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Date: 04-27-2020
Case Style:
State of Louisiana v. Brandon Bell-Brayboy
Case Number: 53,413-KA
Judge: Shonda Stone
Court: COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
Plaintiff's Attorney: JOHN SCHUYLER MARVIN
District Attorney
HUGO A. HOLLAND, JR.
JOHN MICHAEL LAWRENCE
Assistant District Attorneys
Defendant's Attorney:
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On Tuesday evening, February 21, 2017, Bell-Brayboy was stopped
for a traffic violation on I-20 in Webster Parish, Louisiana. During that
traffic stop, law enforcement completed a K-9 search of defendant’s vehicle
and found 24 pounds of cocaine and heroin. Initially, defendant was
prosecuted in the United States District Court for the Western District of
Louisiana for conspiracy to possess with intent to distribute cocaine and
heroin. Defendant filed a motion to suppress, and a hearing was held on that
motion on July 19, 2017. On November 3, 2017, in accordance with the
recommendation of the magistrate judge, the federal district court granted
defendant’s motion, finding the search of defendant’s vehicle
unconstitutional, and suppressed all evidence recovered as result of the
search, including defendant’s incriminating statements. As such, the federal
charges for conspiracy to possess with intent to distribute cocaine and heroin
were subsequently dismissed.
Then, on November 7, 2017, the 26th Judicial District Court, Parish of
Webster, issued an arrest warrant for Bell-Brayboy for the charge of
2
possession with intent to distribute cocaine and heroin, found as a result of
the February 21, 2017 search. On December 6, 2017, defendant was
charged by bill of information with: (1) Count One: possession with intent to
distribute 400 grams or more of CDS, Schedule II, cocaine, in violation of
La. R.S. 40:967(F)(1)(c); and (2) Count Two: possession with intent to
distribute CDS, Schedule I, heroin, in violation of La. R.S. 40:966(A)(1).
The defendant waived formal arraignment and pled not guilty.
On January 3, 2018, the state filed an opposition to defendant’s
motion to suppress arguing there was reasonable suspicion of criminal
activity during the stop.1
On September 13, 2018, defendant filed a motion
to suppress arguing that there was no probable cause for defendant’s traffic
stop, and that law enforcement unconstitutionally extended the stop so that a
K-9 unit could search defendant’s vehicle.
On October 5, 2018, a hearing was held on the motion to suppress. At
that hearing, the state introduced a transcript of the hearing on the motion to
suppress held in the U.S. District Court.2
The following testimony was
elicited at the July 19, 2017 hearing in U.S. District Court. Louisiana State
Trooper George Strickland (“Tpr. Strickland”) testified that on the evening
of February 21, 2017, he was positioned on the shoulder of I-20 east in
Webster Parish, near mile marker 38. Tpr. Strickland testified that he
observed a 2005 Toyota Solara pass his location traveling in the right lane.
1 The record indicates that the State filed its opposition to defendant’s motion to
suppress before defendant filed the motion.
2 The transcript was introduced as State’s Exhibit 2 (“S.E. 2”). The state
indicated that the trial court would need to read that transcript prior to ruling, and that
“some of the testimony is probably not going to make sense to you until you read the
federal transcript.” Defendant agreed to the introduction of S.E. 2, and the trial court
referenced S.E. 2 throughout its written ruling. Therefore, that transcript will be
summarized first.
3
Tpr. Strickland stated that when the Solara passed him it was traveling at
about 70 mph, and as it passed him, it slowed down to approximately 65
mph.
Tpr. Strickland testified that he pulled out to further observe the
vehicle, and saw it use the left lane to pass several tractor-trailers. Tpr.
Strickland stated that, upon catching up to the vehicle, he began running its
Georgia license plate. Tpr. Strickland testified that when the vehicle moved
back into the right lane, it crossed the fog line. Tpr. Strickland testified that
he then confirmed that that the vehicle had not been stolen. Tpr. Strickland
testified that he then initiated a traffic stop at which point his dash cam was
activated. Tpr. Strickland testified that he asked for defendant’s driver’s
license and identified him as Brandon Bell-Brayboy. Tpr. Strickland stated
that the vehicle was registered to a female in Georgia, the inside of the
vehicle was very clean, and there were no personal effects inside the vehicle
except a backpack in the backseat that had “University of Alabama” on it.
Tpr. Strickland stated that defendant told him he had been in Houston
since Friday, where he had been exercising with his trainer. Tpr. Strickland
stated that defendant was holding on to his cell phone during their
interaction, and defendant kept breaking eye contact to stare at the blank cell
phone screen. Tpr. Strickland stated that he found it odd that defendant had
been in Houston from Friday to Tuesday, but the only luggage in the
passenger compartment of the car was a backpack. Tpr. Strickland testified
that as he continued to speak with defendant, defendant received a call on
his cell phone, which he answered. Tpr. Strickland testified that he asked
defendant to put down the phone and tell the person he was speaking with
that he would call him back. Tpr. Strickland stated that defendant said he
4
was only letting his friend know where he was located. Tpr. Strickland
stated that the phone number that appeared on the screen of defendant’s
phone did not have a name attached to it, which he found odd, because
defendant stated he was speaking with a friend.
