United States v. Mestre

362 F.Supp.3d 1175

UNITED STATES of America

v.Darryl Urgelles MESTRE, Eddy Ricardo Bermudez

CASE NO. 1:18-CR-239-WKW

United States District Court, M.D. Alabama, Southern Division.

Signed January 23, 2019

Ben Mark Baxley, Robert Randolph Neeley, U.S. Attorney's Office, Montgomery, AL, for United States of America.

MEMORANDUM OPINION AND ORDER

W. Keith Watkins, CHIEF UNITED STATES DISTRICT JUDGEOn September 26, 2018, the Magistrate Judge filed a Recommendation (Doc. # 59) that the motions to suppress filed by Defendants Darryl Urgelles Mestre and Eddy Ricardo Bermudez (Docs. # 34, 38) be denied. Defendants timely objected to the Recommendation. (Docs. # 63, 68.) Upon a de novo review of the record and the Recommendation, see 28 U.S.C. § 636(b), Defendants' objections are due to be sustained, and the Magistrate Judge's Recommendation is due to be rejected.

I. STANDARD OF REVIEW

When a party objects to a Magistrate Judge's Report and Recommendation, the district court must review the disputed portions de novo. 28 U.S.C. § 636(b)(1). The district court "may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions." Fed. R. Crim. P. 59(b)(3). De novo review requires that the district court independently consider factual issues based on the record. Jeffrey S. ex rel. Ernest S. v. State Bd. of Educ. , 896 F.2d 507, 513 (11th Cir. 1990). If the Magistrate Judge made findings based on witness testimony, the district court must review the transcript or listen to a recording of the proceedings. Id. The district court cannot reject a credibility determination without rehearing live testimony. United States v. Powell , 628 F.3d 1254, 1257 (11th Cir. 2010). But the district court may, without a new hearing, modify findings in a way consistent with the Magistrate Judge's credibility determination. See Proffitt v. Wainwright , 685 F.2d 1227, 1240–41 (11th Cir. 1982).

II. BACKGROUND

This case involves a police encounter in the parking lot of a Dothan Walmart. The Recommendation adequately recites the facts, and neither Mestre nor the government disputes them. Bermudez challenges only two of the Recommendation's findings of fact. Because these two findings are closely entwined with the Recommendation's legal conclusions, they are discussed in Part III.

III. DISCUSSION

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend IV. Thus, there must be a "search" or a "seizure" to trigger the Fourth Amendment's protections. No party objects to the Recommendation's finding that a seizure occurred here. But the Recommendation is unclear on precisely when the seizure occurred, and that issue is critical to the case. For a seizure to be valid, it must be "justified at its inception." May v. City of Nahunta, Ga. , 846 F.3d 1320, 1328 (11th Cir. 2017) (quoting Terry v. Ohio , 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). Thus, the court considers only those "facts available to the officer at the moment of the seizure." Terry , 392 U.S. at 21–22, 88 S.Ct. 1868 ; United States v. Franklin , 323 F.3d 1298, 1301 (11th Cir. 2003) ("Because Franklin was seized when he was tackled, the officers can consider everything that happened up to that point to establish reasonable suspicion."). Determining when the seizure occurred, therefore, determines what facts the court may consider in determining reasonable suspicion.

The Recommendation appears to find that the seizure occurred when Officer Hughes retained Defendants' identification. Bermudez contends that the seizure occurred the moment Officer Hughes opened the door of the vehicle and began speaking to Defendants. For these reasons, Bermudez is correct, and his objection on that point is sustained.¹

A. The seizure occurred when Officer Hughes opened the door and began questioning Defendants.

Not all police–citizen encounters are seizures. The Eleventh Circuit has explained the difference between "police–citizen exchanges involving no coercion or detention," which are not seizures, and "brief seizures or investigatory detentions" (known as Terry stops), which do implicate the Fourth Amendment. United States v. Perez , 443 F.3d 772, 777 (11th Cir. 2006).

