United States v. Byrd
United States v. Byrd
Opinion of the Court
Defendant Terrence Byrd ("Byrd") moves the court to suppress all evidence obtained subsequent to a traffic stop conducted on September 17, 2014. (Doc. 28). The court will deny Byrd's motion.
I. Findings of Fact
Trooper David Long ("Trooper Long") is a Pennsylvania State Police trooper assigned to the Bureau of Criminal Investigation, Shield Unit. (6/30/15 Tr. 7:17-8:5). On the evening of September 17, 2014, Trooper Long was stationed in his unmarked patrol car on the median of Interstate 81 when he witnessed a gray rental vehicle traveling southbound.
There were multiple vehicles in the left lane both in front of the rental vehicle and between the rental vehicle and Trooper Long's unmarked patrol car. (See id. at 12:4-8, 37:13-38:3, 38:24-39:3). Over the course of about two miles, these vehicles moved from the left lane to the right lane until the rental vehicle became the "lead vehicle" in the left lane. (Id. at 12:9-13:2). The driver of the rental vehicle made no attempt to merge back into the right lane after overtaking the last vehicle therein. (Id. at 13:3-11; Def. Ex. 7 at 2). Trooper Long testified that the driver's failure to reenter the right lane absent any traffic pattern preventing such a maneuver-e.g. , an entrance ramp funneling new traffic into the right lane-constituted a "left lane violation." (6/30/15 Tr. 13:12-14:19, 56:10-12). Trooper Long initiated a traffic stop intending to issue a warning to the driver of the rental vehicle. (Id. at 14:20-15:1).
As he approached the rental vehicle, Trooper Long observed "extreme nervousness" from the driver (eventually identified *409as Byrd) including shaking hands and visible sweating. (Id. at 15:2-6, 15:20-23; Def. Ex. 7 at 2). Byrd disputed the basis for the stop but then provided, at Trooper Long's request, the rental agreement and an interim New York driver's license without a photograph.
Byrd produced the rental agreement and informed Trooper Long that "he was not the renter and a friend rented the vehicle." (6/30/15 Tr. 16:6-12). The rental agreement identified Latasha Reed as the person who rented the vehicle and the sole authorized driver. (Gov't Ex. 1 at 1; see also 6/30/15 Tr. 109:24-110:2; 7/8/15 Tr. 7:20-9:1). Latasha Reed is the mother of several of Byrd's children. (6/30/15 Tr. 110:2-7). Byrd is not listed on the rental agreement, nor did he sign it. (Id. at 113:6-115:7; 7/8/15 Tr. 9:2-10, 9:25-10:7).
At Trooper Long's suggestion, Byrd and Trooper Long moved their vehicles to a safer location along the highway. (6/30/15 Tr. 17:23-18:14; Def. Ex. 11 at 18:18:05-18:20:10). Trooper Long ran Byrd's name, date of birth, and license number, and the system returned the name "James Carter." (6/30/15 Tr. 18:15-19:7). Pennsylvania State Police Trooper Travis Martin ("Trooper Martin") arrived at the scene in his marked patrol vehicle. (Id. at 9:6-10, 19:11-12, 19:24-20:2). The troopers continued running Byrd's information through various law enforcement databases and discovered "James Carter" had an outstanding New Jersey warrant for a probation violation. (Id. at 20:5-17, 21:7-9, 58:16-21; Def. Ex. 11 at 18:20:25-18:20:35, 18:22:05-18:22:30). The warrant, however, was "limited extradition," and the traffic stop had occurred outside the extradition area. (6/30/15 Tr. 20:17-19). The troopers also learned that Byrd's criminal history included "convictions or charges for weapons violations, assault on police, drug charges, assault charges, [and] domestic charges." (Id. at 21:14-21; see Def. Ex. 11 at 18:21:40-18:22:02).
As the troopers were reviewing the warrant and criminal history information, Byrd signaled for Trooper Martin to return to the car. (6/30/15 Tr. 60:1-6, 100:18-25; Def. Ex. 11 at 18:23:23-18:23:35). According to Trooper Martin, Byrd was "obsessed" with providing the troopers with his proper driver's license information despite already turning over the interim license. (Def. Ex. 11 at 18:28:30-18:28:38, 18:33:00-18:33:10). Byrd gave Trooper Martin his driver's license number, (6/30/15 Tr. 101:3-17), and shared more about his move to Pittsburgh, (Def. Ex. 11 at 18:28:30-18:28:53, 18:29:03-18:29:18; 6/30/15 Tr. 102:4-10). Trooper Martin stated that Byrd was shaking, smoking a cigarette, and would not make eye contact. (Def. Ex. 11 at 18:28:53-18:29:30; 6/30/15 Tr. 101:18-102:3). Trooper Long testified that the confusion over Byrd's identity prolonged the traffic stop. (6/30/15 Tr.
