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United States v. Davis

United States District Court, S.D. Illinois

October 28, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT J. DAVIS, Defendant.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE.

         This matter comes before the Court on defendant Robert J. Davis's motion to suppress evidence obtained pursuant to an allegedly unlawful stop, search and seizure on December 18, 2018, along with all the “fruits of the poisonous tree” (Doc. 25). The Government has responded to the motion (Doc. 31), and Davis has replied to that response (Doc. 37). The Government has also submitted supplemental authority- United States v. Lewis, 920 F.3d 483, 489 (7th Cir. 2019), a case newly decided by the Court of Appeals for the Seventh Circuit (Doc. 42). The Court held an evidentiary hearing on the matter on August 13, August 26, and September 4, 2019. At the hearing, the Government called as witnesses Marion Police Detective Jessie Thompson and Marion Police Sergeant Justin Dwyer in its case-in-chief and Marion Police Patrolman Kevin Ogden in its rebuttal. Davis called as witnesses Federal Public Defender's Office Investigator Brenda Tripp, Davis's friends Nagib Karim, Travis Marshall, and Jashayla Lacy. The parties then filed post-hearing briefs (Docs. 67 & 68).

         Davis challenges a traffic stop that occurred on December 18, 2018, and a subsequent search of his person which yielded a wallet containing a substantial sum of money ($6, 535) and a plastic bag of substances alleged to be 48 grams of crack cocaine and 1.8 grams of methamphetamine. Davis claims the traffic stop violated his Fourth Amendment rights because law enforcement officers did not have reasonable suspicion to stop him and because they kept him longer than necessary to write a ticket for the alleged traffic violations. He claims that the subsequent frisk was unjustified because the stop itself was unlawful and that the physical evidence seized in the search and Davis's statements to law enforcement after the search are fruit of the poisonous tree. The Government disagrees.

         Davis is charged in this case with one count of possession with intent to distribute 28 grams or more of a mixture and substance containing crack cocaine. The Government expect to use in support of its case the evidence seized in the December 18, 2018, search and the subsequent statements Davis made.

         I. Facts

         A. Witness Credibility

         The Court finds most witnesses were credible as to facts about which they had personal knowledge. This assessment is based on their demeanor while testifying, the foundations they had for testifying to certain facts and the consistency of each witness's material testimony with other evidence in the case.

         One exception was Nagib Kareem's testimony about the traffic stop. The Court believes, based on his demeanor while testifying, the excitement and confusion at the time of the stop, and his admission that at times he was focused on the events in which he himself was involved, his memory of the traffic stop was not completely accurate.

         The Court further finds that minor inconsistencies in Thompson's and Dwyer's testimony about when each of them first noticed alleged traffic violations were not material and did not detract from their overall credibility as their stories were substantially consistent. As explained below, they were justified in initiating the traffic stop because of the condition of the vehicle Davis was driving regardless of the exact point in time each of them noticed the condition before the actual stop. Nor did Dwyer's Facebook response to a tongue-in-cheek suggestion from a family member that the family member might plant drugs on Dwyer seriously call into question the credibility of his testimony.

         Finally, the Court is satisfied that the chain of custody evidence, confirmed by testimony of the condition of the Pontiac then and now, is sufficient to show that the car examined by the attorneys, their agents, and the Court was in substantially the same condition in all material respects as it was on the date of the traffic stop.

         B. Evidence

         The credible evidence at the hearing established the following facts.

         Sometime around 3:30 p.m. on December 18, 2018, Nagib Karim got off work and decided to stop in at a bar/restaurant (Just One More Bar and Grill) in Marion, Illinois. A coworker dropped him off, and around 4:00 p.m. he called Davis, his friend, to pick him up. Davis failed to see Karim the first time he came by, so Karim moved outside on the sidewalk where Davis could see him better when he came back again.

         In the meantime, Detective Thompson and Sergeant Dwyer were in the same parking lot sitting in an unmarked police car looking out for drug activity. They were parked about 200-250 feet from where Karim was standing while he waited for Davis. At about 4:15 p.m., they saw Karim looking left and right-likely looking for Davis to arrive-but mistakenly thought he might be involved in vehicle burglaries or drug activities. The decided to watch Karim to see what happened.

         About fifteen minutes later, Davis arrived driving a black Pontiac Grand Prix, Karim got into the front seat of the car, and they headed off with plans to play video games with Travis Marshall. The car had originally been silver, but had been painted black several months earlier. Neither Thompson nor Dwyer saw who was driving the car, but they did notice that the windows were tinted and the brake lights obscured. Thompson then ran the license plate and learned that it belonged to a Pontiac registered to Marshall, whose license was suspended. He knew Marshall had a history of dealing drugs. He also learned that Marshall's car had been driven by another person in the recent past.

         As Davis was leaving the parking lot, he took a route that brought him within 200 feet of Thompson and Dwyer, and then directly away from them. As Davis passed by the police car, Thompson and Dwyer got a better look at the tinted windows and, based on their experience, believed that the windows were illegally tinted. Thompson estimated that the back windows were tinted at 5% visual light transmission (“VLT”) (that is, the windows allowed only 5% of light to pass through) and the front side windows were tinted at 20% VLT (that is, they allowed 20% of light to pass through). Indeed, based on the Court's observation of the Pontiac, [1] it was apparent that the back and all of the side windows were substantially tinted and that the back windows were substantially darker than the front side windows. Thompson thought that the tinted windows violated Illinois law, 625 ILCS 5/12-503, which did not allow any tint on the front side windows if the rear side windows were tinted below 30% VLT.[2] That is, if the back windows were tinted darker than a certain level, the front windows could not be tinted at all. In Thompson's judgment the back windows were beyond the triggering level, so the front window tint was not allowed. Other officers who had stopped Davis driving the Pontiac before had not mentioned to him any problem with the window tinting.

