Opinion
03-CR-95(JMR/FLN)
April 21, 2004
ORDER
Defendant, Robert Rydell Williams, was indicted by a grand jury on charges of conspiracy and attempt to distribute cocaine, in violation of 21 U.S.C. § 846, 841(a)(1), and 841(b)(1)(A). Defendant claims the initial stop of his car violated the Fourteenth Amendment of the United States Constitution because the stop resulted from racial profiling. Defendant also asserts the stop violated the Fourth Amendment because the officer acted without probable cause. Defendant asks the Court to either suppress evidence seized during the search of his car or to dismiss the indictment. U.S. Magistrate Judge Franklin L. Noel conducted three separate evidentiary hearings on these motions and issued a Report and Recommendation on January 13, 2004. The Report and Recommendation recommended granting defendant's motion to suppress the evidence and denying his motion to dismiss the indictment.
The government has timely objected to the Report and Recommendation, pursuant to Local Rule 72.1(c)(2). Defendant asks the Court to adopt the Report and Recommendation.
The Court has undertaken a de novo review of the record herein. The Court declines to adopt the Magistrate Judge's recommendation that the evidence be suppressed and adopts the recommendation that the indictment stand.
I. Factual Findings
After reviewing the transcripts of the evidentiary hearings and the record, the Court adopts, with certain modifications, the Magistrate's factual findings.
a. Background Facts
On June 10, 2002, Officer Jay Hutton stopped a vehicle in which Defendant Williams was a passenger on [Arizona's section of] Interstate 40. The driver of the vehicle was African-American, as were all of the car's occupants. At the time of the stop, Officer Hutton was well aware that [an Arizona state court] was concerned about allegations of racial profiling by ADPS officers on that stretch of 1-40. The Arizona Department of Public Safety has had a policy against racial profiling since 1999.
In several consolidated cases filed in 2000, several [Arizona state court criminal defendants] argued that their cases should be dismissed for Equal Protection and Due Process violations, on the grounds that they were the victims of racial profiling. In March 2001, the Arizona Court found that the consolidated defendants had established a "colorable claim" that racial profiling was being practiced on a particular stretch of 1-40 in Coconino County, which entitled them to expanded discovery. The Court then ordered the ADPS to disclose data on all . . . the stops occurring on 1-40 in Coconino County from June 1999 — June 2000.
After learning that this data was destroyed, the Court ordered the ADPS to disclose stop data for January 2000 through January 2001. Dr. Frederic Solop was retained by one of the defendants' [attorneys] to study the data that was produced in discovery. [Dr. Solop] is a professor of Political Science and the Director of the Social Research Laboratory at Northern Arizona State University. . . . By December of 2001, Dr. Solop had finished his analysis of the stop data provided in discovery by the ADPS. Thus by the date of the stop in this case, the consolidated cases had already progressed through the colorable claims stage and the discovery was ordered to be produced. Dr. Solop's study of the stop data was [complete] six months before Defendant Williams was stopped. Thus, it cannot be doubted that on the date of the stop in this case on June 10, 2002, Officer Hutton was aware of the allegations of racial profiling on I-40.
While the criminal cases were pending, it was discovered that the ADPS had not provided all of the data that the court ordered to be produced. Dr. Frederic Solop testified [to his] understanding that the only [missing records] were the records for canine officers. While there is some confusion in the record as to whether the data for all ADPS stops is complete, Dr. Solop testified [that] the data for Officer Hutton is complete. Although Ms. Stelly Wahlin from the Arizona Attorney General's Office suggested that the data might be incomplete for Officer Hutton as well, her testimony in this regard was based entirely on unfounded speculation.
Eventually, in March 2003, in what Ms. Stelly Wahlin [of the Arizona Attorney General's Office] called a "very dark day for the department," the Arizona court granted the defendants' motion to dismiss the consolidated cases based on a finding that the ADPS had intentionally violated the judge's order to disclose all of the records from the year 2000, and that the destruction of the evidence made it impossible for the court to consider whether there was any statistical support for the contention that the traffic stops on 1-40 were tainted by racial profiling.
