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United States v. Saul

United States District Court, E.D. Virginia, Richmond Division

June 3, 2016

UNITED STATES OF AMERICA
v.
TREVELL MAURICE SAUL, Defendant.

          MEMORANDUM OPINION

          M. HAMAH LAUEK JUDGE

         On March 4, 2016, the Court granted Defendant Trevell Maurice Saul leave to file a motion to suppress. (ECF No. 20.) On March 14, 2016, Saul filed his Motion to Suppress. (ECF No. 21.) The United States filed a response in opposition. (ECF No. 22.) Saul filed a reply in support of his Motion. (ECF No. 23.) On April 27, 2016, both Saul and the United States placed supplemental filings on the record. (ECF Nos. 26, 27.) The Court held a hearing on the pending motion. After submitting evidence, the parties argued their positions. The Court took the matter under advisement. After carefiil review of the evidence submitted, including repeated review of the video evidence, the Court will deny the Motion to Suppress. (ECF No. 21.)

         I. Procedural Background and Findings of Fact

         A. Procedural Background

         On November 17, 2015, the grand jury returned a one-count indictment against Saul, charging him with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).[1] (ECF No. 1.) Saul filed a Motion to Suppress, arguing this Court must suppress the evidence against him because it was obtained pursuant to an unlawful pat-down in violation of his Fourth Amendment[2] rights. The Court held a hearing on the Motion to Suppress. Virginia State Trooper Matthew Reed[3] ("Trooper Reed" or "Reed") and Virginia State Trooper Joseph Hylan[4] ("Trooper Hylan" or "Hylan") testified for the United States. Based on the evidence and briefing presented by the parties, the Court makes the following factual findings.

         B. Findings of Fact

         Around 11:00 p.m. on December 18, 2014, Trooper Reed stopped a white Mercedes Benz for traveling 64 miles per hour in a zone with a posted speed limit of 40 miles per hour.[5] Reed approached the car on the passenger's side, and spoke over the passenger to the driver, now known to be Saul. Both the passenger's and driver's side windows were fully open. Reed asked Saul for his identification, which Saul provided. When Reed asked where Saul was going in such a hurry, Saul said that he was heading to Callao, Virginia, that he thought he was going about 50 miles per hour, and that he was giving the passenger a ride home.

         Trooper Reed testified that he smelled the strong odor of marijuana upon approaching the car. Reed stated, and the recording of the encounter confirmed, that after discussing Saul's speed for about one minute, Reed asked the occupants, "Where's the marijuana at?" (U.S. Ex. 1, at 2:40.) Saul denied having marijuana in the car. Reed followed up by asking, "Okay, so if I search the car, I'm not going to find any marijuana in the car?" (U.S. Ex. 1, at 2:50.) Reed testified that Saul responded again that the car contained no marijuana. Reed determined that he needed to search the car, but, given the time of night, the isolated location, and the fact that the two occupants outnumbered him, he returned to his patrol unit to radio for back up. The video shows that, among other things, Reed called into the dispatcher a code that signified that drugs might be involved in the stop.

         Trooper Hylan arrived at the stop in approximately ten minutes. Saul's car can be seen from Reed's dashboard camera during this wait. Both the driver's and passenger's windows remained open during the wait. Nothing suggested non-cooperative conduct by the occupants. Both officers testified that Saul generally answered politely while he was still in his car.

         Upon arrival, Trooper Hylan approached Saul's side of the car, and can be heard on the video introducing himself and asking Saul if he knew why he was stopped. Saul said he was told he was speeding, but he thought he was going about 50 miles per hour. Saul's statement that he thought he was going 50 miles per hour struck Hylan as a lie, Hylan testified, because Trooper Reed told Hylan that the appropriately calibrated radar clearly showed Saul traveling at 64 miles per hour. While neither officer overemphasized its import, Reed also found Saul's response about speed unbelievable.

         Saul told Hylan that he was giving his passenger a ride home because the passenger had been drinking. Saul confirmed that he was driving his mother's car, that he was from Loudon, Virginia, and that he was giving his passenger a ride home because the passenger's brother asked. When asked if Saul had anything in the car Hylan needed to know about, Saul said he had nothing. In a fast staccato, Hylan asked whether Saul or his passenger had any "drugs, knives, grenades, bombs, dead bodies; you all didn't kill your girlfriend and stick them in the back?" (U.S. Ex. 2, at 12:00.) Saul again said he was taking his passenger home and denied they had anything. Hylan told Saul he would feel safer if Saul cut the car off, which Saul did.

