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United States v. Smith

United States District Court, N.D. Mississippi

November 27, 2018

UNITED STATES
v.
COREY DELMAR SMITH

          MEMORANDUM OPINION

         Officer Hunter Solomon of the Hernando Police Department performed a search of a vehicle owned and driven by the defendant, Corey Delmar Smith, The search revealed a number of stolen driver's licenses, social security cards, and devices to produce counterfeit identification documents and checks. Smith was indicted in this Court for possessing the stolen identification documents with intent to defraud and possessing the counterfeit-making devices with intent to defraud.

         Smith moves to suppress [Doc. 10] the evidence obtained, The Court held an evidentiary hearing on this matter, received briefs from the parties, and is now ready to rule. For the reasons set forth below, the Court finds that the motion should be denied and the evidence should not be suppressed.

         Factual Findings

         From the testimony given at the evidentiary hearing conducted in this matter, and other evidence submitted by the parties, the Court finds the following occurred:

         On October 17, 2017, Solomon was observing northbound traffic on Interstate 55 in Hernando, Mississippi. Solomon saw a black Chevrolet Suburban that did not have a license plate. Solomon initiated a stop of the vehicle at 5:57 p.m. Solomon positioned his patrol car so that it was behind the Suburban and offset to the left, closer to traffic, than the vehicle. He was joined on site by Officer Tarra Davis.

         Upon stopping the vehicle, Solomon was able to observe a Texas paper license tag in the rear window. Solomon approached the vehicle and found it occupied by Smith, who was driving, and two passengers, Willie Carroll and Gregory Carter. Solomon removed Smith from the vehicle and brought him to the rear of the vehicle to speak to him. Smith informed Solomon that he was traveling from Texas to Indiana to pick up an icemaker for a restaurant he owned in Texas. Smith stated that Carroll and Carter worked for him, that he had picked up them up in Jackson, that they were traveling to Memphis that night, on to Indiana to purchase the icemaker, and then back to Texas.

         Solomon then went to the passenger side of the vehicle to speak to Carroll and Carter and check their identification. Carroll told Solomon that he did not know Smith very well, and that they were traveling to Memphis that evening for a party and then back to Jackson the next day. Carter stated that he had worked for Smith at one point, and told Solomon that they were going to Memphis for a party, but he did not know when they were going back to Jackson. Neither knew of a trip to Indiana to pick up an icemaker. At 6:10 p.m. Solomon was informed that Carroll had an outstanding warrant for his arrest. Solomon placed Carroll under arrest and put him in Davis's patrol car.

         Solomon removed Carter from the vehicle and placed him alongside Smith at the front of Solomon's patrol car. Solomon asked Smith for permission to search the vehicle. Smith denied permission and became upset. Solomon then retrieved his canine unit, Krash, and, at 6:21 p.m. deployed Krash to sniff the car.

         Solomon and Krash began a sweep at the rear driver side of the vehicle. They crossed behind the vehicle and on to the passenger side. While sweeping the passenger side, Krash paused and then alerted by sitting. Solomon proceeded to search the vehicle. At 6:40 p.m., Solomon began uncovering the subject evidence in the vehicle.

         Legal Standard

         Generally, on a motion to suppress, the defendant has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his constitutional rights. United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001). However, "[w]hen the government searches or seizes a defendant without a warrant, the government bears the burden of proving, by a preponderance of the evidence, that the search or seizure was constitutional." Id.

         Analysis

         Smith argues there are three grounds for suppressing the evidence obtained from the vehicle. First, Smith argues Solomon did not have not have reasonable suspicion to prolong the traffic stop after determining Smith and his passengers' identities and determining that status of his tag in order to conduct a narcotics investigation. Second, Smith argues Solomon did not have reasonable suspicion to prolong the traffic stop to perform a sweep of the vehicle with Krash. Third, Smith argues that during the sweep, Solomon manipulated Krash to falsely alert. Smith also argues that even if Krash did alert, it was unreliable such that his alert did not give Solomon probable cause to search the vehicle.[1]

         I. Did Solomon have reasonable suspicion to prolong the stop?

         Traffic stops are seizures for Fourth Amendment purposes. United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005). The legality of a traffic stop is analyzed under the two-part Terry framework, asking whether the officer's action was "(1) 'justified at its inception', and (2) 'reasonably related in scope to the circumstances which justified the interference in the first place.'" Id. (quoting Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

         "For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred, or is about to occur, before stopping the vehicle." Id. (citing United States v. Breeland, 53 F.3d 100, 102 (5th Cir. 1995)). No. party disputes that Solomon had reasonable suspicion to initially stop Smith for driving a vehicle without a visible tag. The facts show that Smith did not have a metal license ...


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