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United States v. Brown

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

August 15, 2017



          Robert E. Payne Senior United States District Judge

         This matter is before the Court on the DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND MEMORANDUM IN SUPPORT (ECF No. 14) ("Def's Mtn. to Suppress") filed by Julious Brown. Brown's motion seeks suppression of all evidence seized from the automobile in which Brown was a passenger, as well as all statements made by Brown. For the reasons set forth below, DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND MEMORANDUM IN SUPPORT (ECF No. 14) will be denied.


         The facts are based on testimony given at the suppression hearing. They are augmented by a video and audio recording of the traffic stop made by the camera in the police car of the officer who conducted the stop.

         On January 19, 2017, Virginia Senior Trooper Homiak was on duty near the northbound ramp at Exit 13 on Interstate 95N in Greenville County, Virginia. Homiak was parked in the median when he noticed a small group of cars driving past him, with one vehicle, a dark blue Chevy Malibu ("Malibu") in the left lane, approximately 11/2 car lengths behind another vehicle.[1] After the group of cars passed, Homiak pulled onto the highway. The driver of the Malibu then pushed on the brakes and got behind a semi-truck, following at approximately one car length distance. Homiak caught up to the Malibu which, by then was proceeding below the speed limit. Homiak initiated a traffic stop for the violation of "following too closely." The Malibu pulled over onto the right shoulder and came to a stop.

         Homiak approached the vehicle, identified himself as a law officer, and explained to the driver that she was "following too closely, " and asked the driver for her license. The driver, Laquida Donyel Henderson, produced a North Carolina license. Henderson's residence was in North Carolina. She told Homiak that the vehicle was a rental car and produced the rental car agreement. Homiak noticed that Henderson's hands were shaking "uncontrollably" as she passed the documents to him. Homiak also noticed that Brown, the passenger, was breathing "heavily and his chest was pounding." Homiak saw a prepaid phone on the passenger side floor board with the battery removed. Homiak told Henderson that he was going to check the status of her driver's license and asked her to accompany him to his patrol vehicle.

         While in the patrol vehicle, Homiak reviewed the rental agreement which showed that Henderson had rented the vehicle in North Carolina. Homiak began to check Henderson's driving record by way of a computer query, and, while that process was underway, he questioned Henderson about her chosen path of travel and destination. Henderson reported that Brown was her boyfriend and that they were traveling to Philadelphia and then to New Jersey to visit family. Henderson also testified that earlier in the morning, she drove to pick up a rental car because she did not want to put miles on her vehicle. She then picked up Brown from her home and the couple traveled to Warrenton, North Carolina where Brown visited with a friend. After that, they traveled approximately 30 minutes to Rocky Mountain, North Carolina to get chicken at a Zaxby's restaurant.

         When asked why she did not use Interstate 85 (a more logical route of travel considering the starting point of their journey), Henderson indicated that she may be lost. Homiak went back to the vehicle to speak with Brown. Homiak observed that Brown continued to "breathe heavily". Brown did not have any form of identification other than a credit card with his name on it, but reported his name, date of birth and social security number to Homiak. Brown told Homiak that he was going to make a stop in Virginia and then he was going to New Jersey to see his sister for a few days.

         After speaking with Brown, Homiak returned to his patrol vehicle to see whether the computer had yet generated Henderson's record. At this point, Homiak requested that Trooper Hernandez ("Hernandez") respond with his drug detecting canine.[2]

         Homiak was aware that Interstate 95 was a prime travel route between New York (a drug source city) and points South, including North Carolina. His training and experience led Homiak to become suspicious that Henderson and Brown might be engaged in drug trafficking because both displayed signs of abnormal nervousness at the early stages of the traffic stop for a minor infraction, because of the conflicting accounts of their travel plans, because the cell phone was disabled, thereby preventing any location identification (a tactic that Homiak, from experience, knew to be used by drug traffickers), and by the confusing explanation for using Interstate 95, rather than Interstate 85.

