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U.S. v. KEMP

May 3, 2005.


The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge


This matter comes before the Court upon Defendant Rodney Kemp's ("Kemp" or "Defendant") motion to suppress evidence seized by the Cherry Hill Police Department when he was pulled over for an alleged broken tail light, and a subsequent search of his person uncovered a loaded .380 caliber handgun. Kemp alleges that his tail light was not broken at any time prior to the traffic stop, and that the warrantless search of his person violated his Fourth Amendment rights because the police did not have the requisite probable cause to conduct the search.*fn1 An evidentiary hearing was held on March 3, 2005 and April 22, 2005, at which time, Defendant and Cherry Hill Police Department Officer Mark Buehler ("Buehler") and Sergeant Kevin Wright ("Wright") testified. For the reasons stated below, Kemp's motion to suppress the handgun is denied.


  Defendant was charged in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (2). On February 7, 2004, at approximately 1:05 a.m., Buehler, a police officer with the Cherry Hill Police Department for 10 years, was on routine patrol when he observed Defendant's car traveling east-bound on Park Boulevard in Cherry Hill Township. See Tr. 3/3/05, at 12-13. According to Buehler, he was approximately 30-40 yards behind Defendant's car when he noticed that one of Defendant's tail lights was cracked. Id. at 13. Buehler recognized the cracked tail light to be a violation of the New Jersey Motor Vehicle Code. Id. at 14. Defendant, on the other hand, denies that his tail light was cracked or broken. See Unoff. Tr. 4/22/05, at 28-29. Buehler initiated a traffic stop and Defendant's car came to a stop without incident at the Parkview Motel. Tr. 3/03/05, at 15. Buehler testified that in his 10 years with the police department, he had witnessed "multiple arrests for prostitution, narcotics, and other weapon offenses" at the Motel. Id. at 15-16. Buehler further testified that he had heightened awareness by being in such a high-crime area. Id. at 16.

  Sergeant Wright, a police officer with the Cherry Hill Police Department for 14 years, was also on patrol when he observed Buehler initiate the traffic stop on Defendant's vehicle. Id. at 63-64. Wright drove to the scene of the stop. Id. at 64. As Buehler approached Defendant's car from the driver's side, Wright came up to the vehicle on the passenger's side. Id. at 65. Wright testified that he also observed that Defendant's driver's side tail light was broken. Id.

  Upon reaching the car, Buehler and Wright noticed that there were two women in the back seat of Defendant's car. Id. at 17, 66. Buehler then asked Defendant for his license, registration and insurance documentation. Id. at 19. According to Buehler, at this point, Defendant became extremely anxious and started to fumble between the front and back seats of the car. Id. Defendant ultimately gave Buehler his registration and insurance cards, but Buehler testified that he did not receive Defendant's driver's license. Id. at 21. Defendant, however, claims that he handed over all his documentation, including his license. Unoff. Tr. 4/22/05, at 9, 14. Buehler also claims that he had difficulty seeing inside Defendant's car because trash and paperwork were strewn all over the floor. Tr. 3/03/05, at 19-20. Buehler further testified that he was unable to see Defendant's hands because Defendant kept turning to his side with his hands "between the console where he was continuing to search for something else." Id. at 20. Buehler then instructed Defendant to stop moving at least two to three times. Id. at 21. According to Buehler, he gave Defendant such instructions because he was trying to secure his own safety and "making sure [Defendant] wasn't trying to attempt to conceal something." Id. at 23. Although Defendant initially complied with Buehler's instructions, he continued to turn back to the rear seat and appeared to be searching for something. Id. at 21, 67. Wright also testified that while Defendant was seated in the car, Buehler asked him "repeatedly to stop turning around," id. at 67, but that Defendant was "extremely anxious," made "a lot of movement," and "kept turning around to the back of the vehicle . . . [and] appeared to be abnormally agitated." Id. at 66. Wright further stated that while seated in his car, Defendant went toward his pocket at least three times to adjust something. Id. at 68. Buehler then asked Defendant the identities of the two women in his back seat. Defendant was unable to answer and twice looked over his shoulder "as to elicit a response from [the women]." Id. at 22. According to Buehler, at this point, Defendant became argumentative and the tone of Defendant's voice became increasingly loud as Buehler questioned him. Id. at 23-24. Defendant, however, denies that he ever raised his voice to the police officers. Unoff. Tr. 4/22/05, at 18. Buehler testified that due to Defendant's erratic behavior, he instructed Defendant to step out of the vehicle; however, Defendant again became argumentative and started to reach out for the registration card that Buehler held in his hand. Tr. 3/03/05, at 22.

