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United States v. Nash

United States District Court, D. New Mexico

March 9, 2018

QUINCY D'OWN NASH, a.k.a. Quincy Nash, Defendant.

          George A Harrison, Attorney for Mr. Nash

          Joni Lee Autrey and Mark A. Saltman ASSISTANT UNITED STATES ATTORNEYS Attorneys for the United States



         This matter comes before the Court on defendant Quincy D'Own Nash's Motion to Suppress Physical Evidence and Statements and Corrected Motion to Suppress Physical Evidence and Statements. [Docs. 15, 32].[1] The government opposes the motions. Based upon the pleadings of the parties, the facts of this case and applicable law, Mr. Nash's motions are hereby granted.

         I. Background

         On the evening of September 17, 2016, Hobbs Police Department Officer Jayson Hoff stopped a 2000 silver Cadillac Escalade for throwing a lit cigarette out the window and having an unreadable license plate. According to his report, Officer Hoff approached the car and, while talking to the driver, Mr. Nash, he observed signs that he was intoxicated. The driver told him he had a previous DUI conviction and had served time in federal prison for possession of drugs. Officer Hoff's video recorder was not functioning, so he requested backup with working video for a field sobriety test. Two other officers arrived.

         Officer Hoff ordered Mr. Nash out of the car and conducted a pat down search for weapons, holding Mr. Nash's hands behind his back as he did so. No weapons were detected, but the officer felt what he believed to be a baggie of drugs in Mr. Nash's pants pocket. He asked for permission to reach into the pocket, but Mr. Nash refused. Officer Hoff stated that he was going to reach into the pocket anyway. Mr. Nash jerked away and tried to run, but was tackled by the three officers and arrested.

         Officers searched Mr. Nash's person and removed two baggies from his pants pockets. One field tested positive for methamphetamine and the other for marijuana. When officers searched the car, which belonged to Mr. Nash's grandmother, they found a firearm under the front seat.

         Defendant was charged with possession with intent to distribute five grams and more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2; possession of a firearm and ammunition in furtherance of a federal drug trafficking crime, in violation of 18 U.S.C. § 924(c); and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

         Pursuant to Fed. Crim. R. 12(b)(3)(C), Mr. Nash moves for suppression of any physical evidence or statements seized as a result of his September 17, 2016 detention, search and arrest; and any statements made by him after his detention and arrest.

         II. Analysis

         Mr. Nash asserts any evidence garnered during the traffic stop should be suppressed because:

A. Officer Hobbs lacked reasonable suspicion to execute the traffic stop;
B. Officer Hobbs lacked reasonable suspicion of criminal conduct on Mr. Nash's part to prolong the traffic stop beyond its original purpose;
C. The officer's pat down was illegal because he lacked a specific articulable suspicion of danger that would permit a pat down; and
D. Even if the officer had a specific articulable suspicion of danger which would permit a pat down, when the officer went from conducting a pat down looking for weapons to trying to seize evidence of a crime, police “crossed the line, ” and any evidence seized from that point forward should be suppressed.

         The Court considers each of Mr. Nash's arguments in turn and finds that the government has failed to carry its burden of showing Officer Hoff had not completed his pat down before locating what he believed to be a baggie of dope in Mr. Nash's pocket. Therefore, Mr. Nash's Motion to Suppress must be granted.

         A. The Initial Traffic Stop Was Based on Reasonable Suspicion.

         The government bears the burden of proof to justify warrantless searches and seizures. United States v. Zubia-Melendez, 263 F.3d 1155, 1160 (10th Cir. 2001) (citing United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir. 1993). A traffic stop is treated as an investigative detention, and is governed by the standards set forth in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005). To determine the reasonableness of an investigative detention, the Court makes a dual inquiry, asking first “whether the officer's action was justified at its inception, ” and second, “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. Mr. Nash argues neither prong has been met in this case.

         “A traffic stop is justified at its inception if an officer has (1) probable cause to believe a traffic violation has occurred, or (2) a reasonable articulable suspicion that a particular motorist has violated any of the traffic or equipment regulations of the jurisdiction.” United States v. Winder, 557 F.3d 1129, 1134 (10th Cir. 2009) (citing United States v. Martinez, 512 F.3d 1268, 1272 (10th Cir. 2008)). See also United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (“A traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has a reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.”).

