United States District Court, S.D. Ohio, Western Division
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
SUSAN J. DLOTT, UNITED STATES DISTRICT COURT
Susan J. Dlott
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.
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.
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
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.
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."
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
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
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."
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.)
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).
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. ...