United States v. Thompson, CR 20-24-M-DWM

481 F.Supp.3d 1128

UNITED STATES of America, Plaintiff,

v.Roosevelt Kenneth THOMPSON, Defendant.

CR 20-24-M-DWM

United States District Court, D. Montana, Missoula Division.

Signed August 25, 2020

Jennifer S. Clark, U.S. Attorney's Office, Missoula, MT, for Plaintiff.

OPINION and ORDER

Donald W. Molloy, U.S. District Judge

This case poses interesting questions about the limits on law enforcement in executing a lawful traffic stop. The question is whether all professional stops are akin to constitutional stops. While not always the case, the answer here is that professionalism and the Constitution align.

Defendant Roosevelt Thompson is charged with felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Indict., Doc. 1.) The charge arises out of February 4, 2020 traffic stop wherein Officer Casey Harvey of the Missoula Police Department pulled over a Lexus in which Thompson was a passenger. Thompson seeks to suppress his arrest and all related evidence on the grounds that the stop was unlawful, (Doc. 16), and unlawfully prolonged, (Doc. 17). A hearing was held on August 25, 2020 at which Officer Harvey testified. For the reasons discussed on the record and those provided below, the motions are denied.

FACTUAL BACKGROUND

The facts are taken from Officer Harvey's written case report, (Doc. 16-1), his testimony at the August 25 hearing, and his body cam, which provides a 48-minute audio and visual recording of the incident. That recording begins when the traffic stop starts and ends once Thompson is taken away in a patrol car.¹

Around 10:00 p.m. on February 4, 2020, Officer Harvey was patrolling on the westside of Missoula, Montana. He was traveling northbound on Russell Street when he observed a known "doper" vehicle traveling southbound. He turned around to follow it but was unable to locate it. He ultimately circled around the block to continue traveling northward on Russell. While looking for the "doper" car, Officer Harvey had seen a silver Lexus in the same neighborhood. When he returned to Russell Street he ended up behind the Lexus. Although he was too far back to read the license plate, he—without speeding up—naturally arrived at the stop light on West Broadway and Russell and was able to read the plate numbers on the Lexus. At that point, Officer Harvey ran the plates through the system to see if the registration was current. According to his testimony, he ran the plates as a matter of course, not because of any specific suspicion regarding the Lexus or its passengers. Because his computer was running slow, Officer Harvey turned east on Broadway before he received the results. The Lexus had turned west on Broadway. Contrary to the defense's suggestion, Officer Harvey had no ephemeral hunch or suspicion about the Lexus or any wrongdoing by its passengers. When the results returned with an expired registration, Officer Harvey did a U-turn from his eastbound lane on Broadway to initiate a traffic stop on westbound Broadway.

There were three occupants in the vehicle, Catherine Field was driving, Lukita Farmer was in the front passenger seat, and Roosevelt Thompson, the defendant, was in the back seat on the driver's side. Officer Harvey approached Field on the driver's side of the car and immediately informed her that he pulled her over because her registration expired six months before. Field apologized and provided him with her paper learner's permit, specifically recognizing that it required that someone in the car have a valid driver's license. The video shows Field was uncomfortable if not stressed by the stop, even though Officer Harvey's approach was friendly and non-demanding. Officer Harvey then asked Farmer, the front passenger, for a valid ID or driver's license. She had neither. The ostensible reason for the question was to see if the Lexus had a licensed driver and, if so, Field's driving with a learner's permit would have been lawful. Officer Harvey then asked Farmer for her name and date of birth, which she provided. He asked Field where they were going and where they had come from. After Field explained that they were going to a friend's house, Officer Harvey started to walk back to his patrol car. Before reaching his car, however, he walked back to the Lexus to ask the backseat passenger, Thompson, for a license. Thompson said he did not have one. Officer Harvey again asked everyone in the car whether anyone had a valid driver's license on the grounds that he was "trying to get [Field] out of trouble." They all responded in the negative, no one in the car had a current driver's license.

Officer Harvey then asked Thompson again if he had any form of identification. Thompson said he did not. Officer Harvey asked Thompson for his name and, because he could not hear very well, asked Field to roll down Thompson's window. Thompson provided his name and date of birth. Officer Harvey reaffirmed, "so you don't have a license either?" Thompson confirmed that he did not. Officer Harvey then said, "If someone had a license in the car then she'd [Field] be okay."

