United States District Court, M.D. Georgia, Columbus Division
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE.
November 24, 2018, Defendant moved to suppress “all
evidence” in this case. Mot. to Suppress 4, ECF No. 7.
The Court held a hearing on Defendant's motion on January
9, 2019. For the reasons explained below, Defendant's
motion is denied.
Thomas Rizzo is charged with driving while under the
influence of alcohol, driving while under the influence such
that it was less safe for him to drive, and failing to
maintain his lane while driving. Information 1, ECF No. 1.
Early in the morning of September 30, 2018, Lt. Wilkerson was
patrolling Dixie Rd. and observed Defendant's vehicle
abruptly accelerate in an intersection then weave in and out
of the driving lane. Hr'g Tr. 9:55-56. Lt. Wilkerson
signaled and stopped Defendant's vehicle at approximately
3:28 A.M. Hr'g Tr. 9:56.
Wilkerson approached the vehicle and identified himself to
Defendant. Id. He noticed an alcoholic odor, that
the Defendant's eyes were “red” and
“glossy, ” and that Defendant was wearing a green
wristband-of a kind commonly distributed at bars-on his right
wrist. Hr'g Tr. 9:57. Lt. Wilkerson called for backup,
re-approached the vehicle, and asked Defendant to step out.
Id. Defendant was then administered three separate
field-sobriety tests in accordance with National Highway and
Transportation Safety Administration (“NHTSA”)
guidelines-the “Horizontal Gaze Nystagmus
(“HGH”), ” “Walk and Turn, ”
and “One Leg Stand” tests. Hr'g Tr. 9:57;
Gov't's Resp. to Mot. to Suppress Ex. 2, ECF No. 9-2.
Wilkerson found that, during the “Walk and Turn”
test, Defendant was unable to maintain his balance, stepped
off the prescribed walk line, and failed to “make the
proper turn.” Hr'g Tr. 10:00. Defendant performed
adequately during the “One Leg Stand” test's
instruction phase, but “swayed back and forth”
and “hopped” multiple times during the
performance phase. Hr'g Tr. 10:00-01. He was also unable
to count as instructed. Hr'g Tr. 10:01. Based on his
performance in these tests, Lt. Wilkerson assessed that
Defendant had shown “clear signs of impairment.”
Id. Defendant also consented to, and was
administered, a portable breath test which showed “the
presence of alcohol [in his system].” Hr'g Tr.
10:02. Lt. Wilkerson then arrested Defendant, searched his
person, read him the federal implied consent notice, and
transported him to the military police station. Hr'g Tr.
10:02; Gov't's Resp. to Mot. to Suppress 2, ECF No.
motion to suppress, Defendant argues that he was driving
lawfully when Lt. Wilkerson initiated the traffic stop, the
field sobriety tests were not properly conducted, Lt.
Wilkerson is not sufficiently trained in field sobriety
testing, and that he did not exhibit “sufficient signs
of impairment to justify his arrest.” Mot. to Suppress
2. Defendant's counsel has since acknowledged that his
argument “is not that there was a failure of probable
cause to stop [Defendant]” but instead, that
“once the stop was affected under [Terry v.
Ohio, 392 U.S. 1, 30 (1968) and its progeny] it was
extended an unconstitutional period of time” and
evidence resulting from it should be suppressed. Hr'g Tr.
10:31-32. The Government contends that “probable cause
clearly existed to arrest the Defendant.”
Gov't's Resp. to Mot. to Suppress 3.
Terry, an officer may stop and briefly detain an
individual if the officer has reasonable suspicion that a
crime is afoot. A stop is supported by reasonable suspicion
if, under the totality of the circumstances, the officer has
an objectively reasonable suspicion that the individual has
engaged, or is about to engage, in a crime. United States
v. Acosta, 363 F.3d 1141, 1144-45 (11th Cir. 2004).
“[O]nce an officer has briefly stopped a motor vehicle
operator for the purpose of issuing a traffic violation
(i.e., a ticket), ” the Fourth Amendment
permits the officer to detain the vehicle's occupants
“only if the officer can point to specific and
articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the
intrusion.” United States v. Pruitt, 174 F.3d
1215, 1219 (11th Cir. 1999). The detention must “last
no longer than is necessary to effectuate the purpose of the
stop, ” and “the scope of the detention must be
carefully tailored to its underlying
justification.'” Id. at 1220 (quoting
Florida v. Royer, 460 U.S. 491, 500 (1983)).
this rule allows an officer conducting a routine traffic stop
to obtain the “driver's license and vehicle
registration, run a computer check [on the license and
vehicle], and issue a citation.” Id. at 1219.
Notably, an officer's “diligence does not provide
the officer with cover to slip in a few unrelated
questions.” United States v. Campbell, No.
16-10128, 2019 WL 125649, at *8 (11th Cir. Jan. 8, 2019).
Further, the “length of time [of the stop] is
immaterial.” Id. at *9 (citing Rodriguez
v. United States, 135 S.Ct. 1609, 1613, (2015). A
traffic stop can be unconstitutionally prolonged by an
officer “before or after” she completes her
investigation. Campbell, No. 16-10128, 2019 WL
125649, at *8. A traffic stop, thus, “is unlawfully
prolonged when an officer, without reasonable suspicion,
diverts from the stop's purpose and adds time to the stop
in order to investigate other crimes.” Id. at
*9. Essentially, if an officer “conduct[s] an unrelated
inquiry aimed at investigating other crimes[, ] that adds
time to the stop[, ] without reasonable suspicion” the
stop has been unlawfully prolonged. Id.
it is clear that, based on the totality of the circumstances,
Lt. Wilkerson had probable cause to arrest Defendant for
driving while under the influence of alcohol. The Defendant
has conceded that Lt. Wilkerson had probable cause to
initiate the traffic stop. When he approached Defendant's
car as usual, he noticed a strong smell of alcohol,
Defendant's “glossy and “red” eyes, and
a wristband that Defendant likely obtained at a bar or club.
Hr'g Tr. 9:57; see, e.g., Schmerber v.
California, 384 U.S. 757, 768-69 (1966) (finding that
the officer “plainly” had probable cause when he
observed an odor of alcohol and driver's eyes were
“bloodshot, watery, [and] . . . glassy”). Lt.
Wilkerson reasonably determined that field sobriety tests
were called for based on these observations, then
administered them. After observing Defendant's
performance on those tests, and considering his initial
observations, Lt. Wilkerson arrested Defendant, read him the
federal implied consent notice, and transported him to the
military police base. He did not divert from the stop's
original purpose-investigating Defendant' improper
driving. Instead, he followed it to its logical conclusion
based on the evidence he legally observed. Accordingly,
Defendant's motion to suppress is denied.
reasons explained above, Defendant's motion to ...