Petition for Writ of Certiorari — Born Murray, Petitioner v. United States

No.

in the

Supreme Court

of the

United States

Term,

BORN MURRAY,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DEBORAH L. WILLIAMS

Federal Public Defender Southern District of Ohio

Kevin M. Schad

Appellate Director

Office of the Federal Public Defender

Southern District of Ohio

250 E. Fifth St. Suite 350

Cincinnati OH 45202

(513) 929-4834

Kevin_schad@fd.org

Counsel for Petitioner

QUESTION PRESENTED

Where a police officer admittedly abandons the initial basis for a traffic stop to

pursue a new investigation unsupported by reasonable suspicion, does the

continued detention of a citizen violate the Fourth Amendment, even though the

officer is within the “time frame” of pursuing and dispelling the initial basis for the

stop?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

Page

il

1V

3

7

Where a police officer abandons the objective basis for a traffic stop to

investigate other criminal activity not supported by reasonable

suspicion, a citizen’s continued detention violates the Fourth

Amendment

CONCLUSION ....................

APPENDIX .....................

iil

16

TABLE OF AUTHORITIES

Cases

Byrd v. United States, 138 S. Ct. 1518, 1526, 200 L. Ed. 2d 805 (2018)... 10

Heien v. North Carolina, 574 U.S. 54, 135 S. Ct. 530, 536, 190 L. Ed. 2d 475 (2014)

sasesesesesesesesesesesesenesesesesenesescacacacscssesesessssssssssssssacacacacavavavavassssssesususasacaracacacacauatetauateuauenseseeeseneeeeees 10

ffitbel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cty., 542 U.S. 177, 185,

124 S. Ct. 2451, 2458, 159 L. Ed. 2d 292 (2004) .oocccccccccceccesecesceseceesesessesesessesesecseees 10

Illinois v. Caballes, 543 U.S. 405,407, 125 S. Ct. 834,837 (2005) ....c.cccccccccescccssescseeeeees 11

Navarette v. California, 572 U.S. 398, 396, 134 S. Ct. 1683, 1687, 188 L. Ed. 2d 680

(QO) .oeeeeccccecscsessescssescsscsesscsesssssssssarsusassucansusassucsesuesesaesesaesecarsucatsesatsesausesatstsatsasaesasaesasateeeees 10

Rodriguez v. United States, -- U.S. ---, 185 S. Ct. 1609,1612 (2015)... 11, 13,14

United States v. Bey, 911 F.3d 139 (3d Cir. 2018) ......ccccccccccsecessssssecesessssesesesesseseseecsesseees 14

United States v. Bowman, 884 F.3d 200 (4th Cir. 2018) .....c.cccccccccccsccsccscsssscescscescseceeeeees 12

United States v. Campbell, 912 F.3d 1340, 1350 (11th Cir. 2019) ......c.cccccccesescseseeeeee 15

United States v. Digiovanni, 650 F.3d 498, 509 (4th Cir. 2011) .....ccececccccccsesescsceseseeees 12

United States v. Green, 897 F.3d 173 (8d Cir. 2018)......c..ccccseccssesssessessssesesseesteeceteeecees 12

Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996) .....ccccccccccssscssscseseseseseseees 9

iv

No.

in the

Supreme Court

of the

United States.

Term,

BORN MURRAY,

Petitioner,

VS

UNITED STATES OF AMERICA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI FROM

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner, Born Murray, respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States Court of Appeals for the Sixth

Circuit entered in the above-entitled proceeding on April 25, 2019.

| OPINION BELOW

The Sixth Circuit’s opinion in this matter was unpublished, and is attached hereto in

Appendix 1. The district court’s order denying the suppression of evidence was also

unpublished, and is attached as Appendix 2.

JURISDICTION

The Sixth Circuit denied Petitioner’s appeal on April 25, 2019. This petition is timely

filed. The Court’s jurisdiction in invoked pursuant 28 U.S.C. § 1291 and Supreme

Court Rule 12.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT OF THE CASE

On November 29, 2016, Petitioner Born Murray and his brother Elstarheem

were overnight visitors at a Comfort Inn in Dayton, Ohio. Unbeknownst to the

Murray brothers, that particular motel was a target of the Miami Valley Bulk

Smuggling Task Force. The Task Force believed that large-scale multi-state drug

trafficking was occurring at the motel.

Ohio State trooper Joseph Weeks was part of that Task Force, and was on

duty that day. Weeks role was to find traffic violations for those persons targeted by

the Task Force for drug trafficking investigations. The task force operated in the

following manner: police conducted undercover surveillance of the Comfort Inn.