Court's adaptation of Report and Recommendation at 2-4 (footnote in original, but citations and other footnotes omitted).
b. The Stop and the Search
On June 10, [2002,] Officer Hutton was working east of Flagstaff, Arizona, on Interstate 40 watching the eastbound traffic. Just after one o'clock [p.m.] Officer Hutton saw a black Suburban approaching. Officer Hutton testified that the vehicle was traveling 75 mph in a 65 mph zone. Officer Hutton stated that he could not see inside the vehicle or who was driving the car.Id. at 4 (as adapted, citations omitted).
Acting upon probable cause to suspect the vehicle was speeding, Officer Hutton stopped the car. Defendant was in the passenger seat. Officer Hutton identified the driver as Cherron Williamson, who is defendant's sister, and asked to see her license and registration. He then told Ms. Williamson that he would issue her only a warning for speeding. Pursuant to normal procedure, he asked her to get out of the car and stand with him off the side of the road. Defendant and the other passenger remained in the car.
As Officer Hutton wrote the warning citation, he noticed that Ms. Williamson was nervous. He tried to calm her by telling her there were no fines or penalties associated with the warning, but her nervousness did not subside. He asked her where she was coming from and where she was going; her ambiguous answers made him suspicious. After he finished writing out the warning, he gave it to Ms. Williamson along with her other documents and "told her to watch her speed and have a safe trip." (Tr. of May 8 Hrg. at 17.) She thanked him and started back to her car.
The warning form included a space in which to indicate the apprehended party's race. In Ms. Williamson's case, the officer erroneously marked the space with a "W", as in "white." Officer Hutton explained this discrepancy, saying, "You know, good question, a mistake on my part. I'm so used to putting `W'. I don't have an answer for that. It was a mistake on my part." (Tr. of May 8 Hrg. at 34.)
As Ms. Williamson approached the rear quarter panel of her car, Officer Hutton asked her if he could ask a few more questions. She agreed. The Officer apprised Ms. Williamson of the problems with drug and weapons trafficking in the area and eventually asked for consent to search the car. Again Ms. Williamson agreed.
Officer Hutton next asked for defendant's consent to search the car, since he was its registered owner. Defendant gave his consent. He signified his assent by signing a written consent form that explicitly informed him of his constitutional right to refuse to consent. As was his practice, Officer Hutton explained the form to defendant and told him he had "every right to refuse" to sign it. (Id. at 20.) Defendant studied the form for approximately three minutes before signing it. After obtaining consent from the other passenger in the car, Officer Hutton called for backup and began searching the vehicle.
"Officer Hutton searched the Suburban and opened the rear hatch of the vehicle. He removed a box filled with pots and pans." Report and Recommendation at 5. His backup, Officer Victor Liebe, arrived at this point. It was 1:33 p.m. "After taking the box out of the car, Officer Hutton also saw two boxes of laundry detergent which Hutton determined had been opened and resealed." Id. Officer Hutton stopped the search to ask the defendant for consent to search the laundry detergent boxes. Defendant assented. "Upon opening one box, Officer Hutton discovered a brick of cocaine wrapped in duct or electrical tape. A total of five kilo-size packages of cocaine were found in the two detergent boxes." Id.
Ms. Williamson testified that defendant withdrew his consent during the search, but Officer Hutton denies this. Officer Liebe, who arrived on the scene during the search, testified that defendant consented to the search of the detergent boxes and never withdrew his consent. The Court finds that defendant never withdrew his consent.
c. The Study
Dr. Solop's first study and report analyzed stop data from January 2000 to January 2001, as provided by the ADPS during discovery in the consolidated Arizona cases. Ultimately, the experts in the consolidated cases established a methodology for analyzing the stop data and the methodology was presented to the Arizona court. Over a three to four month period, the research lab coded and analyzed the stop data, approximately 20,000 documents. First the research selected the relevant documents, that is, those documents relating to Coconino County and the specific [mileage] area at issue on 1-40. The researchers reviewed the documents and entered the information into computers with supervisors monitoring and checking their work.
