United States v. Pavao

1

UNITED STATES OF AMERICA v. MIGUEL E. PAVAO,

No. 1:22-CR-00034-MSM-PAS

United States District Court, D. Rhode Island

June 9, 2023

MEMORANDUM & ORDER

MARY S. MCELROY, UNITED STATES DISTRICT JUDGE.

Miguel E. Pavao was indicted on March 16, 2022, for possession of a firearm after a previous felony conviction. The firearm was seized during a search of his vehicle undertaken after a traffic stop for swerving between lanes. Mr. Pavao moved to suppress the firearm as the product of an unlawful frisk of his person during an unlawfully prolonged detention on the highway. The Court held an evidentiary hearing on May 15 2023, at which Warwick Police Officer Connor R. Bemis, the officer responsible for the stop and frisk, testified. Based on Officer Bemis' testimony, after hearing the arguments of counsel, and reaching conclusions on the mixed questions of law and fact presented, the Court GRANTS Mr. Pavao's Motion to Suppress the firearm (ECF No. 18), all testimony about the firearm, the marijuana found by the police after a call for backup was made and any statements made by Mr. Pavao after that call.

I. FACTS

The Court finds the testimony of Officer Bemis both straightforward and truthful and the facts found are based on his testimony. At 7:53 p.m. on February 6, 2022, Officer Bemis stopped the car Mr. Pavao was driving because it was swerving. The vehicle stopped promptly when the cruiser's lights were activated. A license plate check conducted as the officer pulled over came back negative for stolen vehicle. The officer then approached the passenger side of the car. Mr. Pavao was alone in the vehicle. Mr. Pavao, compliant and cooperative throughout the incident, produced a license and registration.^[1]Almost immediately, the officer noticed the odor of marijuana. Mr. Pavao's hand was shaking, and he was chain-smoking cigarettes. Officer Bemis described the ensuing conversation this way: “I had asked him why he was swerving originally, and he said he had been reaching around or messing around with stuff inside the vehicle. He also informed me he had smoked a marijuana joint earlier in the day and was tired.” (Tr. at 11.)^[2]The officer noticed residue on the floorboard, which Mr. Pavao identified as “marijuana crumbs.” (Tr. at 43.)

At 7:55 p.m. - just two minutes after pulling the Pavao car over - Officer Bemis called for backup because he had decided to search the vehicle for additional contraband, and it was Warwick's practice not to permit searches by officers who were alone. He testified that he “radioed for back up within a minute or two of [arriving at the passenger window],” Tr. at 11, which is consistent with the call for backup coming just two minutes after he radioed dispatch that he was stopping a vehicle. At about the same time, he testified, he saw Mr. Pavao reach down to the waistband of his pants as if to adjust his pants, “fidgeting with the waistline.” (Tr. at 15.) This was a gesture that Mr. Pavao repeated over the course of the seven or so minutes until another officer responded and Mr. Pavao was taken out of his vehicle. During that interval, while waiting for backup, Mr. Pavao pulled a baggie that appeared to contain marijuana out of his jacket, declaring something to the effect of “now you don't need to search my car, here you go, something along those lines.”^[3](Tr. at 16.) As soon as Mr. Pavao was out of the vehicle, he was patted down, revealing a .40 caliber semi-automatic pistol. The gun was seized, and he was arrested for possession of the weapon.

Officer Bemis made it evident several times in his testimony that he could not recall when he saw Mr. Pavao fumble with his waistband in relation to the time he radioed for backup. Both events are important. It is the call for backup that indicates beyond doubt that the stop was extended for the purpose of searching the vehicle for contraband. The officer testified to that, and it is consistent with what he said was Warwick's practice not to allow solo officers to conduct searches of vehicles. Second, it is the fumbling with the waistband that the government rests on to establish an objective fear for officer safety such that the frisk would be lawful under Terry v. Ohio, 392 U.S. 1, 21 (1968), and might serve as a basis for prolonging the stop. Officer Bemis testified several times about the timing, consistently choosing the words, “[at about] the same time.” (Tr. at 59.) But in response to the Court's questioning, he acknowledged that it was the odor of marijuana and the crumbs that caused him to detain the car for a further search.^[4]

