United States v. Smith

UNITED STATES OF AMERICA v. MARCUS DEPREE SMITH

CRIMINAL ACTION NO. 3:18-00097

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA HUNTINGTON DIVISION

March 15, 2019

MEMORANDUM OPINION AND ORDER

On December 28, 2018, Defendant Marcus Depress Smith filed a Motion to Suppress Evidence (ECF No. 27) and a Motion Reserving Right to File Further Motions. ECF No. 28. For the reasons stated below, the Court DENIES Defendant's Motion to Suppress Evidence and DENIES AS MOOT, BUT WITHOUT PREJUDICE, his Motion Reserving Right to File Further Motions.

On January 14, 2019, the Court held a hearing on Defendant's motions. At the hearing, only one witness, the arresting officer, Timothy Duran, testified. Officer Duran worked as a shift patrol officer with the Hurricane, West Virginia Police Department, and was assigned to patrol an area in the vicinity of Interstate 64 and state route 19, a well-traveled intersection with many commercial establishments.

At approximately 8:52 p.m. on August 29, 2017, Officer Duran observed a vehicle, quickly identified as a green Acura, proceeding without its headlights on. As it passed in front of him, Officer Duran pulled behind it and turned on his blue emergency lights and siren, but it did not pull over even though there were several areas where the driver could have done so. He could see the driver and a passenger in the Acura. As the driver did not seem to be complying, Officer Duran turned on his spotlight and aimed it at the vehicle which then abruptly stopped on the side of the highway.

Officer Duran pulled directly behind the vehicle and exited his patrol car. As he approached the Acura, he observed the passenger leaning forward over the seat and moving around. Before Officer Duran reached the vehicle, it sped away. Officer Duran then returned to the patrol car, and called his dispatch to report the vehicle's license number and its failure to stop. He was informed that the license plate did not match the Acura.

Officer Duran resumed following the vehicle which soon pulled over again. This time, Officer Duran walked up to the driver's window as another officer, who had just arrived, went to the passenger side. Officer Duran testified that, as he addressed the driver, he could smell marijuana coming from the vehicle. As is his usual practice, he then asked the occupants if any weapons were in the vehicle, to which the driver said "no." However, the passenger responded "maybe." The passenger then stated that there was a gun under his seat. At that point, Officer Duran instructed the driver to place her hands on the steering wheel and the passenger to place his hands on the dashboard. The other officer removed the firearm from the car. Officer Duran obtained the passenger's identification card, and upon checking it, discovered that the passenger was a convicted felon. Officer Duran proceeded with issuing citations to the driver, including ones for improper registration and lack of insurance, which resulted in her being unable to drive the Acura away.

Under cross-examination and redirect, Officer Duran explained the sequence of material events in more detail and with specific times based on the computer-generated printout identified as the "CAD Report,"¹ admitted into evidence at the hearing. Ex. 2, ECF No. 34-2. Relying on that report, Officer Duran testified he had quickly learned that the vehicle's license plate was for a different vehicle owned by someone other than either of the occupants. At precisely 9:04 p.m., he was informed by dispatch that the driver's license was suspended. By 9:06 p.m., dispatch reported that the passenger, Defendant Marcus Smith, was in fact the registered owner of the Acura. By 9:13 p.m. the officers had arrested the defendant and issued citations to the driver.

The Court concludes that Officer Duran was actively investigating all these matters - the driver's status, the registration and license plate for the Acura, and Defendant's status relative to the firearm - at the same time, within twenty minutes from finally stopping the Acura to issuing citations and arresting Defendant. Though the absolute sequence of each step cannot be ascertained, the CAD Report and Officer Duran's recollection adequately establish that the length of the stop, from initiating the stop to completing the citations and arrest, was reasonable. The duration of the investigative stop was not unduly extended for any improper purpose or in any improper way.

The Government argues that, based on the totality of the circumstances, Officer Duran had reasonable suspicion to stop the Acura and conduct the investigation of the passenger as the event ensued. Those circumstances include the vehicle's failure to promptly stop; the passenger's furtive movement and ambiguous response to the officer's question about the presence of a firearm; the information about the driver's license and the vehicle's plates; and the location of the firearm hidden below the seat, by a passenger wearing a gun holster. All these circumstances reasonably led the officer to inquire further about the passenger, and he did so coextensively with his investigation of the driver and the vehicle, which were necessitated for the traffic citations. Each step of his investigation into the driver, the vehicle, and the passenger took place simultaneously and within the reasonable time span necessary to complete his actions related directly to the reason of the initial stop and subsequent investigation of the driver and the vehicle.

On the other hand, Defendant relies on United States v. Clark, 902 F.3d 404 (3d Cir. 2018), for proposition that Officer Duran's "mission" here - the reasons for the initial stop or which justified extending...