United States v. Humphries

504 F.Supp.3d 464

UNITED STATES of America,

v.Martinel Lee HUMPHRIES, Defendant.

CRIMINAL NO. 19-166

United States District Court, W.D. Pennsylvania.

Signed December 2, 2020

Timothy Michael Lanni, United States Attorney's Office, Pittsburgh, PA, for United States of America.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Joy Flowers Conti, Senior United States District Judge

I. Introduction

Defendant Martinel Lee Humphries ("Humphries" or "defendant") filed a motion to suppress evidence (ECF No. 29). The government filed a response in opposition to the motion, with attached exhibits (ECF Nos. 31, 32). On September 17, 2020, the court held an evidentiary hearing by videoconference, with the consent of all parties. The official transcript is filed at ECF No. 36.¹ The parties were permitted to file proposed findings of fact and conclusions of law. The parties filed those post-hearing submissions on November 3, 2020 (ECF Nos. 39, 40). The motion to suppress is ripe for disposition. There is no need for additional evidence or argument.

II. Factual and Procedural Background

Humphries is charged in a three-count indictment at Criminal Number 19-166 with: (1) possession with intent to distribute a quantity of heroin and a quantity of fentanyl; (2) possession of a firearm in furtherance of a drug trafficking crime; and (3) possession of a firearm and ammunition by a convicted felon. These charges arise out of a traffic stop and subsequent search incident to arrest conducted on August 20, 2018.

Humphries argues that: (1) the traffic stop was pretextual and without reasonable suspicion; (2) a K-9 sniff and search violated his Fourth Amendment rights; and (3) the search warrant was defective (ECF No. 39). The government contends that the traffic stop, K-9 sniff and search warrant were lawful.

Findings of Fact

1. West Mifflin police officer Rick Marone ("Marone") and Ms. Taylor Parker ("Parker"), defendant's girlfriend at the time of the traffic stop, testified at the hearing. Both witnesses offered credible testimony. Government exhibits 2, 3 and 5 and defense exhibit A, which included the search warrant, affidavit of probable cause, inventory receipt and hearing transcript filed at ECF Nos. 29-2, 29-3 and 31-1, were admitted into evidence.

A. The anonymous tips

2. In August 2018, Marone (and the entire police department) received two emails from the police department which described anonymous oral tips received about drugs and guns at the Mon View Heights housing complex in West Mifflin, Pennsylvania (Gov. Ex. 5). Marone described that area as high drug and high crime. Tr. at 13.

3. The first tip was from a female, who reported that a male nicknamed "bullet," who drove a silver Infiniti with the license plate KSY0864, was on probation and known to carry guns in his car. The informant believed "bullet" was hooking up with a female that lived in the 20 row of the housing complex. (Gov. Ex. 5).

4. In the email, it was reported that officers learned that license plate KSY0864 on a 2004 Infiniti (the "Infiniti") was registered to a Martinel Humphries. (Gov. Ex. 5).

5. The second tip was also from a female, who reported that the driver of the Infiniti with license plate KSY0864 parked his car in the 20 row and went into the complex to visit a girl, although the apartment was unknown. The tipster reported that the driver's license was suspended, he keeps drugs and guns in the Infiniti, and he has hidden compartments in the vehicle. (Gov. Ex. 5).

6. Officers confirmed that Humphries’ license was suspended. Officers drove past the housing complex and saw the Infiniti parked in the 20 row. In the email was an instruction that officers should "keep an eye out." (Gov. Ex. 5).

7. Marone testified that he intended to stop the Infiniti if he saw it operating on the road to determine whether the tips were accurate. Tr. at 25.

B. The traffic stop

8. At the time of the incident, Marone had been a police officer for over seven years and had performed hundreds of traffic stops for tinted windows. Tr. at 16.

9. On August 20, 2018, at approximately 4:30 p.m., Marone was in a marked police car parked in a lot at Bobick's garage, near the corner of Oak Street and Whittaker Street. Tr. at 23.

10. It was a bright, sunny day. Tr. at 15.

11. Marone spotted the Infiniti and observed that the windows were so heavily tinted that he could not see through them, even to catch a silhouette of the driver. Tr. at 15. Government exhibits 2 and 3 are photographs of the vehicle, which confirm that the windows are heavily tinted.

12. Marone conducted a traffic stop and approached the driver's side door.

13. The driver's side window was being lowered as Marone approached the Infiniti and he smelled an overwhelming odor of marijuana, both burnt and raw. Tr. at 17.

14. Humphries was the only person in the vehicle. The address on his driver's license reflected that he was living in the Mon View Heights housing complex. Tr. at 21-22.