II. ANALYSIS

Mr. Pavao puts forth two reasons why the seizure of the gun was unconstitutional. First, he maintains that instead of simply giving him a citation for erratic driving and permitting him to leave, the officer deliberately prolonged the stop in order to conduct a search of the vehicle unrelated to the mission of the stop. This would violate the proscriptions of Rodriguez v. United States, 575 U.S. 348, 350, 352 (2015), which mandates that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures,” unless the additional time is supported by “reasonable suspicion” of another crime. Second, even if the stop were not unlawfully prolonged, Mr. Pavao contends that the pat-down of his person violated Terry because it was not supported by an objectively reasonable fear for the officer's safety. United States v. Harrington, 56 F.4th 195, 203-04 (1st Cir. 2022) (fear for safety is objective, not subjective).

The burden here is on the government to justify, by a preponderance of the evidence,^[5] both the detention and the frisk. Whenever a search or seizure is performed without a warrant and on less than probable cause, “the government bears the burden of proving that the seizure was sufficiently limited in its nature and duration to satisfy the conditions of a Terry-type investigative stop.” United States v. Acosta-Colon, 157 F.3d 9, 14 (1st Cir. 1998).

A. Prolonged Stop

Officer Bemis' testimony left no doubt that as soon as he saw Mr. Pavao's hands shaking, smelled marijuana and saw crumbs on the floor, he made up his mind to search the vehicle: he called for backup and everything that happened next occurred only because he was waiting for backup to conduct the search. Because he had by that time completed the mission of the stop - which was for the driving infraction of swerving - the wait can be justified only by a reasonable suspicion that there was additional marijuana in the car which exceeded the 1 oz. demarcation between a civil and criminal violation.^[6] A seizure justified by the interest in issuing a ticket reaches the “unreasonable” point “if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407 (2005). The brief questioning of Mr. Pavao by Officer Bemis after he first approached the passenger window was consistent with the stop for a traffic infraction. But nothing in those two minutes gave reason to believe Mr. Pavao was committing another crime. Compare United States v. Clark, 879 F.3d 1, 5 (1st Cir. 2018) (the three differing dates of birth given by the driver led to outstanding warrants); United States v. Dunbar, 553 F.3d 48, 56 (1st Cir. 2009) (inconsistent answers given by driver while officers were writing out the ticket revealed an expired license). Here, everything the officer learned in the two minutes before he decided to hold the vehicle for a full search was consistent with Mr. Pavao's declaration that he had smoked a joint earlier in the day. That explained the odor of marijuana and the crumbs on the floor. Officer Bemis testified directly that he never put Mr. Pavao through a field sobriety test because he did not think he was operating under the influence. Clearly the Officer accepted that the odor was not connected to then-occurring use of marijuana, but to the past use that Mr. Pavao acknowledged. There was nothing at the time of the 7:55 p.m. call for backup to indicate that Mr. Pavao possessed any additional marijuana or that, if he did, the amount would exceed the 1 oz. that escalated a civil violation to a criminal offense.

Contrary to the government's assertion, this case is unlike United States v. Sanders, 248 F.Supp.3d 339 (D.R.I. 2017), where another judge of this District upheld a continued detention in order to search a vehicle for contraband. There, the “totality of the circumstances” was fed by many factors not present here: in addition to the odor of marijuana and admission of smoking earlier in the evening, the defendant exhibited “furtive behavior when he moved from one seat to another while the car was still in motion,” the driver was “firmly clenching the steering wheel,” he was not simply nervous but “overly nervous,” there was an entire marijuana cigarette in the ashtray, the defendant kept fiddling with a GPS application on his cellphone, he “feign[ed] disinterest” in the interaction with the officer, and he was not wearing a jacket on a cool night. Id. at 347. Even these observations alone did not necessarily warrant prolonged detention: they justified the decision to “take a few minutes to run the BCI/III checks,” and it was “the extensive histories of each of the vehicle's occupants” that provided enough support to hold the car in order to search it. Id. at 347-48.

The Court does not disagree with the Sanders court that the odor of marijuana is a relevant circumstance to be considered, along with others, in the determination of whether in the “totality of circumstances” there is reasonable suspicion to believe a crime is being committed. In Sanders there were numerous other factors; in t...