A Motivated Judge

I've got to figure out how to get judges this motivated in cases I'm trying.

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THE COURT: All right.

Well, this is a continuation of a suppression hearing that was held earlier in the case. I heard the evidence and oral argument by counsel. And since then I have reached a decision in the case. But in order to reach a decision I want the record to show that I went with my court security officer to the area where this occurred, because the record needed to be fleshened out, and an eye-balling of the territory where the event occurred was necessary for me to make an intelligent decision.

But let me first recite the procedural background of the case. The defendant, John Smith, was stopped on February 26 of 1998 while driving a 1987 Hyundai by a Chesterfield County Police Officer. He was charged with two misdemeanors, possession of marijuana a violation of Virginia code section 18.2-250.1; and carrying a concealed weapon, in violation of Virginia code 18.2-308. He was convicted of both misdemeanors in Chesterfield General District Court on April 30 of ‘98 and sentenced to 30 days in jail on the marijuana charge, and 12 months in jail with one month suspended on the Weapon charge.

He then appealed these convictions and was released on his appeal bond. Although it does not appear in the record before The Court, I understand that Mr. Smith actually served approximately one and a half months of the sentence. A third charge resulting from the same stop, possession of cocaine, was apparently certified by the Chesterfield County grand jury, and records before this court indicate that the defendant was indicted by the Chesterfield Counry grand jury on July 20 of 1998 for violation of Virginia code section 18.2-248, possession of cocaine, a Schedule II controlled substance, with the intent to distribute, and Virginia code section 18.2-308.4 (b), Possession of a firearm while simultaneously being in possession of a Schedule II controlled substance, cocaine, with intent to distribute.

According to information from Pretrial Services, the Chesterfield charges were nolle prossed in the Chesterfield Circuit Court on December 16 of 1998. At some time during 1998 the case was selected for prosecution by the United States under the program known as Project Exile. And the defendant was actually indicted by the federal grand jury on April 9, 1998 with the following charges.

Count one, possession of with intent to distribute crack cocaine in violation of title 21 U.S.C. section 841, and 18 U.S.C. section 2. Count two, possession of crack cocaine in violation of title 21 U.S.C. 844 and 18 U.S.C. section 2. Count three, possession of marijuana in violation of title 21 U.S.C. section 844, and 18 U.S.C. section 2. Count four, carrying a firearm during and in relation to a drug trafficking offense in violation of title 18 U.S.C. section 924 C and 2. And counts five and six, possession of firearms and ammunition by an unlawful user of a controlled substance in violation of title 18 U.S.C. section 922 (g) (3) and 2. Count seven was a forfeiture of drug—related property and firearms.

Now, despite the federal indictment in April of 1998 the defendant was not arrested and brought into federal court for the initial appearance until December 16 of 1998. On December 23 of 1998 the defendant was released on pretrial release with electronic monitoring and other conditions.

It is unclear why Chesterfield County prosecuted him on April 30 with a federal indictment in their pocket. At any rate, if he did not appeal those convictions thus vacating them, there would clearly be a violation of United States Attorney’s manual section 9-2.142, also known as the Petite Policy. It is also unclear from the record before lower court convictions. I am concerned that this prosecution may still violate the Petite Policy, also known as the Dual Prosecution Policy, the policy first acknowledged by the Supreme Court in Petite versus United States, 361 U.S. 529, in 1960, which precludes federal prosecution following state prosecution for the same act unless there are compelling federal interests for the federal prosecution and the Attorney General approves the prosecution. Rinaldi versus United States describes that policy.

The policy is described in the United States Attorney’s manual section 9-2.142 as, “No federal case should be tried when there has been a state prosecution for substantially the same act or acts without a recommendation having been made to the Assistant Attorney General demonstrating a compelling federal interest for such prosecution.” Section 9-2.142-81 specifically states, “The policy applies, authorization must be obtained from the appropriate Assistant Attorney General whenever there has been a prior state proceedings or a prior federal prosecution, including plea bargain, resulting in one, an acquittal; two, a conviction; or three, a dismissal or other termination of the case on the merits.”

