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United States v. Minnick

United States District Court, D. Maryland

June 21, 2016

UNITED STATES OF AMERICA
v.
OLDEN MINNICK and TERRANCE STANBACK, Defendants.

          MEMORANDUM OPINION

          THEODORE D. CHUANG JUDGE

         Pending before the Court are two Motions to Suppress filed by Defendant Terrance Stanback. In the Motions, Stanback seeks suppression of (1) evidence seized from his person following a warrantless traffic stop on September 4, 2014; and (2) evidence seized from his home pursuant to a search warrant executed on December 3, 2014. For the reasons set forth below, both Motions are DENIED.

         PROCEDURAL HISTORY

         The Motion to Suppress relating to the September 4, 2014 traffic stop is the second such motion filed by Stanback. On December 23, 2015, the Court issued a Memorandum Opinion and Order denying Stanback's first motion on this issue. See United States v. Stanback, No. TDC-14-0554, 2015 WL 9450822 (D. Md. Dec. 23, 2015). The underlying facts relating to the traffic stop are set forth in that Opinion, which the Court incorporates by reference here. See Id. The Court ruled that the traffic stop was permissible because Stanback had violated Maryland traffic laws when he passed a school bus that was displaying a stop sign as it was discharging children. See Md. Code Ann., Transp. § 21-706(a) (West 2010). The Court further held that although the Government had failed to establish that Stanback had consented to a search of his person, Prince George's County Police Officer Kevin Stevenson, who conducted the stop, had a reasonable basis to believe that Stanback was armed and dangerous to justify a frisk under Terry v. Ohio, 392 U.S. 1 (1968). This reasonable belief was based on information that Stanback was a suspect in a drug investigation and Officer Stevenson's observations, while writing the ticket from his police cruiser directly behind Stanback's vehicle, that Stanback was "moving around a lot, " that he was leaning forward "as if he was going underneath the seat, " and "moving to the passenger side of the vehicle and to the rear row of seats directly behind him." Sept. 10, 2015 Mot. Hearing Tr. ("Tr.") at 12, 38, 46; Stanback, 2015 WL 9450822, at *2. Because a small plastic bag of heroin was recovered from Stanback within the scope of a lawful Terry frisk, which then justified a more extensive search that revealed 110 grams of heroin in Stanback's pants, the Court denied the motion.

         On April 20, 2016, Stanback, represented by new counsel, filed a Motion to Reopen the suppression hearing, arguing that predecessor counsel, who had been the subject of a Government motion seeking to disqualify counsel, was not properly prepared for the first hearing. Stanback asserted that (1) the finding that Stanback had unlawfully passed a stopped school bus should be reexamined because he had evidence that Prince George's County Public Schools has no bus stop at the identified location; and (2) the finding that Officer Stevenson observed Stanback moving around in his vehicle during the traffic stop should be reexamined because he had evidence that the tint on the rear window of the vehicle and the height of the driver's seat was such that it was impossible for Officer Stevenson to have made those observations. The Government did not oppose reopening of the matter. On June 7, 2016, the Court granted the Motion to Reopen and scheduled an evidentiary hearing for June 14, 2016.

         In a separate Motion, filed after the original motions deadline but excused for the same reason that the Motion to Reopen was granted, Stanback seeks suppression of evidence recovered during a December 3, 2014 search of his home pursuant to a warrant. Stanback argues that the use of information arising from the warrantless traffic stop tainted the search warrant affidavit, and that with or without such information, the affidavit did not establish probable cause to search his home.

         DISCUSSION

         I. Motion to Suppress (Traffic Stop)

         At the evidentiary hearing on June 14, 2016, the Government offered the testimony of a bus driver for Bishop O'Connell High School, a private school located in Arlington, Virginia, who stated that she drops off children from that school every day at the exact location and approximate time that law enforcement officers observed Stanback pass a stopped school bus. The Government also offered photographs of the school bus stopped at that location. Stanback's counsel conceded that with this information, there was no longer a basis to revisit the finding that Stanback had unlawfully passed a stopped school bus.

