United States District Court, E.D. Virginia, Richmond Division
M. Hahnah Lauck United States District Judge
On November 11, 2015, Defendant Eugene Harris filed a Motion to Suppress. (ECF No. 12.) The United States filed a response in opposition. (ECF No. 17.) Harris did not file a memorandum in reply to the United States' response, and the deadline to do so has expired. On November 24, 2015, the Court held a hearing on the pending motion. Following the hearing, the Court allowed submission of additional briefing. On January 5, 2016, Harris filed his supplemental memorandum. (ECF No. 20.) On January 19, 2016, the United States filed its supplemental response memorandum. (ECF No. 21.) On January 31, 2016, Harris filed his supplemental reply memorandum. (ECF No. 23.)
On February 3, 2016, the parties appeared for final argument on the Motion. Accordingly, this matter is ripe for adjudication. For the following reasons, and for the reasons stated on the bench at the February 3, 2016 hearing, the Court will deny the Motion to Suppress. (ECF No. 12.)
I. Procedural Background and Findings of Fact
A. Procedural History
On August 5, 2015, the grand jury returned a three-count indictment against Harris. Harris was charged with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841; possession with intent to distribute heroin, in violation of 21 U.S.C. § 841; and, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (ECF No. 1.)
Harris filed a Motion to Suppress, arguing this Court must suppress the evidence against him because it was obtained pursuant to an unlawful search without consent in violation of his Fourth Amendment rights. On November 24, 2014, the Court held a hearing on the Joint Motion to Suppress. Virginia State Police Trooper Cesar Nunez ("Trooper Nunez" or "Nunez") and Virginia State Police Trooper Brandon Crockwell ("Trooper Crockwell" or "Crockwell") testified for the United States. Harris called Virginia State Trooper Trainee Stephen Phillips ("Trainee Phillips" or "Phillips") as an adverse witness. The United States introduced into evidence maps and charts of the traffic stop (Nov. 24, 2015 Hr'g ("Hr'g") U.S. Exs. 1A-1D, 2A, 2C-2E); photographs of the interior of Trooper Crockwell's, Trooper Nunez's, and Harris's vehicles (Hr'g U.S. Exs. 3A & B, 6A &B, 7A-7D); summonses issued to Harris on April 25, 2015 (Hr'g U.S. Exs. 4-5); a synopsis and report by Trooper Nunez (Hr'g U.S. Exs. 9-10); and, six warrants issued to Harris (Hr'g U.S. Exs. 12A-12F). After supplemental briefing in January of 2016, the Court heard oral argument on February 3, 2016. Based on the evidence and briefing presented by the parties, the Court makes the following factual findings.
B. Findings of Fact
At approximately 8:15 a.m. on April 25, 2015, Virginia State Trooper Brandon Crockwell was on patrol near the intersection of Broad Street and 17th Street in Richmond, Virginia. As Trooper Crockwell drove west on Broad Street, he saw a 1994 white Mercury Marquis in the left lane. Trooper Crockwell noticed a crack in the windshield of the Mercury and observed that the driver, who he would later discover to be Harris, was not wearing a seatbelt. At a red light, the two vehicles sat nearly side by side. When the light turned green, the Mercury suspiciously did not proceed forward at first, instead letting Trooper Crockwell's police cruiser drive ahead. Harris drove behind Trooper Crockwell for a period, who then allowed Harris to pass him. When Harris used an on-ramp to get onto Interstate 95, Trooper Crockwell followed.
Troopers Nunez and Crockwell testified that as Harris drove in the center lane on Interstate 95 nearing Exit 75, he swerved into the left lane without apparent justification. That lane was occupied by a marked police cruiser driven by Trooper Nunez, who was accompanied by Trainee Phillips in the passenger seat. Harris's swerve forced Nunez to veer off the road into the shoulder. After Harris swerved into the left lane, Trooper Crockwell activated his emergency lights to conduct a traffic stop for Harris's failure to wear his seat belt and his defective windshield.
Although Harris ultimately complied by pulling over onto the side of the road, he did not do so expediently. He proceeded off the next exit and, instead of pulling into the widest area of the shoulder, he continued in an abnormal manner down the exit ramp until the shoulder was so narrow that his car partially blocked the line of traffic. Because of the constricted shoulder, the officers had to park their cars in a line instead of side-by side. Crockwell parked his car immediately behind Harris. Nunez parked his car behind Crockwell. Harris's extended drive before stopping alerted both Crockwell and Nunez's suspicions. First, the unnecessarily lengthy drive indicated to both officers that Harris could be concealing something or could be under the influence of alcohol or drugs. Additionally, Crockwell's vantage point directly behind Harris's car showed Harris "moving around a lot" in the car, indicating to him that Harris could be hiding contraband or preparing a weapon. (Hr'g Tr. 122.)
Because of Crockwell's concerns as to Harris's sobriety, as well as his unease about the possibility of a weapon, he "bladed" his firearm, meaning that he held his gun concealed behind his leg, as he walked to greet Harris at the passenger door of Harris's car. (Hr'g Tr. 15-17.) However, he quickly found Harris to be compliant and holstered his weapon. No evidence exists that Harris ever saw Crockwell's weapon out of its holster. During the first interaction between Crockwell and Harris, Nunez and Phillips stood between Harris's car and Crockwell's police cruiser. Crockwell informed Harris that he had stopped him for the cracked window and seat belt violations. Crockwell then returned to his police car to write summonses for these violations.
While Crockwell sat in his car writing the summonses, Nunez approached Harris's car by the passenger side door to engage in "casual conversation" about his swerve into the left lane, about where Harris had come from and where he was going. (Hr'g Tr. 27-28, 78, 80.) Through the passenger side, Nunez saw (1) Chronic Spray, which is "typically used to mask the odor of marijuana;" (2) rolling papers, or the external parts of tobacco cigars commonly used to form marijuana cigars; and, (3) "blunt guts, " or the emptied contents of tobacco cigars. (Hr'g Tr. 27-31.) Nunez also spoke with Harris and saw his hands "shaking nervously." (Hr'g Tr. 31.) Nunez informed Crockwell of his observations. Although both officers thought the activity was suspicious, they agreed they did not have probable cause to arrest Harris.
In addition to Nunez's suspicious observations, Trooper Crockwell also saw Harris acting in a lethargic manner and thought he detected the odor of alcohol. Around 8:35 a.m., Crockwell asked Harris to return to the area behind his car to ...