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United States v. Norwood

February 20, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LARRY W. NORWOOD, DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on reconsideration of the Text Order entered September 26, 2006, adopting United States Magistrate Judge Byron G. Cudmore's Report and Recommendation (d/e 14) to deny Norwood's Motion to Suppress Evidence (d/e 10)(Motion). The Court allowed Defendant Norwood's request to reconsider adoption of the Report and Recommendation. Minute Entry of proceedings held on December 28, 2006. The Court further directed the Defendant to file any materials to support his objections to the Report and Recommendation. Minute Entry of proceedings held on December 28, 2006. Norwood submitted additional materials for the Court's consideration. The Court now reviews the Report and Recommendation de novo. 28 U.S.C. § 636(b)(1)(C). Upon de novo review of the proceedings before Judge Cudmore and the additional material submitted by Defendant Norwood, the Court overrules Norwood's objections and adopts Judge Cudmore's Report and Recommendation. The Motion to Suppress Evidence is denied.

STATEMENT OF FACTS

On April 24, 2006, Illinois State Police Trooper Nathan Miller was stationed at mile marker 101. His vehicle was equipped with a video camera which was used to record his encounters with the public. The date and time of the events recorded were displayed in the lower left corner of the video. Miller also wore a wireless microphone to record his conversations. Miller could turn the microphone off when he did not want the audio recorded. Also, the microphone signal faded as Miller moved away from his vehicle. The times for events referenced in this Opinion are the times reflected on the video recording.

At about 4:48 p.m, on April 24, 2006, Miller observed Norwood driving a commercial tractor-trailer truck northbound on Interstate 55 near mile marker 101 in Sangamon County, Illinois. Miller saw no markings on the cab of the tractor, such as the name of the trucking company and the other markings required by law and regulation. Norwood submitted photographs of the truck. The photographs show no markings on the door or hood of the tractor cab. The photographs, however, show markings on the sleeper compartment behind the cab. Transcript of Proceedings on August 21, 2006 (d/e 48) (Transcript), at 6-7; Documents in Support of Defendant's Motion to Suppress (d/e 34), Exhibit B, attached photographs.

Miller also observed that Norwood was following too closely to the vehicle in front of him. Transcript, at 7. Norwood testified before Judge Cudmore that he was not following too closely. Id., at 67. In his subsequent submissions to the Court, Norwood stated that Miller's marked Illinois State Police car was parked in the median about one-quarter to one-half mile away from another marked Illinois State Police car, also parked in the median. Norwood stated that the traffic slowed as the drivers saw the two marked cars parked so closely together in the median, and so, started following each other more closely. Letter from Larry Norwood filed January 25, 2007 (d/e 31), at 2.

After Norwood passed him, Miller pulled into the left lane and drove next to the cab of Norwood's truck and again saw no markings. He then initiated a traffic stop of Norwood. After Miller signaled Norwood to stop, Norwood continued driving for about two more miles. Norwood then stopped on the side of the road at 4:51 p.m. Miller parked behind Norwood's truck. The video recording shows the back of the truck. Miller then walked toward the front of the truck. At 4:55 p.m. Miller and Norwood came back to Miller's vehicle. The two of them sat in Miller's vehicle while Miller conducted an inspection of Norwood's paperwork. Miller noted that Norwood seemed lethargic. Norwood said he appeared that way because he was diabetic and needed to eat something. Norwood states that he told Miller that he was diabetic and needed to eat something and take his medication. Transcript, at 68. Miller does not recall this, and the recording does not reflect this, although the recording did not pick up any conversations held at the front of Norwood's truck. Miller ultimately issued Norwood a warning ticket for following too closely, not having correct markings on his tractor, and other record keeping violations. See Letter from Larry Norwood filed January 31, 2007 (d/e 37), Warning Citation.

After stopping Norwood, Miller called in for a criminal background check on Norwood. While waiting for the background information, Miller also asked Norwood why the truck did not have the required identification.

Norwood explained that the truck had just gotten out of the body shop. Miller also asked Norwood if the trailer was a "refer", which means a refrigerated trailer designed to hold perishable items such as meat and produce. Norwood said yes.

The results of the background check came back at 5:00 p.m. The check revealed that Norwood had served time for conspiracy to distribute more than 100 kilograms of marijuana. At 5:01 p.m., Miller asked for permission to search the truck. Norwood consented. Miller and Norwood were still seated in Miller's vehicle at this time. Miller and Norwood then continued to have a conversation while Miller reviewed Norwood's paperwork and waited for backup. At 5:12 p.m., Miller thanked Norwood for giving consent for the search.

Miller waited for backup to arrive before conducting the search. While the two men were waiting in Miller's vehicle, Norwood told Miller at 5:16 p.m. that he did not have any bedding in the truck. There was a sleeper compartment attached to the cab of the tractor truck. Miller thanked him for that information and told Norwood that he would have noticed the absence of bedding when he searched. At 5:24 p.m., Miller asked Norwood if Norwood thought he would get stopped for driving without the required identification on the truck. Norwood stated that he thought he might get stopped.

At 5:27 p.m., while the men were still waiting for backup, Norwood and Miller walked to the cab to allow Norwood to get a cigarette. The conversation at the cab cannot be heard on the recording because the men were too far away from Miller's vehicle. According to Miller's testimony, Norwood asked Miller if he wanted to search there while the two men were in the cab getting the cigarettes. Miller said no, he would wait for the backup. Transcript, at 21.

Illinois State Police Sergeant Terry Carter arrived at the scene at approximately 5:30 p.m. At 5:32 p.m., Miller began searching Norwood's trailer. Carter stood with Norwood between the two vehicles during the search. At 5:36 p.m., Trooper Steven Cody arrived and assisted Miller with the search of the trailer. They found no contraband in the trailer. They then searched the cab and sleeper compartment (collectively "cab"). They found three duffle bags of marijuana in the sleeper compartment. During this search of the cab, Norwood sat on the front of the hood of Miller's vehicle while Carter stood nearby. They had a brief conversation, but the camera did not record their comments. Norwood testified that he told Carter that Miller and Cody did not have consent to search the cab. Transcript, at 71. Carter denies that Norwood ever made any such statement. Id., at 57, 88-89. Carter and Miller both testified that Norwood never withdrew or limited the scope of his consent. Id., at 24-26, 57.

During the search of the cab, Miller and Cody found three duffle bags full of marijuana. At 5:44 p.m., Miller arrested Norwood. Miller advised Norwood of his rights under Miranda and then asked why he consented to the search. Norwood responded that ...


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