         Henderson's license showed as "not on file" and Homiak reentered the information. While waiting for the computer check on Henderson's license to come back for the second time, Homiak asked Henderson where she worked and she responded that she worked at the Lowes in Henderson, North Carolina. At that time, Hernandez arrived on the scene and Homiak told him to stand by. The computer check again showed "not on file." Homiak explained to Henderson that he had one more way to check her license status. While entering the information for the third time, Homiak made a comment to Henderson about the drug problem in Henderson, North Carolina. Henderson's breathing became heavier. Homiak asked Hernandez to run the dog on the outside of the car. At this point, the vehicle had been stopped for approximately 12 minutes and 51 seconds.

         The exterior scan of the car by Hernandez and his dog, Jack, took approximately one minute. During the scan, Jack snapped his head as he was passing the trunk area. After noticing the change in Jack's behavior, Hernandez went back to the area where Jack had first alerted and Jack alerted once again at the trunk of the Malibu and demonstrated the alert by sitting down near the point of alert. Homiak testified that at 13:42 minutes into the traffic stop, he saw the dog sit and at 14:31 minutes into the traffic stop, he told Henderson that her license came back as valid.

         Homiak then proceeded to search the vehicle based on the alert given by Jack. Homiak asked Henderson what she was responsible for in the vehicle to which Henderson replied that she was responsible for driving the car and for her travel bag. Homiak asked Brown if he was responsible for anything in the vehicle and Brown responded "if you find something then its mine that she doesn't know what is going on." Homiak started the search on the passenger side of the car in the area where Brown was sitting. He did not see anything.

         After Homiak opened the trunk, Brown "got a bit agitated and said that he [Homiak] needed a warrant." Brown was placed in handcuffs for the safety of the officers because Brown had become agitated and was a big, strong man. Homiak did not want to have to deal with an unrestrained, agitated Brown on the side of a busy interstate highway where someone could be hurt if Brown's agitation increased.

         Homiak pulled a bag out of the trunk and Brown identified the bag as Henderson's. Homiak searched the bag and did not locate any contraband. Homiak then retrieved a black backpack from the left side of the trunk. Brown said that the backpack was his. Homiak opened the bag and located a large amount of pre-packaged bindles of suspected heroin.[3] Homiak told Brown he was under arrest.

         Homeland Security Investigators interviewed Brown at the Area 35 Police Office in Emporia. Brown was given his Miranda rights and agreed to waive them. Brown explained that he and Henderson had left Henderson, North Carolina that day and planned to stop in Richmond, Virginia to deliver the backpack and its contents to an individual and then proceed to Philadelphia. Brown was going to use the flip phone to contact the recipient. Brown knew that the backpack contained heroin and he was going to be paid $1, 000.00 for delivering the product to Richmond. Brown admitted that this was not his first trip to Richmond to deliver heroin. He had been paid $1, 000 for a previous trip. Brown also gave the agents his consent to search the phone.

         On March 7, 2017, a federal grand jury returned a one-count indictment against Brown charging him with possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a) (1), (b) (1) (B) .


         Brown argues that he has standing to challenge the stop pursuant to Brendlin v. California, 551 U.S. 249 (2007). Brown contends that Homiak did not have reasonable suspicion to conduct the traffic stop of the Malibu based on the Malibu following "too closely." Brown also argues that the alert by Jack, the drug dog, did not provide probable cause to continue the detention of the vehicle because Jack's training was deficient. Originally, Brown also contested the duration of the stop. During oral argument however, Brown's counsel withdrew that aspect of the motion based on the video obtained from Homiak's patrol vehicle.

         While the Government does not challenge Brown's standing to contest the stop of the vehicle, the Government asserts that Brown does not have standing to challenge the search of the vehicle because he lacked any reasonable expectation of privacy in the trunk. The Government takes the view that Homiak had reasonable suspicion that a violation of a traffic law occurred to justify the stop of a vehicle. Once stopped, says the Government, Homiak properly requested the driver's license from the driver, the vehicle registration and the passenger's identification. Once the dog alerted, the nature of the stop changed and Homiak had probable cause to search the trunk for drugs based on the canine's alert. And, according to the Government, Jack's training and certification are legally sufficient to support the search based on his alert.

         ANALYSIS AND ...

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