United States v. Torbert

207 F. Supp. 3d 808, 2016 WL 4920741, 2016 U.S. Dist. LEXIS 125616
CourtDistrict Court, S.D. Ohio
DecidedSeptember 15, 2016
DocketCase No. 1:15-cr-114
StatusPublished
Cited by1 cases

This text of 207 F. Supp. 3d 808 (United States v. Torbert) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Torbert, 207 F. Supp. 3d 808, 2016 WL 4920741, 2016 U.S. Dist. LEXIS 125616 (S.D. Ohio 2016).

Opinion

ORDER GRANTING DEFENDANTS’ MOTIONS TO SUPPRESS EVIDENCE

Timothy S. Black, United States District Judge

This criminal case is before the Court on Defendants’ motions to suppress evidence (Docs. 24, 26), the parties’ pre-hearing responsive memoranda (Docs. 27, 28, 29), and the parties’ post-hearing briefs (Docs. 32, 33, 35, 36).

The Court held an evidentiary hearing over the course of two days on May 6,2016 and May 20, 2016, and heard testimony from two City of Norwood police officers, Officers Ryan Strunk and Chadwick Webster. (Docs. 30, 31). The motions are now ripe for decision.

I. BACKGROUND

On November 4, 2015, Defendants Oscar Torbert III and Jeno Daniel Moore were charged by way of a four-count indictment with various firearm and drug trafficking offenses, including: possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 1); possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (Count 2); and possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) (Counts 3 and 4). The charges arise from evidence obtained by officers of the City of Norwood, Ohio Police Department (the “NPD”) during a traffic stop and subsequent vehicular search. (Docs. 24 at 2, 26 at 2). Defendants move for suppression of said evidence, arguing, in large part, that it was obtained without the benefit of a warrant and in violation of their constitutional rights. (Docs. 24,26).

For purposes of this Order, the Court will rely upon the facts as set forth in the parties’ briefs (Docs. 24, 26, 27, 28, 29, 32, 33, 35, 36), as well as the testimony and evidence proffered at the May 6 and May 20,2016 suppression hearings.1

II. FACTS

On May 30, 2015, shortly after 5:00 p.m., Defendant Torbert was driving a motor [812]*812vehicle in Norwood, Ohio, with Defendant Moore in the front passenger’s seat. (Doc. 24 at 1). The vehicle caught the attention of Officer Ryan Strunk of the NPD, who first observed the vehicle while it was stopped at a red light on Northcutt Avenue, facing eastbound, preparing to make a left turn onto Section Avenue.2 (Doc. 27 at 1-2; Doc. 30 at 15). At the time, Officer Strunk was in his police cruiser, in a parking lot directly across the street. (Def. Ex. 6). Officer Strunk noted that he could not see into the interior of the vehicle, which, based upon his observations, he believed to be the result of unlawful tinting on the front windshield and the side windows. (Id.; Doc. 30 at 15).

Accordingly, Officer Strunk began following the vehicle and activated his emergency lights in order to effectuate a traffic stop. (Doc. 30 at 15). However, the vehicle did not stop immediately. (Id.) Instead, the driver of the vehicle made a left turn at the next intersection onto Andina Avenue and began accelerating in speed. (Id. at 15-16). Officer Strunk then activated his sirens and communicated by radio that he was attempting to pull over a vehicle that was refusing to stop. (Def. Ex. 6; Doc. 30 at 46). However, the vehicle ultimately pulled to the curb after approximately one and a half blocks and parked in a residential neighborhood. (Doc. 30 at 17). Officer Strunk pulled up behind the stopped vehicle. (Id.) During the suppression hearing, both officers confirmed that the vehicle was legally parked and could have remained in that location without incurring a parking ticket. (Id. at 47-48; Doc. 31 at 27).

Officer Strunk exited his police cruiser and began approaching the vehicle from the driver’s side. (Def. Ex. 6). Officer Strunk testified that he had not run a check on the vehicle’s license plate number prior to approaching. (Doc. 30 at 53). Accordingly, he had no information regarding the registered owner of the vehicle or the vehicle’s potential occupants. (Id.) As Officer Strunk was approaching, the driver’s side door of the vehicle opened and the driver, Defendant Torbert, leaned out to announce that he could not roll down his car window. (Def. Ex. 6). Officer Strunk instructed the driver to remain inside the car. (Id.) Once near the vehicle, Officer Strunk also observed an individual sitting in the front passenger’s seat, later identified as Defendant Moore. (Id.)

Officer Strunk explained to Defendants that he had stopped the vehicle for excessive window tints. (Id.) He then inquired as to why Defendant Torbert had not immediately pulled over. (Id.) Officer Strunk noted that Defendant Torbert became nervous and could not offer a direct answer. (Id.) Officer Strunk then asked Defendants where they were going. (Id.) Defendant Torbert stated that they were on their way to a barbershop and indicated that it was located back on Section Avenue. (Id.) This response prompted Officer Strunk to question Defendant Torbert as to why he had [813]*813turned off of Section Avenue and was now driving in the wrong direction. (Id.) Defendant Torbert replied that he was just driving around. (Id.)

Officer Strunk then asked Defendant Torbert for his identification. (Id.) As Defendant Torbert was producing his identification, Officer Strunk noticed Defendant Moore was not wearing a seatbelt and asked him for his identification as well.3 (Id.) Officer Strunk then returned to his vehicle and ran both Defendants’ identifications using his mobile data computer (“MDC”). (Id.) As a result, Officer Strunk learned that Defendant Torbert was under a non-compliance suspension and that Defendant Moore only had an Ohio identification card.4 (Id.) In short, neither Defendant Torbert, nor Defendant Moore had a valid driver’s license.

While Officer Strunk was running Defendants’ identifications, his partner, Officer Chadwick Webster, arrived on the scene to assist. (Webster Camera at 0:20). Officer Strunk testified that Officer Webster arrived approximately two to three minutes after the stop was initiated. (Doc. 30 at 48). Further, Officer Strunk testified that Officer Webster’s arrival was pursuant to NPD policy, which calls for available units to be dispatched immediately as back-up at the scene of any traffic stop. (Id.)

Upon his arrival, and before approaching the stopped vehicle, Officer Webster went to Officer Strunk, who was still seated in his police cruiser. (Webster Camera at 0:35). The officers conferred regarding the traffic stop and the circumstances that presented. (Id,) Officer Strunk advised Officer Webster that Defendant Torbert was “suspended.” (Id. at 0:47). In response, Officer Webster told Officer Strunk to “get him [Defendant Torbert] out in cuffs, search him real good.”5 (Id.)

Officer Webster then asked about the passenger of the vehicle, to which Officer Strunk replied, “He’s good. Doesn’t have anything.” (Id. at 0:52). Finally, Officer Webster asked Officer Strunk who the registered owner of the vehicle was, and Officer Strunk replied “Jasmine [Moore].” (Id. at 1:00).

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Cite This Page — Counsel Stack

Bluebook (online)
207 F. Supp. 3d 808, 2016 WL 4920741, 2016 U.S. Dist. LEXIS 125616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-torbert-ohsd-2016.