Tpr. Strickland stated that defendant put his phone down, and the two
continued to talk. Tpr. Strickland stated that defendant said he was headed
back to school in Tuscaloosa, and that he played football for the University
of Alabama. Tpr. Strickland stated that he then believed defendant was
being deceptive with his answers, and he suspected defendant was engaged
in criminal activity. Tpr. Strickland testified that he then told defendant that
he was going back to his police vehicle to check defendant’s driver’s license
and defendant should wait in his vehicle.
Tpr. Strickland stated that he then checked defendant’s criminal
history and checked on whether he was listed on the University of Alabama
football team’s roster. Tpr. Strickland testified that he could not find
defendant’s name on the current roster for the university’s football team, but
he had found it listed on a prior year’s team or maybe the spring roster. Tpr.
Strickland testified that he suspected defendant had been engaged in some
type of criminal activity, so he contacted two other troopers to provide
backup for a consent-search of defendant’s vehicle. Tpr. Strickland testified
that once another Tpr. arrived, he had defendant step out of his vehicle. Tpr.
Strickland stated that he did not issue defendant a citation at that point, or
return his driver’s license.
Tpr. Strickland stated that he explained to defendant that he worked
on the interstate every day and saw a lot of bad things happen, he then asked
to search defendant’s vehicle. Tpr. Strickland testified that defendant did
5
not consent to having his vehicle searched. Tpr. Strickland stated that
defendant was not free to leave. Tpr. Strickland testified that he told
defendant it was within his rights to refuse, but that he had the right to call a
K-9 unit to the scene to “run around his vehicle.”
Tpr. Strickland stated that by then a third trooper had arrived, and that
trooper then contacted a K-9 unit with the Minden Police Department. Tpr.
Strickland testified that the K-9 unit the state troopers ordinarily worked
with was not available that day, so they were working with a local K-9 unit.
Tpr. Strickland testified that once the available K-9 unit was contacted, they
arrived 20-22 minutes later. Tpr. Strickland testified that he gave a brief
description to the K-9 officer of what was going on, the officer had the
canine perform an open-air search of defendant’s vehicle, and he was then
told by the K-9 officer that there was a positive alert on both rear quarter
panels of the vehicle.
Tpr. Strickland stated that he then began a search of the vehicle. Tpr.
Strickland stated that he found two after-market compartments in the rear
quarter panels on both sides of defendant’s vehicle. Tpr. Strickland stated
that the plastic shell on the inside that covered the quarter panels included
electronic compartments that would swing open to allow for contraband to
be placed inside. Tpr. Strickland stated that he was able to pull back the
plastic shells and see the contraband, which consisted of duct tape wrapped
packages inside the passenger side.
Tpr. Strickland stated that he then placed defendant under arrest and
moved the vehicle to a safe location to recover the contraband. Tpr.
Strickland testified that the contraband consisted of ten grey duct-taped
packages that included cocaine, and one black duct-taped package that
6
included heroin; the packages were field tested for CDS. Tpr. Strickland
stated that the CDS amounted to 11 kilograms of narcotics.
On cross examination, Tpr. Strickland stated that he was aware that
the day before defendant was arrested, Monday, February 20, 2017, was
President’s Day, making the weekend prior to defendant’s arrest a three-day
weekend. Tpr. Strickland stated that on February 21, 2017, he was working
“stationary patrol” as a part of criminal interdiction. Tpr. Strickland stated
that he was looking for traffic violations and doing drug interdiction, but he
did not pull over every traffic offense he witnessed, because “we would be
there all night.” Tpr. Strickland stated that the posted speed was 70 mph
along the part of I-20 where defendant was stopped. Tpr. Strickland stated
that he did not find it suspicious that defendant’s vehicle slowed when he
saw a state trooper vehicle, but that it caught his attention. Tpr. Strickland
stated that he typed defendant’s license plate into his computer while he was
driving to confirm the vehicle was not stolen.
Tpr. Strickland testified that defendant stated that the vehicle
belonged to his sister, but he did not ask defendant the name of his sister.
Tpr. Strickland acknowledged that a check of the license plate provided a
woman’s name, which fit with defendant saying the car belonged to his
sister. Tpr. Strickland then stated, “But at the same time, normally if he
borrowed his sister’s car, I’m sure he didn’t clean it up for her. The inside
was immaculate. It had no personal property.” Tpr. Strickland was unable
to recall whether he asked for or received the registration for the vehicle.
Tpr. Strickland stated that there was a white bag in the front seat of the
vehicle with chips and snacks in it which was consistent with defendant’s
story that he was driving from Houston to Tuscaloosa.
7
Tpr. Strickland testified that he thought it was suspicious that
defendant had been on a three to four-day trip with only a backpack. Tpr.
Strickland stated that it did not appear that the backpack would hold enough
if defendant was exercising every day as he told Tpr. Strickland. Tpr.
Strickland acknowledged that he had not yet looked in the trunk to
determine if defendant had additional luggage. Tpr. Strickland testified that
he did not ask defendant about his luggage.
Tpr. Strickland stated that when he returned to his patrol car with
defendant’s driver’s license, he checked defendant’s criminal history and he
check the Automated License Plate Recognition System (“ALPR”), a license
plate reader system. Tpr. Strickland stated that defendant did not have any
outstanding warrants, but he did have a prior assault charge in Houston.
