United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on DEFENDANT'S MOTION TO
SUPPRESS EVIDENCE ON COUNTS TWO AND THREE (ECF No. 19) (the
"Motion to Suppress"). For the reasons set forth
below, the Motion to Suppress will be denied.
Perez-Almeida ("Perez-Almeida") is charged in a
three-count indictment with illegal reentry, pursuant to 8
U.S.C. § 1326(a) (COUNT ONE); possession of a firearm by
an alien illegally and unlawfully in the United States,
pursuant to 18 U.S.C. § 922(g)(5) (COUNT TWO); and
possession of cocaine, pursuant to 21 U.S.C. § 844
(COUNT THREE). See ECF No. 3. He has moved to dismiss COUNT I
(the "Motion to Dismiss") and to suppress evidence
related to COUNTS II and III (the "Motion to
Suppress") (collectively, the
"Motions"). See ECF Nos. 19 and 20.
parties fully briefed both Motions, see ECF Nos. 19,
20, 22, 23, 25, 27, and the Court heard oral argument and
received evidence on the Motions on June 18 and June 20,
2019. Thereafter, the Court ordered the parties
to submit supplemental briefing setting out their positions
on both Motions in perspective of the evidence adduced during
the evidentiary hearings. See ECF No. 39. The
parties have submitted their supplemental briefing, and the
Motion to Suppress is ripe for decision.
March 4, 2019 at approximately 3:16 p.m., Perez-Almeida was
driving a black Chevrolet Impala (the "Impala" or
the DEFENDANT'S MOTION TO DISMISS COUNT ONE (ECF No. 20)
is addressed in a separate MEMORANDUM OPINION (ECF No. 51).
"vehicle") on 1-85 in Virginia, when he was stopped
by Brunswick County Sheriff Lt. Jonathan Clary
("Clary") for having tinted windows that violated
Virginia law. Hr'g Tr. 11-14 (Clary's testimony
about the initiation of the traffic stop); Gov't Ex. 1
(Clary's body camera footage showing that the traffic
stop was initiated at 15:16, or 3:16 p.m.). Along with
Perez-Almeida in the vehicle were Sandra Hernandez
("Hernandez") (in the front passenger seat) and
Robert Covington ("Covington") (in the rear
passenger seat). See Def. Ex. 11 at 9 (identifying
Covington);ECF No. 22 at 3 (identifying Hernandez).
upon approaching the vehicle, Clary asked Perez-Almeida if he
had his driver's license. Def. Ex. 11 at 1. Perez-Almeida
responded "No," and told Clary that he had a
passport, but that it was not with him. Id. Clary
then asked whether Perez- Almeida had "anything that
tells me who you are," to which Perez-Almeida said
"I don't have anything." Id. at 2.
Perez-Almeida told Clary that he had never been licensed
anywhere, and again stated that he had a passport, but that
it was not with him. Id. at 2-3. Clary returned to
his police car to get a clipboard and paper so that occupants
of the vehicle could write down their information. While he
was in his police car, Clary requested backup. Id.
at 5; Hr'g Tr. 25.
to the Impala, Clary asked Perez-Almeida to write down his
identifying information so that Clary could attempt to
determine Perez-Almeida's identity. Def. Ex. 11 at 5,
7-8. The backseat passenger, Covington, also confirmed that
he had no identification with him in the vehicle.
Id. at 5 ("All of my identification is in
Greensboro."). Covington first told Clary that he was
"licensed in Greensboro," id. at 6, but
then told Clary that he only had an identification card at
his house. Id. at 9. Clary then had Covington write
down his identifying information so that his identity could
be confirmed. Id. at 8-9. Hernandez presented an
unstamped passport, but no driver's license. Def. Ex. 11
at 15; Hr'g Tr. 17 (Clary's testimony that Hernandez
provided a passport).
returned to his police car with the clipboard and called the
dispatcher, who confirmed that Covington did not have a
driver's license and that he was not wanted. Def. Ex. 11
at 11; Hr'g Tr. 17-18. Clary also asked the dispatcher
about Perez-Almeida. Def. Ex. 11 at 12.
16 minutes into the traffic stop, and while Clary was sitting
in his police car (attempting to verify the identity of the
three occupants of the Impala, none of whom had convincing
proof thereof), Deputy Aaron Peter ("Peter")
arrived as backup. Hr'g Tr. 25; Gov' t Ex. 1 (Peter
appearing at time stamp 15:32). Clary told Peter that he
could not identify anyone in the vehicle, that they were
"acting sketchy," that they "seemed like they
kind of a whacky crew," but that he did not have "a
reason to search [the Impala]." Def. Ex. 11 at 13. Clary
told Peter, "It will be interesting to see when I get
done [printing tickets] if they'll let us or not."
Id. at 17. Clary testified that this statement meant
that, once he was finished printing the tickets, he would ask
for Perez-Almeida's consent to search the vehicle.
Hr'g Tr. 26. Clary further testified that, while he did
not "have probable cause to enter [the] vehicle,"
the passengers of the Impala "were very suspicious to me
at the time," in part because he could not identify
them, because "[t]hey made several statements about
where they were coming from and where they were going,"
and because he "noticed very little luggage inside the
vehicle and multiple cell phones." Id. 25-26.
before Peter arrived (while Clary was working in his police
car), Clary began the process of writing tickets for
Perez-Almeida. See Hr'g Tr. 24; Gov't Ex. 1.
