United States v. Tarter

1

UNITED STATES OF AMERICA Plaintiff v. MARION TARTER Defendants

CRIMINAL ACTION No. 3:22-CR-95-RGJ

United States District Court, W.D. Kentucky, Louisville Division

March 2, 2023

MEMORANDUM OPINION AND ORDER

Marion Tarter (“Tarter”) moves to suppress all evidence derived from a warrantless search of his person during a traffic stop and obtained from a search warrant issued for Tarter's vehicle. [DE 16]. The United States responded [DE 18]. The parties also filed supplemental briefing as permitted by the Court. [DE 22; DE 23]. This matter is ripe. For the reasons below, Tarter's Motion to Suppress [DE 16] is DENIED.

I. BACKGROUND

On December 14, 2021, Officer Jesse Bratcher (“Bratcher”) of the Mount Washington Police Department stopped Tarter for operating a vehicle without a license plate. [DE 16 at 31; DE 18 at 45; DE 22 at 102]. Tarter had a cord running into his pants. [DE 22 at 103; DE 23 at 113]. After Officer Bradley Aubin (“Aubin”) and another backup officer arrived, the officers ordered Tarter out of his vehicle, then handcuffed and searched him without a warrant. [DE 16 at 31; DE 18 at 45]. During this search, the officers found methamphetamine on Tarter's person, and subsequently arrested and charged Tarter, and impounded his vehicle. [DE 16 at 31-32; DE 18 at 45-46].

On April 8, 2022, Aubin applied for a search warrant for Tarter's vehicle. [DE 16 at 32; DE 18 at 46; DE 18-2]. Aubin stated the following as probable cause:

On 12/14/2021, Officers in the area conducted a traffic stop on a 2000 Chevrolet Blazer with no license plate in the area of Hartford Dr. and Concord Dr. The subject driving the vehicle was very nervous and officers asked him to step out of the vehicle. When the subject exited he continued to make overt movements in what I believed was an attempt to conceal items. The subject was placed in handcuffs and officers located a string running from the outside of his pants to the inside of his pants. This was located during a pat down for weapons. Officers pulled on the string to conform [sic] there were no weapons attached on the other end and located a large clear bag of what appears to be methamphetamine and another large bag of what was found to be gabapentin. All of these were on the other end of the string hanging between his legs.

On 2-6-22, Officer received a copy of a jail recording from Officer Jesse Bratcher. The recording was of the individual arrested that night on 12/14/2021, Marion Tarter Jr. In this recording, the suspect is speaking with a friend and they are trying to find someone to get the listed vehicle out of the impound lot. He states the following, “they need, they need, they need, to get the vehicle out of impound. Have James check the engine.” He further states that the person who gets it out, needs to focus on the engine compartment and get the battery out of the intake. The individual arrested that night has a history of trafficking methamphetamine and officer believes there are narcotics being stored inside the vehicle. Officer has learned through training and experience that narcotics are commonly transported inside of the engine compartment “tramps” and concealed in other voids located inside the vehicle.

[DE 18-2 at 54]. Aubin described the personal property to be seized as

Any narcotics to include suspected methamphetamine, suspected heroin or any other illegal narcotic substance. All cash to include paper money and coin any other item found in the vehicle related to case 21-007241 to support charges for KRS 218A. 1412 . . . Any and all cellular phone located with in the vehicle as well as any documents found to contain information regarding our case both written and electronic.

[Id. at 56]. The affidavit also describes the location of Tarter's vehicle as the “Mt. Washington Police Department Tow Lot” which is “[a] fenced in secured gravel parking lot where vehicles impounded by Mt Washington Police Department officer's [sic] are stored.” [Id.]. Based on Aubin's affidavit, Bullitt County District Court Judge Jennifer Porter found probable cause for the search and issued a warrant. [DE 18-2]. Officers subsequently searched Tarter's car and found methamphetamine and other evidence. [DE 16 at 32; DE 18 at 46].

Tarter moves to suppress all physical and testimonial evidence obtained from the warrantless traffic stop search and the search of his vehicle, though he does not question the probable cause for the stop itself. [DE 16]. The Court held a hearing on January 20, 2023, during which Tarter and Officer Bratcher testified. [DE 20, Transcript of Suppression Hearing].

