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United States v. Thomas

United States District Court, D. Colorado

November 14, 2017

2. TRAMMELL THOMAS, Defendant.



         In this financial aid fraud case, Defendant is charged with conspiracy to defraud the United States Government (specifically the United States Department of Education (“DOE”)), in violation of 18 U.S.C. § 286, and related counts of aiding and abetting mail fraud, 18 U.S.C. §§ 1341 & 2. (ECF No. 131.) Now before the Court are Defendant's Motion to Suppress #1 (ECF No. 181) and Defendant's Motion to Suppress Evidence Seized Pursuant to Search Warrant (ECF No. 194). For the reasons set forth below, both motions are denied.


         A. Facts

         At 2:40 a.m. on August 30, 2012, Officer Jonathan Seal of the Tempe, Arizona, Police Department pulled Defendant over, suspecting drunk driving, after seeing Defendant's vehicle first drift within its lane and then cross the double line marking the oncoming traffic lane. (ECF No. 193-2 at 11; ECF No. 193-1 at 1.)[1] Officer Seal asked Defendant to move to a safer location, which he did, after which the traffic stop effectively began at approximately 2:44 a.m.

         When Officer Seal approached the vehicle, he noticed the odor of alcohol coming from inside, and thought Defendant's eyes looked “bloodshot and watery.” (ECF No. 193-2 at 12.) When asked where he was going, Defendant answered that he was both coming from and also going to Chandler, Arizona-an answer which did not make sense to Officer Seal. Defendant then indicated that he was headed to Chandler after picking up mail from his post office box in Tempe. (ECF No. 193-4 at 2.)

         While speaking with Defendant, Officer Seal saw a plastic bag containing approximately 50 credit cards on the vehicle's back seat. (Id. at 12.)[2] When Officer Seal asked about the bag, Defendant first did not respond. When Officer Seal asked if he could see the bag, Defendant reached into the back seat as if to comply, but instead moved the bag containing credit cards onto the floor, while handing Officer Seal an empty bag which was located nearby. (Id. at 12.) Observing these actions did not alleviate Officer Seal's suspicions about the credit cards. (ECF No. 193-4 at 3.).

         Officer Seal then asked Defendant to exit the vehicle, and Defendant complied. (ECF No. 193-2 at 13.) While Defendant was speaking with Officer Seal, a K-9 unit arrived, including Officer Jason Papke and a trained drug-sniffing dog, Neo. (ECF No. 193-2 at 13.) According to Officer Seal's report, Defendant was detained at the time Officer Papke arrived, at approximately 2:47 a.m. (ECF No. 193-2 at 13.)[3]

         At approximately 2:50 a.m., Officer Seal began recording the traffic stop on an audio recorder. (ECF No. 193-3.)[4] At approximately 2:54 a.m., following a few minutes in which Defendant asked whether he was being detained, and why, Officer Papke asked if they could search the vehicle, and Defendant declined. (Tr. at 7-8.) At approximately 2:55 a.m., Defendant offered to take a sobriety test. (Tr. at 8.) Officer Seal conducted a field sobriety test-in particular, a horizontal gaze nystagmus or “HGN” test-beginning at approximately 2:56 a.m., or approximately 12 minutes after the traffic stop had begun. This took slightly less than 2 minutes to complete. (Tr. at 9-11.)

         Officer Seal was satisfied that Defendant was not intoxicated, but still wanted to inquire about the credit cards. Therefore, approximately 15 minutes after initiating the stop, Officer Seal told Defendant that he was not under arrest but was “just being detained . . . until we can complete our investigation, ” and that “because you are not free to leave, ” he informed Defendant of his Miranda rights. (Tr. at 12-13.)

         Officer Seal then questioned Defendant regarding the credit cards, asking “what's the deal with those credit cards” and similar follow-up questions. (Tr. at 13.) Defendant responded by insisting he was not drunk or on drugs and had committed no crime, and generally questioning why he was being detained, but Defendant did not answer Officer Seal's questions regarding the credit cards. (Tr. at 13-16.)

         While Officer Seal was questioning Defendant about the credit cards, Officer Papke and Neo initiated a sniff of the exterior of the vehicle. (See Tr. at 15.) Approximately 2 minutes after Officer Seal began questioning Defendant about the credit cards, Neo alerted, leading Officer Papke to open the vehicle's door and begin searching inside of the car. (Tr. at 15.) At this point, Officer Seal was still questioning Defendant about the credit cards. (Tr. at 13-16.)[5]

         The search inside the vehicle-which turned out to belong to Defendant's girlfriend, co-defendant Heather Carr-discovered a useable quantity of marijuana, as well as an open container of what appeared to be an alcoholic beverage. This container was found sitting on the passenger side floorboard in such a position that the officers believed it could not have been in that position while the vehicle was in motion without spilling, making them suspect Defendant had placed it there subsequent to the traffic stop, as if to hide it.

         Defendant was arrested and the vehicle was towed and impounded. The items inside it were inventoried and the bag of credit cards was seized and placed into evidence by the Tempe Police Department, along with a laptop computer found in the vehicle. (ECF No. 193-4 at 1.) In connection with its own investigation of Defendant and the crimes alleged in this case, DOE was notified of this evidence on December 6, 2012 (ECF No. 193-5), and in February 2013 sought and obtained a warrant to search the laptop (ECF No. 181-1).

         Defendant now seeks to suppress “any and all evidence seized from the Defendant on or about August 30, 2012, ” arguing the seizure of evidence following the traffic stop was illegal and that the fact a warrant was later issued to search the laptop “does nothing to remove the taint that emanated from the original seizure.” (ECF No. 181 at 1, 4.)

         B. Legal Standard

         1. Evidence Obtained From a Warrantless Search or Seizure

         The Fourth Amendment to the U.S. Constitution provides, in relevant part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” However, “[t]he Amendment says nothing about suppressing evidence obtained in violation of this command. That rule-the exclusionary rule-is a prudential doctrine created by th[e Supreme] Court to compel respect for the constitutional guaranty.” Davis v. United States, 564 U.S. 229, 236 (2011) (internal quotation marks omitted). Pursuant to the exclusionary rule, a defendant may move for suppression of evidence obtained in violation of the Fourth Amendment. Id.

         On a motion to suppress evidence derived from a warrantless search (such as the search of the vehicle here), the defendant bears the burden of presenting a prima facie case that the Fourth Amendment has been “implicated, ” at which point the burden shifts to the Government to prove “that its warrantless actions were justified (i.e., as a lawful investigatory stop, or under some other exception to the warrant requirement).” United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994); see also Id. at nn.1-2 (citing authorities); 6 Wayne R. LaFave, Search & Seizure § 11.2(b) at n.35 and accompanying text (5th ed., Oct. 2015 update) (hereinafter “Search & Seizure”). The record on Defendant's Motion reflects that his Fourth Amendment rights were implicated by the traffic stop and ensuing seizure.

         2. Reasonable Suspicion

         The Tenth Circuit has explained reasonable suspicion as follows:

Reasonable suspicion is a less demanding standard than probable cause. Specifically, reasonable suspicion is merely a particularized and objective basis for suspecting criminal activity. To determine whether investigating officers had reasonable suspicion, we consider both the quantity of information possessed by law enforcement ...

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