Tpr. Strickland stated that ALPR showed that the vehicle had been on I-10
traveling westbound from Lake Charles into Texas on Monday, February 20,
2017. Tpr. Strickland stated that he does not check the ALPR system for
every person he pulls over, only those he found to be deceptive, and he
found defendant to be deceptive. Tpr. Strickland testified that based on his
training and experience, “I know something is not adding up here.”
Tpr. Strickland then testified that he found the following facts
suspicious:
1. Defendant’s travel itinerary-that he was in Houston training for the
football team.
2. Defendant’s assertion that he played football for the University of
Alabama. Tpr. Strickland acknowledged that he did find defendant’s
name on the team’s roster in a prior year.
3. Third-party owner of the vehicle. Tpr. Strickland testified that there
being a third-party owner for vehicle defendant was driving was not
suspicious alone, but taken with the other factors it was. Tpr.
8
Strickland acknowledged that he never asked defendant about the
owner of the vehicle.
4. Defendant’s statement that he left Tuscaloosa on Friday for Houston,
and was returning on Tuesday.
5. Defendant was traveling on I-20, which Tpr. Strickland stated was not
the fastest route from Houston to Tuscaloosa.
6. The ALPR system showed the car was on I-10 in Lake Charles the
day before defendant was arrested.
Tpr. Strickland stated that that he did not know what particular crime
in which he believed defendant to be was involved, but he thought it was
probably narcotics. Tpr. Strickland stated that while waiting for the K-9 unit
to arrive, one officer patted down defendant and took his cell phone. Tpr.
Strickland then testified that while waiting for the K-9 unit, the defendant
and officers were standing around discussing football, and that defendant
was calm, relaxed, and answering questions.
Officer Clint Smith (“Ofc. Smith”), with the Minden Police
Department, testified that he is part of a K-9 unit, and was present during the
search of defendant’s vehicle. Ofc. Smith stated that he was at home in
Minden when he received a call from a state trooper to bring his canine,
Harley, to where defendant’s vehicle was stopped on I-20. Ofc. Smith
testified that, upon receiving the call, he dressed and left the house and drove
immediately to the scene. Ofc. Smith verified that Harley alerted upon
smelling each of the rear quarter panels of defendant’s car.
Louisiana State Police Officer O.H. Hank Haynes (“Tpr. Haynes”),3
testified that he served on the Drug Enforcement Administration Task Force
for 16 years. Tpr. Haynes contacted defendant after he was brought to the
3 The testimony does not state what rank Tpr. Haynes holds with the state police.
9
Minden Police Department. Tpr. Haynes testified that he Mirandized
defendant, and he stated that he understood his rights. Tpr. Haynes stated
that the defendant said that he was being paid to drive from Houston to
Atlanta, he did not know what was inside the vehicle, but he knew it was
illegal. Tpr. Haynes testified that defendant gave him permission to get his
cell phone out of the vehicle, and gave the officer the code to access the
phone. Tpr. Haynes testified that the phone showed there were numerous
missed calls, and that defendant agreed to cooperate and make phone calls to
the person who was calling his phone. Tpr. Haynes stated that defendant
referred to the person responsible for the CDS in the car by the nickname
“Pop.”
Tpr. Haynes testified:
[Defendant] was paid by an unknown male which goes by the
nickname of “Pop.” [Defendant] said Pop flew him from
Atlanta, Georgia, to Houston, Texas, where he was picked up
by another unknown black male, which [defendant] only knew
as a nickname, driving a blue SUV. He said it was
approximately 30 or 40 minutes from the airport where this
unkown black male picked him up, carried him to a motel,
where [defendant] told me that he went up to the valet parking
and received the keys to this Toyota and he was on his way
back driving it to Atlanta, Georgia. Once he arrived at Atlanta,
Georgia, he was supposed to call Pop. Pop would tell him
where to park his vehicle and he would have to get his own ride
back to his Chrysler 300 that was parked at the Atlanta airport.
[Defendant] was willing to attempt a controlled delivery. We
contacted agents in Atlanta, Georgia; just couldn’t get
everything together. And later on, that night, it was determined
that we would not attempt a controlled delivery because we
didn’t have enough information.
The “Report and Recommendation” signed by the magistrate judge
for the U.S. District Court for the Western District of Louisiana, and the
order signed by the U.S. district judge granting defendant’s motion to
suppress in the U.S. district court were included in the record. The “Report
10
and Recommendation” stated that defendant driving a third-party vehicle
provided little to no weight in determining reasonable suspicion, and that
Tpr. Strickland could have, but did not, verify that the name defendant gave
as his sister’s matched what was on the registration. The report stated that
having a clean car was not indicative of criminal activity, defendant had a
bag of snacks and his backpack inside the car, which was indicative of a
long trip, and Tpr. Strickland did not inquire if defendant had luggage in the
trunk. The report stated that the only basis for finding defendant nervous
was Tpr. Strickland’s testimony, and the magistrate judge did not see
“excessive nervousness beyond that normally associated with an uninvited
encounter” with law enforcement, which does not suffice to establish
reasonable suspicion.