  According to Buehler, Defendant reached into his right jacket pocket as he exited his car. Id. at 24. Defendant, on the other hand, testified that his hands were merely hanging by his sides at this point. Unoff. Tr. 4/22/05, at 21, 45. Wright also testified that as Defendant got out of the car, Defendant "kept on attempting to adjust something in his jacket pocket," and "kept on looking down . . . to that area." Tr. 3/03/05, at 67. Wright then saw a black plastic convenience store bag and "a definite bulge" in Defendant's pocket. Id. Wright stated that at this point, his "concern for [his own] safety was extremely high," id. at 68, because the bulge could have been consistent with a weapon. Id. at 69. Buehler then instructed Defendant to remove his hand from his pocket, and although Defendant initially complied with this order, Defendant proceeded to walk toward Buehler and attempted to reach into his pocket again. Id. at 25. At this point, Buehler also noticed a black plastic bag hanging out of Defendant's pocket. Id. Buehler testified that in his experience, such bags were used for carrying narcotics and other criminal contraband. Id. As Buehler and Defendant were standing on the driver's side of Defendant's car, Wright came around from the back of the vehicle and reached forward from behind Defendant. Id. at 26, 68. Wright also instructed Defendant to keep his hands out of his pockets, but Defendant immediately put his hand back in his pocket and replied that "there was nothing in [t]here." Id. at 70. Wright then touched Defendant's front right jacket pocket and Defendant "clinched down on the pocket with his elbow," id. at 26, and "lower[ed] his stance in an aggressive manner. . . ." Id. at 71. At that point, Wright grabbed Defendant's right hand and Buehler reached forward and grabbed his left hand. Id. at 26. Buehler testified that they placed Defendant in a compliance hold in order to prevent him from possibly retrieving a weapon from his jacket pocket. Id. at 53. The officers testified that even while restrained, Defendant continued to struggle and kick and even attempted to reach inside his pocket again. Id. at 27, 71. Defendant, however, denies that he kicked, pushed, or touched the officers in any way. Unoff. Tr. 4/22/05, at 18-19. When Wright and Buehler finally obtained control of Defendant's arms, they brought him to the rear of his vehicle where another police officer, Officer Tedesco, arrived on the scene and upon Wright's instruction, removed the plastic bag from Defendant's right jacket pocket and took out a loaded.380 caliber handgun. Tr. 3/03/05, at 72-73. At no time during this incident, however, did Buchler or Wright inform Defendant that they were going to conduct a pat-down of his person. Id. at 44.

  Defendant's vehicle was then towed to the impound lot where no inventory was made or photographs taken of Defendant's car. Id. at 59-60. Indeed, Defendant's counsel acknowledged during the evidentiary hearing that there are no records detailing the condition of Defendant's car at the time of his arrest. Unoff. Tr. 4/22/05, at 2-3.

