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United States v. Fennell

United States District Court, W.D. Texas, San Antonio Division

May 7, 2018

UNITED STATES OF AMERICA,
v.
DEVANTE FENNELL

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

         The Defendant is charged in this case with violating 18 U.S.C. § 922(g) (felon in possession of a firearm).

         BACKGROUND

         In 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.

         The officers encountered Mr. Fennell when he was seen apparently walking across a street (“jaywalking”).[1] 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.

         Despite a previous request by defense counsel for body cam video, Officer Villanueva testified that they did in fact wear body cams that evening.[2] 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.[3]

         During 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.

         On September 24, 2017, the body cam video[4] indicates that at the 59:30 mark the officers see Mr. Fennell walking on Hays Street[5], 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.[6] 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.[7]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).[8] 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 Fob[9] 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.[10] 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.[11] 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.

         Upon his release the Defendant is seen walking on the sidewalk towards his aunt's house farther down Hays Street.[12] The officers drove by the Defendant's vehicle, a white Ford Fusion, and noted the license plate number.[13] 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.[14] The Defendant speculates that the officers were following him. He offered various exhibits[15]detailing the route the officers took after the pedestrian stop.

         About 14 minutes after Mr. Fennell was released, the officers turn on North Mittman Street.[16]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.[17] 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.[18] Officer Medel then states in the video that he smells a strong odor of marijuana.[19] 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.[20]

         Defendant's 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.

         Defendant 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[21], the car indeed stopped for 2.133 seconds.[22] Dr. Eftekhar also testified that it is “absolutely” clear that the vehicle made this stop 9.63 feet beyond the stop sign.[23]

         ANALYSIS

         A. 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

         Apparently acknowledging[24] that jaywalking allows for the stop of a person[25], 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.

         In this 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).

         Once 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).

         The 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 Defendant ...


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