*41022:3-13). The troopers struggled to determine whether the driver was Byrd or "James Carter." (Def. Ex. 11 at 18:29:30-18:29:50, 18:30:50-18:49:15; 6/30/15 Tr. 102:24-103:4). In the patrol car, the troopers discussed Byrd's abnormal behavior regarding his driver's license and the center console, his physical signs of extreme nervousness, and the possibility that Byrd possessed marijuana in the center console. (Def. Ex. 11 at 18:32:00-18:32:35, 18:38:18-18:38:32, 18:41:30-18:42:00).
After confirming that Byrd and "James Carter" were the same person, the troopers approached the rental vehicle and asked Byrd to exit. (6/30/15 Tr. 22:7-11; Def. Ex. 11 at 18:50:02-18:50:20). Trooper Long provided Byrd with a written warning for the left lane violation, apologized for the length of the stop, and explained to Byrd that he had an outstanding warrant in New Jersey. (See 6/30/15 Tr. 22:11-25, 103:19-104:1; Def. Ex. 11 at 18:51:00-18:51:57). Trooper Long also informed Byrd that he was not authorized to drive the rental vehicle under the rental agreement. (Def. Ex. 11 at 18:52:50-18:53:02). Because he suspected criminal activity, Trooper Long asked Byrd if there was anything illegal in the vehicle, including marijuana, and for consent to search same. (6/30/15 Tr. 23:6-12; Def. Ex. 11 at 18:53:02-18:53:42). Trooper Martin specifically asked about the contents of the vehicle's center console. (Def. Ex. 11 at 18:53:00-18:53:15). Byrd responded: "I think I got a blunt ...,"
When asked if Byrd ever consented to a search of the vehicle, Trooper Long replied: "I believe he said, yes, but then he wanted to get - he said yes, I'll get [the blunt] for you. We told him we'd get it." (6/30/15 Tr. 93:3-8; see also id. at 23:14-15, 24:7-9; Def. Ex. 11 at 18:54:45-18:54:54). Trooper Long initially testified that Byrd asked the troopers several times if they wanted to search the vehicle and eventually said "yeah, you can search the vehicle," (6/30/15 Tr. 24:1-6), but later clarified that Byrd never consented after offering to retrieve the blunt, (id. at 96:9-17). On the patrol car surveillance video, Byrd stated, "don't search my car" and "I don't want you to search it." (Def. Ex. 11 at 18:54:12-18:54:23, 18:54:40-18:54:46). According to Trooper Long, Byrd expressed "nervous laughter" during this exchange, was unable to stand still, and was "dancing ... [or] pacing back and forth." (6/30/15 Tr. 23:1-5; see Def. Ex. 11 at 18:54:40-18:54:45). Trooper Long responded to Byrd: "[Y]ou gave us permission and actually I have probable cause because you told us what's in there but, however we don't need it cause you're not on [the rental agreement], you have no expectation of privacy, alright?" (Def. Ex. 11 at 18:55:10-18:55:30).
Trooper Martin stood with Byrd outside the vehicle as Trooper Long began searching the driver's side of the passenger compartment. (6/30/15 Tr. 24:10-13). Byrd admitted to Trooper Martin that he used cocaine earlier that day and continued nervously walking back and forth on the side of the road. (Id. at 24:13-18, 105:1-13; Def. Ex. 11 at 18:55:55-18:56:30). During the search, an off-duty trooper arrived at the scene. (6/30/15 Tr. 24:22-25; Def. Ex. 11 at 18:59:11-18:59:20). Trooper Martin began searching the trunk of the rental vehicle before Trooper Long finished searching *411the passenger compartment. (See Def. Ex. 11 at 18:55:40-18:59:20). In the trunk, Trooper Martin discovered "Outlaws motorcycle gang colors" and a bulletproof vest. (6/30/15 Tr. 25:4:13, 105:24-106:5; Def. Ex. 11 at 18:58:35-18:59:55). Trooper Martin explained to Byrd that he was not under arrest but that he would be detained in handcuffs for the duration of the stop. (6/30/15 Tr. 25:13-18, 106:6-12). Byrd then took off running and all three troopers pursued him. (Id. at 25:18-24, 106:13-20; Def. Ex. 11 at 18:59:55-19:00:00). After being subdued by the troopers, Byrd admitted that there was heroin in the rental vehicle. (Id. at 26:10-12). The troopers found heroin in a black garbage bag in the trunk of the rental vehicle, (id. at 26:17-21; Def. Ex. 11 at 19:03:40-19:04:00, 19:09:45-19:10:10), but never recovered a blunt or cocaine, (6/30/15 Tr. 83:19-21, 108:5-6; Def. Ex. 501 at 1-2).
