United States v. Webb

1

UNITED STATES OF AMERICA, Plaintiff, v. KENNETH NOEL WEBB, Defendant.

No. 4:22-cr-00075-DN-PK

United States District Court, D. Utah

May 24, 2023

Paul Kohler, Magistrate Judge.

MEMORANDUM DECISION AND ORDER DENYING IN PART AND GRANTING IN PART MOTION TO SUPPRESS

David Nuffer, United States District Judge.

Defendant Kenneth Noel Webb (“Webb”) is charged with Felon in Possession of Firearms, a violation of 18 U.S.C. § 922(g)(1), and Possession of Methamphetamine, a violation of 21 U.S.C. § 844(a).^[1] Webb filed a Motion to Suppress (“Motion”)^[2] seeking the suppression of evidence gathered during a June 2, 2022, traffic stop; Webb argues there was not probable cause for his arrest or the warrantless search of his vehicle.^[3] An evidentiary hearing was held on February 9, 2023;^[4] the parties submitted draft orders;^[5] and oral argument was held on April 25 2023.^[6]

As explained below, the arrest of Mr. Webb was valid because there was probable cause to arrest Mr. Webb for violation of open container laws. Additionally, the initial search of the cabin of Mr. Webb's vehicle was valid because there was probable cause to search for contraband related to the open container violation and because it was a valid search incident to arrest. However the search of Mr. Webb's wallet, where methamphetamine was found, was not proper.

Therefore the seizure of the weapon in the vehicle cabin was lawful; the search of the wallet was unlawful; and the search of the trunk after discovery of the weapon in the cabin was lawful.

Accordingly, the Motion is DENIED-IN-PART and GRANTED-IN-PART.

TABLE OF CONTENTS

FINDINGS OF FACT..................................................................................................................... 2

A. Traffic Stop ............................................................................................................. 2

B. DUI Investigation.................................................................................................... 5

C. Arrest & Vehicle Search ....................................................................................... 14

CONCLUSIONS OF LAW .......................................................................................................... 15

I. The Initial Stop was Lawful Because it was Based on Reasonable Suspicion of an Illegal Window Tint ...................16

II. The Additional Detention to Investigate Webb for Driving Under the Influence was Based on Reasonable Suspicion ....... 17

III. The Arrest was Lawful Because There was Probable Cause for an Open Container Violation......................... 18

A. There was Probable Cause for Arrest for Open Container ....................... 19

B. There was Not Probable Cause to Arrest for Driving Under the Influence......................................................... 20

IV. The Search of the Vehicle Was Lawful - But Search of the Wallet was Unlawful........................................ 27

A. Searching the Cabin and Trunk of Webb's Vehicle was Justified Under the Automobile Exception......................... 27

B. Searching the Cabin of Webb's Vehicle Was Lawful as a Search Incident to Arrest........................................... 29

CONCLUSION 30

FINDINGS OF FACT

A. Traffic Stop

1. On June 2, 2022 at around 8:00 pm, Utah Highway Patrol Trooper Tyler West (“West”) was monitoring northbound traffic, facing northbound, from the median of I-15 at mile marker 63 in Iron County.^[7] He observed a blue sedan, later found to be driven by Kenneth Webb (“Webb”), with dark-tinted windows traveling northbound in the left lane.^[8]

2. Because he believed the vehicle's window tint to be darker than allowed under Utah law, West began following Webb.^[9] West activated his body-worn camera and preserved the footage, which was submitted to the court as Exhibit 1.^[10]

3. As West started to catch up to Webb, who was traveling in the left lane, West noticed Webb swerve slightly within the left lane.^[11] As Webb moved to the right lane, West pulled alongside Webb and ran the sedan's license plate through his computer system.^[12]

4. West then observed Webb slam on the brakes as if to let West go by.^[13] West slowed considerably to let Webb pass him and move to the left lane. Then West initiated a traffic stop.^[14] Webb stopped shortly thereafter on the right shoulder of I-15 near mile marker 69 and West stopped behind Webb.^[15] As the blue sedan's brake lights came on, West observed that tinting in the sedan's rear windshield covered the brake light at the bottom of the windshield in violation of Utah law.^[16]

5. West did not observe Webb perform any other unusual driving behavior such as speeding, swerving dramatically, driving abnormally slowly, or crossing into other lanes.^[17] 6. West is a K9 officer.^[18] West had a drug canine in his patrol car and his patrol car has a sticker on the side that reads “K-9.”^[19] West did not deploy his drug-canine during the stop.^[20]

