United States v. Overton

UNITED STATES OF AMERICA v. KENDRICK MARCEL OVERTON

Criminal Action No. 3:19-CR-444-L

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

August 12, 2020

MEMORANDUM OPINION AND ORDER

Before the court is Defendant's Motion to Suppress Evidence (Doc. 20), filed by Defendant Kendrick Marcel Overton on May 15, 2020. After carefully considering the motion, response, reply, evidence, and applicable law, the court denies Defendant's Motion to Suppress Evidence (Doc. 20).

I. Factual and Procedural Background

On March 22, 2019, at approximately 1:49 a.m., Kendrick Marcel Overton ("Mr. Overton") was stopped by Mesquite Police Officers Odom ("Officer Odom"), Parker ("Officer Parker"), and Zimmerman ("Officer Zimmerman") for riding his bicycle at night without the proper lighting equipment. Officer Zimmerman observed Mr. Overton riding his bicycle along Town East Boulevard, crossing Viva Drive and then Catalina Drive. Officer Zimmerman's In-Car Video, Gov't Ex. 2 at 00:45-00:55 seconds.¹ Officer Zimmerman approached Mr. Overton, informed him of the reason for the stop, began to question him about where he was headed, asked what he was doing on a bicycle at night without the proper lighting equipment. Officer Zimmerman's Body Camera Footage, Gov't Ex. 3 at 00:26-01:10. Mr. Overton replied to each of Officer Zimmerman's questions. Id. While they were talking, Mr. Overton was sitting upright on his bicycle, lookingstraight at Officer Zimmerman or towards Town East Boulevard, holding his left arm stiffly along his torso. Id.

When Officer Zimmerman asked Mr. Overton whether he had any weapons in his possession, Mr. Overton replied, "Uhm ... no." Gov't Ex. 3 at 01:10-01:16. Simultaneously, he looked down towards his waistband, then became still. Id. Upon observing Mr. Overton's glance toward his waistband, Officer Zimmerman informed him that he was going to search his person for officer safety to make sure he did not have any weapons. Id. Officer Zimmerman then conducted a Terry² frisk and discovered a firearm in the inside pocket of Mr. Overton's jacket. Id.

After discovery of the weapon, Officer Zimmerman placed Mr. Overton in handcuffs and informed him that he was being detained for officer safety. Gov't Ex. 3 at 01:22. Officer Zimmerman unzipped Mr. Overton's jacket to retrieve the weapon from an interior pocket at the front, bottom left side of the jacket. Id. at 01:50. While searching Mr. Overton's jacket for the weapon, Officer Zimmerman noticed the smell of marijuana coming from Mr. Overton and asked him whether he was in possession of any marijuana, or whether he had smoked earlier. Id. at 02:03. Mr. Overton replied that he did not have any in his possession but that he had smoked earlier. Id. at 02:05. After retrieving the weapon from within Mr. Overton's jacket, Officer Zimmerman directed Mr. Overton to get off his bicycle and sit down on the curb. Id. at 02:43. Officer Zimmerman then returned to his vehicle to run a criminal history check.

Over the next few minutes, Officer Odom continued to smell marijuana coming from Mr. Overton and repeatedly asked him whether he was physically in possession of any marijuana, to which Mr. Overton replied in the negative. Officer Odom's Body Camera Footage, Gov't Ex. 4 at02:30-11:00. Officer Odom conducted a search of Mr. Overton's person for marijuana possession and discovered a partially-used marijuana cigarette. Id. at 11:10-11:27.

The basis for this prosecution is the discovery of the firearm, as Mr. Overton has been indicted for Possession of a Firearm by a Prohibited Person, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2). In response to these charges, Mr. Overton filed a Motion to Suppress Evidence ("Motion") (Doc. 20) on May 15, 2020, contending the stop and subsequent search were a violation of his Fourth Amendment rights. Specifically, he asserts there was no indication that Officer Zimmerman had obtained or sought to obtain a warrant for seizure and search of Mr. Overton's person. Doc. 20 at 1. Mr. Overton also asserts that he has standing in this matter because he was the driver and sole occupant of his bicycle. Id. at 4. Citing precedent from the Fifth Circuit, Mr. Overton contends that once a defendant has shown standing and that the seizure or search was conducted without a warrant, the burden shifts to the Government to demonstrate that the warrantless search or seizure fell within an exception to the warrant requirement. Id. at 3. Accordingly, he contends that he is entitled to the suppression of all evidence resulting from the unwarranted search and seizure unless the government can justify its acquisition. Id.