The researchers coded information from the stops such as: the last name of the person stopped; the officer; the location of the stop; the direction on 1-40; the race or origin of the person stopped; their physical characteristics; the car involved; and the reason given by the police officer for why the person was stopped. One of the State's experts, Mr. Shap Wolf who directs a research laboratory at Arizona State University, also independently checked the work of the coders.
Dr. Solop next conducted a violator study to compare with the stop data provided by the ADPS. In this way, the researchers would be able to compare statistics regarding the people being stopped with statistics regarding the number of violators on the road. The methodology used in the violator study was used in other racial profiling cases and accepted by the courts in New Jersey and Maryland. Further, Dr. Wilson, the expert for the Government in this case, and the other experts involved in the consolidated Arizona cases, had input into the methodology used in the violator study. Dr. Wilson testified that he made Dr. Solop aware of his concern that the violator study did not look at all of the factors that the stop data revealed correlated with race. But according to Dr. Solop, the violator study was a research method to reliably understand the racial and ethnic composition of violators on a stretch of 1-40 in Coconino County. Dr. Solop and the social research lab conducted the violator study in April of 2002.
. . .
Dr. Solop did specific analyses for individual ADPS officers, including Officer Hutton. To reach his ultimate conclusion that race played a role in the people stopped on 1-40, Dr. Solop went through three steps. Dr. Solop first looked at the racial composition of the people stopped by officer Hutton from the stop data provided by the ADPS during discovery in the consolidated cases. The ADPS provided Dr. Solop with data for 405 stops made by Officer Hutton between January 2000 to January 2001. This data revealed that 65.7% of the people stopped by Officer Hutton were white; 5.7% were African-American; 10.9% were Hispanic; 15.3% were Native American; 2.0% were Asian and 0.5% were unknown.
Dr Solop next looked at the racial composition of the people who were violating the traffic laws on 1-40 based on the statistics gathered in the violator study. In the violator study, Dr. Solop determined that 80.4% of the people violating the Arizona motor vehicle laws were white. African-Americans represented only 1.8% of the violators. Hispanic drivers made up 7.7% of violators; American Indians were 6.9% and 1.6% were Asian.
The next step in Dr. Solop's analysis was to compare the stop data with the violator data. Dr. Solop compared the violator data to the 405 stops included in the stop data for Officer Hutton. . . . Dr. Solop concluded from this comparison that in the 405 traffic stops conducted by Officer Hutton, white non-Hispanics were under-represented when compared to the number of white non-Hispanic violators, and African-Americans, Hispanics, and Native-Americans were over-represented. Dr. Solop testified that this data suggested that Officer Hutton was disproportionately stopping African-Americans and Hispanics, and not stopping white non-Hispanics as often. . . . Thus, Dr. Solop ultimately concluded that Officer Hutton was engaging in racial profiling.Id. at 7-11 (as adapted, with footnotes and citations omitted).
II. Discussion
a. Fourth Amendment Claim
Defendant asserts that Officer Hutton violated the Fourth Amendment by stopping defendant's car without probable cause. The Court, however, credits Officer Hutton's statement that he believed the vehicle was traveling in excess of the posted speed limit. This clearly creates probable cause to make a traffic stop. See United States v. Pulliam, 265 F.3d 736, 739 (8th Cir. 2001) ("It is well-established that a traffic violation, however minor, creates probable cause to stop the driver of a vehicle."). Therefore, the stop did not violate the Fourth Amendment.Whren v. United States, 517 U.S. 806, 819 (1996); United States v. Martinez, 358 F.3d 1005, 1009 (8th Cir. 2004) ("A traffic stop based on probable cause is reasonable under the Fourth Amendment.").
