Opinion
CASE NO. 8:02CR356
June 17, 2003
MEMORANDUM AND ORDER
This matter is before the Court on the Report and Recommendation (Filing No. 79) issued by Magistrate Judge Kathleen Jaudzemis recommending denial of the Defendants' motions to suppress evidence (Filing Nos. 45 and 50). Each Defendant, Dante Frazier and David Williams, has filed a separate Statement of Objections to the Report and Recommendation (Filing Nos. 81 and 85) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
Frazier and Williams are charged in a one-count indictment with violating 21 U.S.C. § 841(c)(2). The Indictment alleges that on or about November 6, 2002, they intentionally possessed pseudoephedrine with the knowledge or reasonable belief that it would be used to manufacture a controlled substance. Frazier and Williams seek orders suppressing the evidence found during a search of a vehicle after a traffic stop, arguing that they were targeted for a drug enforcement investigation in violation of their rights under the Fourth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and their rights to free speech and to the free exercise of religion under the First Amendment.
Following the March 4, 2003, evidentiary hearing on the motions, (the hearing transcript is at Filing No. 77, hereafter "Tr."), Magistrate Judge Jaudzemis issued a Report and Recommendation (Filing No. 79, hereafter "RR.") recommending denial of the Defendants' motions. She found that the two investigating officers were credible in their testimony. Under the principles set forth in Whren v. United States, 517 U.S. 806, 810 (1996), she concluded that the investigating officers had employed a constitutionally permissible tactic in following the Defendants' truck and in waiting for the driver to commit a traffic violation. RR. 12. The Defendants conceded they committed the traffic violation. In responding to the Defendants' argument that they were unconstitutionally targeted for investigation, Judge Jaudzemis concluded that they had failed to show either discriminatory effect or discriminatory purpose as required by the Equal Protection analysis set forth by the Eighth Circuit Court in United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996). RR. 14-15. Further, Judge Jaudzemis concluded that the conduct associated with the Defendants' exercise of the First Amendment rights was not the motivating factor behind the traffic stop in this case, thereby distinguishing this case from other cases involving religious symbols and Bibles that were cited by the Defendants in their briefs. RR. 18. On the basis of these determinations, Judge Jaudzemis recommended that the Defendants' motions to suppress be denied.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which the Defendant has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
STATEMENT OF FACTS
Judge Jaudzemis provided a detailed account of the facts material to the motions to suppress in her Report and Recommendation at pages two through eleven. I provide only a brief summary here to give some context to the analysis that follows. Defendants were first observed by Nebraska State Patrol ("NSP") Investigators Richard Lutter and Anthony Sattlefield from their unmarked NSP car as the Defendants were putting gas into the tank of a small-sized U-haul truck at a gas station located near Gretna, Nebraska, at mile marker 432. (Tr. 21) The investigators are members of NSP's commercial drug interdiction unit who have received specialized training in drug trafficking techniques and methods and related law enforcement policies and practices. (Tr. 13-14, 105-107) They first observed the Defendants as the investigators were departing from a McDonald's restaurant drive-through lane. (Tr. 19-20; 63, 102) At that time, the investigators estimated that the Defendants' U-haul was approximately 75 yards to 150-200 meters away from them at a gas station that is located across the street from the McDonald's and just off an Interstate 80 exit. (Tr. 20, 103) The investigators testified that the observation of a small U-Haul truck at that location was the fact that sparked their suspicion. (Tr. 22-23, 122-125) Wanting a closer look, the investigators drove around the U-haul and inspected it more closely. (Tr. 25-31, 103-105) From about 20 feet away, they observed a book displayed prominently on the dashboard, a new padlock on the door of the U-Haul, and Arizona plates on the vehicle. Id. Sattlefield testified that the sole fact that the vehicle was a U-Haul sparked his interest. (Tr. 122) Lutter explained that the size of the truck was significant to him given the location of the gas station. (Tr. 22-3, 67-9) He explained that a smaller truck that is not towing another vehicle is not what he would expect to see traveling across the country for personal use. If it had been used for a local move, he would not expect to see it gassing up at this location, which is not near a U-haul dealer and is not in a heavily populated or metropolitan area. Id.