         Hylan credibly testified that, although he did not say so to Saul, he also smelled a strong odor of marijuana emanating from the car as he approached it. Instead, Hyland said to Saul, "That trooper over there tells me he smells marijuana in the car, okay? So who's got the marijuana on them?"[6] (U.S. Ex. 1, at 16:40; U.S. Ex. 2, at 12:35.) Saul said they did not have marijuana in the car, but when prompted by Hylan to respond honestly, Saul confirmed they had been "up at the shop" around three or four other "dudes" who had been smoking, but that they had not smoked. (U.S. Ex. 1, at 16:45; U.S. Ex. 2, at 12:40.) Hylan said the smell might be on their clothes and asked if Saul minded if he searched the car. Saul responded, "Yes I do mind because, if you don't have no ... we don't got nothing." (U.S. Ex. 1, at 17:00; U.S. Ex. 2, at 13:00.) During the interaction, Saul repeatedly said he was just driving his passenger home.

         Hylan then said, "Well, let me tell you this, okay? In the state of Virginia, because we smell marijuana...." Saul finished his sentence: "You got the right to search the car. So, I mean, you can search the car." (U.S. Ex. 1, at 17:10; U.S. Ex. 2, at 13:05.) Hylan told Saul to come out of the car and said, "I'm gonna lightly pat you down, okay?" (U.S. Ex. 1, at 17:15.) Saul said, "All right." Hylan again said he was going to pat Saul down for weapons. Hylan testified that while guns were less often present in stops involving marijuana, knives were a safety concern because hunting knives, box cutters, or pocket knives were often used to slice down the side of a store-bought cigar to replace the tobacco with marijuana, creating a "blunt." Hylan stated that he thought he was conducting a consent search given Saul's statements.

         Just seconds after Hylan told Saul to get out of the car and turn around, Hylan talked to Saul about his hand placement. Saul's left hand is not visible from the dash camera, but Hylan credibly testified that Saul moved his hand to his body toward his waist band. (U.S. Ex. 1, at 17:30.) The video-which Hylan had not seen prior to this hearing-confirms this. Simultaneous to Saul turning around, Hylan can be heard telling Saul not to reach for his pockets. (U.S. Ex. 1, at 17:34; U.S. Ex. 2, at 13:18.) Saul repeatedly responded, "my bad, my bad." (U.S. Ex. 1, at 17:36; U.S. Ex. 2, at 13:20.) As Trooper Hylan patted Saul down, and as he reached Saul's waistband, he felt something and asked Saul, "What is that?" Hylan identified the object he felt as a gun, retrieved it from Saul's waistband, and placed it on the back windshield of the car. (U.S. Ex. 2, at 13:33.) Trooper Hylan then handcuffed Saul and ordered Reed to place the passenger in handcuffs. Hylan told both Saul and his passenger that they were being detained for safety and were not under arrest. After checking Saul's criminal record, the officers determined that Saul was a convicted felon and placed him under arrest.

         II. Analysis

         The Court will deny the Motion to Suppress. The United States bears the burden of establishing the admissibility of evidence obtained as the result of a warrantless search or seizure by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n. 14 (1974). A number of well-known exceptions to the warrant requirement exist, two of which the Court must examine in its determination of the facts at bar. First, a search pursuant to consent is a well-established exception to the warrant requirement. Lattimore, 87 F.3d at 650. The second exception, known as a Terry search pursuant to the Supreme Court of the United States' ruling in Terry v. Ohio, 392 U.S. 1 (1968), allows a police officer to temporarily detain a person based on specific and articulable facts, that "criminal activity may be afoot, " and frisk the person for weapons based on reasonable, articulable suspicion that the person is "armed and presently dangerous to the officer or to others." Terry, 392 U.S. at 24, 30. The Court examines these two exceptions seriatim.

         A. The Totality of the Circumstances Does Not Show that Saul Gave Consent to Search

         The totality of circumstances demonstrate a near equal likelihood that Saul consented, or that he merely acquiesced, to the search of the car or the pat-down of his person. Thus, the United States has not met its burden of proof regarding consent. The Court ...


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