The report stated that Tpr. Strickland was unable to explain how
defendant receiving a phone call from a friend whose number was not saved
in his contacts was suggestive of criminal activity. The report stated that
defendant’s statement that he played football for the University of Alabama
“indicated nothing more than useful aggrandizement” meant to impress Tpr.
Strickland in the hopes that he would not issue defendant a traffic citation.
The report noted that Tpr. Strickland did not ask defendant any questions
regarding the discrepancy between his stated travel plans and what was
recorded by the ALPR system, and that defendant was not taking the most
direct route from Houston to Tuscaloosa. The report stated that Tpr.
Strickland could not articulate what crime defendant may have committed or
provide specific facts for why he suspected defendant of criminal activity.
The report stated that none of the factors indicated by Tpr. Strickland,
11
individually or collectively, amounted to reasonable suspicion of criminal
activity beyond defendant crossing the fog line which led to the stop.
On October 5, 2018, Tpr. Strickland testified again at the hearing on
defendant’s motion to suppress at the 26th Judicial District Court, providing
the following testimony in addition to what he testified to in the U.S. District
Court. Tpr. Strickland stated that in his drug interdiction work he typically
saw drugs travel from “hub” cities, such as Dallas and Houston, toward
cities in the eastern United States. Tpr. Strickland testified that people who
are traveling the speed limit do not typically slow down when they see a
police vehicle, as defendant did. Tpr. Strickland testified that he stopped
defendant because he crossed the fog line, and also because he wanted to
know why defendant decreased his speed when he saw Tpr. Strickland.
Tpr. Strickland stated that defendant’s car looked like a rental car,
because it was so clean and defendant had few personal effects inside. Tpr.
Strickland stated that most of the time in traffic stops he gets eye contact,
and that a lack of eye contact, like he saw with defendant, is due to
nervousness. Tpr. Strickland stated that it is very common in drug
trafficking for the person who is transporting the drugs to have to repeatedly
check in with the person for whom they are transporting the drugs while
traveling. Tpr. Strickland stated that, while he was speaking with defendant,
he was holding his phone like he was expecting a call, and during his
interaction with defendant he got a call and tried to answer.
Tpr. Strickland testified that according to the ALPR system, on
Monday, February 20, 2017, at 4:05 a.m., defendant’s vehicle was in
Gulfport, Mississippi heading westbound. Tpr. Strickland stated that
defendant’s car was later recorded by the ALPR system as being in
12
Hammond, Louisiana, then Lafayette, Louisiana, and, finally, in Lake
Charles, Louisiana.4
. Tpr. Strickland stated he thought defendant was
engaged in a “turn-around trip,” where a person trafficking narcotics will
travel to where the drugs are located, pick them up, and immediately drive
them to another destination. Tpr. Strickland stated that he believed
defendant was transporting narcotics.
On cross examination, Tpr. Strickland stated that defendant had not
been driving erratically, but he did cross the fog line when he passed
vehicles and returned to the right lane. Tpr. Strickland affirmed that he had
no idea that if defendant had luggage or not, because he did not see inside
the trunk of defendant’s vehicle. Tpr. Strickland testified that he has pulled
people over before who had their phone on their person, but with defendant
it was the only time he had seen someone focus on a blank phone screen.
When asked if it was reasonable that defendant’s friend who was to call him
used a different person’s phone, and that was why there was no contact
name associated with the phone number that appeared on the defendant’s
phone when he received a call, Tpr. Strickland stated, “I guess anything is
possible.” Tpr. Strickland stated that most people are a little nervous
initially when he pulls them over, but once he starts talking to them, they
relax and engage with him if they are not engaged in criminal activity.
Tpr. Strickland testified that it is common for persons transporting
narcotics to have a car that travels ahead of the one transporting the drugs, in
order to warn them of police presence. Tpr. Strickland testified that he did
not see any other cars that appeared to be interested in defendant’s vehicle.
4 When Tpr. Strickland testified before the U.S. District Court, he only mentioned
defendant’s car being recorded by the ALPR system in Lake Charles, Louisiana.
13
Tpr. Strickland stated that the ALPR system is designed to take pictures of
the license plates and the cars that are associated with the plate numbers.
Tpr. Strickland stated that sometimes the ALPR system will get pictures of
the person driving a car, but he did not testify that there was a photo of
defendant driving the Toyota the day before his arrest, when the car was
photographed traveling along I-10 west between Gulfport and Houston. Tpr.
Strickland testified that he did not write defendant a ticket, and he did not
know if he would have without having found narcotics in the car.
The state entered a video of the stop and arrest, recorded by the
camera located in Tpr. Strickland’s dashboard. The video sound quality is
poor, particularly when Tpr. Strickland spoke with the defendant while he
was still in his car, which was pulled over to the side of I-20, as multiple
vehicles passed defendant’s vehicle throughout the video. Tpr. Strickland
engaged defendant about one minute into the video, and asked him questions
for about two and a half minutes, before returning to his patrol car. Tpr.
Strickland stood on the passenger side of the car when questioning
defendant, while defendant remained in the car.