The investigators were suspicious that the truck was being used for illegal drug trafficking, and they wanted to search the truck. They decided to follow the U-haul in the hope of observing a traffic violation that would provide them with the reasonable suspicion that they needed to pull the truck over and ask its occupants for their consent to search. (Tr. 32-33) Because the investigators were in an unmarked car, which by law may not be used in a traffic stop in Nebraska, they radioed several NSP troopers for assistance. Trooper Rasgorshek responded that he would assist them, although at the time of the initial conduct he was located several miles east of mile marker 432.
The investigators began following the U-haul on the interstate, and they immediately observed it committing traffic violations, including speeding and changing lanes without signaling. (Tr. 33-35, 111) After the investigators had been following the U-haul from mile marker 432 to 405, the NSP cruiser caught up with the U-Haul, observed it swaying between lanes, and made a traffic stop based on the vehicle's failure to maintain a lane of travel. (Tr. 84). The Defendants consented to the search of the vehicle. The investigators found several boxes of pseudoephedrine, and the Defendants were arrested.
The Court has carefully considered the transcript of the hearing conducted by the Magistrate Judge on March 4, 2003 (Filing No. 77). I find that the statement of facts as provided by Judge Jaudzemis is accurate, and I will adopt it with minor modifications. I agree with Judge Jaudzemis that there were several observations made by the investigators that contributed to their suspicion. What Judge Jaudzemis did not emphasize, that I believe is material, is that the investigators' suspicion, which was ignited by the investigators' initial observation of the truck, was compounded and strengthened over time by their subsequent and more detailed observations of the truck. The investigators agree that the small sized U-haul truck refueling at a gas station located off mile marker 432, where there is no U-haul dealer — and which is not a particularly metropolitan area — was the sole observation that sparked their suspicion about whether this truck was being used in a commercial capacity for some unlawful purpose. While it is true that they also observed that the man who was refueling the truck was African American, I am persuaded by the investigators' testimony that it was the vehicle, and not the race of its occupants, that sparked their interest. (Tr. 19-23, 31, 37-38, 67-68, 111-113, 122, and 125) This spark of suspicion, which was sufficient to convince the investigators to take a closer look at the vehicle, grew upon their closer inspection of the vehicle, which included the observation of a new padlock and the prominent display of a Bible on the dashboard. (Tr. 25-31) While Investigator Lutter's report gives the impression they made all of the observations that contributed to their suspicion from the vantage of the McDonald's drive through lane, which seems impracticable, that was not the evidence at the hearing. Although the more detailed observation of the vehicle occurred shortly after the investigators' initial observation, it was the combination of the observations they initially made about the truck, and the later observations of the newer padlock and dashboard display, that caused the full-blown suspicion that caused the investigators to follow the vehicle and await a traffic violation.
OBJECTIONS
Frazier makes the following objections to the Report and Recommendation (Filing No. 85):
1) that Judge Jaudzemis incorrectly determined that the officers' testimony about the "indicators" was credible; 2) that she applied an erroneous Equal Protection analysis because the issue in this case does not relate to the enforcement of a facially neutral statute, but rather to whether the defendants were targeted for investigation based on their race before the statute even came into consideration; 3) that Judge Jaudzemis erred in concluding that there was no violation of the Defendants' First Amendment rights; and 4) that Judge Jaudzemis abandoned her role as a neutral fact-finder by concluding that Investigator Sattlefield's testimony was more credible because of his race. Williams also filed a Statement of Objections (Filing No. 81) and a request for a new evidentiary hearing. Williams' first objection contends that Judge Jaudzemis conducted the hearing on the motion to suppress on March 4, 2003, in violation of Williams' Sixth Amendment right to counsel. Williams alleges that his retained counsel was not "available" on that date because, although present, he was not physically able to represent Williams adequately in the proceeding. Williams also objects to the Report and Recommendation on the basis that the evidence adduced at the hearing demonstrates that the police decided to investigate the Defendants because of their race in violation of the Constitution's Equal Protection Clause and in violation their rights to free speech and the free exercise of their religion under the First Amendment.
ANALYSIS
All the parties agree that if a person commits any traffic violation, even a minor one, that violation gives an officer probable cause to stop the violator. The parties also agree that, if an officer has probable cause to stop the violator, then the stop is objectively reasonable and any ulterior motivation on the officer's part is irrelevant. United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996). Factually, the Defendants do not dispute that they committed a traffic violation that warranted stopping the vehicle. Moreover, the Defendants do not dispute that, once stopped, they gave their consent to a search of the vehicle.