When they identified a possible drug trafficking suspect, they radioed Weeks in

order for him to find a traffic violation, and then pull the suspect over for drug

investigation. For whatever reason, the task force identified the Murray brothers as

persons of interest.

On that morning, the Murray brothers entered a vehicle and left the Comfort

Inn. Weeks was told by other members of the Task Force to wait for a traffic

violation, and stop the Murray brothers. Specifically, Weeks testified, “I was advised

that the undercover officers felt that the individuals were going towards the west

side of Dayton, and possibly that is a high- trafficking crime area, and that there

may be some type of criminal activity occurring presently.” Another undercover

4

officer (who was also following the Murray vehicle) radioed to Weeks that the

Murray brothers’ vehicle had made an improper lane change.

Weeks performed a traffic stop for the improper lane change. He obtained

identification, ran a report, and found that both brothers had been previously

arrested. He then asked consent to search the vehicle, which was granted. Weeks

found nothing; in fact, Weeks noted that “[tlhe vehicle was abnormally clean in my

opinion for a couple of individuals who had been traveling from North Carolina,

maybe had the vehicle for multiple days. There was some energy drinks, some

receipts, and multiple cell phones inside of the vehicle.” Weeks gave them a warning

(because Elstarheem had been driving the vehicle without a valid license), and sent

them on their way. Weeks also gave them driving information to the nearest

hospital (Petitioner Born Murray was complaining of an asthma attack during the

stop.)

The Murray brothers did not go immediately to the hospital suggested by

Weeks, but returned to the Comfort Inn. Nor too did the Task Force give up on the

Murray brothers — despite the search of their vehicle, the Task Force maintained

undercover surveillance on them, from the stop all the way back to the Inn. Back at

the motel, the Murray brothers went into their room, packed their bags, loaded them

into a different rental vehicle, and left the property. During this surveillance,

Officer Weeks was updated as to their movements.

The Task Force decided to again stop the Murray brothers. They again

radioed Weeks, and asked him to perform another traffic stop. Once again, another

undercover officer noticed an additional traffic violation (an improper turn on a red

light without coming to a stop) and Weeks again performed a stop. According to

Weeks, “[t]he belief was, again, that a crime potentially could be occurring and that

Mr. Elstarheem and Born were fleeing from that hotel or leaving the hotel because of

said crime potentially.”

Petitioner Born Murray, now the driver, was immediately taken out of the

vehicle. handcuffed, and placed in Weeks’ cruiser. Petitioner Murray was

cooperative, but was not free to leave. His brother, however, was a different story.

He got out of the vehicle and ran. Elstarheem was quickly apprehended, and brought

back to the scene.

Officer Weeks admitted that, at the time he pulled Petitioner Murray out of

the vehicle, it was not a normal traffic stop; rather, it was an undercover drug

interdiction investigation. Further, Weeks admitted that at the beginning of the

stop, he planned to get Murray out of the vehicle, and into the cruiser, which was not

part of the process of a traffic stop for an improper right hand turn.

After recovering Elstarheem, Weeks’ canine was deployed for a “fresh air”

sniff for drugs. The dog alerted to the trunk of the vehicle, and the vehicle was

searched for drugs. No drugs were found; however, officers recovered “clothing or

luggage, and there was also white envelopes containing multiple checks.” The

officers opened the white envelopes without a warrant. As a result of finding these

checks, the Murray brothers were taken into custody.

The Murray brothers were named in a two count indictment charging:

conspiracy to possess stolen mail, in violation of 18 U.S.C. § 371, and one count of

possession of stolen mail, in violation of 18 U.S.C. § 1708. On January 27, 2017,

Petitioner Murray filed a motion to suppress the evidence seized as a result of the

traffic stop. A hearing was held on that motion on March 21, 2017. On June 8, 2017,

the district court denied suppression of the evidence, finding that the motivations of

the officers were irrelevant, and because officers observed a traffic violation, they

could detain Petitioner Murray. (Exhibit 2, p.7) The court further found that

“neither Born nor Elstarheem were detained for a period of time that was

unreasonable nor was the open air sniff conducted in a way that impermissibly

extended the length of the traffic stop.” (Exhibit 2, p.8)

As a result of this decision, Petitioner Murray entered into a conditional guilty

plea to the indictment on August 11, 2017, reserving the right to appeal the

suppression decision. On January 17, 2018, the court sentenced Murray to 54

months incarceration, to be followed by 5 years supervised release. |

Petitioner Murray appealed his conviction to the Sixth Circuit Court of

Appeals, raising one issue: “Any basis for stopping Murray’s vehicle for a traffic

violation was abandoned immediately upon Murray’s stop and seizure, such that his

continued detention to investigate further, unknown criminal activity violated the

Fourth Amendment.” The Sixth Circuit denied the appeal on April 25, 2019, finding:

[T]he district court found “it would not have been possible

for Weeks to process and issue a traffic citation” in the

“very brief passage of time” between his driver's side

approach and Elstarheem’s flight from the car. R. 35,

PageID 258-59. In that one-minute interval, Weeks asked

Born to exit the car, performed a consensual pat-down

search, and was in the process of escorting Born to his

cruiser when Elstarheem fled. Weeks had barely started at

the tasks tied to issuing a traffic ticket, let alone the

“ordinary inquiries incident to [al traffic stop.” Rodriguez,

135 S.Ct. at 1615 (“Typically such inquiries involve

checking the driver’s license, determining whether there

are outstanding warrants against the driver, and

inspecting the automobile’s registration and proof of

insurance.”). True, Weeks’s prior encounter with the

brothers obviated some of these ordinary inquiries. But

others remained, such as verifying proper registration and

insurance for the Hyundai.

The Murrays’s claim that Weeks abandoned his trafficstop investigation to embark on another also lacks support

in the record. They stress that Weeks had not yet

questioned them about the traffic violation. An officer’s

failure to ask for a motorist’s driver’s license may suggest

abandonment in some cases, but not here, given that

Weeks verified Born’s license during the first stop. Nor

does Weeks’s decision to order Born out of the car point to

abandonment. See United States v. Lash, 665 F. App’x

428, 431 (6th Cir. 2016) (“Even without a reason to be

suspicious, an officer may order the driver to get out of the

vehicle during a traffic stop to ensure his own safety

during the encounter.” (internal quotation marks

omitted)). The district court credited Weeks’s testimony

that—in light of the brothers’ earlier story about the need

to get to a hospital for an emergency that no longer

appeared to exist—he removed Born from the car to

separate the brothers while he figured out what was going

on. The Murrays offer no argument that would allow us to

set aside that finding as clearly erroneous.

(Appendix 1, pp.4-5)

REASONS FOR GRANTING THE WRIT

1. Where a police officer abandons the objective basis for a traffic stop to

investigate other criminal activity not supported by reasonable

suspicion, a citizen’s continued detention violates the Fourth

Amendment

In order to detain a citizen for a traffic stop, a police officer must have

reasonable suspicion that criminal activity is afoot. A violation of traffic laws

justifies such a stop, regardless of the officer’s subjective intent for the stop. Whren

v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996). However, there is a

requirement that the officer actually investigate the basis for the stop. What

happens in the situation where an officer stops a vehicle for a traffic violation, but

then immediately abandons that investigation to go on a fishing expedition for other

criminal activity? This case presents the Court with such a scenario. Petitioner

Murray submits that the answer to this question is that without independent

reasonable suspicion of other criminal activity, the continued seizure of a citizen

violates the Fourth Amendment — even when the officer is within the “time frame”

for disposing of the legitimate basis for the stop. Further, the Sixth Circuit’s

decision, holding to the contrary, creates a circuit split which should be resolved by

this Court.

The Fourth Amendment guardrails pertaining to traffic stops are at this point

well set: “A traffic stop for a suspected violation of law is a ‘seizure’ of the occupants

of the vehicle and therefore must be conducted in accordance with the Fourth

10

Amendment.” Heien v. North Carolina, 574 U.S. 54, 135 S. Ct. 530, 536, 190 L. Ed.

2d 475 (2014). However, “there is a diminished expectation of privacy in

automobiles, which often permits officers to dispense with obtaining a warrant

before conducting a lawful search.” Byrd v. United States, 138 S. Ct. 1518, 1526, 200

L. Ed. 2d 805 (2018). “The Fourth Amendment permits brief investigative stops—

such as the traffic stop in this case—when a law enforcement officer has ‘a

particularized and objective basis for suspecting the particular person stopped of

criminal activity.” Navarette v. California, 572 U.S. 398, 396, 134 S. Ct. 1683, 1687,

188 L. Ed. 2d 680 (2014). “To ensure that the resulting seizure is constitutionally

reasonable, a Terry stop must be limited. The officer's action must be ‘justified at its

inception, and ... reasonably related in scope to the circumstances which justified the

interference in the first place.” Hiibel v. Sixth Judicial Dist. Court of Nevada,

Humboldt Cty., 542 U.S. 177, 185, 124 S. Ct. 2451, 2458, 159 L. Ed. 2d 292 (2004).

In 2005, this Court held that “a seizure that is lawful at its inception can

violate the Fourth Amendment if its manner of execution unreasonably infringes

interests protected by the Constitution. [|] A seizure that is justified solely by the

interest in issuing a warning ticket to the driver can become unlawful if it is

prolonged beyond the time reasonably required to complete that mission.” Illinois v.

