United States v. Wilkins

451 F.Supp.3d 222

UNITED STATES of America

v.Roosevelt WILKINS

CRIMINAL ACTION NO. 19-10401-RGS

United States District Court, D. Massachusetts.

Signed April 2, 2020

Elianna J. Nuzum, United States Attorney's Office MA, Boston, MA, for Plaintiff

Joshua Robert Hanye, Federal Public Defender's Office, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS

STEARNS, UNITED STATES DISTRICT JUDGE

Defendant Roosevelt Wilkins seeks to suppress a quantity of fentanyl seized in the aftermath of a traffic stop on Route 27 during the late afternoon of April 1, 2019. The following acts are drawn from Wilkins's supporting memorandum supplemented by facts offered by the government that are not in serious dispute.

1. Massachusetts State Police Troopers Michael Finley and Edward Alldredge observed a black 2018 Mercedes Benz sedan merge onto Route 27 from Route 24 without slowing or using the vehicle's left turn signal as it entered the right travel lane. The unsignaled merger caused drivers on Route 27 to brake to avoid a collision. The driver, who proved to be Wilkins, was also observed holding a cell phone in his hand "and was looking towards it as if he was texting." Def.'s Mem. (Dkt #38-1) Ex. A (Arrest Report). The troopers believed that Wilkins was texting in violation of the Massachusetts motor vehicle operation laws and that he had failed to properly signal when leaving Route 24. Wilkins, by way of an affidavit, states that he was not "composing, sending, or reading an electronic message" on his phone. Id. - Ex. B. Wilkins does not deny failing to signal as he proceeded on to Route 27 but maintains that he did not change lanes in doing so.

2. The troopers approached Wilkins's car from opposite sides. Alldredge, who approached from the driver's side (there were no passengers in the vehicle), recognized Wilkins from a prior drug arrest in Bourne. He also knew Wilkins to be a member of Boston's Heath Street Gang and that Wilkins had a record of prior firearms arrests.

3. As Wilkins rolled down the car's window, Alldredge smelled what he believed to be the odor of burnt marijuana. When he asked Wilkins for his driver's license, Wilkin's produced the operator's license of a female friend. Questioned about the license, Wilkins replied "Oh, my bad," and produced his own license. Id. - Ex. A. When Alldredge asked Wilkins if he had been smoking marijuana, he denied having done so.

4. Alldredge ordered Wilkins to exit the vehicle. Wilkins complied, but as he did so, he shoved Alldredge in the chest and ran across four lanes of traffic on Route 27 dodging the flow of traffic. Alldredge took up the chase and drew his weapon, ordering Wilkins to drop to the ground. Wilkins eventually surrendered, but only after tossing an object under a parked car and jumping over a chain link fence. A passing motorist stopped and pointed out to the troopers where Wilkins had thrown the object. It proved to be a bag of 16 fentanyl packets weighing some 78 grams.

5. Wilkins's Mercedes was towed and, pursuant to a written Massachusetts State Police policy, its contents were inventoried. The inventory search yielded a money counter and two cell phones, but no further drugs. The troopers subsequently obtained a search warrant for the contents of the cell phones. The search yielded evidence of drug dealing.¹

RULINGS OF LAW

1. A threshold inquiry is initiated by a stop; the resulting detention, however brief, is a seizure within the meaning of the Fourth Amendment. Terry v. Ohio , 392 U.S. 1, 16-19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). That a person is stopped in a moving vehicle, or detained while sitting in a car, is irrelevant to the analysis. Brendlin v. California , 551 U.S. 249, 255-258, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) ; United States v. Brignoni-Ponce , 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) ; Adams v. Williams, 407 U.S. 143, 147-148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

2. Under both federal and state law, a traffic violation, no matter how minor, and whatever may have been the subjective motivation of the officer, provides justification for a stop. Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ; United States v. Dhinsa , 171 F.3d 721, 725 (2d Cir. 1999) (failure to signal a lane change). See also United States v. Botero-Ospina , 71 F.3d 783, 787 (10th Cir. 1995) (en banc ) (moving violation); United States v. Johnson , 63 F.3d 242, 247 (3d Cir. 1995) (same); United States v. Hassan El , 5 F.3d 726, 730 (4th Cir. 1993) (same); United States v. Cummins , 920 F.2d 498, 500-501 (8th Cir. 1990) (same).