The Presence of Indicators and a Disclaimer
The Defendants' motions to suppress are pinned on a different theory. Frazier and Williams argue that they were unconstitutionally targeted for investigation by Lutter and Sattlefield because of the Defendants' race. The Defendants want this Court to reject the findings in the Report and Recommendation that there were legitimate "indicators" and "disclaimers" observed by the investigators, and that these indicators and disclaimers were the basis for the investigators' decision to target the Defendants for investigation, and not their race.
The following "indicators" and "disclaimers" were identified by the investigators, who testified that the indicators and disclaimers, considered as a whole, raised their suspicion that drug trafficking activities might be in progress: 1) the presence of a smaller-sized U-haul truck in an unlikely location; 2) a newer padlock on the truck's door; 3) a book prominently displayed on the dashboard, believed to be a Bible used as a "disclaimer," and 4) Arizona license plates. Frazier specifically objects to the Magistrate Judge's finding that the officers' testimony about the "indicators" and "disclaimers" was credible.
I have independently considered the testimony and exhibits, and I find that the testimony provided by Investigator Sattlefield and Investigator Lutter was credible. Separately and together, their testimony demonstrates that they had an opportunity to observe the objects and events about which they testified; they were direct in responding to the questions asked; for the most part, their answers were consistent with each other — though not in the extreme which might indicate a lack of credibility; and their testimony, considered as a whole, was reasonable. While a trained and experienced law enforcement officer may draw different conclusions from a particular observation than a lay person would draw from the same observation, that is no basis upon which to discredit their testimony. Investigators Sattlefield and Luther each testified about the events of November 6, 2002, in a convincing and credible manner. Lutter's testimony, though not inconsistent with his report, elaborated on the events of November 6, 2002, in a manner that might not have been anticipated from a reading of his report. Specifically, the lapse in time and the decision of the investigators to approach the U-haul to get a closer look were not apparent from a reading of Investigator Lutter's report. Nonetheless, I do not find that these differences constitute an inconsistency that might cast doubt on Lutter's credibility. In addition, I found Investigator Sattlefield to be direct and credible, and not prone to exaggeration of the facts. Investigator Sattlefield's and Investigator Lutter's testimony 1) regarding their familiarity with the NSP's prohibition against racial profiling and 2) their knowledge and belief that a person's race is not an indicator of illegal drug trafficking, were credible and persuasive. For these reasons, I agree with Judge Jaudzemis' finding that the investigators' testimony was credible as to the existence of the "indicators" and the "disclaimer," and that the presence of indicators piqued their interest and eventually gave rise to their suspicion.
But compare Transcript at 88 and 120.
Equal Protection Standard
The Defendants also argue, as set forth in the brief of Defendant Frazier, that the Magistrate Judge applied the wrong standard in assessing whether the Defendants were targeted for investigation because of their race. The Defendants argue that the application of the Equal Protection analysis of United States v. Bell, 86 F.3d at 823, to the facts presented here is erroneous. In this case, unlike in Bell, the investigators decided to investigate the U-haul in which the Defendants were traveling before any traffic violation was committed. That fact is undisputed. When the investigators were still in the McDonald's drive-through lane and decided to make a closer examination, they had certain information about the truck: 1) it was a U-haul; 2) it was located at the gas station; and 3) the gas station's proximity to a metropolitan area. The investigators also had information about the race of the Defendants — African-American. Frazier contends that the investigators' testimony about the significance of the truck and its location should not be believed, and that it is only a pretext to cover up their true reason for following the truck, which was that its occupants were African-American.
In support of this argument, Frazier argues that the Court's application of Bell is inapposite in this situation, and that the Sixth Circuit Court's analysis in United State v. Avery, 137 F.3d 343 (6th Cir. 1997), should have been applied by the Magistrate Judge. I agree with Frazier that the analysis in United State v. Bell misses the mark, at least in part. While Bell sets forth the Eighth Circuit Court's analysis for Equal Protection claims when the issue is the application of a facially-neutral statute, in this case there is another dimension to the Defendants' Equal Protection argument that was not fully addressed in the Report and Recommendation.