Caballes, 543 U.S. 405,407, 125 S. Ct. 834,837 (2005). Building on this standard,

the Court in Rodriguez v. United States, -- U.S. ---, 185 S.Ct. 1609 (2015), found that

“a seizure for a traffic violation justifies a police investigation of that violation.” 135

1]

S.Ct. at 1614. “Authority for the seizure thus ends when tasks tied to the traffic

infraction are—or reasonably should have been—completed.” Jd. at 1615. “The

reasonableness of a seizure [ ] depends on what the police in fact do.” Jd. at 1616.

This case presents the question not addressed in Rodriguez: does the

_ “reasonably should have been completed” time frame for completing a traffic stop

apply if the police officer abandons the traffic stop basis for the search? Many

circuits have held, contrary to the Sixth Circuit in the instant case, that an officer’s

abandonment of the basis for the stop, even while there is “time on the clock” for

completing a traffic stop, does result in a Fourth Amendment violation.

The Fourth Circuit has held that, upon a legal traffic stop, where a police

officer did not pursue that stop, but instead “embarked on a sustained course of

investigation into the presence of drugs in the car”, that the Fourth Amendment was

violated. United States v. Digiovanni, 650 F.3d 498, 509 (4th Cir. 2011)(abrogation

on other grounds recognized by United States v. Bowman, 884 F.3d 200 (4th Cir.

2018). That court rejected the Government’s claim that, because on average a traffic

stop lasts 15 minutes, a police officer has that period of time during a traffic stop to

conduct any investigation, related or not. “Creating a rule that allows a police officer

fifteen minutes to do as he pleases reduces the duration component to a bright-line

rule and eliminates the scope inquiry altogether.” Jd. at 511. Thus, the officer in

that case was found to have violated the Fourth Amendment a mere three minutes

into a traffic stop.

12

In United States v. Green, 897 F.3d 173 (3d Cir. 2018), the Third Circuit |

coined the phrase “Rodriguez moment” to identify when, within the time frame for a

valid traffic stop, the stop turns to an event in violation of the Fourth Amendment.

The police officer in Green stopped the defendant for speeding, engaged with him,

and then returned to his patrol vehicle with the driver’s license and registration.

However, instead of pursuing the traffic violation, the officer instead: called a

colleague for a dog sniff, and called another colleague to obtain information on the

defendant. The officer was playing a hunch that drug trafficking was afoot. The

Third Circuit held that, although the officer was still within the “time frame” for a

traffic stop when he returned to his patrol vehicle, a “Rodriguez moment” occurred

when the officer abandoned the traffic stop for the hunch. /d. at 182.

These cases seem to align with this Court’s admonition in Rodriguez that

“(tlhe reasonableness of a seizure, however, depends on what the police in fact do.”

132 S.Ct. at 1616. The Court made that statement to refute the Government’s

argument that, so long as the police officer stayed within a reasonable time limit, he

or she could make any investigation.

This 1s, in essence, what the Sixth Circuit found in this case. Instead of

focusing on the intent of the officer, and whether that intent met Fourth Amendment

standards, the court instead found that “it would not have been possible for Weeks

to process and issue a traffic citation in the ‘very brief passage of time’ between his

driver’s side approach and Elstarheem’s flight from the car.” (Appendix 1, p.4) While

13

true, this misses the point of Murray’s argument that Weeks’ abandonment of the

basis for the stop created a Fourth Amendment problem. The Sixth Circuit’s

analysis is purely a “time frame” one, and therefore is contrary to Rodriguez and the

other circuits to have dealt with this issue. The Sixth Circuit’s ruling in effect

revitalizes the Government’s argument made (and rejected by this Court) in

Rodriguez, that “by completing all traffic-related tasks expeditiously, an officer can

earn bonus time to pursue an unrelated criminal investigation.” 132 S.Ct. at 1616.

Further, the fact that Elstarheem Murray absconded within a short period of

time after the stop is nothing more than a red herring. Once Officer Weeks

abandoned the basis for the stop, the Fourth Amendment was implicated. For

instance, in United States v. Bey, 911 F.3d 139 (3d Cir. 2018), officers stopped the

defendant coming out of a bar, believing him to be a person they were pursuing. The

Third Circuit determined that the defendant and the suspect were so dissimilar in

appearance that it should have been obvious, once the defendant came into view,

that he was not the person officers were pursuing. Therefore, the continued

interaction with the defendant, even though brief, violated the Fourth Amendment.

Id. at 147. Thus, the short time frame before Elstarheem fled was more than

adequate to trigger the Fourth Amendment in this case.

Finally, the Sixth Circuit held that, even if the legal argument on which

Petitioner Murray rested was accurate, the evidence did not support the inference

that Officer Weeks abandoned the stop. (Exhibit 1, p.5) The record shows otherwise.