After returning to his patrol car, Tpr. Strickland can be heard stating
on the video, “He was getting pretty choked up when I was asking
questions.” At approximately 13 minutes into the video, Tpr. Strickland
asks defendant to exit the car, and then asks the defendant if he can search
his vehicle. The defendant refuses to give consent. Around 14 minutes into
the video, Tpr. Strickland states that he will call for a K-9 unit, and they then
proceed to wait for the unit to arrive. During that time, defendant can be
seen standing in front of Tpr. Strickland’s patrol car, and can be heard
discussing football and Toyota vehicles with one of the troopers present. At
14
approximately 36 minutes into the video, the K-9 unit arrives and conducts
the search, alerting to the presence of narcotics.
On October 16, 2018, the trial court denied the motion to suppress.
The trial court provided the following reasons:
In this case, Tpr. Strickland had probable cause to pull over the
defendant due to improper lane usage, in violation of [La. R.S.]
32:79. Tpr. Strickland also had reasonable suspicion that the
defendant had committed a crime, or was about to commit a
crime. Reasonable suspicion requires a weighing of the totality
of the circumstances. Here, Tpr. Strickland acted in good faith
and reasonably concluded based on all the factors corroborated
in his testimony that the defendant was involved in criminal
activity. The obvious next step in his investigation was to
request a K-9 unit to conduct a roadside open-air sniff. The
time it took for the K-9 unit to arrive to the scene and conduct
the sniff (20-22 minutes) was not an unreasonable time frame
based on the location of the traffic stop.
***
On June 17, 2019, defendant entered a guilty plea pursuant to State v.
Crosby, 338 So. 2d 584 (La. 1976), reserving the right to appeal the trial
court’s ruling on the motion to suppress. After defendant waived all delays,
the trial court sentenced defendant to (1) Count One: 15 years at hard labor;
and (2) Count Two: 15 years at hard labor without benefits. The trial court
stated that the sentences were to run concurrently, and defendant was given
credit for time served. The trial court advised defendant that he had the right
to appeal the ruling on the motion to suppress, but not his sentence; the trial
court also advised defendant of his post-conviction relief time limits.
Defendant now appeals.
DISCUSSION
On appeal, the defendant asserts a single assignment on the issue of
whether there were reasonable, articulable grounds for his arrest when he
was seized illegally for 22 minutes before the initial free air dog sniff. The
15
defendant argues that Tpr. Strickland did not have sufficient information to
dispel or confirm any suspicions he had regarding defendant’s alleged
criminal activity. He maintains that the trial court did not make individual
findings supporting reasonable suspicion of criminal activity, but the U.S.
District Court did, and avers Tpr. Strickland “cherry-picked” those facts that
he considered suspicious and acted on a hunch. Defendant states that once
he has exhausted his remedies in state court, he will be able to seek federal
habeas review, and the federal courts would likely grant him relief. BellBrayboy argues the evidence recovered in the search and his subsequent
incriminating statements should be suppressed.
The state, on the other hand, argues that the traffic stop at issue in this
case did not violate defendant’s Fourth Amendment rights, and that Tpr.
Strickland had reasonable suspicion to believe criminal activity was afoot.
The state argues the automobile exception to the warrant requirement
allowed Tpr. Strickland to search defendant’s car, and thus, his conviction
and sentence should be affirmed.
Applicable law
This Court reviews the trial court’s ruling on a motion to suppress
under the manifest error standard in regard to factual determinations, as well
as credibility and weight determinations, while applying a de novo review to
findings of law. State v. Manning, 51,450 (La. App. 2 Cir. 8/9/17), 244 So.
3d 600, writ denied, 17-1575 (La. 5/18/18), 242 So. 3d 575 (“State v.
Manning II”). A trial court’s denial of a motion to suppress is afforded great
weight and will not be set aside unless a preponderance of the evidence
clearly favors suppression. Id.; State v. Prince, 50,548 (La. App. 2 Cir.
04/13/16), 195 So. 3d 6.
16
The right of every person to be secure in his person, house, papers and
effects against unreasonable searches and seizures is guaranteed by the
Fourth Amendment to the United States Constitution and by Article I, § 5, of
the 1974 Louisiana Constitution. It is well settled that a search and seizure
conducted without a warrant issued on probable cause is per se unreasonable
unless the warrantless search and seizure can be justified under one of the
narrowly drawn exceptions to the warrant requirement. State v. Thompson,
02–0333 (La. 4/9/03), 842 So. 2d 330; State v. Tatum, 466 So. 2d 29 (La.
1985); State v. Manning, 50,591 (La. App. 2 Cir. 5/18/16), 196 So. 3d 626,
writ denied, 17-1575 (La. 5/18/18), 242 So. 3d 575 (“State v. Manning I”);
State v. Lawrence, 45,061 (La. App. 2 Cir. 3/3/10), 32 So. 3d 329, writ
denied, 10–0615 (La. 10/8/10), 46 So. 3d 1265. The purpose of limiting
warrantless searches to certain recognized exceptions is to preserve the
constitutional safeguards provided by a warrant, while accommodating the
necessity of warrantless searches under special circumstances. Donovan v.
Dewey, 452 U.S. 594, 101 S. Ct. 2534, 69 L. Ed. 2d 262 (1981); State v.
Thompson, supra; State v. Manning I, supra.