The Sixth Circuit in Avery analyzes a Fourteenth Amendment claim that is factually similar to the claim asserted by the Defendants. On appeal, Avery claimed that he was unconstitutionally targeted for investigation by a drug interdiction unit working at an airport, because of his race — African-American. As a result, Avery argued that his motion to suppress evidence should have been granted. Avery's Equal Protection claim related to what has been called the "pre-contact stage" of a law enforcement investigation, when law enforcement officers decide to "target" someone for investigation. Avery, 137 F.3d at 353. The district court denied Avery's motion, concluding in part, that "there are no constitutional restrictions at the pre-contact level," a conclusion that the Sixth Circuit Court found to be plain error.
The Sixth Circuit Court stated:
The Fourteenth Amendment guarantee of equal protection does not fit neatly into the various stages of Fourth Amendment search and seizure analysis. This is mainly because the central intention behind the Equal Protection Clause is the prevention of official conduct discriminating on the basis of race. See Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). The "stage" of investigation is not relevant under a true equal protection analysis. "[T]he heart of the Equal Protection Clause is its prohibition of discriminatory treatment. If a government actor has imposed unequal burdens based upon race, it has violated the clause." Samaad v. Dallas, 940 F.2d 925, 932 (5th Cir. 1991).
Accordingly, we find that citizens are entitled to equal protection of the laws at all times. If law enforcement adopts a policy, employs a practice, or in a given situation takes steps to initiate an investigation of a citizen based solely upon that citizen's race, without more, then a violation of the Equal Protection Clause has occurred.Id., at 355.
The reasoning of the Sixth Circuit Court is sound, and I agree with Defendant Frazier that the Sixth Circuit's analysis is applicable to his claim that he was denied Equal Protection under the laws at the "pre-contact" phase of the investigation. However, the facts of this case simply do not support an Equal Protection claim. The investigators credibly testified that the existence of the U-haul truck, its size, and its location at that particular gas station, piqued their interest and suspicion. Upon closer examination, the presence of a newer padlock, the prominent display of the Bible, and the Arizona plates, when considered in combination, all gave rise to suspicion that caused them to follow the truck and seek assistance from uniformed NSP troopers to observe the vehicle in travel. I find that the Defendants were not identified for investigation because of their race, and that there were several facts, in combination, that provided legitimate basis for their suspicion.
As the Sixth Circuit Court stated, "An officer is not held to a "suspicion of criminal activity standard" when he embarks to investigate someone. The officer merely is prohibited from his pursuit if he acts based solely on race." Id. When there are other fact supporting his investigation, as there are here, then there is no Equal Protection violation. Cf. Johnson v. Crooks, 326 F.3d 995 (8th Cir. 2003) rehearing en banc denied (acknowledging that the Constitution prohibits selective enforcement of the law based on considerations such as race and the Whren holding, but finding no viable Equal Protection claim in that case brought under 42 U.S.C. § 1983).
To the extent that another court might find that the appropriate analysis for Defendants' claims is set forth in United States v. Bell, I agree with Judge Jaudzemis' conclusions that the Defendants failed to prove the elements of "discriminatory intent" and "discriminatory purpose." Thus, under either analysis the Defendants' motion to suppress under equal protection analysis must fail.
Eventually, the NSP trooper observed a traffic violation, which the Defendants do not contest. This gave rise to the reasonable suspicion and the consensual search of the vehicle. Accordingly, I find that the Defendants' motions to suppress evidence on Fourth Amendment and on Equal Protection grounds should be denied.
First Amendment Analysis
Defendants also raise the argument that because one of the observations that gave rise to the investigators' suspicion was the prominent display of a Bible — and nothing else — on the dashboard, their rights to free speech and to the free exercise of their religion was unconstitutionally infringed. The investigators both characterized the Bible as a "disclaimer." Both investigators described and explained the purpose of a "disclaimer" which was accurately summarized in the Report and Recommendation as an item that is used by persons engaged in illegal drug trafficking to provide an appearance of propriety to law enforcement. As the investigators drove around the U-haul, they noticed a red-covered book that they "knew" was a Bible. Although they could not read the book's title, I conclude that both officers had at least a very strong hunch that the book was a Bible and that it was being used as a disclaimer. This conclusion is bolstered by the fact that neither of the Defendants asked for the book upon their arrest. (Tr. 92) As Judge Jaudzemis found, and I agree, the Defendants' "exercise of their First Amendment rights was not the motivating factor behind the traffic stop in this case." (RR 18) Further, to the extent that the Defendants believe that their First Amendment rights may have been infringed by the officers' characterization of the Bible as a "disclaimer," then they are free to pursue a remedy under 42 U.S.C. § 1983. The Court concludes that there is no basis under the First Amendment to suppress the evidence in this case.