7. West approached the sedan's passenger side and encountered Carla Webb (“Ms. Webb”) in the passenger seat and Webb in the driver's seat.^[21] Ms. Webb informed West that the blue sedan belonged to her brother.^[22]

8. West verified that the front passenger window tint allowed 9% light transmittance, which was below the Utah requirement of 43%.^[23]

9. West observed Webb smoking a freshly lit cigarette.^[24] West testified that in his experience, vehicle occupants sometimes use freshly lit cigarettes to hide odors inside the vehicle.^[25]

10. West also noticed that Webb had red, bloodshot eyes.^[26] 11. There was also an open “tall-boy” beer can at Ms. Webb's feet.^[27] West did not observe Ms. Webb having bloodshot eyes^[28] or detect any odors coming from Ms. Webb.^[29] West recognized the open container as a violation of Utah law.^[30]

B. DUI Investigation

12. West decided to investigate whether Webb was driving under the influence of intoxicants (DUI) based on (i) Webb's driving behavior of swerving and hard braking; (ii) Webb's newly lit cigarette; (iii) Webb's red, bloodshot eyes; and (iv) the open container of alcohol in the vehicle.^[31]

13. Upon request, Webb provided an Idaho driver's license to West.^[32]

14. West asked Webb to put out his cigarette and exit the vehicle.^[33] West then waited near the back of the vehicle for Webb.^[34] West testified that Mr. Webb took an unusually long amount of time to exit the car.^[35] West's body-cam video shows the time from West's command to Webb opening the door and exiting the vehicle was around 15 seconds.^[36] Once Webb opened the door, he exited the vehicle and walked toward West without any apparent difficulty or stumbling.^[37] 15. West observed that Webb was older and learned he had difficulty with his knee.^[38]

16. West could smell the odor of alcohol on Webb's breath after Webb exited the sedan.^[39]

17. West did not detect any slurred speech or see Webb leaning in a manner indicating impairment.^[40]

18. West patted down Webb and found a metal flip lighter in his pocket.^[41]

19. Webb admitted to drinking a beer “about a couple hours ago.”^[42]

20. West asked Webb about the open beer can in the car and Webb indicated that it was Ms. Webb's and was partially full.^[43]

21. West entered his patrol vehicle, ran a brief records check on the Webbs' licenses, and requested a second unit to enable West to perform field sobriety tests on Webb.^[44]

22. While running a records check, West discovered that Webb did not have a valid driver's license.^[45] Webb's Idaho license was expired, and his Utah license was denied.^[46] However, Ms. Webb's license was valid.^[47] 23. Shortly after West requested a second unit, Sergeant Scott Mackelprang (“Mackelprang”) arrived on the scene.^[48] During the course of the stop, at least four officers can be observed on scene.^[49]

24. West testified that he has received training for investigating DUIs, including training in conducting standardized field sobriety tests.^[50] He also testified that he had made about 10 to 15 DUI arrests per year in his five-year career as a trooper.^[51] West further testified that he has received training that troopers should take age into consideration when conducting standardized field sobriety tests, particularly when the driver is over 65 years old.^[52] West also testified that he is trained to consider other physical issues, such as illness, injuries, and weight.^[53]

25. The first test West administered to Webb was the horizontal gaze nystagmus (HGN) test.^[54] West confirmed Webb did not have any medical issues that would impede his ability to perform the test.^[55]

26. West testified that he detected four out of six indicators of impairment (“clues”) during the test.^[56] Specifically, he observed distinct and sustained nystagmus at maximum deviation in both eyes, as well as onset of nystagmus prior to 45 degrees in both eyes.^[57] The test performance is not detectable on West's bodycam footage.^[58] 27. West testified that the observation of four clues indicates impairment under the NHTSA standard.^[59]

28. West's testimony and report both state that he observed Webb visibly swaying during the HGN test.^[60] West's bodycam footage does appear to show Mr. Webb swaying side to side a very miniscule amount, but does not show visible swaying from front to back.^[61] Although Mackelprang only observed a small portion of the HGN test, his bodycam video does not show Webb swaying during this test.^[62] The overall impression of video of the HGN test is that Webb was very stable and the small amount of observable swaying, if even attributable to Webb, does...