Officer Harvey was then about to walk back to his vehicle when Thompson, unprompted, said that he was "twitching and shit" because he had previously been shot in the head, not because he was "trippin." Officer Harvey then asked everyone in the car if there were any weapons in the car. No one responded verbally, the two front seat passengers avoided looking at him, and Thompson sort of shook his head. Officer Harvey then asked if there was anything illegal in the car. The front passenger and Thompson shook their heads, but again no one responded verbally.

At this point, about six minutes after the stop commenced, Officer Harvey returned to his patrol car and ran all three occupants through the system, running both a warrant check and a probation search. In that process, he learned that the driver was on probation and that Thompson had a previous weapons charge out of Ohio and was on parole. Nine minutes later—approximately fifteen minutes into the traffic stop—Officer Harvey returned to the Lexus and asked Field to get out of the car. She indicated that the driver's door was broken so she had to get out through the passenger side. While she did that, Officer Harvey asked Thompson if he was on parole. Thompson confirmed that he was and, with some prodding, indicated in a colorful ramble that his previous conviction was for "tampering with evidence or some shit."

Officer Harvey then spoke to Field on the sidewalk while walking toward his patrol car. Field admitted that she was on probation for felony theft, she had missed treatment court earlier that day, and she and the other occupants of the vehicle had used methamphetamine. When Officer Harvey stated that he could tell as much from speaking to Thompson, Field volunteered that "he has a gun on him." She then denied that there were any other guns or drugs in the car. Field was placed in a patrol car to wait. For the next six minutes or so, the officers discussed the fact that Thompson was likely armed and prepared to remove him from the Lexus. Officer Harvey armed himself with an AR15 and backup officers arrived at the scene. One of those officers ordered Thompson out of the vehicle and, once out, Thompson asked if he could say something and then stated, "I have a weapon on me." The officers told Thompson not to reach for the weapon, directed him to the curb, had him lay on the ground, removed the firearm, and handcuffed him. Thompson was cooperative the entire episode. They also removed and handcuffed the front seat passenger from the Lexus without incident. In addition to a firearm, officers found a glass pipe in Thompson's pocket. All of this can be heard but not seen on Officer Harvey's body cam because his AR15 is in the way of the video camera.

After everyone was out of the car, the officers "cleared" it and then a K9 unit performed a "sniff." The dog "hit" generally on the car, which the officers expected in light of the occupants’ admitted methamphetamine use. Officer Harvey then spoke to Field again and searched the Lexus, recovering a baggie of methamphetamine and a capped syringe.

ANALYSIS

I. Legality of Stop

Thompson first argues that the initial stop was unlawful because it is unclear exactly why Officer Harvey initiated the traffic stop, intimating that it was because he made an unsubstantiated connection between the Lexus and the "doper" car he had seen earlier that night. Thompson's argument misses the mark. "[W]hen police officers see a license plate in plain view, and then use that plate to access additional non-private information about the car and its owner, they do not conduct a Fourth Amendment search." United States v. Diaz-Castaneda , 494 F.3d 1146, 1152 (9th Cir. 2007). Here, Officer Harvey did not need an articulable reason to run the Lexus's plates. Once he discovered the registration was expired, he was authorized to execute a lawful traffic stop. Whren v. United States , 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ; United States v. Choudhry , 461 F.3d 1097, 1098 (9th Cir. 2006).

Thompson's three arguments to the contrary are unpersuasive. First, he relies on a dissent from the Sixth Circuit to argue that even if a person has no privacy interest in the plate itself, police should not be permitted to run a computer search without heightened suspicion. See United States v. Ellison , 462 F.3d 557, 567–69 (6th Cir. 2006) (Moore, J., dissenting). The Ninth Circuit explicitly rejected Judge Moore's analysis in Diaz-Castaneda and sided with the majority. See 494 F.3d at 1151–52. Second, Thompson argues that it was unclear when Officer Harvey ran the registration. This factual question was resolved at the August 25 hearing. Officer Harvey ran the plate once he pulled up near the Lexus at the West Broadway stoplight and only discovered the registration was expired after he had already turned the opposite direction. Finally, Thompson argues that Officer...