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United States v. Amison

United States District Court, S.D. Ohio, Western Division

August 28, 2017




         Judge Susan J. Dlott

         This matter is before the Court on Defendant's Motion to Suppress Evidence (Doc. 19), which the United States has opposed (Doc. 21). An evidentiary hearing was held on July 26, 2017. For the reasons that follow, Defendant's Motion will be DENIED.

         I. FACTS[1]

         On January 26, 2017, Cincinnati Police Officer Michael Smith, assigned to District 5, was on a routine patrol in the Northside neighborhood during second shift. It was dark outside and the weather was a wintery mix of precipitation. Officer Smith-at the wheel-and his partner, Officer Greg Harmon-sitting in the passenger seat-were driving in a fully-marked cruiser equipped with a mobile video recorder. Both officers also were wearing body cameras.

         While heading south on Kirby Avenue, Smith observed a vehicle turn left (out of a Marathon gas station) on to Kirby and drive through a red traffic light at the intersection of Kirby and Chase Avenues. The vehicle's left turn signal was still blinking as it crossed Chase. Officer Smith stopped at that light, where cars were traveling east to west, but then activated the lights on his cruiser to proceed through the intersection and pursue the vehicle. By this point, one car had turned left on to Kirby from Chase and thus was in-between the cruiser and the vehicle, which now was signaling to turn right (west) on Colerain Avenue. Smith believed that the vehicle was attempting to elude him. The car in-between had pulled over-presumably in reaction to the cruiser lights-allowing Smith to turn right on to Colerain, where he observed the vehicle turning right (north) again on Florida Avenue, a residential street. When Smith turned on to Florida, the vehicle was pulled over with its hazard lights flashing.

         Officer Smith exited his cruiser and approached the vehicle with caution because the windows were tinted. He asked the driver to roll down the windows. The driver, a male, complied immediately and put his hands up in the air. Smith told the driver he stopped him because he "ran the red light there at Kirby and [ ] Chase." He asked the driver for identification. The driver did not produce a license, but instead recited his name, date of birth, and social security number. Smith asked the passenger, a female, for identification, and she handed him her license. Back in the cruiser and using his mobile data computer, Smith learned that the driver, Triston Amison, did not have a valid driver's license. Also, Mr. Amison had a number of "red tabs" or "alerts" associated with his name with respect to weapons according to the Regional Crime Information Center ("RCIC"). In contrast, Mr. Amison's passenger-now known to be his girlfriend-was properly licensed to drive and in fact owned the vehicle. She had no criminal record.

         Officers Smith and Harmon re-approached the vehicle with the intention to have Mr. Amison and his girlfriend switch places inasmuch as she was licensed and he was not. The following dialogue ensued. Smith, on the driver's side of the vehicle, told them, "I'm going to have to have you stand up, step out here, and you guys are going to have to switch out, all right?" He directed Mr. Amison to move to the back of the car, "Back there with my partner, 'k?" Smith asked, "You don't have nothin' on you?" and "Mind if we pat you down for weapons or anything like that?" The recording indicates that Mr. Amison replied, 'Wo, sir" to the first question and raised his arms in response to the second. Smith then asked, "There's nothin' illegal in that car?" "No, sir" was Mr. Amison's answer, with Smith remarking, "Now I'm kind of getting a smell of marijuana" Mr. Amison denied having any marijuana on him, but "to be honest" admitted to smoking earlier in the day while wearing the same clothes. Smith: "As soon as you walked back, man, I could smell it [ ] in your trail."

         His pat-down complete, Officer Smith tells Mr. Amison, "Sir, you can put your hands [d]own and step over here-I just want you out of the street" Continuing, "You say there's nothing in the car?"-'Wo, sir"-"You mind if I look?" Mr. Amison, gesturing toward the car, "I mean, yeah." Smith follows up: "Yeah, I can look?" Mr. Amison, now gesturing toward his girlfriend, says, "I mean -." Smith, in turn, asks Mr. Amison's girlfriend, "Is that fine? Do you care if I look in your car?" She points to the car and appears to say, "Yeah" with Smith responding "Ok."

         Officer Smith tells his partner, "If I don 'tfind nothin' I wouldn 't worry about cutting a ticket -just have them switch out, " and then advises Mr. Amison and his girlfriend, "All right, as long as you ain 't got nothing in the car we '11 just have you guys, uh, we '11 just have you guys switch out and have you guys on your way, all right?" As he begins the search, Smith addresses Officer Hutchings, who arrived on scene before Smith initially approached the vehicle: "Hey Hutchings, Hutchings, you can take that side if you want, just so we can get them out of here quicker." Within minutes, Smith finds the bag with the gun inside under the driver's seat and instructs his fellow officers to "Grab him, grab him."

         Mr. Amison subsequently was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc. 3.)


         "An ordinary traffic stop by a police officer is a 'seizure' within the meaning of the Fourth Amendment." United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008) (citing Delaware v. Prouse, 440 U.S. 648, 653 (1979)). Thus, evidence seized during an illegal traffic stop "must be suppressed as 'fruits of the poisonous tree.'" Id. (citing United States v. Hill, 195 F.3d 259, 264 (6th Cir. 1999) (quoting Wong Sun v. United States, 371 U.S. 471, 484 (1963))). It is well-established, however, that a police officer "lawfully may stop a car when he has probable cause to believe that a civil traffic violation has occurred." United States v. Jackson, 682 F.3d 448, 453 (6th Cir. 2012).

         "To justify a pat[-]down of the driver . . . during a traffic stop, [a] police [officer] must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous." Arizona v. Johnson,555 U.S. 323, 327 (2009). Reasonable suspicion is based on the totality of the circumstances and requires '"a particularized and objective basis'" for suspecting that the person is armed and dangerous. United States v. ...

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