In the Government's Response to the Defendant's Motion to Suppress ("Response") (Doc. 22), it argues that Mr. Overton's Motion should be denied. Specifically, the Government argues that Officer Zimmerman stopped Mr. Overton for a traffic violation that occurred within his view, and that both Texas and Federal law entitle an officer to arrest an individual without violating the Fourth Amendment for committing even a minor criminal offense in the officer's presence. Doc. 22 at 3. Further, the Government states that Officer Zimmerman was within his constitutional authority to pat down Defendant for personal safety because he had reasonable suspicion to believe Mr. Overton was armed and presented a danger to him and others within the vicinity. Id. at 4.Because Officer Zimmerman smelled marijuana while conducting the pat-down search, the Government contends that even if Officer Zimmerman had not discovered the weapon, the officers would still have had probable cause to search Mr. Overton for possession of marijuana under the inevitable discovery exception. Id. at 5-6.

On June 18, 2020, Mr. Overton filed Defendant's Reply to Government's Response to Defendant's Motion to Suppress Evidence ("Reply") (Doc. 24), pursuant to the court's Order of June 11, 2020 (Doc. 23). Mr. Overton advances two main arguments in his Reply (Doc. 24). First, he asserts that the case law cited in the Government's Response is insufficient in this case to support a reasonable suspicion necessitating a frisk for officer safety. Doc. 24 at 4. Second, Mr. Overton argues that the inevitable discovery exception does not apply in this case because the officers did not notice the smell of marijuana from the beginning but rather after Mr. Overton's constitutional rights had already been allegedly violated during the Terry stop. Id. at 5.

II. Discussion

The Fourth Amendment prohibits unreasonable searches and seizures. Specifically, the Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. IV. Searches are generally considered to be unreasonable unless they are accompanied by a warrant and probable cause. See id; Horton v. California, 496 U.S. 128, 133-34 & n.4 (1990); Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973). Probable cause is necessary to effect a warrantless arrest or a detention that is similarly intrusive. Florida v. Royer, 460 U.S. 491, 500 (1983). Seizures short of an arrest require reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 27(1968). The stop of a vehicle and detention of its occupants constitutes a "seizure" under the Fourth Amendment. Id. at 19 (recognizing that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person); see also United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc). Routine traffic stops, whether justified by probable cause or reasonable suspicion, are Terry stops. See Brigham, 382 F.3d at 506.

Challenges to traffic stops are analyzed under a two-step inquiry. United States v. Bams, 858 F.3d 937, 942 (5th Cir. 2017); see also United States v. Andres, 703 F.3d 828, 832 (5th Cir. 2013). The first step requires the district court to first determine "whether the stop was justified at its inception." Bams, 858 F.3d at 942. In other words, the first step is to determine whether the officer had an "objectively reasonable suspicion" that a traffic offense occurred or was occurring. Id. If the stop was justified, the next step is to determine "whether the officer's subsequent actions were reasonably related in scope to the circumstances that justified the stop of the vehicle in the first place." Id. (quoting Andres, 703 F.3d at 832).

A. The Initial Stop was Justified.

Under the first step, a traffic stop is justified at its inception if an officer has an objectively reasonable suspicion that a traffic violation occurred, or is about to occur, before stopping the vehicle. United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005). In Terry v. Ohio, the Supreme Court held that an officer may conduct an investigatory detention and protective pat-down when he "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous." 392 U.S. at 30.

Probable cause is not a prerequisite for a brief investigative detention; however, the law enforcement officer must have "reasonable suspicion supported by articulable facts that criminalactivity 'may be afoot'" because the Fourth Amendment requires "some minimal level of objective justification" for making an investigative stop. United States v. Sokolow, 490 U.S. 1, 7 (1989) (citations omitted). Thus, the officer "must be able to articulate something more than an inchoate and unparticularized suspicion or hunch." Id. (internal quotation marks omitted). "The government has the burden of proving the specific and articulable facts...