The Report and Recommendation did not address this claim.
b. Fourteenth Amendment Claim
For the purposes of this motion, the Court accepts the Magistrate's conclusion that Officer Hutton engaged in racial profiling. The Court will similarly, and only for the purpose of this motion, assume that racial profiling was implicated in this particular stop. If such profiling occurred, the Court finally assumes Officer Hutton's decision to stop defendant's car violated the Equal Protection Clause of the Fourteenth Amendment as a selective enforcement of the law based on race. See Whren, 517 U.S. at 813 (1996);United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996).
While there was evidence upon which the Magistrate Judge could have concluded that Officer Hutton historically engaged in racial profiling, it is not at all obvious that he did so in this particular incident. The distinction is important, because just as we may not convict a person for having a tendency to criminal acts, we ought not promiscuously assume that one who may have acted incorrectly did so on a specific occasion.
This reservation is particularly acute here. In this case there is evidence that the detained automobile had smoked or darkened windows. When considering this information, it is problematic whether Officer Hutton could have visually discerned the skin color of the car's occupants at all, let alone have detained them in accord with some mathematical tendency to racially profile.
Even having engaged in these assumptions, there is no basis upon which to suppress the cocaine that Officer Hutton seized from the vehicle because defendant voluntarily consented to the search that resulted in the seizure of the contraband. Consent to a search purges the taint of an illegal stop if the consent is "sufficiently an act of free will."Wong Sun v. United States, 371 U.S. 471, 486 (1963); United States v. Moreno, 280 F.3d 898, 900 (8th Cir. 2002). The government bears the burden of persuasion to prove the sufficiency of the consent. E.g. Kaupp v. Texas, 538 U.S. 626, ___, 123 S.Ct. 1843, 1847 (2003).
The Court also assumes without deciding that suppression is an appropriate remedy for this kind of police misconduct. See United States v. Navarro-Camacho, 186 F.3d 701, 711 (6th Cir. 1999) (Moore, J., concurring). The Court therefore applies the standards regarding consent developed in the context of the Fourth Amendment exclusionary rule.
When determining whether defendant's consent was sufficiently an act of free will, the Court considers three factors: (1) the temporal proximity between the illegality and the consent; (2) the presence of intervening factors; and (3) the purposefulness and flagrancy of the official misconduct. E.g. United States v. Becker, 333 F.3d 858, 862 (8th Cir. 2003) (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). Considering these factors, the Court concludes defendant's consent was sufficiently voluntary to purge any taint which may have infected the original stop.
1. Temporal Proximity
The Court looks to "temporal proximity" to consider how much time passed between the alleged illegality and defendant's consent. Here, the challenged stop occurred at approximately 1:00 p.m., when Officer Hutton detained the vehicle driven by Ms. Williamson. The stop ended when Officer Hutton gave Ms. Williamson her written warning and instructed her to "watch her speed and have a safe trip." After this advice, Ms. Williamson and her passengers — including defendant — were free to go.
It was only after Ms. Williamson returned to her car that Officer Hutton asked if he could speak with her further and ask a few more questions. They talked for a moment about drug traffic in the area, after which Officer Hutton asked if he could search the car. But even after obtaining her consent, he did not do so immediately.
Having ascertained that it was defendant, not Ms. Williamson, who owned the car, Officer Hutton asked Mr. Williams for consent to search the vehicle, but still did not conduct the search. He produced a form and gave it to Mr. Williams. The form directly advised Mr. Williams that he did not need to consent to the search, and Officer Hutton explained that he had "every right to refuse" to sign the form. Mr. Williams contemplated the form for some time before giving consenting to the search.