         Stanback then offered a series of photographs documenting that the rear window of his 2004 Ford Expedition has a dark tint, that the driver's seat headrest rises to within five inches of the roof of the vehicle, and that when seated, Stanback's head does not go above the top of the headrest. The photographs were taken on Piscataway Road in Clinton, Maryland, the same road on which Stanback was stopped, and the exterior photographs were taken in September 2015, at the same time of year and at approximately the same time of day as the traffic stop in September 2014. Stanback also offered the testimony of Stephen McDonald, a Registered Inspection Mechanic at Oxon Hill Shell, a service station in Oxon Hill, Maryland. McDonald testified that he had measured the tint on the rear window and found that it allowed for 19 percent light transmittance, which complies with Maryland regulations for after-market tint because Maryland does not set a limit on after-market tint of the rear window of a multipurpose passenger vehicle, which would include sport utility vehicles like a Ford Expedition. See Md. Code Ann., Transp. § 11-136.2(1) (West 2010) (defining "multipurpose passenger vehicle" as "a motor vehicle that is designed primarily for carrying persons and which is constructed on a truck chassis or with special features for occasional off-road operations"); Md. Code Ann., Transp. § 13-937(a) (West 2010) ("When registered with the Administration, every multipurpose passenger vehicle is a Class M (multipurpose) vehicle."); Md. Code Ann., Transp. § 22-406(i)(l)(ii) (West 2010) (stating that "a person may not operate a vehicle registered under. .. § 13-937 of this article on a highway in this State if. . . there is affixed to any window to the immediate right or left of the driver any window tinting materials added after manufacture of the vehicle that do not allow a light transmittance through the window of at least 35%"). He noted, however, that the tint on Stanback's Expedition was the original factory tint and had not been altered. Stanback testified at the hearing that he had not altered the original factory tint on the Expedition.

         This evidence does not provide a basis to alter the Court's prior ruling. Although Stanback has established that the rear window of his Expedition has a dark tint, the evidence does not indicate that Officer Stevenson could not have observed Stanback's movements through the window. The 19-percent tint on the rear window was factory-installed and has not been altered. Although dark, it is not opaque. Photographs from the interior of the vehicle, Exhibits S-3 and S-4, show that one can clearly see out the rear window and back-seat side windows, which have the same tint as the rear window. McDonald testified that the tint and view through those windows is the same whether from inside or outside the vehicle.

         Although photographs taken from outside the Expedition indicate that in daytime, the view into the vehicle is not as clear as the view looking out from inside the vehicle, one of the photographs of the exterior of the Expedition, Exhibit S-7, shows that even with the tint one can see through the rear window all the way to and through the front windshield, as it depicts the vegetation in the landscape in front of the vehicle. One can also see the shape of the rear, view mirror, located near the front windshield, in the photograph.[1]

         It would be inappropriate to conclude that Exhibit S-7 depicts the precise view that Officer Stevenson had on the date of traffic stop. It is unknown how the position of the Expedition, the weather, and the sunlight conditions at the time the photograph was taken may differ from the conditions on the date of the traffic stop. The view in the photograph could differ from the actual appearance of the interior of the Expedition to Officer Stevenson depending on the settings used in taking the photograph. Notably, this photograph appears to have been taken from at least a car length behind the Expedition, while Officer Stevenson was presumably closer, having testified that he was only a "few feet back." Tr. at 38. But because the photograph indicates that one can see through the rear window to the front of the Expedition and discern shapes in the interior, the Court finds that the rear window was not so dark that it would necessarily preclude Officer Stevenson from observing movements by someone sitting in the driver's seat.

         Likewise, the Court finds that the fact that Stanback's head does not rise above the top of the driver's seat headrest, as depicted in Exhibit S-6, did not preclude Officer Stevenson from making his observations. Although the headrest might block Stanback from view if he remained stationary, Officer Stevenson testified that he saw Stanback "moving around a lot, " and that Stanback was leaning forward "as if he was going underneath the seat, " and "moving to the passenger side of the vehicle and to the rear row of seats directly behind him." Tr. at 12, 38, 46. If at any point Stanback moved his head to the side, away from the headrest, he could be seen from the rear. Moreover, two photographs, Exhibits S-4 and S-5, show that there is an opening between the two front seats of the Expedition, so movement toward the front passenger ...


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