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United States v. Brewer

United States District Court, W.D. Kentucky, Louisville Division

January 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHEROSCO BREWER, Defendant.

          MEMORANDUM OPINION AND ORDER

          DAVID J. HALE, JUDGE UNITED STATES DISTRICT COURT.

         Defendant Cherosco Brewer is charged with being a convicted felon in possession of a firearm; possessing marijuana and cocaine with intent to distribute them; and possessing a firearm in furtherance of a drug-trafficking crime. (Docket No. 1, PageID # 1-3) The charges arise out of two traffic stops by Louisville Metro Police Department officers on November 11 and 12, 2015. (D.N. 17, PageID # 38) Brewer has moved to suppress evidence seized by LMPD during those stops (D.N. 26) and statements made by him during the November 11 stop (D.N. 33). The latter motion is unopposed. (See D.N. 43, PageID # 162) The Court held a lengthy evidentiary hearing on the initial motion to suppress (see D.N. 42; D.N. 46; D.N. 49), and the parties submitted post-hearing briefs.[1] (D.N. 56; D.N. 57) In addition to his motions to suppress, Brewer has filed a motion to sever the felon-in-possession count or bifurcate the trial (D.N. 38) and a motion to sever Counts 2 and 3 (D.N. 39). For the reasons discussed below, the Court will deny the contested motion to suppress, grant the motion to bifurcate, and deny the motion to sever Counts 2 and 3.

         I.

         On November 11, 2015, Brewer was pulled over by Detectives Holly Hogan and Tyler Holland of LMPD's Ninth Mobile Division. Hogan and Holland believed that the windows on Brewer's vehicle were excessively tinted; Hogan recalled that although the car passed under several streetlights, “[a]ll of the windows looked black, ” and no occupants were visible. (D.N. 43, PageID # 172; see id., PageID # 171, 222) When asked to roll down his window, Brewer rolled it down only a small amount. (Id., PageID # 222-23) Once the interior of the car was visible, the officers saw a towel covering the lights on the dashboard, which they construed as an attempt to further conceal the inside of the car. (Id., PageID # 175, 223, 244) Holland perceived Brewer to be “nervous about something” because “a carotid artery in [Brewer's] neck was . . . pulsating pretty fast.” (Id., PageID # 223) Hogan thought that Brewer's passenger was also nervous. (Id., PageID # 205) Other officers soon arrived on the scene, including Detective Anthony James and his canine partner, Diesel, a Belgian Malinois trained to detect illegal substances. While Hogan was checking the vehicle's registration, Diesel conducted a sniff around the outside of the vehicle and alerted at the front driver's-side door. (D.N. 43, PageID # 180-81; see Joint Ex. 1, Hogan bodycam recording at 7:40-9:16; Gov't Ex. 4, 11/11/15 James bodycam recording at 1:02) A subsequent sniff and search of the car's interior revealed marijuana packaged for sale and a handgun. (D.N. 43, PageID # 181)

         The following night, Brewer was driving a different vehicle when he was pulled over by another Ninth Mobile Division officer, Detective Chad Stewart, again for excessive window tinting. (D.N. 47, PageID # 302-05) Stewart testified that although it was a “well-lit area, ” when Brewer passed him, he “couldn't tell how many people were in the car”; he “couldn't see anything.” (Id., PageID # 303) Stewart further testified that “[e]ven with [his] headlights shining into the vehicle, [he] couldn't see inside the vehicle, which let [him] know that the window tint [was] excessively dark.” (Id.) Detective James and Diesel were nearby and quickly joined Stewart at the scene; while Stewart was running the vehicle's tags and Brewer's warrant status, Diesel alerted on the exterior of the car. (D.N. 47, PageID # 307-08, 327-28; Gov't Ex. 4, 11/12/15 James bodycam recording at 2:31; Stewart bodycam recording at 4:10-4:55) Officers searched inside the car and found cocaine packaged for sale. (Gov't Ex. 4, Stewart bodycam recording at 5:59-8:00)

         In connection with the November 11 stop, Brewer was charged with possessing a firearm as a convicted felon (Count 1), possessing marijuana with intent to distribute it (Count 2), and possessing a firearm in furtherance of a drug-trafficking crime (Count 3). (D.N. 1, PageID # 1-2) Count 4 of the Indictment arises out of the November 12 stop and alleges possession with intent to distribute cocaine. (Id., PageID # 3) Brewer seeks to suppress any evidence seized during either stop. (D.N. 26) He also asks the Court to hold three separate trials in this matter: one for the felon-in-possession charge, one for the other two counts arising out of the November 11 stop, and one for the November 12 cocaine charge. (D.N. 38; D.N. 39) Brewer's arguments in support of these motions are largely unpersuasive.