In this case the defendant was not only convicted of the marijuana and weapon charge, he also served approximately one and a half months of the sentence. Accordingly, it seems to The Court that despite his appeal, which technically may have vacated his conviction, the federal prosecution violates the policy unless the Department of Justice can demonstrate the compelling federal interest for prosecution in this case.

In view of the disposition that I am going to make of the case, I will have ample time to write Mrs. Reno and Mrs. Fayhe so they can call to my attention the compelling federal interest that has justified the prosecution in this case.

Now, as to the motion to suppress. I heard evidence on February 17, and I also have reviewed the memorandum and exhibits submitted in support for the motion to suppress, including the transcript of the detention hearing held before the Honorable United States Magistrate Judge David C. Lowe, as well as the memorandum and exhibits submitted in opposition to the motion. And as I stated earlier, I have viewed the scene, from the defendant’s apartment at 6471 Cosmic Road in the Meadowdale Lakes Apartments down Dundas Road to Jefferson Davis Highway. So after getting this further information, the matter is now ripe for disposition. And pursuant to Federal Rules of Criminal Procedure 12, I make the following findings.

On the evening of February 26 of 1998 the defendant, John Smith, a 19-year-old African-American male, left his apartment at 6471 Cosmic Road in the Meadowdale Lakes Apartments driving a 1987 Hyundi, and after exiting his apartment complex on Beulah Road he proceeded to where Beulah Road turns into Dundas road. And where he hit Dundas Road, it was at a point in time when a law enforcement person was either on routine patrol or had the area staked out, because immediately upon his getting on Dundas Road -- and he claimed he was on his way to pick up his girlfriend -- and as he hit Dundas Road, a Chesterfield County Police Officer turned onto Dundas Road behind the defendant, and according to the officer’s testimony and The Court’s own tracking of the situation, the officer followed the defendant for 1.1 tenth miles before he ultimately was stopped. And during that period of time he observed no violations of any rules of the road, but while following the defendant the officer stated that he noticed that he had a defective light on the rear of his vehicle that was not illuminating his license plate number, and he was unable to read in the nighttime the number. The transcript from February 17, page 49, shows that.

But after the defendant arrived at the intersection of Dundas Road and U.S.. Route Number 1 and 301, the defendant turned onto Route 1. The officer initiated a traffic stop and pulled his vehicle in behind the defendant’s vehicle. The officer Stated that the reason he did not pull the defendant over on Dundas Road was that the road was very narrow. In fact, it is a typical two-lane road in a suburban area. He continued. “I didn’t want to initiate the traffic stop on that road,” the transcript page 50. However, The Court’s view of the scene along Dundas Road from the defendant’s apartment to Jefferson Davis Highway, a distance of at least one mile, not the quarter of mile that the officer testified to, showed clearly that there were at 1east five intersecting streets in to which the officer could have safely pulled the defendant to initiate a traffic stop prior to reaching Jefferson Davis Highway. I also obtained a map of the area that shows these intersecting streets, a copy of which will be filed as an exhibit in the case. Also along this one-mile stretch of Dundas Road there is a fire house with an apron of almost a quarter of an acre where you could have pulled over, a school yard, and just as you approach Route Number One there is a hundred-yard apron on the righthand side of the road which would be a perfectly ideal place to pull somebody over for a traffic stop if that was what you had in mind. And why you would want someone with defective equipment to go on to a heavily traveled road like Route One when you have him on a less traveled road is a mystery to me.

So, after the officer initiated the traffic stop for the defective equipment, he asked the defendant for his driver’s license and registration. And after being handed those, he told the defendant to exit the car to view the defect.

Now, after the officer received the registration and license, he went back to his own vehicle and called in to the Division of Motor Vehicles to find out if the license number, or if the registration and license were valid. Apparently he was told by this source that they were.

So after making those checks, he comes back and gets the defendant and says, I want you to show -- I want to show you your defective equipment. So he brinns him to the rear of the car and points out the defect. And without issuing a ticket as to the defective equipment, he told the defendant he was free to go.

