United States District Court, W.D. Texas, San Antonio Division
RODRIGUEZ, UNITED STATES DISTRICT JUDGE.
Defendant is charged in this case with violating 18 U.S.C.
§ 922(g) (felon in possession of a firearm).
September 2017, due to an outbreak of violence on the east
side of San Antonio, the San Antonio Police Department
increased patrols in the area. SAPD Officer Raphael Medel and
his partner Sergio Villanueva were assigned to patrol the
area the evening of September 24, 2017.
officers encountered Mr. Fennell when he was seen apparently
walking across a street
(“jaywalking”). During the March 21, 2018 hearing
on the motion to suppress, the officers testified that they
“contacted” him, they ran his name and date of
birth for outstanding warrants, became aware that he had
outstanding traffic warrants, but inasmuch as they were
looking for individuals associated with the recent
“shootings, ” they claimed that chose to merely
“cut him loose” rather than arrest him based on
the traffic warrants.
a previous request by defense counsel for body cam video,
Officer Villanueva testified that they did in fact wear body
cams that evening. The Court ordered production of the body
cam and dash cam video. The impression that the officers left
with the Court during that first hearing was they had no
previous encounters with the Defendant.
the April 16 hearing it was revealed that the officers had
been back up for the Bexar County Deputy Sheriff's office
some days prior to September 24, 2017. In that event Bexar
County deputies had seen Mr. Fennell exiting a known drug
stash house; he was believed to be a member of a local gang
and was stopped and found with a large sum of money. Mr.
Fennell was ultimately released.
September 24, 2017, the body cam video indicates that at
the 59:30 mark the officers see Mr. Fennell walking on Hays
Street, they get out of their vehicle and direct
him to place his hands on the hood of the police cruiser. He
is asked for identification and he tells the officer that he
doesn't have any. He is asked if he has any weapons and one
of the officers asks if he “could take a look.”
He is patted down and the Defendant's car key and other
items in his pockets are removed. The cam audio does not
record the Defendant consenting to the removal of his keys
and other items from his pockets.He is placed in handcuffs,
examined for gang tattoos, and later placed in the back seat
of the patrol vehicle. Once he tells the officers his name
and date of birth, Officer Medel inputs data into the Mobile
Data Terminal (MDT). At about the 01:50 mark the MDT returns
information on the screen. At about the 03:17 mark Officer
Villanueva begins pressing the Defendant's car key
attempting to locate the Defendant's vehicle. He does
this several times over the course of this stop. Ultimately
Officer Villanueva was able to associate a vehicle that
responded to the key FOB. At about the 05:00 mark
Officer Medel is seen texting on a cell phone. For a
significant portion of the tape the officers mute their body
cam recording device. At the 10:00 mark the officers begin
to question the Defendant as to what he is doing in the area,
where his aunt lived, and why he was carrying a large amount
of money the other day. He is released at the 11:30 mark.
his release the Defendant is seen walking on the sidewalk
towards his aunt's house farther down Hays
Street. The officers drove by the
Defendant's vehicle, a white Ford Fusion, and noted the
license plate number. They testified that they routinely
collect such data and transmit this information to the SAPD
Intelligence Unit, so in the event something happens in the
future they may be able to correlate vehicles and
individuals. The officers deny that they later followed Mr.
Fennell in any fashion. The Defendant speculates that the
officers were following him. He offered various
exhibitsdetailing the route the officers took
after the pedestrian stop.
14 minutes after Mr. Fennell was released, the officers turn
on North Mittman Street.They go around another vehicle that
appears either illegally parked in the street, backing up, or
sticking out, and stop a white vehicle for failing to stop at
a stop sign. The officers offered no explanation as
to why they disregarded this vehicle that was likely in
violation of traffic laws, went around the vehicle and
followed the white vehicle. The vehicle is driven by the
Defendant, but the officers deny that they knew this when
they initiated the stop. Officer Medel requests that the
driver roll down all the windows and asks for his
driver's license. The Defendant responds that “you
just pulled me over.” Officer Medel states “I
know we did.” The Defendant is asked to step outside of
the vehicle and he is placed in handcuffs. Officer Medel
then states in the video that he smells a strong odor of
marijuana. The windows remained rolled down and the
doors were opened. Officer Villanueva begins a search of the
vehicle for marijuana, and ultimately locates a weapon on the
front passenger side floor. At about the 57:22 mark, a drug
dog is brought to the stop. The handler opines that the dog
had an alert in the console area, but no other drugs or
weapons were found inside the vehicle.