Clary wrote tickets for Perez-Almeida for: (1) no valid
driver's license; (2) illegal window tint; (3) dangling
object to obstruct view; and (4) a cracked
windshield. See Def. Ex. 11 at 14-15.
Clary was writing the tickets, Peter had gone to speak with
the vehicle occupants to see if he could determine who the
occupants were. Hr'g Tr. 36; Gov't Ex. 1 (time stamp
15:35:46). Upon returning to the side of Clary's police
car approximately two minutes later, Gov't Ex. 1 (time
stamp 15:37:27), Peter suggested patting down Perez-Almeida
to see if he had a wallet on him. Def. Ex. 11 at 18. Clary
said he was "okay with whatever at this point."
returned to the Impala while Clary finished writing and
printing the tickets. Govt. Ex. 1 (time stamp 15:39:25
showing Peter returning to the Impala). Peter got
Perez-Almeida out of the Impala and patted him down. Hr'g
Tr. 27-28, 36 (testimony of Clary); Hr'g Tr. 67
(testimony of Peter). No. seizure occurred.
29 minutes into the traffic stop, Clary finished printing the
tickets, and approached Perez-Almeida and Peter, who were
standing outside the Impala. Gov't Ex. 1 (time stamp
15:45:01 showing Clary leaving his police car); Def. Ex. 11
at 18-21. Clary told Perez-Almeida that he was being cited
because he was the driver "so you're in charge of
the vehicle." Def. Ex. 11 at 18-21. Clary then explained
the tickets to Perez-Almeida; and asked him to sign each one.
Id. Once Perez-Almeida signed the tickets, Clary
gave him copies of them. Id. at 21. At this point,
Clary had not returned Hernandez's passport or the
vehicle registration. Id. at 21; Hr'g Tr. 27.
seconds later, Clary and Perez-Almeida had the following
Clary: There's a lot of drugs and guns that go up and
down our highways in Virginia.
Clary: So since you're the vehicle operator, you're
in charge of it. Do you have a problem if we take a quick
look to make sure there's nothing - no guns, or anything,
in the car? No. guns, drugs?
Perez-Almeida: Like checking?
Clary: Just take a look. Yeah. If you don't have nothing,
there's no reason, right?
Perez-Almeida: I guess.
Clary: All right. Have a seat.
Def. Ex. 11 at 21; Gov't Ex. 1 (showing this exchange
starting at time stamp 15:47:44). Clary interpreted
Perez-Almeida to be giving "a positive response, like go
ahead" and proceed to search. Hr'g Tr. 27. In
preparation for the search, and for officer safety, Clary
asked Covington and Hernandez to exit the vehicle and sit
along the guardrail. Def. Ex. 11 at 22-24.
then started to search, beginning at the driver's side
door. Hr'g Tr. 29. Perez-Almeida did not tell Clary to
stop the search process or complain that he had not consented
to it. Clary testified that, "[a]s soon as I opened the
door, I immediately noticed the handle of what appeared to be
a pistol coming from underneath the driver's
seat." Id.; id. 59. He asked
Perez-Almeida about the gun, to which Perez-Almeida
responded, "I didn't know there was a gun in the
car." Def. Ex. 11 at 26. Clary asked Peter to handcuff
Perez-Almeida at that point. Id. During the search,
Clary also uncovered a "white powdery bag inside the
magazine pouch" under the driver's seat.
Id. at 28; id. at 33 (referring to the
powder as "cocaine"); Hr'g Tr. 60.
then told the Impala's occupants that Perez-Almeida, as
the driver, was "probably going have to take a ride for
it," but that Covington and Hernandez could "ride
with the tow truck driver" if they could
"behave." Def. Ex. 11 at 31-32. Hernandez asked
Clary if her sister could pick up the Impala so they would
not have to pay for the tow, but Clary refused when he
learned that the sister lived more than 20 minutes from the
scene. Id. at 32; Hr'g Tr. 46-47 (Clary
testifying that the passengers all appeared to be from out of
state, so there was "no reason to wait hours for
somebody to show up on the side of the road to come pick [the
vehicle] up"). Clary told the occupants that "I
can't safely leave the vehicle and its contents here. And
y'all can't drive it, so I have to get you off the
interstate as well." Def. Ex. 11 at 32. Clary took
Perez-Almeida into custody for the firearms and drugs found
in the Impala. Hr'g Tr. 50.
the Impala was towed to Ricky's Service Center.
Id.; id. 68 (testimony of Peter) . No.
inventory search was done pursuant to the tow because the
vehicle had already been searched.Id. Covington and
Hernandez left the scene with the tow truck. Id. 69
(discussing how "the other two occupants" were
going to go with the Impala).
Fourth Amendment guarantees "[t]he right of the people
to be secure in their . . . houses, papers, and effects,
against unreasonable searches and seizures" and provides
that "no Warrants shall issue, but upon probable cause .
. . ." U.S. Const, amend. IV. "The touchstone of
the Fourth Amendment inquiry is one of simple
reasonableness." United States v. Bumpers, 705
F.3d 168, 171 (4th Cir. 2013); United States v.
Coleman, 588 F.3d 816, 819 (4th Cir. 2009) . As the
Supreme Court of the United States teaches, "[a]n action
is 'reasonable' under the Fourth Amendment,
regardless of the individual officer's state of mind,
'as long as the circumstances, viewed
objectively, justify [the] ...