  In the evidentiary hearing, Defendant testified that prior to picking up the two women in his car and being pulled over for the traffic stop, he gave a ride to two men in exchange for money. Id. at 11. Defendant claims that these men left the plastic bag containing the gun in his car and that he discovered the bag shortly before he picked up the two women. Id. at 11-12. However, Defendant contends that he did not look inside the bag and merely put the bag in his pocket. Id. at 12. In addition, Defendant claims that he never lifted his hand toward his right pocket when he exited his car upon Buehler's instructions. Id. at 46-47. According to Defendant, neither Buehler nor Wright attempted a pat-down of his clothing, but merely "[threw him] on the car and just went in [his] pocket." Id. at 17.


  A. Controlling Fourth Amendment principles

  The Fourth Amendment of the United States Constitution mandates that searches and seizures of an individual, the individual's home, papers, or effects be conducted pursuant to a warrant. See U.S. Const. Am. IV; see also Terry v. Ohio, 392 U.S. 1, 20 (1968); Katz v. United States, 389 U.S. 347 (1967). Under the Fourth Amendment, a traffic stop is lawful where a police officer observes a violation of state traffic regulations. See United States v. Moorefield, 111 F.3d 10, 12 (3d Cir. 1997) (citing Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)). The constitutional reasonableness of a traffic stop does not depend on actual motivations of the individual police officers involved. See Whren v. United States, 517 U.S. 806, 813 (1996). In addition, under Terry, a police officer may conduct a reasonable search for weapons for his own protection without violating the Fourth Amendment's prohibition against unreasonable searches and seizures "where he has reason to believe that he is dealing with an armed and dangerous individual." Terry, 392 U.S. at 27. However, a brief investigative stop is a "seizure" subject to Fourth Amendment protection and a search conducted in connection with such "seizure," including a pat-down for weapons, can occur only where the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. The test is "whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. at 27 (citations omitted). This determination of reasonableness, under the totality of circumstances, may include an assessment of a detainee's "location, a history of crime in the area, [a detainee's] nervous behavior and evasiveness, and [the police officer's] `commonsense judgments and inferences about human behavior.'" Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir. 2003) (quoting Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000)). The rationale of Terry has been extended to traffic stops in order to "minimize the dangers police officers routinely face . . ." in such situations. United States v. Kithcart, 218 F.3d 213, 219 (3d Cir. 2000). Furthermore, the Third Circuit has held that under Maryland v. Wilson, 519 U.S. 408 (1997), the police can conduct a limited weapons pat-down of a passenger of a lawfully stopped car so long as Terry's constitutional requirements are met. See Moorefield, 111 F.3d at 13-14. In such situation, the police officer "need not be absolutely certain the individual is armed," so long as the officer's concern is objectively reasonable. Id. at 14. Moreover, under Mimms, a police officer can order the driver out of a lawfully stopped car. See Mimms, 434 U.S. at 111. However, after an initial investigatory stop and questioning regarding suspicious behavior, "any further detention or search must be based on consent or probable cause." United States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975).

  B. Tail light issue

  The parties here present conflicting testimony as to whether Defendant's tail light was broken or cracked at the time of the traffic stop. Without photographs or other objective evidence showing the condition of Defendant's car, the Court finds that the tail light issue is one of credibility, and on this point, the Court finds that the police officers were credible in their testimony. Buehler testified that he was 30 to 40 yards away from Defendant's vehicle when he noticed the cracked tail light. Wright also testified that he saw the cracked tail light as he walked up the passenger's side of Defendant's car. Defendant's testimony, on the other hand, is not entirely clear about the condition of the tail light. For instance, Defendant testified that in response to the officer's statement to him that a hairline crack in his tail light allowed "a little bit of white [light] through the red . . .", Defendant replied that "the lights weren't broken to [him]. . . ." Unoff. Tr. 4/22/05, at 29. Defendant merely stated that "[t]he lights w[ere] on." Id. These statements by Defendant are not definitive as to whether the tail light was cracked or broken. Defendant could have meant there was nothing wrong with his tail light because the tail light's cover was not completely broken and the light itself was functioning. Furthermore, although Defendant argues that there is no evidence to corroborate the officers' testimony since no inventory was made or photographs taken ...

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