14

Officer Weeks admitted that “[tlhe belief was, again, that a crime potentially could

be occurring and that Mr. Elstarheem and Born were fleeing from that hotel or

leaving the hotel because of said crime potentially.” Further, Weeks testified that at

the time he stopped the vehicle, it was not a normal traffic stop; rather, it was an

undercover drug interdiction investigation. Finally, Weeks admitted that at the

beginning of the stop, he planned removing Murray out of the vehicle and placing

him into the cruiser, which was not part of the process of a traffic violation stop. It

is clear that the “traffic stop” purpose of the stop was abandoned at the beginning of

the detention. |

“The mission of a traffic stop is ‘to address the traffic violation that warranted

the stop ... and attend to related safety concernsl.]” United States v. Campbell, 912

F.3d 1340, 1350 (11th Cir. 2019). Here, when Officer Weeks abandoned that

mission, he violated the Fourth Amendment. This Court should grant certiorari

review, so hold, and remand for further proceedings.

15

CONCLUSION

Murray requests that this Court grant certiorari, reverse the Sixth Circuit’s decision, ©

and remand for further proceedings in the district court.

Respectfully submitted,

DEBORAH L. WILLIAMS

Federal Public Defender

LPS)

Kevin M. Schad

Appellate Director

Office of the Federal Public Defender

Southern District of Ohio

Appellate Director

250 E. Fifth St.

Suite 350

Cincinnati OH 45202

(513) 929-4834

Kevin_schad@fd.org

Counsel for Petitioner

APPENDIX

1. COURT OF APPEALS ORDER April 25, 2019

2. DISTRICT COURT ORDER June 8, 2017

Case: 18-3083 Document: 33-2 Filed: 04/25/2019 Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0209n.06

Case Nos. 18-3083/3241

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )

d.

Plaintiff-Appellee, )

) ON APPEAL FROM THE UNITED

Vv ) STATES DISTRICT COURT FOR

) THE SOUTHERN DISTRICT OF

BORN MURRAY (18-3083); ) OHIO

ELSTARHEEM MURRAY (18-3241), )

)

Defendants-A ppellants. )

BEFORE: DAUGHTREY, COOK, and GRIFFIN, Circuit Judges.

COOK, Circuit Judge. After unsuccessfully fleeing from a traffic stop, Elstarheem Murray

found himself in police custody, along with his brother Born Murray. A search of their car revealed

two large batches of commercial checks stolen from the mail. The brothers claim that the district

court should have suppressed those checks as evidence because officers seized them after an

unreasonably extended traffic stop. Because the district court properly denied their suppression

motions, we AFFIRM.

1.

Ohio State Highway Patrol Trooper Joseph Weeks stopped brothers Born and Elstarheem

Murray twice on a November morning in 2016. As part of a drug-trafficking task force, Weeks

patrolled a high-crime area in his marked cruiser but initiated traffic stops only at the request of

Case: 18-3083 Document: 33-2 Filed: 04/25/2019 Page: 2

Case Nos. 18-3083/3241, United States v. Murray, et al.

undercover agents surveilling a nearby hotel frequented by drug traffickers. So when an agent saw

the brothers leave the hotel in a Chrysler sedan, he followed until Elstarheem executed an illegal

lane change and then radioed Weeks to initiate a stop.

In his first encounter with the brothers, Weeks told Elstarheem, the driver, why he’d been

stopped, then requested licenses from them both. Elstarheem nervously admitted to driving

without a valid license but explained that they were seeking medical attention for Born’s asthma.

Weeks asked Elstarheem out of the vehicle while he ran a records check. It confirmed that

Elstarheem was not licensed to drive and revealed the brothers’ prior convictions; Elstarheem’s

involving narcotics and Born’s for check fraud. After Born, wha was licensed, agreed to drive,

Weeks sent them off with a warning for the illegal lane change and directions to the nearest

hospital.

Once released, the brothers never followed Weeks’s directions to the hospital, returning

instead to the hotel where surveillance continued. This time, undercover agents watched the

brothers load luggage into a different vehicle before driving away. When Born, now in a Hyundai

sedan, failed to stop at a red light before turning, the agents called on Weeks to initiate another

traffic stop.

So about ninety minutes after their first encounter, Weeks again stopped the Murrays. As

with the first stop, he asked the driver—this time, Born—to get out for a brief interview during

which Weeks checked the vehicle’s records back at his cruiser. Weeks directed Elstarheem to stay

put with his hands on the dashboard. But as Weeks walked Born to his cruiser, Elstarheem bolted.