The authority and limits of the Fourth Amendment apply to
investigative stops of vehicles. United States v. Sharpe, 470 U.S. 675, 105
S. Ct. 1568, 84 L. Ed. 2d 605 (1985); United States v. Hensley, 469 U.S.
221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985). The stopping of a vehicle and
the detention of its occupants is a seizure within the meaning of the Fourth
Amendment. State v. Manning I, supra; State v. Burney, 47,056 (La. App. 2
Cir. 05/23/12), 92 So. 3d 1184, writ denied, 12–1469 (La. 1/11/13), 106 So.
3d 548. The standard for evaluating a challenge to a routine warrantless stop
for violating traffic laws is a two-step formulation: the court must determine
17
“whether the officer’s action was justified at its inception, and whether it
was reasonably related in scope to the circumstances which justified the
interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct.
1868, 1879, 20 L. Ed. 2d 889 (1968); State v. Pena, 43,321 (La. App. 2 Cir.
7/30/08), 988 So. 2d 841.
For a traffic stop to be justified at its inception, an officer must have
an objectively reasonable suspicion that some sort of illegal activity, such as
a traffic violation, occurred or is about to occur, before stopping the vehicle.
U.S. v. Sharpe, supra; State v. Burney, supra. If a police officer observes a
traffic infraction, the subsequent stop for that offense is clearly legal; the
standard is a purely objective one that does not take into account the
subjective beliefs or expectations of the detaining officer. State v. Manning
I, supra; State v. Lee, 46,742 (La. App. 2 Cir. 12/14/11), 79 So. 3d 1278.
This objective standard is indifferent to the relatively minor nature of
a traffic violation. Id. In Louisiana, as in other jurisdictions, a car which
partially leaves its lane of travel and crosses the fog line either at the center
of a divided highway or on the right-hand shoulder of the road provides the
police with probable cause to believe that a traffic violation for improper
lane use has occurred. State v. Waters, 00–0356 (La. 3/12/01), 780 So. 2d
1053.
In stopping a vehicle on reasonable suspicion, an officer has the right
to conduct a routine license and registration check and may engage in
conversation with the driver and any passenger while doing so. State v. Lee,
supra. If a police officer has a specific suspicion of criminal activity, he
may further detain the individual or the property while he diligently pursues
a means of investigation likely to quickly confirm or dispel the particular
18
suspicion. State v. Burney, supra. In order to further detain a suspect,
however, the officer must have articulable facts giving rise to a reasonable
suspicion of some separate illegal activity that would justify further
detention of the suspect. State v. Williams, 47,750 (La. App. 2 Cir. 4/10/13),
112 So. 3d 1022; State ex rel. Williams v. State, 13–1394 (La. 12/2/13), 126
So. 3d 502.
In making that determination, the totality of the circumstances must
be taken into account. Id. The circumstances must be judged by an
objective standard such that the facts available to the officer at the moment
of seizure or the search would warrant a man of reasonable caution in the
belief that the action taken was appropriate. State v. Lee, supra. There is no
bright line rule for when a detention lasts too long and each instance must be
assessed in view of the surrounding circumstances. Id. Factors which may
give rise to reasonable suspicion include the demeanor of the suspect and
unlikely and inconsistent accounts regarding travel. State v. Miller, 00–1657
(La. 10/26/01), 798 So. 2d 947; State v. Lee, supra.
In Rodriguez v. United States, 575 U.S. 348, 135 S. Ct. 1609, 191 L.
Ed. 2d 492 (2015), the officer stopped the defendant’s vehicle for driving on
the shoulder. The officer completed the traffic stop and issued a citation in
about 21 minutes. However, the defendant was detained for an additional
eight minutes, waiting for a second officer to arrive in order to conduct a dog
sniff of the defendant’s car. The Rodriguez Court declined to address
whether reasonable suspicion of criminal activity justified detaining the
defendant beyond completion of the traffic infraction investigation and
remanded the case for further proceedings on the issue. In holding that
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absent reasonable suspicion, police may not extend an otherwise-completed
traffic stop in order to conduct a dog sniff, the Supreme Court explained:
Like a Terry stop, the tolerable duration of police inquiries in
the traffic-stop context is determined by the seizure’s
“mission”—to address the traffic violation that warranted the
stop, and attend to related safety concerns. Because addressing
the infraction is the purpose of the stop, it may “last no longer
than is necessary to effectuate that purpose.” Authority for the
seizure thus ends when tasks tied to the traffic infraction are—
or reasonably should have been—completed ....
An officer, in other words, may conduct certain unrelated
checks during an otherwise lawful traffic stop. But, he may not
do so in a way that prolongs the stop, absent the reasonable
suspicion ordinarily demanded to justify detaining an
individual.
Rodriguez v. United States, supra.
La. C. Cr. P. art. 215.1(D) codifies the directive of the United States
Supreme Court in Rodriguez and provides that in conducting a traffic stop
“an officer may not detain a motorist for a period of time longer than
reasonably necessary to complete the investigation of the violation and
issuance of a citation for the violation, absent reasonable suspicion of
additional criminal activity.”
In State v. Manning I, supra, and State v. Manning II, supra, this
Court considered Manning’s motions to suppress, and whether he was
detained for longer than necessary during a stop related to a traffic violation.
Manning was driving east on I-20 in Bossier Parish. Louisiana State Tpr.
Sharbono observed Manning cross the white fog line, and signaled him to
pull over. Two other adults and a child were passengers in the car. Manning
did not have a driver’s license or any paperwork for the car he was driving;
it had been rented by his sister, who was not present.