Neutral Fact Finder
I find no evidence in the transcript nor in the Report and Recommendation that Judge Jaudzemis ever "abandoned her role as a neutral fact finder" in this case. While Judge Jaudzemis made reference to Investigator Sattlefield's race (RR 8), she did not attribute his credibility to his race. Investigator Sattlefield is African-American. To the extent that her reference to Investigator's Sattlefield's race could be construed in the extreme to bear on her findings, my de novo review of the record persuades me of the accurateness of the findings made in the Report and Recommendation and herein. Frazier's objection on this ground is overruled.
Representation by Counsel
Williams objects to the Report and Recommendation on the basis that the evidentiary hearing was conducted in violation of his Sixth Amendment right to representation by counsel. Both David Katz and William Woodruff offered declarations in support of Williams' objection (Filing No. 81). Katz was in trial in California on the date of the hearing on March 4, 2003. While local counsel, Mr. Woodruff, was present at the hearing, Williams now contends that Woodruff was not healthy at the time and was unable to represent him adequately during the hearing. Woodruff's declaration states that he has had two strokes, one in December of 2002 and the other on February 13, 2003, which made him unable to read all the pleadings, conduct the direct examination of Williams or cross-examine the investigators. My review of the declarations, the previous orders of the Court, and the transcript from the hearing persuade me that Williams' objection and request for an new evidentiary hearing must be denied.
On February 19, 2003, the Court ordered that the hearing on the Defendants' motions to suppress would be conducted on February 26, 2003 (Filing No. 54). Defendant Williams moved to continue the hearing for another date in the latter half of March or early April, which the government resisted. Judge Jaudzemis conducted a telephonic hearing on the motion to continue on February 24, 2003, after which she ordered the hearing rescheduled for March 4, 2003. (See Filing No. 58). In that order, Judge Jaudzemis carefully considered the competing interests involved in setting the hearing, including that Williams' lead counsel was in trial in California, that Williams' local counsel was recovering from an illness, that Frazier's counsel was recovering from a surgery, and that one of the key witnesses for the hearing, Investigator Sattlefield, had been notified that he would be getting called into military service in the near future. Finding that Sattlefield's presence at the hearing was crucial to the Defendants and to the government, the Magistrate Judge allowed his availability to weigh heavily into her decision on scheduling the hearing. After getting assurances 1) that local counsel for Williams would either be in satisfactory health to participate in the hearing on March 4, or, if not, that he had ample time to arrange for substitute counsel; 2) that counsel for Frazier would be able to participate in the hearing if it was scheduled for March 4, 2003; and 3) that Investigator Sattlefield would likely still be available to attend on March 4, the Court ordered the hearing to be held on March 4, 2003. Another motion to continue made by Williams' local counsel was denied on the day of the hearing.
As I have already stated, I have reviewed the transcript and I did so cognizant of the Defendants' objections, including the one directed at Williams' representation. Mr. Woodruff objected on several occasions during the hearing, he questioned a witness to explore his foundation, and, while he did not cross-examine the investigators himself, he noted on the record that he was relying on the cross-examination conducted by counsel for Frazier. (Tr. 29, 31, 40, 52-54, 55, 56, 57, 58, 61, 91, 143 and 148.) The transcript persuades me that Williams had competent counsel at the hearing, and that his objection based on a violation of the Sixth Amendment should be denied.
The hearing was scheduled for March 4, 2003, by an order dated February 24, 2003. The amount of time between the setting and the hearing was more than adequate for Williams' counsel to obtain a substitute if they deemed it necessary. Indeed, Mr. Woodruff's declaration states that another attorney, Mr. Stumpf, was present to take over for Mr. Woodruff if necessary. Though he did not make an appearance, he certainly could have done so had the need arisen. As it turns out, Mr. Woodruff's representation of Williams was competent, and I find no justification for granting Williams' objection on this basis.
CONCLUSION
For the reasons discussed, the Defendant's objections to the Report and Recommendation will be overruled, and the Defendants' motions to suppress evidence will be denied.
IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (Filing No. 79) is adopted with the modifications discussed herein;
2. The Defendants' Motions to Suppress (Filing Nos. 45 and 50) are denied; and
3. The Defendants' Objections to the Report and Recommendation (Filing Nos. 81 and 85) are denied.