         II.

         A. Motions to Suppress

         The United States has conceded that statements made by Brewer during the November 11 stop should be suppressed. (D.N. 43, PageID # 162; see D.N. 33 (motion to suppress statements based on Miranda violation)) For purposes of Brewer's remaining motion, the pertinent questions are (1) whether there was reasonable suspicion for the November 11 and 12 stops and (2) whether the canine sniff impermissibly extended the November 11 stop. (See D.N. 26, PageID # 109; D.N. 57)

         1. Reasonable Suspicion

         Brewer contends that the LMPD officers lacked reasonable suspicion to stop him on either November 11 or November 12, 2015. The overall thrust of his argument is that excessive window tinting was not the true reason he was pulled over on those dates. (See, e.g., D.N. 57, PageID # 417) But the reason behind the stops does not matter for Fourth Amendment purposes; it is well established that “[a] police officer may effect a traffic stop of any motorist for any traffic infraction, even if the officer's true motive is to detect more extensive criminal conduct.” United States v. Garrido, 467 F.3d 971, 977 (6th Cir. 2006) (quoting United States v. Townsend, 305 F.3d 537, 541 (6th Cir. 2001)). In other words, “[t]he subjective intent of the officer making the stop is irrelevant in determining whether the stop violated the defendant's Fourth Amendment rights.” United States v. Collazo, 818 F.3d 247, 253 (6th Cir. 2016) (quoting Whren v. United States, 517 U.S. 806, 813 (1996)). Brewer does not deny that his window tinting exceeded-or at minimum, appeared to exceed-legal limits, and as discussed below, the evidence confirms that the windows were extremely dark. Thus, to the extent he attacks the officers' credibility to establish that the stop was for a reason other than excessive window tinting, his argument is not well taken. (See D.N. 57, PageID # 415-17)

         A police officer may lawfully stop a motorist based on reasonable suspicion of an ongoing crime. Collazo, 818 F.3d at 253 (citing United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2016)). Reasonable suspicion of illegal window tinting may be provided by an officer's experience and observations.[2] See United States v. Shank, 543 F.3d 309, 313 (6th Cir. 2008) (noting officers' “substantial prior experience enforcing this traffic regulation” and agreeing with district court that reasonable suspicion for stop existed “[d]ue to the officers' familiarity with window tinting and their estimate that the [defendant's] vehicle was tinted substantially darker than permitted by law”); see also United States v. Moreno, 43 F. App'x 760, 765 (6th Cir. 2002) (finding reasonable suspicion in light of “undisputed proof that the defendant's van's side windows were tinted to some optically discernible degree, which Officer Valentine had adjudged to appear violative of a controlling legal standard”).

         Detectives Hogan and Stewart testified that based on their experience, they believed Brewer's windows to be excessively tinted. (See D.N. 43, PageID # 173, 176; D.N. 47, PageID # 304-05) Specifically, both detectives testified that they recognize illegal tinting when the silhouettes of persons inside the vehicle are not visible, and that Brewer's windows were tinted to that extent. (See D.N. 43, PageID # 171-73, 195-96; D.N. 47, PageID # 302-05) The bodycam recordings confirm that each vehicle's windows were so dark that Brewer (and, on November 11, his passenger) could not be seen inside, even when headlights and streetlights were shining on the car. As the United States observes, “the videos also show the police officers approaching cautiously based on the inability to see who or what is inside the vehicle as they approach.”[3] (D.N. 56, PageID # 408) Based on the officers' testimony and the video evidence, the Court finds that on both November 11 and November 12, 2015, the decision to stop Brewer was supported by reasonable suspicion that he was in violation of Kentucky's law prohibiting excessive window tinting. See Ky. Rev. Stat. § 189.110(9).

         2. ...


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