United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F.. Van Tatenhove United States District Judge
This
matter is before the Court upon the Magistrate Judge Hanly A.
Ingram's Recommended Disposition (R&R) [R. 32] on a
Motion to Suppress [R. 16] filed by Defendant Garrett M.
Lott. In the R&R, the Magistrate Judge recommends that
the Court DENY Lott's motion and this
Court agrees. [R. 16.]
I
The
Magistrate Judge conducted an evidentiary hearing on the
issues raised in Lott's Motion to Suppress and ordered
supplemental briefing. [See R. 26.] He issued an
R&R recommending that Lott's Motion to Suppress be
denied based on these filings and the hearing. [R. 32.] In
his recommendation, the Magistrate Judge thoroughly set out
the facts, which are incorporated here by reference and also
laid out below. [See R. 16.]
On
August 10, 2017, Trooper Michael King, a 13-year Kentucky
State Police veteran, and member of the Kentucky State Police
Interdiction Team, observed Lott driving southbound on
Interstate 75. [R. 32 at 2.] Alongside him was Trooper Kyle
Reams and his K-9 unit. [Id.] When Lott saw Trooper
King, he slowed down significantly and other vehicles began
passing him to his right. [R. 27 at 9.] Trooper King stated
that, in his experience, though many vehicles will hit their
brakes when they see a Trooper, they generally continue at
the same rate of speed. [R. 27 at 10.] Lott, however, slowed
down significantly more than Trooper King generally observes
and, further, Trooper King observed that Lott actually
coasted by instead of using his gas. [R. 27 at 10.] Trooper
King also observed that Lott has “his arms locked out,
” which his behavior he had been trained to look for to
indicate nervousness in the driver. [R. 27 at 10.]
Noticing
that Lott was driving significantly slower after seeing the
Trooper, had his arms locked out, and was impeding traffic
that was passing him on the right, Trooper King pulled out
behind Lott and followed him in the left lane for
three-quarters of a mile. [R. 27 at 10.] Because he was
impeding traffic, Trooper King pulled Lott over and asked for
his identification and insurance and then went back to his
car to run his identification on the mobile data computer in
his case. [R. 27 at 14.] Trooper King told Lott that he
pulled him over for improper lane usage, but also told him he
didn't plan to give him a ticket. [R. 27 at 39.] Trooper
King noticed that Lott was “extremely nervous beyond
that of a normal traffic stop” and waved Trooper Reams
to pull over as well for safety reasons. [R. 27 at 13.] While
Trooper King was waiting for Lott's identification to
run, he returned to Lott's car and asked him to exit the
car. [R. 27 at 13.] Trooper King maintains that he asked Lott
to exit the car because he was parked “close to the
white line” and he wanted to speak more safely with
Lott. [R. 27 at 14.]
After
Lott exited the vehicle, Trooper King noticed Lott was
“shaking and . . . touching his face.” [R. 27 at
14.] According to Trooper King, he's been trained that
when someone is touching their face, that is another
indication of nervousness. [R. 27 at 15.] Based on how
nervous Lott appeared to be, Trooper King asked him if there
was anything in the vehicle he needed to be concerned about,
such as a large amount of money or drugs. [R. 27 at 16.] Lott
answered no and Trooper King asked if he could search his car
and Lott again answered no. [R. 27 at 16.] Trooper King
indicated he was going to utilize Trooper Reams and his K-9
to walk around the car and Lott then indicated he did have
some marijuana in his console. [R. 27 at 16.] The K-9 alerted
twice on both sides of the vehicle, the passenger side door
and driver's side door. [R. 27 at 16; 52.] Trooper Reams
explained that the K-9 is trained to alert at the
“strongest odor he can get to” and where the dog
alerts at the vehicle is not necessarily the location of the
drugs. [R. 27 at 53.]
Because
the K-9 alerted, Trooper King searched the vehicle. He found
the marijuana and then a scotch guard can in the trunk. [R.
27 at 17.] Trooper King shook the can and “felt that
something wasn't right with it.” [R. 27 at 17.]
Using his training and experience, Trooper King ascertained
that it was a false-bottom Scotch Guard can. [R. 27 at 17.]
Trooper King unscrewed the bottom and found multiple baggies
inside with a black substance inside. [R. 27 at 17.] Trooper
King knew it was some type of drug and Lott was handcuffed.
[R. 27 at 17.] Trooper King also found “a large amount
of pills” and “a Mason jar that held some
concrete looking material, ” which he guessed what some
type of drug. [R. 27 at 17.]
Lott
timely objected to the R&R, challenging that (1) the
traffic stop complied with the Fourth Amendment; (2) the
traffic stop was not impermissibly extended; and (3) Judge
Ingram did not adequately consider the inconsistent testimony
of Trooper King. [R. 33.] These objections will be addressed
together as the facts are interrelated. Lott argues that
“all evidence obtained through the unlawful and
impermissibly extended traffic stop should be
suppressed.” [R. 33 at 11.] In response to Lott's
objections, the Court has conducted a de novo review
of the Magistrate Judge's findings, see 28
U.S.C. § 636(b)(1), and for the reasons set forth below,
Lott's Motion to Suppress is DENIED. [R.
16.]
II
A
The
Fourth Amendment provides “the right of people to be
secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated and
no warrants shall issue but upon probable cause. . . .”
U.S. Const. Amend. IV. For Fourth Amendment purposes, a
traffic stop “constitutes a seizure of persons.”
Whren v. United States, 517 U.S. 806, 809-10 (1996)
(internal citations omitted). A law enforcement officer may
initiate a traffic stop when he “possesses either
probable cause of a civil infraction or reasonable suspicion
of criminal activity.” United States v. Lyons,
687 F.3d 754, 763 (6th Cir. 2012). In Kentucky, the failure
of vehicles to keep to the right is a civil infraction as
evidenced by its inclusion in the statutory scheme governing
motor vehicles and traffic regulations, as opposed to the
state's penal code. See KRS § 189.300. The
exclusionary rule mandates suppression of seized evidence
where an unlawful traffic stop occurs. Lyons, 687
F.3d at 763 (citing Wong Sun v. United States, 371
U.S. 471 (1963)). Where probable cause of a civil infraction
supports a traffic stop, though, “an officer's
subjective intent is irrelevant.” United States v.
Blair, 524 F.3d 740, 748 (6th Cir. 2008) (citing
Whren, 517 U.S. at 813).
The
Defendant does not actually object to the fact that he was in
the left lane impeding traffic, but instead makes various
allegations related to Trooper King's inconsistent
testimony, which he argues is indication that the stop was
pretextual. However, King's subjective intentions,
whether pretextual or not, are irrelevant, as Defendant did
in fact violate the traffic codes King alleged. King
indicated that the Defendant was violating K.R.S. §
189.340(7), § 189.390(7), and § 189.300, which
require that vehicles keep to the right except when passing,
prohibits drivers from driving in the left lane except when
passing, and requires that drivers not impede traffic by
driving at a slow speed. Regardless of what happened before
Trooper King pulled out to follow Lott, Lott admits at least
that, “the only time Trooper King observed Mr. Lott
driving in the left lane but not passing was ...