Only then — after this lapse of time and after oral and written advisories telling the driver and defendant that they were free to leave and were not required to consent to a search — did the search take place. The search was underway when backup arrived on the scene at 1:33 p.m, but Officer Hutton had not yet discovered the detergent boxes. Thus, at least a half-hour had elapsed by the time Officer Hutton reconfirmed defendant's consent to search the boxes of laundry detergent. See Moreno, 280 F.3d at 901 (noting the "passage of time from the initial stop . . . and appellant's consent to have his vehicle searched the second time"). This passage of time weighs in favor of a finding that defendant's consent was an act of free will.
2. Intervening Factors
The intervening factors present in this case, which are mostly recounted above, confirm that defendant's consent was an act of free will. Defendant signed a consent form advising him of his right to refuse consent. Officer Hutton went over the form with defendant, made clear he could refuse to sign it, and defendant carefully studied the form before signing it. These facts are highly probative of a truly voluntary consent. See, e.g., id. (notice of right not to consent is an intervening factor); Becker, 333 F.3d at 862 (8th Cir. 2003) (same). Indeed, it is often considered dispositive, at least in the absence of flagrant illegality by the officer, that defendant understood his right to refuse to consent. United States v. McGill, 125 F.3d 642, 644 (8th Cir. 1997);United States v. Thomas, 83 F.3d 259, 260 (8th Cir. 1996); United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994).
It is also important to note, as an intervening factor, that defendant was neither in custody nor being detained when he gave his consent. Officer Hutton had already issued his warning ticket and told Ms. Williamson she was free to leave. This vitiates any concern that Officer Hutton exploited the illegal situation, and attenuates the effect of the allegedly illegal detention. See Wong Sun, 371 U.S. at 491 (statement given after suspect had been "released on his own recognizance" was untainted by his prior illegal arrest); United States v. Delgadillo-Velasguez, 856 F.2d 1292, 1300 (9th Cir. 1988) (noting that "release from custody" is an intervening factor).
3. Purposefulness and Flaqrancy
Officer Hutton had probable cause to stop defendant's car for speeding, and there is "no evidence that [Officer Hutton] in this case stopped the [car] as part of a preconceived plan to extract a consent to search it." United States v. Kreisel, 210 F.3d 868, 870 (8th Cir. 2000);see also United Sates v. George, 883 F.2d 1407, 1416 (9th Cir. 1989) (noting that the flagrancy factor is most relevant where the "officers did not have probable cause to effectuate an arrest, but instead took a suspect into custody hoping that an interrogation would yield incriminating statements"). Officer Hutton issued no citation detaining any person in the vehicle. Instead, he merely issued a warning ticket and told the driver she could depart.
The only possible evidence of "flagrant" conduct is Officer Hutton's misidentification of Ms. Williamson as white on the warning form. But even if this was a conscious attempt to skew the statistics of the racial profiling study, the Court does not find it relevant to whether defendant's consent was sufficiently voluntary. There is absolutely no evidence that Ms. Williamson or her passengers had the slightest idea that a race-identifying box had been mis-marked.
Taken together, the factors identified in United States v. Becker and Brown v. Illinois weigh strongly in favor of the Court's determination that defendant's consent was sufficiently an act of free will to purge any taint of the challenged stop. The consent given here is similar to the consent given in United States v. Ramos, where the court said: "What happened here, really, went beyond voluntary consent. It was an affirmative waiver of [defendant's constitutional] right to prevent a search of his vehicle." 42 F.3d at 1164. Accordingly, defendant's motion to suppress the evidence discovered pursuant to the consensual search of his car is denied.
III. Conclusion
For the foregoing reasons, defendant's motion to suppress is denied. The Court adopts the Magistrate's recommendation in denying defendant's motion to dismiss the indictment. Accordingly, IT IS ORDERED that:
1. Defendant's motion to suppress evidence [Docket No. 12] is denied.
2. Defendant's motion to dismiss the indictment [Docket No. 39] is denied.
3. The government's objection to a discovery order, request for review of motion de novo, and requests for an evidentiary hearing [Docket Nos. 28, 29, 57] are denied as moot.