With Born seated in the back of the cruiser but the door still ajar, Weeks gave chase and ordered

Elstarheem to stop. Elstarheem heeded that command only after Weeks warned that he was armed

with a taser.

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Case Nos. 18-3083/3241, United States v. Murray, et al.

Then, with both brothers secured in his cruiser, Weeks led his narcotics-detection canine

around the Hyundai for a free-air sniff. The dog alerted to the trunk and arriving officers searched

the car for drugs. They found none; however, officers did seize two envelopes holding roughly

150 commercial checks stolen from the mail.

Those checks, together worth approximately $1.5 million, provided the basis for charging

Born and Elstarheem with possession of stolen mail and conspiracy to commit bank fraud and to

possess stolen mail. See 18 U.S.C. §§ 2, 371, 1344, 1708. After the district court denied their

motions to suppress the stolen checks, the brothers conditionally pleaded guilty. The district court

sentenced each brother to 54-months’ imprisonment. As permitted by their plea agreements, Born

and Elstarheem appeal the rejection of their suppression motions.

I.

To make their Fourth Amendment claim, the Murrays focus on the very short temporal

window beginning when Weeks initiated the second traffic stop and ending with Elstarheem’s

flight from the Hyundai. They argue that during this period—less than one minute by all

accounts—Weeks unlawfully detained them because he abandoned his traffic violation

investigation “almost immediately” and asked Born out of the car to investigate drug trafficking

without any reasonable suspicion supporting detention. If their detention exceeded its

investigative scope, then the stolen checks must be suppressed as fruits of an illegal search. United

States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999). We review for clear error the district court’s

conclusion that Weeks lawfully detained the brothers before Elstarheem’s flight, taking “the

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Case Nos. 18-3083/3241, United States v. Murray, et al.

evidence in the light most likely to support the district court’s decision.” United States v. Navarro-

Camacho, 186 F.3d 701, 705 (6th Cir. 1999).

The Murrays do not argue that the traffic stop was unlawful at its outset—nor could they.

Though Weeks admits the traffic violation was pretext to fish for drug-trafficking evidence, the

constitutional reasonableness of the brothers’ detention turns on Weeks’s ebjective justifications,

not his subjective motivation. Whren v. United States, 517 U.S. 806, 813-14 (1996). Born’s

failure to obey a red light suffices to render the stop lawful under the Fourth Amendment at its

initiation. See United States v. Copeland, 321 F.3d 582, 593 (6th Cir. 2003).

But what starts as reasonable may become unreasonable in “its manner of execution.”

Illinois v. Caballes, 543 U.S. 405, 407 (2005). As the brothers correctly note, the Fourth

Amendment will not tolerate unrelated inquiries that measurably extend the duration of an

otherwise lawful traffic stop. Rodriguez v. United States, 135 S.Ct. 1609, 1614 (2015). Thus,

“{a] seizure justified only by a police-observed traffic violation ... becomes unlawful if it is

prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the

violation.” Jd. at 1612 (internal quotation omitted). But, judging the record by that standard, this

case is not close.

Critically, the district court found “it would not have been possible for Weeks to process

and issue a traffic citation” in the “very brief passage of time” between his driver’s side approach

and Elstarheem’s flight from the car. R. 35, PagelID 258-59. In that one-minute interval, Weeks

asked Born to exit the car, performed a consensual pat-down search, and was in the process of

escorting Born to his cruiser when Elstarheem fled. Weeks had barely started at the tasks tied to

99

issuing a traffic ticket, let alone the “ordinary inquiries incident to [a] traffic stop.” Rodriguez,

135 S.Ct. at 1615 (“Typically such inquiries involve checking the driver’s license, determining

Case: 18-3083 Document: 33-2 Filed: 04/25/2019 Page:5

Case Nos. 18-3083/3241, United States v. Murray, et al.

whether there are outstanding warrants against the driver, and inspecting the automobile’s

registration and proof of insurance.”). True, Weeks’s prior encounter with the brothers obviated

some of these ordinary inquiries. But others remained, such as verifying proper registration and

insurance for the Hyundai.

The Murrays’s claim that Weeks abandoned his traffic-stop investigation to embark on

another also lacks support in the record. They stress that Weeks had not yet questioned them about

the traffic violation. An officer’s failure to ask for a motorist’s driver’s license may suggest

abandonment in some cases, but not here, given that Weeks verified Born’s license during the first

stop. Nor does Weeks’s decision to order Born out of the car point to abandonment. See United

States v. Lash, 665 F. App’x 428, 431 (6th Cir. 2016) (“Even without a reason to be suspicious, an

officer may order the driver to get out of the vehicle during a traffic stop to ensure his own safety

during the encounter.” (internal quotation marks omitted)). The district court credited Weeks’s

testimony that—in light of the brothers’ earlier story about the need to get to a hospital for an

emergency that no longer appeared to exist—he removed Born from the car to separate the brothers

while he figured out what was going on. The Murrays offer no argument that would allow us to

set aside that finding as clearly erroneous.