Now at this point in time, this is a free-standing event, just a pure classical traffic stop where the officer functioned in a very civilized way by giving a warning instead of a ticket. But this authorized freedom was illusory, because instead of returning to his police vehicle, which was parked behind the defendant, and going on his way, and allowing the defendant to return to his vehicle and leave, the officer proceeded to follow the defendant back to his vehicle, and in the process asked for permission to search the vehicle for drugs and weapons. Unbeknownst to Smith, when the officer was checking his registration and driver’s license, he also had called for a back up police Officer and for a K-9 dog. And apparently he either had a tip, or a suspicion that Smith was a drug dealer, because as Smith, thinking that he was free to go, goes to his vehicle, goes to get into his vehicle, he puts his hands in front of him to open the door, and at that point in time he is seized from behind by the officer, and for all practical purposes is arrested. And during this period of time, without permission or anything else, the officer searched him and came up with a bag of marijuana. And so this is a c1assical Fourth Amendment violation. And I find that the officer had either on a tip or for some other reason had reason to suspect that Smith was a drug dealer. It certainly shows a hunch or his gut feeling was good. But when the officer testified on direct examination about the stop before the United States Magistrate Judge on December 21 of ‘98, he never mentioned any type of a hand-rolled cigarette on the console. And in looking at the picture of the inside of the vehicle, I find that it doesn’t have a console, but it has the housing on the gear train, but you would need a magnetic cigarette to stick to it. The statement that there was a hand-rolled marijuana cigarette or hand-rolled tobacco cigarette or a white pencil was totally pretextural, and none of that existed, because the officer viewed the inside of the vehicle when he put his flashlight in there before he ever had the defendant exit the vehicle, or before or at a point in time when he was getting his driver’s license and registration. But during the hearing on September, I mean on February 17, this exchange took place. This was before the Magistrate Judge.

“Now, had you intended to let Mr. Smith go with a warning on the equipment violation?

“Yes, sir, I did release all the paper work back to him.

“What did you observe after you did that?

“At that point I essentially asked for a consent to search the vehicle for weapons and drugs. At which time Mr. Smith apparently got nervous and turned away from both myself and the vehicle and attempted to put both hands down in front of his pants and start to walk away from his car. At that point I grabbed him and detained him.”

The truth is he grabbed him as he was going to get into his vehicle, thinking he was going to go.


When the officer testified before this court at the suppression hearing he testified that he observed what he thought might be a hand-rolled cigarette in plain view on the console. A statement similar to the testimony given at the suppression hearing as to the hand-rolled cigarette was written by the officer shortly after the incident. But when he was interviewed by someone with the DEA, he never mentioned that, nor did he mention anything about a hand-rolled cigarette or white object on the console when he testified before the Magistrate Judge on March 23, or when he testified before the Magistrate Judge at that hearing.

MR. JONES: Your Honor, I am sorry to interrupt, but if I may, we didn’t have an opportunity to discuss this last week. The testimony of the officer regarding the rolled up cigarette was elicited by counsel, and it is on page 11, starting at lines 13 through the end of the -- well, specifically line 16 through 19.

HE COURT: Which hearing?

MR. JONES: Detention hearing Your Honor referred to.

THE COURT: Right.

MR. JONES: I wanted to correct your statement that the officer never testified as to the hand-rolled cigarette. That is in fact in the transcript.

THE COURT: All right.

I said he didn’t testify to it on direct.

MR. JONES: No, Your Honor, that was a non responsive answer to my question. I didn’t pursue that, but I just wanted the record to be clear that the officer did testify as to that.

THE COURT: In any event, I find that that was totally pretextural, because where you have such a marginal case of having a basis for doing what was done in this case, any officer would have absolutely confiscated that item and preserved it for evidence, because otherwise you could make these things up as you go along. But an officer knows that he has to have an articulable reason for doing what he is doing when he doesn’t have probable cause, and that this officer obviously is well-trained and is highly-motivated to get convictions, and that was the impression that I had from his testimony before me.

So I do not accept his testimony that he saw anything on the console that gave him reason to suspect that the defendant was a drug dealer. So, it is clear that the officer had the right to stop the defendant’s vehicle for defective equipment, no question about that, but that was a free-standing case unto itself. And after he stops him and tells him he is now free to go, he has to have some other reason for doing what he did, and I am finding from the record that his reason for doing it was because he had a hunch or a suspicion or had a tip that Smith was a drug dealer, and that he was determined to get him.

