court finds itself compelled to grant defendants' motions in their entirety.
II. FACTS and PROCEDURE
On November 3, 1987 at approximately 8:30 p.m., defendants were stopped for speeding by two New Jersey State Troopers on Route 539 in Plumstead, New Jersey.
At the time, the defendants were traveling in a Volkswagen pickup truck owned and driven by Middleton. As soon as the defendants noticed the flashing lights of the police cruiser behind them, they pulled to the side of the road and stopped. As the Troopers approached the pickup on foot, they both claim to have seen in the bed of the truck at least two cardboard boxes stamped "Supply and Service Division . . . WHSE J2535, Bay 1 Knox Street, Fort Bragg, North Carolina 23307" and containing what appeared to be several new suitcases. How the Troopers were able to observe these boxes is a matter of contentious debate between the parties. Defendants claim that the entire bed of the pickup, which was filled with cardboard shipping boxes, was covered by a securely fastened tarpaulin. Defendant Middleton claims to have seen in his side-view mirror one of the Troopers use his flashlight to lift the tarp and peer underneath. The Troopers, on the other hand, assert that the front driver's-side corner of the bed was exposed, with the boxes in plain view.
Upon request, Middleton provided a valid drivers license and vehicle registration, but when the Troopers -- who were aware that three military installations (none of them Fort Bragg, however) were in the immediate vicinity -- asked defendants about the boxes, they apparently gave evasive and inconsistent answers. In addition, defendants were "extraordinarily nervous," were acting "very suspicious" and defendant Myers, who was sitting in the passenger seat, continually glanced toward the rear of the truck. As a result, the Trooper standing by the passenger side door, ostensibly fearing for his safety and that of his partner, reached back and lifted part of the tarpaulin to ensure that neither a confederate nor a weapon was hidden underneath. It was at this point that a box containing empty pistol holsters was discovered. Defendants were then asked to exit the vehicle, and after being frisked they were questioned about the origins of the holsters and the contents of the rest of the boxes. Defendant Myers claimed that the goods were his and that he had gotten them from a friend. When pressed further, however, neither defendant provided explanations that satisfied the Troopers. One of the Troopers then searched the cab of the truck and found a large pair of bolt-cutters and a second valid drivers license for Middleton from a different state. When defendants could not provide satisfactory explanations for the existence of these items either, they were placed under arrest and charged with obstruction pursuant to N.J. Stat. Ann. § 2C:29-1.
Following the arrest, the tarpaulin was fully removed from the bed of the truck, revealing at least twenty boxes filled with assorted military items. Defendants and their truck were taken to the Fort Dix police barracks where a full inventory search of the truck was conducted. Among the items seized were holsters, assault vests, assault belts and canteens. Defendants were released on bail on the obstruction charge the next day, but the truck and its contents were retained. Upon further investigation the police determined that the military items in the truck had been stolen from the Lakehurst Naval Air Center and it was at this point that the defendants were charged with theft of government property.
One week later, when Middleton voluntarily surrendered himself upon hearing of the charges against him, he allegedly assaulted Special Agent James Maxwell. As a result, he was charged with assault of a federal officer and it is that charge which Middleton seeks to sever from the rest of his indictment.
A. Myers' Standing
The government asserts that defendant Myers has no standing to challenge the constitutionality of the search of the truck. This court thinks otherwise. In Rakas v. Illinois, 439 U.S. 128, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978), the Supreme Court held that a passenger in an automobile does not have standing to challenge the search unless he claims a "property [or] a possessory interest in the automobile, [or] an interest in the property seized." Rakas, 439 U.S. at 148. According to the testimony of the Troopers, Myers claimed that the goods in the truck were his and that he had obtained them from a friend. This declaration of a possessory interest in the items seized is enough to give Myers standing to challenge the search.
B. The "Stop "
The government concedes that the burden is on them to establish the reasonableness of a warrantless search, United States v. Williams, 604 F.2d 1102 (8th Cir. 1979), by a preponderance of the evidence, United States v. Matlock, 415 U.S. 164, 177, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974). They go on to argue that the initial stop and "unintrusive" questioning were justified under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and from there the information the Troopers gathered "'quickly matured . . . into the requisite probable cause to believe that the automobile contained contraband.'" Government's Brief at 8 (quoting United States v. Rickus, 737 F.2d 360, 366 (3d Cir. 1984)). Once probable cause existed, the government continues, the automobile exception to the warrant requirement established by Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925), permitted the search of the pickup. While the government's legal argument has merit, it does not mesh with the facts of this case as they developed at the suppression hearing.
First, of course, it is uncontroverted that the initial stop of the truck -- for speeding and for a defective tail light -- was lawful. The issue thus becomes whether it was lawful to effectively "stop" the defendants again, by keeping them on the scene for purposes not related to the traffic infractions.
The stop and detention of a person or of a moving vehicle -- even for a brief period -- is considered a "seizure" within the meaning of the fourth amendment. United States v. Montgomery, 182 U.S. App. D.C. 426, 561 F.2d 875, 878 (D.C. Cir. 1977) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878-82, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975)); cf. Terry v. Ohio, 392 U.S. 1, 16-19, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); Brown v. Texas, 443 U.S. 47, 50, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1978). While a fourth amendment seizure normally requires a warrant, or at least probable cause, the Supreme Court has held on countless occasions that the stop of a person or vehicle may be accomplished in certain circumstances without a warrant and even without probable cause to believe the person is or has been engaged in criminal activity. As the Court stated in Brown v. Texas :
We have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have "probable cause" to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. United States v. Brignoni-Ponce, [422 U.S.] at 880-881. See Terry v. Ohio, [392 U.S.] at 25-26. However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.
Brown v. Texas, 443 U.S. at 51 (emphasis added) (citations omitted). The requisite reasonable suspicion must be objectively gauged. In Brown, for example, the Court held that two men seen walking away from each other in an alley in an area with a high incidence of drug traffic did not objectively present the level of "reasonable suspicion" necessary to allow a stop and brief questioning of one of the men. In United States v. Montgomery, the D.C. Circuit came to the same conclusion, based on the fact that the police had observed the defendant driving through a mostly residential area at about 6:00 p.m. on a Friday evening. A few minutes after their initial sighting, the officers again saw defendant in the same general area, and when they followed him he appeared to be watching them in his rear-view mirror. The court held:
This may have been reason for an officer to become suspicious enough to keep an eye on defendant. But it can hardly be deemed to be an objective indicator of reasonable suspicion of criminal conduct.