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United States v. Perez-Almeida

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

August 26, 2019

UNITED STATES OF AMERICA,
v.
DAVID PEREZ-ALMEIDA, Defendant.

          MEMORANDUM OPINION

          ROBERT E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         I. Procedural Context

         David 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").[1] See ECF Nos. 19 and 20.

         The 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.[2] 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.[3]

         II. Factual Background[4]

         On March 4, 2019 at approximately 3:16 p.m., Perez-Almeida was driving a black Chevrolet Impala[5] (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.[6] 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);[7]ECF No. 22 at 3 (identifying Hernandez).

         Immediately 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.

         Returning to the Impala, Clary asked Perez-Almeida to write down his identifying information so that Clary could attempt to determine Perez-Almeida's identity.[8] 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).

         Clary 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.

         Approximately 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.

         Just 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.[9] See Def. Ex. 11 at 14-15.

         While 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." Id.

         Peter 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.

         Approximately 29 minutes into the traffic stop, Clary finished printing the tickets, and approached Perez-Almeida and Peter, who were standing outside the Impala.[10] 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.[11] Id. at 21. At this point, Clary had not returned Hernandez's passport or the vehicle registration. Id. at 21; Hr'g Tr. 27.

         Four seconds later, Clary and Perez-Almeida had the following exchange:

Clary: There's a lot of drugs and guns that go up and down our highways in Virginia.
Perez-Almeida: Yeah.
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.[12] Def. Ex. 11 at 22-24.

         Clary 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."[13] 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.

         Clary 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.

         Thereafter, 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.[14]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).

         DISCUSSION

         The 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] ...


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