United States v. Axon

1

UNITED STATES OF AMERICA v. BENJAMIN DALE AXON

No. 8:21-cr-374-VMC-CPT

United States District Court, M.D. Florida, Tampa Division

June 30, 2023

REPORT AND RECOMMENDATION

HONORABLE CHRISTOPHER P. TUTTE UNITED STATES MAGISTRATE JUDGE

Before me on referral is Defendant Benjamin Dale Axon's motion to suppress evidence obtained by the Manatee County Sheriff's Office (MCSO) as a result his arrest in July 2021.^[1] (Docs. 23, 69). Axon's arrest stemmed from the events surrounding a traffic stop performed by the MCSO roughly nine months earlier, in October 2020, when Axon was the passenger in a car being driven by his one-time girlfriend, Corinthian Jones. That stop was predicated upon a traffic infraction allegedly committed by Jones and led to the discovery of a weapon purportedly belonging to Axon following a warrantless search of Jones's vehicle. Axon who was a felon at the time, fled the scene, and his subsequent apprehension in July 2021 was based on the arrest warrants issued after he absconded.

In support of his instant motion, Axon contends that the evidence obtained during his July 2021 arrest must be suppressed under the “fruit of the poisonous tree” doctrine because the October 2020 traffic stop and the attendant search of Jones's car were unlawful. (Docs. 23, 69); (Doc. 55 at 6-9); (Doc. 62 at 47). The government disagrees and urges the Court to deny Axon's motion. (Docs. 29, 68).

An evidentiary hearing was held on the matter,^[2] at which the government called two witnesses (1) former MCSO officer Shayne Rousseau, who conducted the stop of Jones's vehicle in October 2020; and (2) MCSO deputy Joseh Ferreira who arrested Axon in July 2021. (Doc. 55). For his part, Axon called (1) Jones (who Axon subpoenaed to appear at the hearing), and (2) an MCSO records custodian, Sharon Chasteen. (Docs. 55, 62). Axon did not testify. Id.

Following the hearing, I entered an Order directing the parties to file proposed findings of fact and conclusions of law. (Doc 61).^[3] The parties did so (Docs. 68, 69), and I then heard oral argument on Axon's motion. The parties submitted a joint notice a week later addressing one of the issues discussed at oral argument. (Doc. 77).

After careful review of the parties' submissions, the testimony and exhibits adduced at the evidentiary hearing, the arguments and representations made at oral argument, and other pertinent portions of the record, I respectfully recommend that Axon's motion be denied. Below are my findings of fact and conclusions of law that lead me to this recommendation. Unless otherwise indicated, my factual findings are based upon my assessment of the weight of the evidence offered by the parties, including the testimony of the above-referenced witnesses.

I.

A.

During the early morning hours of October 26, 2020, MCSO Detective Rousseau was on patrol in the area of First Street and 26th or 30th Avenue in Bradenton, Florida. (Doc. 55 at 15, 17-18, 28-29). The weather that night was clear, and the pavement was dry. Id. at 19. Rousseau was driving an unmarked black Chevy Tahoe that was “the same style Tahoe” as all the police units used by the MCSO. Id. at 17, 70. It was equipped with a spotlight and a large “police[-]style push bumper” in the front “with lights . . . attached to it.” Id. at 17, 70, 85. As described by Rousseau, his police SUV “look[ed] very similar to a cop car” and was “pretty obvious[ly] . . . a patrol vehicle.” Id. at 17, 70. Neither Rousseau nor his Tahoe were outfitted with cameras, however, as those devices had not yet been deployed throughout the MCSO. Id. at 34, 76.^[4]

By that point in his career, Rousseau had been an officer with the MCSO for roughly nine years and was assigned to the MCSO's Violent Crimes Task Force. Id. at 15, 17, 28-29, 35, 77.^[5] In that role, Rousseau was charged with, among other duties, responding to “violent crime call[s]” and engaging in proactive policing. Id. at 35-36. Before becoming a detective, Rousseau served as a MCSO deputy for approximately four years, where he had been tasked with stopping vehicles for traffic violations, in addition to other responsibilities. Id. at 19-20, 77. Whether as a deputy or detective, Rousseau did not “writ[e] a whole lot of citations” because he was a “big proponent of . . . informing people of the laws and hoping that they [would] make better decisions in the future without a monetary fine.” Id. at 30.^[6] As pertinent here, his training and experience to that juncture included visually estimating the speeds of vehicles, conducting hand-to-hand transactions for marijuana, searching cars and other locations for marijuana, and working with firearms as a member of the MCSO's SWAT team. Id. at 16, 27. With respect to his approach to policing, Rosseau viewed himself as an officer “who thinks outside the box.” Id. at 33.