         As Davis was driving away from the police car, Thompson and Dwyer also confirmed that the car's tail lights were obstructed, that is, they were tinted black where the regular red tail lights should have been visible. In fact, at a distance they estimated to be 200 feet from the Pontiac, they could not see the tail lights illuminated as the car slowed down. In Thompson's judgment, the obstructed brake lights violated Illinois law, 625 ILCS 5/12-208, which required that brake lights of moving vehicles be visible from 500 feet.[3] Thompson and Dwyer decided to follow the Pontiac, remaining behind it the entire time, but did not stop it for the suspected traffic violations. At least twice-once when Davis approached a red light on Boulevard Street and applied the brakes, and once when he pulled into Melanie Lane and applied the brakes-Dwyer could not see the brake lights illuminated from his unobstructed view from within 500 feet. Other officers who had stopped Davis driving the Pontiac before had not mentioned to him any problem with the obstructed brake lights. Despite these suspected traffic violations, Thompson and Dwyer did not find it necessary to call for a marked police car to conduct a traffic stop after Davis left Just One More Bar and Grill.

         The Pontiac traveled for a mile to a mile and a half before arriving in front of apartment J at 2108 Melanie Lane in Marion. Thompson pulled the police car at an angle behind the Pontiac so it could not leave, and he and Dwyer got out of the car. Davis and Karim emerged from the Pontiac and, at that point, Thompson and Dwyer first realized the driver was not Marshall driving on a suspended license. Dwyer recognized Davis, whom he knew to have been involved in drug activity in the past. Thompson approached the driver's side of the Pontiac and asked Davis and Karim to remain inside the car. He identified himself, told Davis he wanted to talk to him about the tinted window and obstructed tail light code violations. The officers asked Davis for his driver's license and proof of insurance for the Pontiac and asked Karim for identification. Dwyer took the document and walked behind the car to run the identification information through the law enforcement database and to verify the registration and proof of insurance.

         In the meantime, Thompson continued to talk to Davis on the driver's side of the car. He asked for consent to search the car, but Davis refused. Davis was also concealing his hand, which caused Thompson to be concerned Davis might have a weapon, so he told him to keep his hands in sight. Thompson then called back to Dwyer to call for “13, ” which is the number assigned to the officer in charge of the K-9 unit. When Thompson told Davis what “13” meant, Davis became nervous and fidgety and revved the car engine.

         Dwyer found no warrants outstanding for Davis or Karim, but he had some trouble verifying the insurance information because the card Davis produced was for a blue Buick, not the Pontiac Davis was driving. Additionally, the VIN number for the Pontiac was for a silver, not a black, car, so Dwyer had several exchanges with the dispatcher to verify the VIN number associated with the registration. He formed the impression that if Davis was not able to produce a valid insurance card for the Pontiac, he would be in violation of Illinois law, 625 ILCS 5/7-601, [4] which requires a driver to have insurance for the vehicle he is driving, and in violation of 625 ILCS 5/7-602, [5] which requires a driver to produce to law enforcement on request proof of that insurance. Dwyer also learned that there was no K-9 unit available. After hearing the revving engine and Thompson yelling at Davis, Dwyer asked the dispatcher to send backup because he thought Davis might be preparing to flee.

         Dwyer let Davis know the insurance card was not for the Pontiac he was driving, but Davis insisted he had just paid for insurance for the Pontiac the day before. Davis then said he was cold and reached into the back seat with his left hand to get his jacket and moved his right hand out of Thompson's sight. Thompson told Davis to keep his hands in sight and offered to get the jacket for him. With Davis's permission, Thompson got the jacket for him. Davis took the jacket and covered his right hand with it. Thompson then drew his gun and ordered Davis to remove his hand slowly from under the jacket, but Davis refused. At that point, Dwyer got Karim out of the car and handcuffed him because it appeared to Dwyer that the situation was getting out of control. Thompson pulled the jacket from Davis's hand and saw his hand was inside the right side of his waistband. Davis continued to refuse to show his right hand.

         This occurred about five or six minutes after Thompson first approached the Pontiac and before Dwyer was able to clear up the discrepancies between the black Pontiac, the insurance card, and the VIN number. Because the stop was evolving into an urgent confrontation, neither officer was able to begin writing a ticket for any of the traffic violations. In the midst of this activity, neither Thompson nor Dwyer were able to respond a few minutes later to requests by the police dispatcher for a status check, so the dispatcher sent more units to the scene.

         Officer Ogden was the first other officer to arrive-about eight to nine minutes after Davis and the officers arrived at 2108 Melanie Lane. After checking with Dwyer, he went to assist Thompson with Davis. Once Ogden was there, Thompson pulled Davis's hand from his waistband and removed him from the Pontiac despite Davis's physical resistance. With Ogden's assistance, Thompson took Davis to the ground and handcuffed him. Thompson felt the area of Davis's waistband where he had been hiding his hand and encountered a hard object which he thought might be a weapon. It turned out to be crack cocaine, methamphetamine, and a wallet containing $6, 535. The entire incident at 2108 Melanie Lane took a little more than eight minutes.

         Davis was ticketed for two drug offenses, aggravated battery of a peace officer, and resisting a peace officer but was never ticketed for having tinted windows or obstructed tail lights, or for failing to have proof of insurance. He was arrested and taken to the Marion Police Department where he made incriminating statements. After Davis was secured, a photograph was taken of the Pontiac in the 2108 Melanie Lane parking lot showing ...


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