II. Procedural History
A federal grand jury returned a two-count indictment against Byrd charging him with manufacturing, distributing, and possessing with intent to distribute heroin in violation of
In denying Byrd's motion to suppress, Judge Caldwell determined that Byrd lacked standing to challenge the search of the rental vehicle despite being the sole occupant because he had no expectation of privacy in the rental vehicle as he was not listed on the rental agreement; that Trooper Long initiated a lawful traffic stop of the vehicle; and that Trooper Long developed reasonable articulable suspicion of criminal activity to justify expanding the scope of the inquiry beyond the initial reason for the stop. See United States v. Byrd, No. 1:14-CR-321,
The Supreme Court granted certiorari and reversed. The Court held that a person "in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver." Byrd v. United States, 584 U.S. ----,
III. Discussion
The Fourth Amendment to the United States Constitution protects individuals *412from unreasonable searches and seizures. See U.S. CONST. amend. IV ; Horton v. California,
A. Consent
Law enforcement may conduct a search in the absence of a warrant or probable cause if the questioned individual consents to the search. Stabile,
It is clear from the record that Byrd did not freely and voluntarily consent to the search of the rental car. After Byrd exited the vehicle, Trooper Long repeatedly asked him for consent to search it. (6/30/15 Tr. 23:6-12, 24:1-6; Def. Ex. 11 at 18:53:02-18:53:42). Byrd offered to retrieve a blunt from the vehicle for the troopers, (6/30/15 Tr. 93:3-8), but at no point granted them consent to search. Per contra , Byrd unequivocally responded, "don't search my car" and "I don't want you to search it." (Def. Ex. 11 at 18:54:12-18:54:23, 18:54:40-18:54:46). Trooper Long admitted that Byrd never consented to the search after offering to retrieve the blunt from the vehicle. (6/30/15 Tr. 96:9-17).
The government contends that Byrd eventually consented to a search of the rental vehicle. (Doc. 108 at 11). Even if Byrd eventually consented, such consent is invalidated by the troopers' claim of lawful authority to search without Byrd's consent. Trooper Long informed Byrd that he was not authorized to drive the vehicle according to the rental agreement, (Def. Ex. 11 at 18:52:50-18:53:02), and explained that the troopers could therefore search the vehicle without consent or probable cause because Byrd lacked an expectation of privacy *413therein, (id. at 18:55:10-18:55:30). At no point on the surveillance video of the traffic stop can Byrd be heard giving clear consent to search. And regardless of whether Byrd ultimately relented and permitted the troopers to search, such permission is tainted by the troopers' claim that, under the circumstances, they could lawfully search the vehicle without Byrd's consent. The troopers failed to obtain Byrd's free and voluntary consent to search. Accordingly, the warrantless search of the rental vehicle cannot be justified on grounds of consent.
B. Probable Cause
Under the "automobile exception" to the warrant requirement, law enforcement may conduct a warrantless search of a vehicle if there is "probable cause to believe that the vehicle contains evidence of a crime."
When an officer obtains probable cause to search a lawfully stopped vehicle, the probable cause "justifies the search of every part of the vehicle and its contents that may conceal the object of the search." United States v. Ross,
*414Donahue,
The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.
Id. at 824,
Judge Caldwell previously determined that the troopers had reasonable articulable suspicion that Byrd was engaging in criminal activity which justified extending the traffic stop. See Byrd,
*415Byrd contends that the troopers only had probable cause to believe that he possessed drugs for personal use in the vehicle's passenger compartment and, therefore, the permissible scope of the search was necessarily limited to that portion of the vehicle. (Doc. 110 at 23-25). The Third Circuit has not yet addressed this theory. Byrd,
The Sixth Circuit's decision on the issue in United States v. Burnett,
Our rejection of Byrd's personal use argument also comports with the Third Circuit's broad interpretation of Ross in United States v. Rickus,
Relying on certain of the cases collected in the Third Circuit's opinion, Byrd asseverates that his admission to having a blunt in the vehicle could not provide probable cause to search the trunk unless officers discovered corroborative physical evidence of drug use in the passenger compartment. (Doc. 110 at 25-27). We disagree. The genesis of the automobile search in these cases was the smell of raw and burnt marijuana. Expressing concern with the *416inherent infirmities of the human sense of smell, the Tenth Circuit has required that an officer who detects an odor of marijuana emanating from a vehicle's passenger compartment must first find corroborating evidence of drug use or dealing to establish probable cause to search the remainder of the vehicle, including the trunk. United States v. Parker,
The remaining cases identified by the Third Circuit are in accord with our understanding of Ross. For example, in United States v. McSween,
Byrd's statements indicating that the blunt was likely in the passenger compartment in no way limited the permissible scope of the troopers' search of the vehicle. The troopers were not required to have an "independent reason" to believe that the blunt for which they were searching was located elsewhere in the vehicle, including in the trunk. See Rickus,
C. Good Faith Exception
Assuming arguendo that Troopers Long and Martin lacked probable cause to search the trunk of Byrd's rental vehicle, their conduct falls squarely within the good faith exception to the exclusionary rule. Evidence directly derived from an unlawful search or seizure is fruit *417of the illegality and demands exclusion. Wong Sun v. United States,
Byrd was not a signatory to the rental agreement for the vehicle. Under then-existing Third Circuit precedent, "the driver of a rental car who ha[d] been [l]ent the car by the renter, but who [was] not listed on the rental agreement as an authorized driver, lack[ed] a legitimate expectation of privacy in the car" absent extraordinary circumstances suggesting otherwise. United States v. Kennedy,
IV. Conclusion
The court will deny Byrd's motion (Doc. 28) to suppress evidence. An appropriate order shall issue.