expert witness, Jerry Potter, is a former dog handler,
trainer and kennel master at Lackland AFB, Texas. He
testified that if there was a previous strong odor of
marijuana emanating from the vehicle, even 30 minutes later
with windows down and doors opened, he would have expected to
see a change of behavior from the dog as he approached the
vehicle to search, and the dog displayed no change in
behavior. The Defendant suggests that Officer Medel lied
about smelling marijuana as a pretext to initiate a search of
the vehicle. SAPD Sergeant Brent Alan Baucum testified that
as a supervisor and trainer of the SAPD K-9 unit he has
worked extensively with the dog (Speed) who performed the
vehicle search in this case. He testified that Speed is
trained to detect drug sources, not necessarily residual
odors. He further testified that given the lapse of 30
minutes, car windows rolled down and doors open, he would not
expect Speed to alert to any odor of marijuana.
also contests the traffic stop arguing that he indeed did
make a complete stop before turning right at Gabriel Street.
Jahan Eftekhar, Ph.D., testified that he analyzed 37 seconds
of the video in this case and decomposed it into frames of
.033 seconds. In all he created over 1100 frames and
concluded that although it appears the vehicle never
stopped, the car indeed stopped for 2.133
seconds. Dr. Eftekhar also testified that it is
“absolutely” clear that the vehicle made this
stop 9.63 feet beyond the stop sign.
Although the jaywalking detention was impermissibly extended
in both duration and scope, and Officer
Villanueva's use of the key Fob was impermissible, no
evidence gathered from the pedestrian stop ultimately was
used in the later traffic stop
acknowledging that jaywalking allows for the stop of a
person, Defendant concentrates on arguments
that the officers asked questions unrelated to the offense of
jaywalking (e.g. patting down for weapons, asking about his
aunt's residence, reviewing for gang tattoos, searching
for drugs that may have been hidden or discarded). Defendant
also argues that the officers impermissibly extended the
stop. He asserts that the records check on him was completed
at 8:03 p.m., but that he nevertheless was restrained for an
additional 8 minutes.
case the officers saw a man jaywalking across the street.
Contrary to claims made by the Defendant, the officers had
not previously conducted a name or vehicle search on the
Defendant. Viewing the Defendant jaywalking provided the
officers reasonable suspicion that a violation of a traffic
law may have occurred. See United States v.
Monsivais, 848 F.3d 353, 357 (5th Cir. 2017).
Accordingly, they were authorized to ask the Defendant his
name, request that he provide identification, frisk for
weapons, and conduct a check for outstanding warrants.
See United States v. Scroggins, 599 F.3d 433, 441
(5th Cir. 2010).
they were aware that the Defendant had outstanding warrants,
they were authorized to take him into custody or they could
have exercised their discretion, not take the Defendant into
custody and release him. However, the scope of their
questions (directed at suspicious ties to a drug house) was
not reasonably related in scope to the circumstances that
justified the stop in the first instance (jaywalking). The
officers had no specific and articulable facts that the
Defendant had or was about to commit any other crime.
“Such a belief must be founded on specific and
articulable facts rather than on a mere suspicion or
‘hunch'.” United States v. Hill, 752
F.3d 1029, 1033 (5th Cir. 2014).
Government appears to assert that because the Defendant was
walking in a high crime area, this justified prolonging the
stop and searching the Defendant's pocket, and pressing
on the key Fob to further its investigative fact-gathering.
First, the Court concludes that the Defendant did not consent
to a search of his pocket after the frisk had been conducted.
The officers' changed testimony that they recall the