United States v. Torbert

207 F.Supp.3d 808

UNITED STATES of America,

v.Oscar TORBERT III (1), Jeno Daniel Moore (2), Defendants.

Case No. 1:15-cr-114

United States District Court, S.D. Ohio, Western Division.

Signed September 15, 2016

Timothy D. Oakley, United States Attorney's Office, Cincinnati, OH, for United States of America.

Karen Savir, Federal Public Defender, Paul Montague Laufman, Laufman & Napolitano, LLC, Mary Jill Donovan, Cincinnati, OH, for Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS TO SUPPRESS EVIDENCE

Timothy S. Black, United States District Judge

This criminal case is before the Court on Defendants' motions to suppress evidence (Docs. 24, 26), the parties' pre-hearing responsive memoranda (Docs. 27, 28, 29), and the parties' post-hearing briefs (Docs. 32, 33, 35, 36).

The Court held an evidentiary hearing over the course of two days on May 6, 2016 and May 20, 2016, and heard testimony from two City of Norwood police officers, Officers Ryan Strunk and Chadwick Webster. (Docs. 30, 31). The motions are now ripe for decision.

I. BACKGROUND

On November 4, 2015, Defendants Oscar Torbert III and Jeno Daniel Moore were charged by way of a four-count indictment with various firearm and drug trafficking offenses, including: possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 1); possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (Count 2); and possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) (Counts 3 and 4). The charges arise from evidence obtained by officers of the City of Norwood, Ohio Police Department (the "NPD") during a traffic stop and subsequent vehicular search. (Docs. 24 at 2, 26 at 2). Defendants move for suppression of said evidence, arguing, in large part, that it was obtained without the benefit of a warrant and in violation of their constitutional rights. (Docs. 24, 26).

For purposes of this Order, the Court will rely upon the facts as set forth in the parties' briefs (Docs. 24, 26, 27, 28, 29, 32, 33, 35, 36), as well as the testimony and evidence proffered at the May 6 and May 20, 2016 suppression hearings.¹

II. FACTS

On May 30, 2015, shortly after 5:00 p.m., Defendant Torbert was driving a motor vehicle in Norwood, Ohio, with Defendant Moore in the front passenger's seat. (Doc. 24 at 1). The vehicle caught the attention of Officer Ryan Strunk of the NPD, who first observed the vehicle while it was stopped at a red light on Northcutt Avenue, facing eastbound, preparing to make a left turn onto Section Avenue.² (Doc. 27 at 1-2; Doc. 30 at 15). At the time, Officer Strunk was in his police cruiser, in a parking lot directly across the street. (Def. Ex. 6). Officer Strunk noted that he could not see into the interior of the vehicle, which, based upon his observations, he believed to be the result of unlawful tinting on the front windshield and the side windows. (Id. ; Doc. 30 at 15).

Accordingly, Officer Strunk began following the vehicle and activated his emergency lights in order to effectuate a traffic stop. (Doc. 30 at 15). However, the vehicle did not stop immediately. (Id. ) Instead, the driver of the vehicle made a left turn at the next intersection onto Andina Avenue and began accelerating in speed. (Id. at 15-16). Officer Strunk then activated his sirens and communicated by radio that he was attempting to pull over a vehicle that was refusing to stop. (Def. Ex. 6; Doc. 30 at 46). However, the vehicle ultimately pulled to the curb after approximately one and a half blocks and parked in a residential neighborhood. (Doc. 30 at 17). Officer Strunk pulled up behind the stopped vehicle. (Id. ) During the suppression hearing, both officers confirmed that the vehicle was legally parked and could have remained in that location without incurring a parking ticket. (Id. at 47-48; Doc. 31 at 27).

Officer Strunk exited his police cruiser and began approaching the vehicle from the driver's side. (Def. Ex. 6). Officer Strunk testified that he had not run a check on the vehicle's license plate number prior to approaching. (Doc. 30 at 53). Accordingly, he had no information regarding the registered owner of the vehicle or the vehicle's potential occupants. (Id. ) As Officer Strunk was approaching, the driver's side door of the vehicle opened and the driver, Defendant Torbert, leaned out to announce that he could not roll down his car window. (Def. Ex. 6). Officer Strunk instructed the driver to remain inside the car. (Id. ) Once near the vehicle, Officer Strunk also observed an individual sitting in the front passenger's seat, later identified as Defendant Moore. (Id. )