The above factual narrative derives from testimonial evidence adduced during two suppression hearings in this matter, together with exhibits submitted by the parties. The court reporter has provided the court with transcripts of the June 30 and July 8, 2015 suppression hearings. (Docs. 43, 47). Citations thereto are abbreviated as "6/30/15 Tr." and "7/8/15 Tr.," respectively. Citations to hearing exhibits are abbreviated as "Gov't Ex." and "Def. Ex."
Trooper Long testified that rental vehicles, including Byrd's, are identifiable by the presence of bar codes "in the back corners of the windows" which are scanned before the vehicle departs the rental facility. (Id. at 11:6-15).
Byrd explained that his actual driver's license had been damaged in a washing machine. (6/30/15 Tr. 16:17-20, 17:5-7).
The end of this statement is inaudible. (See
As noted supra , the Supreme Court identified a third issue to be considered on remand, viz. , whether a person is entitled to a reasonable expectation of privacy in a rental vehicle when he or she fraudulently uses a third-party renter to procure a rental vehicle in order to commit a crime. The government elected to abandon its position that Byrd had no reasonable expectation of privacy in the rental vehicle on this basis. (Doc. 108 at 3-4 n.1).
Automobile search cases often fall within two separate categories:
automobile exception cases and search-incident-to-arrest cases. In Arizona v. Gant,556 U.S. 332 ,129 S.Ct. 1710 ,173 L.Ed.2d 485 (2009), the Supreme Court "narrowed the scope of the search-incident-to-arrest doctrine." United States v. Shakir,616 F.3d 315 , 318 (3d Cir. 2010). The Court held that police may search a car incident to arrest when (1) "it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle" or (2) "the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." Gant,556 U.S. at 335, 343 ,129 S.Ct. 1710 . The incident-to-arrest exception to the warrant requirement imposes a lower threshold for conducting a search than a showing of probable cause but limits the search to the evidence of the crime of arrest. Donahue,764 F.3d at 299 n.6 (citations omitted); see Gant,556 U.S. at 347 ,129 S.Ct. 1710 . In Gant, the Court acknowledged the continued viability of the separate and distinct automobile exception to the warrant requirement. Gant,556 U.S. at 347 ,129 S.Ct. 1710 ; see United States v. Andrew,417 F. App'x 158 , 162-63 (3d Cir. 2011) (nonprecedential) (recognizing the automobile exception's continued viability post Gant ); United States v. Polanco,634 F.3d 39 , 42 (1st Cir. 2011) (same) (collecting cases).
Byrd argues that the term "blunt" is susceptible of two interpretations, noting that the term has its origins in the "Phillies Blunt Cigar," a specific (and legal) type of short-tobacco cigar. (Doc. 110 at 20). Byrd asserts that the troopers incorrectly "jumped to the conclusion" that he meant the slang version of "blunt," that is, a hollowed-out cigar filled with marijuana. (Id. ) Notably, Byrd never claims that he was referring to a standard Phillies Blunt Cigar. (See id. at 20-21). Byrd indicated the presence of a blunt shortly after Trooper Long asked if there was anything illegal in the rental vehicle. (6/30/15 Tr. 23:6-17; Def. Ex. 11 at 18:53:02-18:53:56). The existence of probable cause is an objective determination, see Williams,
Trooper Long testified that Byrd's tongue was green, which Trooper Long claimed was evidence of smoking marijuana. (6/30/15 Tr. 23:18-20). The government cites to no authority suggesting that the color of a person's tongue is indicative of marijuana consumption, (see Doc. 108), and the court's independent survey of caselaw revealed none. Byrd's admission to cocaine consumption is also excluded from our probable cause analysis as the troopers had already begun their search of the rental vehicle at the time of this admission. (See 6/30/15 Tr. 24:13-18, 105:1-7).
We also note that the Third Circuit has held that "the smell of marijuana alone ... may establish not merely reasonable suspicion, but probable cause." United States v. Green,
Reference
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- United States v. Terrence BYRD (1)
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