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United States v. Thomas

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

November 8, 2018



          J. Clay Fuller United States Magistrate Judge.

         This 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 DENIED.

         Procedural History

         An 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. 30).[1] 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 Defendant's motion.


         I. Facts[2]

         Habersham 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).

         On 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).

         Once 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).

         As they 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).

         Holcomb 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.[3] (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).

         Holcomb 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).

         Holcomb 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).

         Another 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).

         Holcomb 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).

         Holcomb 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.

         As he 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).

         Holcomb 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).

         Holcomb 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).

         Holcomb 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).

         Holcomb 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).

         Deputy 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. 52-53).

         II. Analysis

         Defendant argues that the Court should suppress all evidence seized from his vehicle without a warrant and any evidence of ...

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