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United States v. Earthman

United States District Court, N.D. Texas, Dallas Division

January 21, 2014


Page 580

For Clayton Todd Earthman, also known as Clayton Earthman, Defendant: Zachary Ryan Redington, LEAD ATTORNEY, Redington & Redington, Dallas, TX.

For USA, Plaintiff: Taly Haffar, LEAD ATTORNEY, U.S. Attorney's Office, Dallas, TX.


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Defendant Clayton Todd Earthman (" Earthman" )--charged with possession of a firearm by an unlawful user of a controlled substance, in violation of 18 U.S.C. § § 922(g)(3) and 924(a)(2), and possession of an unregistered firearm, in violation of 26 U.S.C. § § 5841, 5861(d), and 5871--moves to suppress all evidence seized on June 18, 2013 following the stop of the vehicle he was driving, all statements he made at the scene following his arrest arising from the traffic stop and inside police headquarters, all evidence recovered from his parents' residence on Grande Casa Road in Waxahachie, Texas (where he occupied a room), and all evidence seized from his residence on Woodard Avenue in Dallas.[1] Following an evidentiary hearing, and for the reasons that follow,[2] the court denies the motion.


On June 18, 2013 two Dallas Police Department (" DPD" ) officers, James Cutbirth (" Officer Cutbirth" ) and Jeremiah Byous (" Officer Byous" ), were conducting surveillance of a known drug house located near the intersection of Hilltop Street and Lovett Avenue in Dallas. At this intersection, there are two stop signs, which apply to traffic traveling north and south, but no lined crosswalks or stop lines on the street. The officers were parked 1½ blocks (about 1/10th of one mile) from the intersection in a marked unit.[3] Using binoculars, both

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officers were able to observe traffic coming and going from the suspected drug house via the intersection of Hilltop Street and Lovett Avenue. Both officers were familiar with this intersection from prior experience. Officer Cutbirth, in particular, had traveled this intersection and surveilled this house several times before. He tries to drive through the intersection at least once daily.

At approximately 1:00 p.m., Officers Cutbirth and Byous observed a vehicle, later identified as Earthman's, turn onto Hilltop Street, where the drug house was located. After a brief period (approximately three to five minutes), the vehicle came back into view as it turned onto Lovett Avenue from Hilltop Street. Using their binoculars, the officers observed the vehicle make a left turn from Hilltop Street onto Lovett Avenue in one constant, fluid motion, without stopping at any point--including at the stop sign located on Hilltop Street. After Earthman's vehicle passed the officers' police unit, the officers made a U-turn and effected a traffic stop based on the traffic violation they had observed him commit when he failed to stop when he turned onto Lovett Avenue from Hilltop Street.

As the officers approached Earthman's vehicle on foot, they observed that he was visibly nervous and that he made several furtive gestures. Officer Cutbirth approached on the driver side, while Officer Byous approached on the passenger side. Both officers were concerned for their safety because Earthman was leaving a known drug house after a short visit, he was making furtive gestures, and he could be hiding a weapon. In the officers' experience, this type of short visit is characteristic of someone involved in a drug transaction, and weapons and drugs often go hand-in-hand.

For officer safety, Officer Cutbirth ordered Earthman to exit the vehicle. After Earthman did so, Officer Cutbirth immediately observed in plain view an empty pistol holder on the floorboard near the gas pedal and a pistol on the floorboard near the driver seat. Rather than announce that he had found a weapon, Officer Cutbirth asked Earthman where his pistol was located, which was a form of code that Officers Cutbirth and Byous used when indicating that a weapon had been found. Earthman was handcuffed for officer safety but was not informed that he was under arrest. Officer Cutbirth determined that the weapon was loaded, disarmed it, and checked to see whether it was stolen. At that point, Officer Cutbirth intended to arrest Earthman for the offense of unlawful carrying of a weapon (" UCW" ), in violation of Tex. Penal Code Ann. § 46.02 (West 2011).[4]

Earthman moves to suppress the evidence seized during and following the initial traffic stop on June 18, 2013. The government opposes the motion.


" A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional." United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005) (citing United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001)). " However, where a police officer acts without a warrant, the government bears the burden of proving that the search was valid." Id. (citing United States v. Castro, 166 F.3d 728, 733 n.7 (5th

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Cir. 1999) (en banc)). " The exclusionary rule prohibits introduction at trial of evidence obtained as the result of an illegal search or seizure." United States v. Runyan, 275 F.3d 449, 466 (5th Cir. 2001). The exclusionary rule also " encompass[es] evidence that is the indirect product or 'fruit' of unlawful police conduct." Id. (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). " As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." United States v. Miller, 146 F.3d 274, 277 (5th Cir. 1998) (quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). The government bears the burden of proving at a suppression hearing ...

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