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After hearing the story of Manning’s travel itinerary and checking his
driving record and criminal history, Tpr. Sharbono called for assistance from
the canine unit. Manning refused to consent to a search of the car, and the
canine unit conducted a sniff of its exterior. The free air sniff of the exterior
of the car by the canine officer was conducted approximately 24 minutes
after the traffic stop began. After the dog alerted, the troopers searched the
interior of the car and found a bag of assorted colored pills under the front
passenger seat. Manning was arrested.
Tpr. Sharbono testified at a hearing on Manning’s motion to suppress
and stated that he observed Manning cross the fog line. He then signaled
Manning to pull over by turning on his lights, and simultaneously began
video recording the traffic stop. Tpr. Sharbono stated that it was not his
practice to immediately write a citation when a stop was made, but instead
he would talk with the driver prior to issuing a citation. After speaking with
the passengers, Tpr. Sharbono checked Manning’s driving record and
criminal history. He noted that the car had been rented in Texas, and stated
that because the person who rented the car was not present and Manning was
unable to produce any paperwork related to the rental, he was unable to
determine if Manning had authority to operate the car or if the car was
authorized for out-of-state travel. Tpr. Sharbono stated the reason he asked
for Manning’s consent to search the vehicle was because of his suspicions
that other criminal activity might be taking place based on Manning’s lack
of identification, “not normal” travel arrangements, the lack of paperwork
for the Ford Taurus, and Manning’s criminal record.
Tpr. Sharbono further testified that it is standard practice for backup
to respond when a criminal history search is requested. He stated that the K-
21
9 unit was probably at the scene as the backup unit, even before Manning
refused consent to search. Tpr. Sharbono denied that the canine alert was the
sole basis for a search of the car, again citing Manning’s suspicious travel
itinerary, lack of paperwork for the car, lack of personal identification, and
criminal history. However, Tpr. Sharbono admitted that, without the canine
alert, he would not have had probable cause to conduct the search of the
car’s interior.
The trial court stated in its ruling:
Mr. Manning had no identification. He stated he caught a ride
to Houston.... The rental papers of the car and the person who
rented the car was not there. There was no documentation.
There was no paperwork on the car or a rental agreement
according to Tpr. Sharbono’s testimony. He did a criminal
records check; found that Mr. Manning had several prior
arrests. And he believed that based on Mr. Manning’s
statements and all the surrounding information that there was a
possibility that a crime had been committed. He stated he did
not know if the car had been stolen, taken across Texas lines
without the proper rental agreement. Stated he did not know if
there was other possibilities of other crimes. State v. Manning
I, supra.
This Court affirmed the trial court’s ruling, finding the search
constitutional. Id.; State v. Manning II, supra. If evidence is derived from
an unreasonable search or seizure, the proper remedy is exclusion of the
evidence from trial. State v. Benjamin, 97-3065 (La. 12/1/98), 722 So. 2d
988. In State v. Brock, 47,005 (La. App. 2 Cir. 3/7/12), 91 So. 3d 1003, writ
denied, 12-0784 (La. 9/28/12), 98 So. 3d 826, citing, Herring v. United
States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), this Court
stated that the exclusionary rule is designed to safeguard Fourth Amendment
rights generally through its deterrent effect.
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Analysis
The state argues that, based on the totality of circumstances, the
following facts amount reasonable suspicion justifying the defendant’s
continued detention:
1. The interior of defendant’s car was clean and devoid of
personal effects, save a backpack in the back seat and a bag of
snacks in the front passenger seat. Tpr. Strickland stated he did
not find that consistent with defendant’s assertion that he had
been training with his personal trainer in Houston over the
previous weekend.
2. The car was registered to a third party, whom defendant
identified as his sister.
3. Defendant claimed to be a football player at the University of
Alabama, and Tpr. Strickland was not able to confirm that
defendant was on the current (spring 2017) team roster.
4. Defendant answered a phone call from a friend whose name
was not saved in his phone’s contacts.
5. Defendant appeared nervous during the stop.
6. Defendant’s stated travel itinerary was inconsistent with what
Tpr. Strickland discovered through a search of the ALPR
system, that defendant’s vehicle was photographed on I-10 the
day before his arrest.
7. Defendant was not taking the most direct route from Houston,
Texas to Tuscaloosa, Alabama.
We are not persuaded and find the state’s arguments are without
merit. The defendant’s car appearing clean is not a fact, which alone or
accompanied with the other facts in this case, would have provided Tpr.
Strickland with reasonable suspicion sufficient to detain defendant once the
traffic stop had concluded. A clean car is not suggestive of criminal
mischief, as many people keep clean cars. Likewise, the fact that the car
contained few personal items is also not, in and of itself, indicative of
criminal behavior. Here, Bell-Brayboy merely had a bag of snacks and his
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backpack in the passenger compartment. Tpr. Strickland assumed that that
was all defendant carried with him, without questioning defendant about his
luggage or whether he had additional effects in the trunk of the car.
Considering the length of the stop, it is extremely evident Tpr. Strickland
had the time and opportunity to make this inquiry.