II. DISCUSSION

1. Warrantless Search of Tarter

i. Standard

“It is well settled that in seeking suppression of [physical] evidence the burden of proof is upon the defendant to display a violation of some constitutional or statutory right justifying suppression.” United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003) (quoting United States v. Feldman, 606 F.2d 673, 679 n.11 (6th Cir. 1979)). The defendant's burden extends to both “the burden of production and persuasion.” United States v. Patel, 579 Fed.Appx. 449, 453 (6th Cir. 2014), as amended (Oct. 21, 2014).

During an investigative or Terry stop, an “officer may conduct a ‘reasonable search for weapons . . . where he has reason to believe that he is dealing with an armed and dangerous individual.'” United States v. Pearce, 531 F.3d 374, 380 (6th Cir. 2008) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). “The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27. The question is whether the officer had a “reasonable suspicion that [the individual] may be armed and dangerous.” Knowles v. Iowa, 525 U.S. 113, 118 (1998) (citing Terry, 392 U.S. at 1). “Reasonable suspicion” is a “particularized and objective basis for suspecting wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002). In evaluating whether an officer had reasonable suspicion, courts look at the “totality of the circumstances” and consider “all of the information available to law enforcement officials at the time.” United States v. Urrieta, 520 F.3d 569, 573 (6th Cir. 2008) (internal quotation marks and citation omitted). Furthermore, even though a pat down is for officer safety, “an officer does not need to ignore contraband should any be discovered.” United States v. Pacheco, 841 F.3d 384, 395 (6th Cir. 2016).

When evidence is obtained as a result of an unconstitutional search or seizure, it is inadmissible in federal court. Pearce, 531 F.3d at 381 (citing Mapp v. Ohio, 367 U.S. 643, 654 (1961)). “This exclusionary rule is supplemented by the ‘fruit of the poisonous tree' doctrine, which bars the admissibility of evidence which police derivatively obtain from an unconstitutional search or seizure.” Id. (citations omitted).

ii. Analysis

Tarter moves to suppress all evidence obtained from a search of his person after officers pulled him over for operating a vehicle without a license plate. [DE 16; DE 22]. While his initial briefing suggests argument that there was no probable cause for the initial stop [DE 16 at 33], Tarter's post-hearing briefing makes no specific argument that the officers' articulated reason-a “piece of cardboard in place of a registration plate”- was not probable cause to stop Tarter's vehicle. [DE 20 at 65; DE 22]. Similarly, the briefing questions the legitimacy of the search and not the length of the traffic stop. The Court thus does not further consider the probable cause for the initial stop or the time extension of the stop. Tarter also states he is “[p]utting aside the very real concerns regarding the credibility of the officers in this case.” [DE 22 at 107]. The Court does not consider credibility issues either.

Tarter argues the warrantless search and seizure was illegal because police had no probable cause to search under his clothing, as they had no reasonable, individualized suspicion that he was armed based on articulable facts. [DE 22 at 105-9]. The United States argues that officers had reasonable suspicion. [DE 23 at 113-15].

There is no dashcam or bodycam footage of the stop. The Court therefore, considers the suppression hearing testimony of Officer Bratcher and Tarter. Bratcher testified Tarter was in a neighborhood that “at that time” of the morning, 2:00 a.m., “kind of gets our attention” and that Tarter “appeared to be extremely nervous making fervent movements like within his immediate area around his waistband.” [Id. at 65-66]. The Supreme Court has recognized that a “high crime area” and “nervous, evasive behavior” are both pertinent factors in determining reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (holding stop reasonable when defendant fled upon seeing police in an area known for heavy narcotics trafficking); see also Arvizu, 534 U.S. at 275-76 (holding stop of vehicle reasonable based on factors including the driver's slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer). Courts also hold general nervousness and a suspect's movements in and around his pockets as factors in the reasonable suspicion calculus. See Pacheco, 841 F.3d at 393 (while “nervous behavior, standing alone, is not enough to justify a Terry search, nervousness is still relevant to the reasonable suspicion calculus”) (internal citation omitted); United States v. Paulette, 457 F.3d 601, 606 (6th Cir. 2006) (finding officers justified in searching suspect where suspect's “insistent movements towards his right pocket” was one factor); and Hemphill v. Haglund, 45 Fed.Appx. 519, 520 (6th...