III.

As the district court concluded, Weeks lawfully detained the brothers before Elstarheem’s

flight—and reasonably pursued and seized the brothers thereafter. We AFFIRM.

Case: 3:16-cr-00160-TMR Doc #: 35 Filed: 06/08/17 Page: 1 of 9 PAGEID #: 252

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

UNITED STATES OF AMERICA, Case No. 3:16-cr-160

Plaintiff, | Judge Thomas M. Rose

V. :

BORN MURRAY (1)

ELSTARHEEM MURRAY (2),

Defendants.

ENTRY AND ORDER DENYING THE MOTION TO SUPPRESS (DOCS. 21) FILED BY

DEFENDANTS BORN MURRAY AND ELSTARHEEM MURRAY

Under a two count Indictment, Defendants Elstarheem Murray (“Elstarheem”) and Born

Murray (“Born”) were charged with conspiracy to possess stolen mail and commit bank fraud as

well as possession of stolen mail. (Doc. 12). Under Count 1, both Defendants are alleged to

have engaged in a conspiracy to remove business checks from the United States mail, alter the

business names on the checks, and attempt to present the checks to banking institutions in

Dayton, Ohio, in order to fraudulently obtain cash in violation of 18 U.S.C. §§ 37 and 1349.

Under Count 2, both Defendants are alleged to have knowingly possessed stolen United States

mail taken or abstracted from letter boxes in violation of 18 U.S.C. §§ 1708 and 2. This matter is

set for trial on June 26, 2017.

Now pending before the Court is Defendants’ Motion to Suppress. (Docs. 21).

Defendants argue that the allegedly stolen checks were discovered during an unconstitutional,

pretextual traffic stop. In opposition, the Government argues that the law enforcement officers

who conducted the traffic stop did not violate Defendants’ rights under the Fourth Amendment.

Case: 3:16-cr-00160-TMR Doc #: 35 Filed: 06/08/17 Page: 2 of 9 PAGEID #: 253

On March 21, 2017, the Court held a hearing on the Motion to Suppress. (Doc. 26.) After the

hearing, Defendants submitted post-hearing memoranda (Docs. 29-30), in response to which the

Government filed a memorandum in opposition (Doc. 31). Defendants each filed a reply (Docs.

33-34) to the Government’s memorandum. The Court has reviewed the parties’ briefing and the

Motion is ripe for review. For the reasons stated below, the Court DENIES the Motion to

Suppress.!

I. BACKGROUND

On November 29, 2016, law enforcement officers working with the Miami Valley Bulk

Smuggling Task Force (“Task Force”) observed Elstarheem and Born get into a car and leave a

motel on Miller Lane in Dayton, Ohio. Task Force agents followed the car and observed

Elstarheem, who was driving, execute an illegal lane change. Based on this violation, the Task

Force agents called Ohio State Patrol Trooper Joseph Weeks (““Weeks”) via radio and requested

that he initiate a traffic stop. Both the Task Force agents and Weeks admit that the purpose of

the traffic stop was to conduct an investigation into possible criminal activity.

After stopping Defendants’ car on Interstate 75, Weeks conducted NCIC and LEADS

records checks on both Defendants. The records checks revealed that Elstarheem had a

conviction involving narcotics and was not licensed to drive, and that Born had a conviction for

check fraud. Defendants told Weeks that they were seeking medical attention for Born. Weeks

did not issue a traffic citation and allowed Defendants to continue traveling after Born, who was

licensed, agreed to drive.

Shortly after this traffic stop, Task Force agents observed Defendants again at the same

motel on Miller Lane. Defendants placed luggage into two different cars and then left the motel

' The Court acknowledges the valuable contribution and assistance of judicial extern Anthony Satariano

in drafting this opinion.

Case: 3:16-cr-00160-TMR Doc #: 35 Filed: 06/08/17 Page: 3 of 9 PAGEID #: 254

together in one of the cars. The other car left the motel traveling in the opposite direction. Task

Force agents followed Defendants’ car and observed it make a right turn on red without coming

to a complete stop. The agents radioed Weeks to conduct another traffic stop, which he did.

Again, both the Task Force agents and Weeks admit that the purpose of the traffic stop was to

conduct a criminal investigation.

When Weeks reached the car, he asked Born, who was the driver, to come with him to his

police cruiser. Weeks told Elstarheem to remain seated and to keep his hands on the dashboard.

