officers at
the scene and they indicated that it looked like
“dope.” (Gov't Ex. 1).
believed that he had probable cause to obtain a search
warrant and called a magistrate judge to begin the process.
(Tr. 40). He told her the facts that he had to that point,
“what the stories were, what they were telling me, how
they were acting, and then what I had [seen], ” and she
told him she thought he had enough for a warrant. (Tr. 41;
Gov't Ex. 1). But she told him that he would have to tow
the car, detain the passengers, and come meet her. (Tr. 40).
Holcomb told her that he had some field sobriety tests and
DUI investigation to complete, and the judge told him he
might not need her. (Tr. 40). Holcomb decided to complete his
investigation and call the judge back if he needed to meet
with her. (Tr. 40-41). He asked to get a drug dog there, but
it was an hour away. (Tr. 79-80; Gov't Ex. 1).
exited his patrol car and read Defendant his Miranda
rights and removed him from handcuffs in order to perform the
field sobriety tests. (Tr. 42; Gov't Ex. 1). Before the
other officer arrived and prior to speaking with the
magistrate judge, Holcomb had looked at Defendant's
eyelid tremors and his conjunctiva and considered his speech,
but he had not conducted any field sobriety tests to assess
impairment. (Tr. 42-43). Holcomb asked Defendant if he would
do some field sobriety evaluations to make sure he was safe
to drive, and Defendant said yes. (Tr. 43; Gov't Ex. 1).
Approximately 24 minutes had elapsed from the beginning of
the stop. (Gov't Ex. 1). Holcomb observed Defendant's
tongue and eyes under a flashlight. (Gov't Ex. 1).
Holcomb asked Defendant about the cellophane-wrapped bundle
in his car, and Defendant responded that he did not know but
indicated it was just trash. (Tr. 77; Gov't Ex. 1).
Holcomb also asked Defendant about the last time he smoked
marijuana and again looked at his eyes and tongue with a
flashlight, and Defendant responded that the last time he
smoked marijuana was months earlier. (Gov't Ex. 1).
removed Defendant's handcuffs and began the field
sobriety tests. (Gov't Ex. 1). First, he administered the
horizontal gaze nystagmus test, which measures involuntary
jerking of the eyes and moving from side to side. (Tr.
43-44). Holcomb noted that Defendant was wearing contacts,
confirmed that he had equal pupil size, and began the test.
(Tr. 80-82; Gov't Ex. 1). Defendant followed his
directions and no nystagmus was present, indicating there was
no alcohol impairment, although Holcomb noted that
Defendant's body swayed in a circular motion during the
test. (Tr. 44, 84-85). Holcomb did not conduct a lack of
convergence test because of concerns about Defendant's
contacts. (Tr. 87). He did look at Defendant's
conjunctiva with a flashlight and observed marked reddening
under the lower eyelids of both eyes. (Tr. 50).
then administered the walk-and-turn evaluation, instructed
Defendant how to perform it, then watched for clues of
impairment as Defendant performed the test; he “did
seven of the eight wrong” which indicated impairment
equivalent to an alcohol concentration of .08 grams or more.
(Tr. 45-47). He next administered the one-leg stand test, and
Defendant performed three of the four clues for impairment
incorrectly, which also indicated impairment equivalent to an
alcohol concentration of .08 grams or more. (Tr. 47-48).
Holcomb also believed that Defendant was sufficiently
impaired to arrest him for DUI because Defendant's tongue
had red raised bumps on it, the top of his tongue was green,
and there was marked reddening of his conjunctiva,
observations which were consistent with what he had learned
about marijuana use in his training and experience. (Tr.
49-50, 77-78, 90-92).
Holcomb then arrested Defendant for driving under the
influence of alcohol or drugs based on his speeding and
failing to maintain his lane, his observations of
characteristics consistent with marijuana use, and
Defendant's performance on the field sobriety tests. (Tr.
50-51, 90). Officers searched the car and found three large
bundles of narcotics, which Holcomb believed were
methamphetamine based on how they felt. (Tr. 51-52, 78). They
also found methamphetamine in the passenger's purse, a
pill in Defendant's wallet, and a loaded firearm between
the seats. (Tr. 52). The passenger was placed under arrest
for possession of methamphetamine. (Tr. 52). Defendant's
car was towed and he and the passenger were arrested. (Tr.
argues that the Court should suppress all evidence seized
from his vehicle without a warrant and any evidence of