But in any event, the Fourth Circuit defined the scope of what the officer can do in such a situation as follows: The officer may request a driver’s license and vehicle registration, run a computer check, and issue a citation. Where the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by the police for additional questioning. Any further detention for questioning is beyond the scope of the Terry stop and therefore illegal unless the officer had a reasonable suspicion of a serious crime.

Now, his only reasonable suspicion here at this point in time has to be a hunch or tip that Smith is a drug dealer, because when he looked in the car after he first stopped him, there was no evidence of any sort that would -- that he could articulate as a reason for going further. The Fourth Circuit also held that a routine traffic stop does constitute a fourth amendment seizure, so that when the purpose justifying the stop is exceeded, the detention becomes illegal unless a reasonable suspicion or some other crime exists. Instead of allowing Smith to proceed on his way, the officer asks for consent to search the vehicle for drugs and weapons. When permission was not granted and the defendant attempted to get into his car, the officer then grabbed his hands and held him until his back-up and the K-9 arrived, or they stood there waiting for him, because from the time that the officer seized him he never went back to his car to call for a back up officer or for the K-9 corps. That had been done before when he was back in there checking his driver’s license.

The Court specifically finds that when the defendant refused to give permission to let the officer search his vehicle and instead attempted to go to his car and leave, the officer grabbed the defendant’s hands and held onto him, so the defendant receives the violation of his fourth amendment rights. I further find that the officer had already called for back up and the K-9 before he grabbed the defendant. And this is based on the fact that there was no opportunity for the officer to call, according to the testimony, after the point in time where he had grabbed the defendant, because he and the defendant were standing by the car awaiting for the arrival of these back up forces. Once the initial purpose for the stop was fulfilled and the issue of the defective equipment was resolved with a warning and the defendant declined the officer’s permission to search the vehicle, the officer had no basis for detaining the defendant as he did.

And I specifically find that the defendant wasn’t nervous, he was just so pleased to be given a warning and get on his way that he was heading for his car and trying to get in it when he was seized. There was no reasonable, articulable suspicion that the defendant was or had been engaged in or was about to engage in criminal activity. The case law requires that the officer’s suspicion of criminal activity be based upon more than an unparticularized suspicion or a hunch. Absent the critical predicate of a reasonably articulable suspicion, an officer’s hunch, even if ultimately correct, or behavior that is generally suspicious, does not authorize even the limited intrusion of personal liberty sanctioned by Betemit.

And even. if you believe the officer on the factual issue of whether the defendant told the officer that he had some marijuana in his pants, such a statement by the defendant would not remove the taint that accompanies the fact that the alleged statement by the defendant was obtained through the exploitation of an illegal detention.

So because the officer had no reasonably articulable suspicion of criminal activity, the detention of Smith was unlawful, and neither his statements nor the fruits of the search may be admitted into evidence at trial; and therefore, the defendant’s motion to suppress is granted.

Now, since the evidence will not be admissible, do you have enough evidence to proceed to trial without what I have suppressed?

MR. JONES: I need a clarification, Your Honor.

THE COURT: I have suppressed all of evidence that was seized, including the statement.

Now, do you want to proceed to trial without that evidence and the statement?

MR. JONES: Are you suppressing the statement made -

THE COURT: Yes.

MR. JONES: -- after the second Mjrandizing?

THE COURT: Yes, all the statements Everything. There was a seizure as he went to get into his car, as I have factually found.

MR. JONES: If you are Suppressing all the statements and all evidence, there is no evidence.

THE COURT: All right, fine. Then the case is dismissed.

I hope you appeal it, because that will give me time to write Mrs. Reno and Mrs. Fahev and find out what the compelling federal interest was in handling this case the way it has been handled.

Recess court for five minutes, because we have another case to try at that point in time.

Janet, I have a whole batch of exhibits that need to go in, including a diagram of the territory and things to fleshen out the record.

Debbie will get with you and they can be marked as court exhibits.

(A recess was taken)