A person is seized under the Fourth Amendment "only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In determining whether a reasonable person would feel free to leave, courts consider

whether a citizen's path is blocked or impeded; whether identification is retained; the suspect's age, education and intelligence; the length of the suspect's detention and questioning; the number of police officers present; the display of weapons; any physical touching of the suspect, and the language and tone of voice of the police.

Perez , 443 F.3d at 778 (quoting United States v. De La Rosa , 922 F.2d 675, 678 (11th Cir. 1991) ). "The ultimate inquiry remains whether a person's freedom of movement was restrained by physical force or by submission to a show of authority." United States v. Jordan , 635 F.3d 1181, 1186 (11th Cir. 2011). "[P]olice questioning, by itself, is unlikely to result in a Fourth Amendment violation." INS v. Delgado , 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984).

Several Eleventh Circuit cases address whether police approaching a vehicle to speak to its occupants is a seizure. Those cases consider, among other things, whether the officer blocked the vehicle with his patrol car,² whether the person conveyed his consent to speak with the officer,³ and whether the officer engaged in coercive conduct during the encounter.⁴

None of these cases discusses a situation when an officer, without consent, opens a car door to speak to the occupants. The District of Columbia Circuit did consider such a case, and assumed there was a seizure. United States v. Brown , 334 F.3d 1161, 1164 (D.C. Cir. 2003) ("The parties appear to assume that the opening of the car door constituted both a stop and a search for Terry purposes, and we do so as well."). In Brown , the officer saw a vehicle parked where gunshots had been reported and decided to investigate. Id. at 1163. He approached the vehicle and knocked on the window. Id. When he received no response, he cracked the door open and saw the inculpatory evidence. Id. The court assumed this was a Fourth Amendment stop and search and went on to analyze whether it was based on reasonable suspicion. Id. at 1164.

The court finds that the seizure occurred the moment Officer Hughes opened the car door⁵ and began asking Defendants questions. The video shows Officer Hughes, without Defendants' permission, opening the car door and beginning to ask questions without first asking whether Defendants were willing to speak with him. Although Officer Hughes began by asking whether Defendants were all right, the questions quickly moved from a simple "welfare check" to asking where Defendants were from and what they were doing. During this conversation, Officer Hughes was standing before the open car door, holstered weapon visible, as Defendants laid across the second-row seat. It would have been difficult for Defendants to get out of the car or drive away if they wished. Although the conversation was friendly at first, Officer Hughes initiated contact by opening the door and asking questions without first seeking Defendants' permission. This is evidence not of a consensual encounter, but a show of authority that would have led a reasonable person to believe he was not free to end the conversation and leave. The court therefore finds that the seizure occurred the moment Officer Hughes opened the door and began questioning Defendants.

B. No reasonable suspicion to support a seizure existed before Officer Hughes opened the door and began questioning Defendants.

The Recommendation concludes there was reasonable suspicion justifying a seizure based largely on events occurring after the seizure, including Defendants' unusual travel plans, their explanation for sleeping in the Walmart parking lot, and the new clothes in the car.⁶ But Officer Hughes ascertained this information after he opened the door and began questioning Defendants; i.e. , after the seizure had occurred. Because a seizure must be justified from its inception, the court considers only the facts available to Officer Hughes at the moment he opened the car door and began questioning Defendants.

That leaves only three facts based on which Officer Hughes could have suspected wrongdoing: (1) Officer Hughes had seen the two men in the parking lot the day before;⁷ (2) they were present in a high-crime area; and (3) they were asleep in a late-model SUV. These facts do not support reasonable suspicion.

An officer "may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Terry , 392 U.S. at 30, 88 S.Ct. 1868. The officer must articulate "a particularized and objective basis for suspecting the particular person stopped of criminal activity," United States v. Cortez , 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), not merely an "inchoate and unparticularized suspicion or ‘hunch’ of criminal activity." Illinois v. Wardlow , 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (quoting Terry , 392 U.S. at 27, 88 S.Ct. 1868 ). "The ‘reasonable suspicion’ to justify such a stop ‘is dependent upon both the content of the information possessed by police and its degree of reliability.’ " Navarette v. California , 572 U.S. 393, 397, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) (quoting Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ). "[R]easonable suspicion...