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United States v. Sleet

United States District Court, E.D. Kentucky, Central Division, Lexington

March 25, 2019

JAMEEL SLEET, Defendant.


          Matthew A. Stinnett United States Magistrate Judge

         This case is before the Court on Defendant's Motion to Suppress. [DE 24]. The district judge referred this matter to the undersigned for a Report and Recommendation. The United States responded to the Motion [DE 27], Defendant replied [DE 29], and the Court held a hearing at which the parties presented witnesses and arguments to the Court. [DE 33]. For the reasons stated herein, the Court recommends the District Court deny Defendant's Motion to Suppress.


         On November 14, 2018, Detective Jody Kizis (“Kizis”) with the Lexington Police Department gang unit was conducting surveillance of Tavis Chenault (“Chenault”). Kizis observed Chenault and three other individuals exit a vehicle, enter a residence, and then return to the vehicle with Chenault behind driving the vehicle. Kizis alerted patrolling officers Brandon Hazlewood (“Hazlewood”) and Detective Luke Valdez (“Valdez”) that the vehicle Chenault was driving was heading towards North Broadway. Earlier that day, Kizis had briefed Hazlewood and Valdez on his investigation of Chenault: Chenault was a validated member of the Kill or Be Killed gang; he stated on social media that he carried firearms; Chenault associated with gang members; Chenault was suspected of drug trafficking; other individuals in the vehicle could be gang members or associates and could be armed and dangerous; during Chenault's last interaction with law enforcement, he was with another known gang member and in possession of a stolen firearm and body armor. [DE 33, Recording at 9:13-12:25].

         Based upon the information from Kizis, Hazlewood trailed the vehicle and observed the license plate lamp was not illuminated.[1] Hazlewood stopped the vehicle and Valdez arrived on the scene almost immediately. Hazlewood approached the passenger side of the vehicle while Valdez approached the driver's side of the vehicle. Both officers testified that they observed the plain smell of marijuana upon talking with the occupants of the car through the open windows.[2]Consequently, the officers to order the occupants out of the vehicle so they could search the vehicle. In addition to Chenault and Sleet, Angela Renfro (Chenault's mother) and Devin Lovette (an individual known to Valdez to be a gang member) exited the vehicle. When Sleet exited the vehicle, Valdez conducted a patdown. Valdez felt something in Sleet's pocket, which he testified he immediately recognized as a plastic bag likely containing narcotics. Valdez ordered Sleet to remove the bag from his pocket and confirmed that it appeared to be a bag of narcotics. He placed Sleet under arrest. At police headquarters, more illegal drugs were found on Sleet's person.

         Sleet argues that the stop and frisk violated his Fourth Amendment rights on an number of grounds: (1) there was no valid reason for the traffic stop; (2) Valdez did not have reasonable suspicion that he was armed and dangerous to justify a patdown; (3) Valdez exceeded the scope of a Terry patdown; and (4) Sleet did not voluntarily remove the narcotics from his person.

         II. ANALYSIS

         A. Validity of the Terry Stop

          “The Fourth Amendment prohibits ‘unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968)). In determining whether a stop exceeded the proper bounds of Terry, “the totality of the circumstances-the whole picture-must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981).

         The constitutional reasonableness of a traffic stop, however, does not depend “on the actual motivations of the individual officers involved. [. . .] Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813 (1996). Hazlewood had probable cause to stop Chenault for the plate lamp violation, regardless of his actual intention to investigate the vehicle for drugs and narcotics. Sleet argued that it was at least questionable whether the plate lamp was illuminated based on the car owner's insistence at the scene that it was illuminated. Hazlewood, however, provided sworn testimony that it was not illuminated. Albeit hard to see, Hazlewood's testimony appears supported by the body cam footage. [DE 33, Recording at 00:34:33-50; DE 30, USA-207 at 00:37-8; USA-217 at 00:27-36]. Moreover, Hazlewood also had knowledge from Kizis that Chenault did not have a valid driver's license. This information would have also provided a valid reason for the traffic stop, even though he did not mention it when he stopped the vehicle for fear of tipping Chenault off to the on-going investigation of him. [DE 33, Recording at 56:10-33].

         Hazlewood approached the passenger side of the vehicle to discuss the plate lamp violation and observed the plain smell of marijuana. Approximately at the same time, Valdez approached the driver's side of the vehicle and observed the plain smell of marijuana. Once the officers observed the odor of marijuana, they had probable cause to extend the traffic stop to search the vehicle for drugs. It is well-settled law that “an officer's detection of the smell of marijuana in an automobile can by itself establish probable cause for a search.” United States v. Elkins, 300 F.3d 638, 659 (6th Cir. 2002). See also United States v. Johnson, 707 F.3d 655, 658 (6th Cir. 2013); United States v. Lueck, 678 F.2d 895, 903 (11th Cir. 1982) (“At the point marijuana was smelled by Officer Helgeson, probable cause to believe a crime had been committed, namely the importation and possession of contraband, arose.”).

         For these reasons, the Court recommends the District Court find that the stop, though pretextual, was a valid Terry stop, and the continuation of the stop was supported by probable cause upon two officers' detection of the plain smell of marijuana.

         B. Reasonable Suspicion and the Scope of the Frisk

Once the officers had probable cause to search the vehicle, it was necessary to ask the occupants to exit the vehicle to conduct the search. The Court finds that Valdez had reasonable suspicion that Sleet was armed ...

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