15. Humphries told Marone that he had smoked marijuana right before he left his house. Tr. 18.

16. Marone detained Humphries for suspicion of driving under the influence ("DUI").

17. Marone did not see any drugs, paraphernalia or weapons in the vehicle. Tr. at 26.

18. Humphries was removed, but the overwhelming raw marijuana smell continued to emanate from the vehicle. Tr. at 34.

19. Officers Kintigh and Columbia arrived on the scene and searched the vehicle for marijuana and weapons.

20. Humphries’ girlfriend, Ms. Parker, arrived on the scene. Marone explained to her about the odor of marijuana and suspicion of DUI and gave her one of Humphries’ cell phones. Tr. at 34, 43.

21. Marone transported Humphries to the hospital for testing. After they left the hospital, an EMS employee saw two marijuana joints (one smoked, one raw) fall, or be discarded, from Humphries’ pants. Tr. at 19, 32-33.

The dog sniff

22. Pursuant to standard procedures, officers performed an inventory search of Humphries’ vehicle prior to having it towed. Nothing was recovered during this inventory search. Tr. at 19.

23. Officer Kintigh arranged for a K-9 from the Allegheny County Sheriff's Office to come to the scene. The dog handler was officer Brandon Tuzikow ("Tuzikow") and the dog's name was Fetyls.

24. Marone left the scene to transport Humphries to the hospital and neither of them have first-hand knowledge about the K-9 sniff. Tr. at 29. As the investigating officer, Marone received an oral report about the K-9 search from Officer Kintigh and included that information in preparing an affidavit for a search warrant. Tr. at 39.

25. Parker testified that the K-9 team arrived approximately twenty minutes after the Infiniti was stopped. The car doors were closed and the windows were up. K-9 Fetyls went around the exterior of the Infiniti. Tr. at 45.

26. Parker was asked: "And can you tell the Court, what did the dog do?" Parker answered: "He [K-9 Fetyls] went around the car once. And after he went around the car, he had stopped at the passenger door to be let in the passenger side front door." Tr. at 45.

27. The K-9 officer opened that door to let K-9 Fetyls in and closed the door for about thirty seconds before letting K-9 Fetyls back out. Tr. at 45-46.

28. The officers did not direct or place K-9 Fetyls inside the Infiniti. Instead, the officers opened the door after K-9 Fetyls alerted and waited to be let inside the vehicle.

29. Officer Kintigh advised Marone from the scene that the K-9 alerted on the passenger backseat area. Tr. at 39.

30. The vehicle was towed to the West Mifflin police department sally port, due to the odor of marijuana and concerns that other persons might try to get into the vehicle before a search warrant could be obtained. Tr. at 28-29,36.

The search warrant

31. The next morning, August 21, 2018, Marone applied for a search warrant to search the Infiniti.

32. In the affidavit of probable cause, Marone set forth his training and experience, including certification as a DANET agent with over fifty marijuana arrests. Marone stated his observation of the heavily tinted windows, Humphries’ admission that he smoked marijuana shortly before driving as a basis for a DUI charge, the recovery of two marijuana joints from Humphries’ pants, and the overwhelming odor of marijuana that persisted after Humphries was removed from the vehicle. The affidavit stated that a search of Humphries’ criminal history disclosed prior arrests/convictions for drug and firearms violations. (ECF No. 29-2).

33. The affidavit stated that "Allegheny County Sheriff's Deputy Brandon Tuzikow and his partner Fetyls arrived on scene" and that Tuzikow informed officers at the scene that K-9 Fetyls alerted on the Infiniti's passenger back seat area. (ECF No. 29-2).

34. Two days after preparing the search warrant application, Marone received a four-page report about the K-9 sniff. Tr. at 31, 35. Marone did not have any information about the certifications, length of service or false positive alerts by K-9 Fetyls at the time he prepared the search warrant application. Tr. at 35.

35. The affidavit did not contain any information about the anonymous tips.

36. The search warrant was issued by a magisterial district judge at approximately 10:45 a.m. on August 21, 2018.

37. At approximately 11:30 a.m. that day, Marone and other officers executed the search warrant. In a zippered compartment in the back of the front passenger seat, officers recovered: (a) a Glock 42 .380 caliber firearm that had been reported stolen; (b) fifty-two bundles of suspected heroin; (c) a baggie corner with suspected marijuana; and (d) a title showing Humphries’ ownership of the vehicle.

38. The zippered compartment in the seat was not "hidden," in that it was visible to a person sitting in the back seat. Tr. at 28.

Conclusions of Law

1. The Fourth Amendment protects the public from "unreasonable searches and seizures." U.S. Const. amend. IV.

2. The government must prove, by a preponderance of the evidence, that "each individual act constituting a...