3. While federal law governs, on the essential point of the propriety of an initial stop based on a traffic infraction, state and federal law are aligned. See Commonwealth v. Moses , 408 Mass. 136, 140, 557 N.E.2d 14 (1990). "We consistently have held that a stop is reasonable, and therefore constitutional, where an officer has observed a traffic infraction and, as a result, has actual cause to believe that the driver violated an applicable motor vehicle law.... We have applied this test, often referred to as the authorization test, without regard for the gravity or magnitude of the perceived violation." Commonwealth v. Larose , 483 Mass. 323, 326-327, 137 N.E.3d 360 (2019) (defendant observed to drift over the line demarcating the right fog line of the highway).

4. Simple mistakes of law and fact, if objectively reasonable, can provide justification for a traffic stop. Heien v. North Carolina , 574 U.S. 54, 60-61, 135 S.Ct. 530, 190 L.Ed.2d 475 (2014) (officer reasonably believed that the state vehicle code required that a car be equipped with two working brake lights); Commonwealth v. Rivas , 77 Mass. App. Ct. 210, 215-217, 929 N.E.2d 328 (2010) (officer reasonably believed that a red rejection inspection sticker meant that the vehicle was being driven illegally).

5. If a vehicle stop is proper, officers may, at their discretion, order the driver to exit the vehicle while investigating. See Pennsylvania v. Mimms , 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam ) (an officer, as a matter of course, with or without reasonable suspicion, may order a driver to exit his vehicle after a routine motor vehicle stop. The incremental intrusion on the driver's personal liberty resulting from the request to get out of the car once the vehicle is lawfully stopped "can only be described as de minimus " particularly "when balanced against legitimate concerns for the officer's safety."). See also Maryland v. Wilson , 519 U.S. 408, 413-415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (extending the rationale of Mimms to passengers).

6. Massachusetts law does not follow Mimms and is more protective of drivers (and passengers) when it comes to exit orders. See Commonwealth v. Gonsalves , 429 Mass. 658, 662, 711 N.E.2d 108 (1999) ("[A] police officer must, at least, have a reasonable suspicion of danger before compelling a driver to leave his motor vehicle."). The quantum of suspicion required, however, is quite low. "[T]he officer need point only to some fact or facts in the totality of the circumstances that create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering [the driver or] passenger to alight from the car." Id. at 665, 711 N.E.2d 108, quoting State v. Smith , 134 N.J. 599, 618, 637 A.2d 158 (1994). Knowledge of a suspect's reputation is among the factors often cited as the justification for an exit order. See Commonwealth v. Amado , 474 Mass. 147, 149-152, 48 N.E.3d 414 (2016) (defendant was known to have been arrested previously for illegal possession of a firearm in an automobile); Commonwealth v. Ancrum , 65 Mass. App. Ct. 647, 654-655, 843 N.E.2d 110 (2006), quoting Commonwealth v. Torres , 433 Mass. 669, 673, 745 N.E.2d 945 (2001) ("During a motor vehicle stop, the police are justified in ordering a driver or passengers to leave the car ‘if they have a reasonable belief that their safety, or the safety of others, is in danger.’ ... Here, the police had a reasonable basis to believe that the occupants of the Cadillac had been involved in a recent shooting.").

7. Under Massachusetts law, there is no right to forcibly resist an illegal arrest or search. See Commonwealth v. Moreira , 388 Mass. 596, 447 N.E.2d 1224 (1983). "[I]n the absence of excessive or unnecessary force by an arresting officer, a person may not use force to resist an arrest by one he knows or has good reason to believe is an authorized police officer, engaged in the performance of his duties, regardless of whether the arrest was unlawful in the circumstances." Id. at 601, 447 N.E.2d 1224.

8. A legitimate expectation of privacy may be forfeited by voluntary acts of abandonment. "Search or seizure of abandoned property, even without a warrant, is simply not unreasonable." United States v. Wilson , 472 F.2d 901, 902 (9th Cir. 1973). A disclaimer of ownership or the discarding of property may lend support to an objective finding of abandonment. See California v. Hodari D. , 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (fleeing suspect "tossed" a rock of cocaine); United States v. Sealey , 30 F.3d 7, 10 (1st Cir. 1994) (same, weapon and ammunition); United States v. Brown , 663 F.2d 229, 230 (D.C. Cir. 1981) (bag thrown into a bush). See also Commonwealth v. Battle , 365 Mass. 472, 475-476, 313 N.E.2d 554 (1974) (discarded drugs); Commonwealth v. Nutile , 31 Mass. App. Ct. 614, 619, 582 N.E.2d 547 (1991) (drugs thrown from a car during a police pursuit). While the issue of a defendant's subjective intent to abandon property is primarily a question of fact, whether his expectation of privacy in the allegedly abandoned property was reasonable is a matter of law for the court. United States v....