Officer Strunk explained to Defendants that he had stopped the vehicle for excessive window tints. (Id. ) He then inquired as to why Defendant Torbert had not immediately pulled over. (Id. ) Officer Strunk noted that Defendant Torbert became nervous and could not offer a direct answer. (Id. ) Officer Strunk then asked Defendants where they were going. (Id. ) Defendant Torbert stated that they were on their way to a barbershop and indicated that it was located back on Section Avenue. (Id. ) This response prompted Officer Strunk to question Defendant Torbert as to why he had turned off of Section Avenue and was now driving in the wrong direction. (Id. ) Defendant Torbert replied that he was just driving around. (Id. )

Officer Strunk then asked Defendant Torbert for his identification. (Id. ) As Defendant Torbert was producing his identification, Officer Strunk noticed Defendant Moore was not wearing a seatbelt and asked him for his identification as well.³ (Id. ) Officer Strunk then returned to his vehicle and ran both Defendants' identifications using his mobile data computer ("MDC"). (Id. ) As a result, Officer Strunk learned that Defendant Torbert was under a non-compliance suspension and that Defendant Moore only had an Ohio identification card.⁴ (Id. ) In short, neither Defendant Torbert, nor Defendant Moore had a valid driver's license.

While Officer Strunk was running Defendants' identifications, his partner, Officer Chadwick Webster, arrived on the scene to assist. (Webster Camera at 0:20). Officer Strunk testified that Officer Webster arrived approximately two to three minutes after the stop was initiated. (Doc. 30 at 48). Further, Officer Strunk testified that Officer Webster's arrival was pursuant to NPD policy, which calls for available units to be dispatched immediately as back-up at the scene of any traffic stop. (Id. )

Upon his arrival, and before approaching the stopped vehicle, Officer Webster went to Officer Strunk, who was still seated in his police cruiser. (Webster Camera at 0:35). The officers conferred regarding the traffic stop and the circumstances that presented. (Id. ) Officer Strunk advised Officer Webster that Defendant Torbert was "suspended." (Id. at 0:47). In response, Officer Webster told Officer Strunk to "get him [Defendant Torbert] out in cuffs, search him real good."⁵ (Id. )

Officer Webster then asked about the passenger of the vehicle, to which Officer Strunk replied, "He's good. Doesn't have anything." (Id. at 0:52). Finally, Officer Webster asked Officer Strunk who the registered owner of the vehicle was, and Officer Strunk replied "Jasmine [Moore]." (Id. at 1:00). Officer Webster then told Officer Strunk, "Make sure you keep good control of this guy," presumably referring to Defendant Torbert. (Id. at 1:07).

Officers Strunk and Webster approached the vehicle from the driver's side and passenger's side, respectively. (Id. at 1:10). Officer Strunk immediately asked Defendant Torbert to exit the vehicle and placed him in handcuffs.⁶ (Id. at 1:26).

Concurrently, Officer Webster engaged Defendant Moore and asked whether he had a valid driver's license. (Id. at 1:45). Defendant Moore stated that he did not have a valid license, but explained that he could have "his girl" come to pick up the car or that he could simply leave the car parked. (Id. at 1:45-1:53; Doc. 31 at 13-14).

Officer Webster then asked Defendants "Whose car is this?" to which Defendant Torbert replied, "His [Defendant Moore's] sister's." (Webster Camera at 2:01). Officer Webster then asked Defendant Moore for his sister's name, and Defendant Moore responded, "Jasmine Moore." (Id. at 2:06). Officer Webster did not hear the response and, accordingly, repeated the question, which appeared to have confused Defendant Moore, prompting the officers to repeat the question again. (Id. ) Despite these difficulties, however, the owner of the vehicle was identified to the officers as Defendant Moore's sister, and her name, Jasmine Moore, was repeated by one or both of the defendants no less than three times during the brief fifteen-second exchange with the officers. (Id. at 2:01-2:18).⁷

Officer Strunk walked Defendant Torbert to the rear driver's side door of Officer Strunk's police cruiser and proceeded to conduct a search of Defendant Torbert's person. (Id. at 2:19). Officer Webster followed, leaving Defendant Moore seated in the car. (Id. at 2:19). While Officer Strunk conducted the search, Officer Webster went to the front passenger's side of Officer Strunk's cruiser and checked the MDC. (Id. at 2:39). Thereafter, Officer Webster walked toward Officer Strunk who was concluding his search of Defendant Torbert. (Id. at 3:14). Officer Strunk commented on the amount of cash Defendant Torbert had (presumably in Defendant Torbert's pockets). (Id. at 3:20). Upon completing his search of Defendant Torbert, Officer Strunk placed Defendant Torbert, still handcuffed, in the back of his police cruiser. (Id. at 3:30).

Officers Strunk and Webster then walked to the rear of the police cruiser and discussed how they intended to proceed. (Id. at 3:30). Officer Webster suggested to Officer Strunk that he should have the vehicle towed based on Defendant Torbert's FRA suspension, as well as Defendants' alleged difficulty in communicating...