While traveling north on First Street at approximately 2:00 a.m. on October 26, Rousseau saw a black Acura-later determined to be driven by Jones and occupied by Axon-heading in the opposite direction. Id. at 17-18, 73; (Doc. 50-9); (Doc. 62 at 6-9).^[7] According to Rousseau, the Acura came “out of [a] curve” in the road traveling “pretty fast” and, although Rousseau did not have enough time to assess the pace of the vehicle, it “[l]ooked [to him] like it was speeding.” (Doc. 55 at 18, 68-73). As a result, Rousseau made a U-turn and, when he did, the Acura “immediately made a right turn and then another right turn to head back northbound in the direction that [it] just came” into some neighborhoods. Id. at 18, 68-71. Based upon his law enforcement background, Rousseau found this “odd pattern” of maneuvers to be a “little weird” and indicative of someone who was potentially engaged in illegal activity attempting to “just dip off and not be in [his] vision anymore.” Id. at 19, 71. As he explained during his testimony:

Typically when people see law enforcement vehicles and if they may not be up to any good, they try to get out of sight, out of mind as quick[ly] as they can. It's a very typical response that I've seen over my career, and that's what caused me to have my suspicions.

Id. at 70; see also id. at 30-31.

Given his evaluation of the situation and drawing on his narcotics training, Rousseau decided he would “do a traffic violation on the car.” Id. at 19. Rousseau testified in this respect that once he developed a “suspicion about a vehicle” he would “wait for [the driver] to commit a traffic infraction . . . so that he [could] investigate what's going in [the] vehicle.” Id. at 30, 33; see also id. at 77. Rousseau insisted, however, that this tactic did not include “mak[ing] up” traffic violations or otherwise “going outside of the rules.” Id. at 33-34.

Rousseau began to follow the Acura but it took him a “few blocks” to position himself behind the automobile because it was “driving a little bit fast.” Id. at 19, 72. By the time he caught up to the Acura, the car was approaching the intersection of 3rd Street West and 13th Avenue West. Id. at 19-22, 41; (Docs. 50-2, 50-30). That intersection had a stop sign on the corner facing the direction of the oncoming Acura, as well as a pedestrian walkway immediately adjacent to the stop sign. (Doc. 55 at 22, 41); (Docs. 50-2, 50-30). Of significance here, the intersection also had a thick white line-known as a “stop bar” or “stop line”-painted on the ground in front of the stop sign. (Doc. 55 at 19-22, 75); (Docs. 50-2, 50-12). The stop line extended from the curb along the side of the road to roughly the mid-point of the street. (Doc. 55 at 19- 22, 42, 75); (Docs. 50-2, 50-12).

With his headlights and those of the Acura illuminating the area, Rousseau “observed the [Acura's] front tires roll past the stop bar and a little bit into” the pedestrian walkway. (Doc. 55 at 20-23, 74-75, 79). Even though Rousseau was behind the Acura, he could see the car pass over the stop bar because the bar was wider than the automobile. Id. at 42-46, 74-75. When pressed on this issue on cross examination, Rousseau emphasized that the stop bar went “all the way” to the edge of the curb, “so [that] unless [the automobile was] riding on the curb, [he]'d be able to see” if the vehicle crossed it. Id. at 75.

In light of his observations, Rousseau deemed the driver of the Acura to have violated Florida Statute § 316.123(2)(a), which prohibits motorists from failing to stop “at a clearly marked stop line.” Fla. Stat. § 316.123(2)(a). As a result, Rousseau determined he would stop the vehicle “to see what was going on,” particularly given the earlier questionable maneuvers the driver had undertaken. (Doc. 55 at 23, 50-51); (Doc. 50-6). Rousseau then proceeded to follow the car and commenced “call[ing] out a traffic stop over the radio.” (Doc. 55 at 20). Rousseau explained that this process “takes a little bit of time” and involves providing his location, relaying the license plate number of the targeted automobile once he is able to ascertain it, and “maybe even entering the tag in to check for any stolen records or anything on [his] laptop.” Id. at 21, 50-51, 76.

Rousseau continued to drive behind the Acura for several blocks and eventually located “a safe place to pull the car over,” which he accomplished by activating his emergency lights. Id. at 21, 23, 45-48, 75; (Doc 55-12).^[8] Rousseau thereafter exited his SUV and approached the driver-side window of the Acura. (Doc. 55 at 24, 63). As he did, Rousseau could see the driver (Jones), as well as the front seat passenger (Axon), and “immediately noticed an odor of marijuana emitting from the vehicle.” Id. at 24; see also id. at 54. Rousseau recognized the smell of marijuana from his years of training and experience. Id. at 16, 24, 56-57. When he subsequently collected ...