While Weeks walked with Born to the police cruiser, Elstarheem fled from the car. Weeks gave

chase, told Elstarheem to stop, and warned him that he was armed with a Taser. Elstarheem

heeded the command to stop and Weeks secured each of the Defendants in a police cruiser—

after additional officers arrived to support him. Weeks then deployed Ryo, a canine trained in

the detection of narcotics, to conduct an open-air sniff test around Defendants’ car. Ryo alerted

to the trunk of the vehicle indicating that he detected the smell of narcotics in that area. Based

on Ryo’s alert, Task Force Officers conducted a search of the trunk compartment and found an

envelope containing 150 business checks. The Officers seized the checks, which are the primary

evidence at issue in this Motion.

Hi. LEGAL STANDARD

The Fourth Amendment to the United States Constitution protects the rights of

individuals against unreasonable searches and seizures conducted by state actors. United States

v. Ganias, 755 F.3d 125, 133 (6th Cir. 2014). A search occurs when the Government acquires

information by either “physically intruding on persons, houses, papers, or effects” or otherwise

invading an area in which the individual has a reasonable expectation of privacy. Jd. (citing

Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013)). “A seizure occurs when the Government —

Case: 3:16-cr-00160-TMR Doc #: 35 Filed: 06/08/17 Page: 4 of 9 PAGEID #: 255

interferes in some meaningful way with the individual’s possession of property.” Jd. (citing

United States v. Jones, 565 U.S. 400 n.5 (2012)). The party seeking suppression of evidence

obtained by a search has the burden of proving that the search was unlawful. United States v.

Blakeney, 942 F.2d 1001, 1014 (6th Cir. 1991).

A traffic stop involves a seizure in terms of the Fourth Amendment. Bendlin vy.

California, 551 U.S. 249, 255 (2007). The Sixth Circuit applies a probable cause standard to

traffic stops executed to investigate a civil infraction. United States v. Lyons, 687 F.3d 754, 763

(6th Cir. 2012). The Sixth Circuit defines probable cause as “reasonable grounds for belief,

supported by less than prima facie proof but more than mere suspicion” and it has determined it

exists when “there is a fair probability, given the totality of the circumstances, that” an offense

has occurred or evidence will be found. United States v. Howard, 621 F.3d 43, 453 (6th Cir.

2010). The reasonableness of a traffic stop does not depend on the motivations of an officer and

so long as an officer has probable cause to believe a traffic violation has occurred a resulting stop

does not violate the Fourth Amendment. Whren v. United States, 517 U.S. 806, 812-13 (1996);

United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993).

The “collective knowledge” doctrine sliews an officer to conduct a traffic stop pursuant

to information obtained by a fellow officer. United States v. Lyons, 687 F.3d at 766-67. The

Sixth Circuit has stated that the “collective knowledge” doctrine applies when an officer

effectuates a stop at the direction of another officer who possesses the requisite knowledge to

render the stop Constitutionally allowable. Jd. at 767. The court utilizes a three factor test to

determine if a stop is allowable under the “collective knowledge” doctrine and those factors are:

(1) the officer taking action must act in objective reliance based on the information received, (2)

the officer providing the information must have facts that support the probable cause required,

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and (3) the stop can be no more intrusive than would have been allowed had the requesting

officer been the one to conduct it. Id.

The Fourth Amendment allows officers to investigate crimes not related to the reason for

a traffic stop so long as the investigation does not exceed the time reasonably required to issue a

traffic citation. Rodriguez v. United States, 135 S. Ct. 1609, 1614-15 (2015). The Supreme

Court has been clear in stating “[a]n officer, in other words, may conduct certain unrelated

checks during an otherwise lawful traffic stop.” Jd. at 1615.

When an officer conducts an open air sniff with a trained drug dog during a lawful traffic

stop, the sniff does not constitute a “search” in terms of the Fourth Amendment and does not

represent an unreasonable delay when the dog is already present at the scene where the stop is

occurring. United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998). If a properly trained drug

dog alerts to the presence of drugs, probable cause exists for a lawful search as long as the facts

sieonndine the alert would make a reasonably prudent person think a search would uncover

contraband. United States v. Holleman, 743 F.3d 1152, 1156 (8th Cir. 2014); Florida v. Harris,

133 S. Ct. 1050, 1058 (2013). If officers have probable cause to search a lawfully stopped

vehicle, they may search any part of the vehicle or its contents that may contain the object of the

search. Wyo. V. Houghton, 526 U.S. 295, 301 (1999).

When the government seeks to seize an item during a search there must be a nexus

between the item being seized and a suspected criminal activity. United States v. Fisk, 255

F.Supp 2d 694, 705 (2003). When the item being seized represents fruits of a crime,

instrumentalities or contraband the nexus is automatically provided. Id.

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