Prior to speaking with defendant, Tpr. Strickland knew the car was
registered to a female in Georgia, and defendant stated the car belonged to
his sister. Tpr. Strickland failed further question defendant about the car’s
ownership, verifying what his sister’s name was, and whether her name
matched that on the vehicle’s registration. People drive the cars of third
parties frequently, and the fact that defendant was driving a car that
belonged to another does not weigh in favor of reasonable suspicion.
Moreover, the defendant’s claim that he was football player for the
University of Alabama also does not provide reasonable suspicion. Tpr.
Strickland stated that he was able to confirm that defendant had played
football for the university in a prior year, but could not confirm that he
played on the current roster in 2017. Defendant was stopped in February of
2017, and college football season had ended weeks before. Tpr. Strickland
did not further question defendant about the discrepancy, or ask defendant
exactly what he meant when he said that he was on the team. Defendant’s
statements might have warranted further questioning, but do not rise to the
level of reasonable suspicion.
Following this further, the defendant receiving a phone call from a
nameless number, referring to the caller as a friend during the stop, does not
rise to the level of reasonable suspicion justifying continued detention. The
term “friend” is not always used literally or with sincerity. Such use of the
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term could be seen as an attempt to dismiss a phone call that was
unimportant. Furthermore, not everyone saves a person’s phone number to
their contacts, and the person calling defendant may have used third-party
phone to contact him.
The fact that the defendant appeared nervous during the traffic stop
does not sufficiently provide reasonable suspicion. Being pulled over by
law enforcement is an anxiety-inducing event for many people, which may
result in nervous behavior, such a lack of eye contact. Some people simply
are not comfortable with eye contact.
Additionally, the fact that Bell-Brayboy’s travel itinerary did not
match what Tpr. Strickland discovered through a search of the ALPR
system, while this fact may have merited further questioning, it did not rise
to the level of reasonable suspicion justifying further detention. Tpr.
Strickland did not question defendant further about why his car’s license
plate was recorded on I-10 the day before (Monday), when defendant stated
he had been in Houston over the weekend. Moreover, Tpr. Strickland did
not testify that defendant stated he himself drove to Houston, and Tpr.
Strickland did not question him about his mode of travel to Houston.
Similarly, the fact that the defendant was not taking the most direct
route between Houston and Tuscaloosa does not provide reasonable
suspicion. Tpr. Strickland did not inquire of defendant why he was taking I20 to get to Tuscaloosa, instead of taking I-10, the shorter route. Motorists
often take longer routes between destinations, for various innocent reasons,
and defendant doing so here did not justify lengthening defendant’s
detention without further information.
25
In the matter sub judice, we find there are too many innocuous
explanations for the facts that the state claims provided Tpr. Strickland with
reasonable suspicion to detain defendant and prolong the stop beyond the
Tpr.’s tasks related to defendant’s traffic infraction. The state analogizes
this search to the facts in the Manning cases, arguing that the instant search
in this case was constitutional. However, in State v. Manning I, supra, the
free air sniff of the exterior of the car by the K-9 officer was conducted
approximately 24 minutes after the traffic stop began. Here, the traffic stop
had concluded and defendant was made to wait an additional 20-22 minutes
for the K-9 unit to arrive. The free air dog sniff of defendant’s vehicle was
not a means of investigation likely to quickly confirm or dispel Tpr.
Strickland’s suspicions about defendant’s potential criminal activity.
Questioning defendant for a few more minutes probably would have
accomplished either goal much more expediently as opposed to making
defendant wait more than 20 minutes after the traffic stop had concluded for
a K-9 unit to arrive.
Furthermore, the defendant in State v. Manning I, supra was driving a
rented car with no paperwork, had no driver’s license, and had an extensive
criminal history. Here, defendant had registration for the car, had his
driver’s license, and had only one prior arrest, not conviction, for assault. In
this case there were not enough facts, even when considered as a whole, that
provided the requisite reasonable suspicion for detaining Bell-Brayboy
beyond the time it took for Tpr. Strickland to conclude the traffic stop. In
Rodriguez, supra, the Supreme Court stated that an additional eight minutes
added to Rodriguez’s detention was too long “absent the reasonable
suspicion ordinarily demanded to justify detaining an individual.” Here,
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defendant was detained an additional 20-22 minutes after initially being
stopped by Tpr. Strickland.
Furthermore, as defendant correctly stated in his brief, he is likely
entitled to federal habeas relief once he has exhausted his state remedies. A
defendant in state custody may seek federal habeas relief on the grounds that
he is in custody in violation of the Constitution or laws of the United States.
28 U.S.C. § 2254. As seen in the “Report and Recommendation” and order
from the U.S. District Court for the Western District of Louisiana, the
federal court has already ruled that the search of defendant’s car was
unconstitutional and ordered the evidence and its derivative incriminating
statements excluded in his federal prosecution. The federal district court is
unlikely to countermand that decision on habeas relief.
Error Patent
We note that the record reveals one error patent – the trial court failed
to sentence defendant on count one to a prison term without benefits as
required by La. R.S. 40:967(G). We find that because the defendant’s
conviction and sentence be reversed, this sentencing error is now moot,
pretermitting any further discussion.
Outcome: For the foregoing reasons, the defendant, Brandon Bell-Brayboy’s
conviction and sentence are hereby reversed.
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