         The Tenth Circuit “ha[s] long since rejected the notion that an officer's subjective motivations in effecting a stop are relevant to the Terry analysis.” Winder, 557 F.3d at 1134 (10th Cir. 2009) (citations omitted). “Instead, we consider the reasonableness of an officer's actions using an ‘objective standard' that takes the ‘totality of the circumstances' and the ‘information available' to the officer into account.” Id. (citing United States v. Sanchez, 519 F.3d 1208, 1213 (10th Cir. 2008)). “Under this standard, an officer's ‘actual motivations or subjective beliefs and intentions' are, quite simply, irrelevant.” Id. (quoting United States v. DeGasso, 369 F.3d 1139, 1143 (10th Cir. 2004)). “We ask, instead, whether ‘the facts available' to the detaining officer, at the time, warranted an officer of ‘reasonable caution' in believing ‘the action taken was appropriate.'” Id. (citing Terry, 392 U.S. at 2122).

         “For reasonable suspicion to exist, an officer ‘need not rule out the possibility of innocent conduct;' he or she simply must possesses ‘some minimal level of objective justification' for making the stop.” Winder, 557 F.3d at 1134 (quoting United States v. Vercher, 358 F.3d 1257, 1261 (10th Cir. 2004)). “Evidence falling ‘considerably short' of a preponderance satisfies this standard.” Id. (quoting United States v. Arvizu, 534 U.S. 266, 274 (1968)). “[I]f a traffic stop was justified at its inception, we determine whether ‘the resulting detention was reasonably related in scope to the circumstances that justified the stop in the first place.'” Id. (quoting United States v. Valenzuela, 494 F.3d 886, 888 (10th Cir. 2006)). “‘Generally, an investigative detention must last no longer than is necessary to effectuate the purpose of the stop.'” Id. (quoting United States v. Cervine, 347 F.3d 865, 870-71 (10th Cir. 2003)).

         Officer Hoff testified that he stopped Mr. Nash because (1) he threw a lit cigarette butt out of the car, in violation of NMSA 30-8-4 (littering), and (2) his license plate was not clearly legible, in violation of NMSA 66-3-18 (Display of Registration Plates). [TR at 9-11]. Officer Hoff issued citations to Mr. Nash for both infractions. [Govt. Exs. 2-3].

         Mr. Nash denies he threw a cigarette out the window and asserts he is not a smoker. However, during the stop, after Officer Hoff told him he had seen him throwing a lit cigarette out the window, Mr. Nash responded, “I'm sorry . . . I did not think that was bad. . .” [Govt. Exs. 4; 4(a) at 7; TR at 23]. Moreover, after Mr. Nash's arrest, a lighter and a pack of grape flavored Swisher sweet cigars were found in his pocket. [Govt. Ex 5; TR at 112]. Therefore, the Court concludes that the facts available to Officer Hoff at the time warranted his belief that “the action taken was appropriate.” Winder, 557 F.3d at 1134.

         With respect to the license plate, Officer Hoff testified that “[a]s I got closer to the vehicle, I had to get extremely close because I having a hard time reading the license plate. There was a lot of glare on the license plate, which drowned out the letters and numbers, and I had to get extremely close . . . approximately 10 feet.” [TR at 10]. Pursuant to New Mexico law, a license plate must be maintained in a condition that makes it clearly legible. NMSA 66-3-18. But Officer Hoff acknowledged on the witness stand that in a later picture of the car's license plate taken during daylight hours [Govt. Ex. 9], he could see the letters and numbers clearly. [TR at 53]. Further, on cross-examination by Mr. Nash's attorney, he admitted that after seeing Ex. 9, he had sent the government's attorney an email stating, in part, “The plate is pretty clear. I was wrong.” [TR at 55].

         However, “[t]hat an officer's suspicions may prove unfounded does not vitiate the lawfulness of a stop, provided the officer's error was made in good faith and is objectively reasonable under the circumstances.” Winder, 557 F.3d at 1134 (citation omitted). “Police errors, in this context, are simply unavoidable, as reasonable suspicion involves ‘probabilities' rather than ‘hard certainties.'” Id. (citations omitted). The Court concludes that if, in ...

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