United States v. Abdur-Raheem Akram

RALPH B. GUY, Jr., Circuit Judge,

dissenting.

Believing that the district judge was clearly erroneous in crediting the police officers’ version of what occurred, I would reverse.

In United States v. Ferguson, 8 F.3d 385 (6th Cir.1993), we upheld a search made by police officers after a stop for a minor traffic offense, even though the main purpose of the stop was the suspicipn that the vehicle may have been carrying narcotics. Subsequently, the United States Supreme Court put its seal of approval on such pretextual vehicle stops in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

It is clear from the number of cases reaching our court that police within the Sixth Circuit make full use of the technique of stopping vehicles for minor traffic infractions with the hope that circumstances will develop which ultimately will allow them to make a legal search of the vehicle. The February 26 search in this case falls into that category. When there are no unusual traffic or weather conditions, police officers on traffic patrol simply do not stop vehicles on interstate highways for speeding when they are only exceeding the speed limit by two miles per hour.

Apparently reluctant to justify the stop on the basis that it was going two miles over the limit, Officer Gooding tried to justify it as a stop of a truck weighing over 8,000 pounds. Such vehicles are subject to a speed limit of 55 miles per hour. This justification is entitled to no credence, however, since it is only trucks whose empty weight is over 8,000 pounds that are subject to the lower speed limit. It is clear that Officer Gooding knew this rental truck did not meet the empty weight standard because he testified that he asked about the weight of the truck’s con*458tents. Since the load weight is not relevant it is reasonable to conclude that this line of questioning was just a ruse to inquire into the truck’s contents, which certainly would not be relevant to the issuance of a speeding ticket.

Bassett testified he was only going 65 miles per hour and since Gooding does not seriously challenge this but, rather, relies on the 55 mile per hour speed limit being applicable, the only conclusion one can reach is that there was no legitimate reason to stop this vehicle on February 26. There was, nonetheless, another reason why this vehicle was stopped.

All of the officers involved in this case were part of a highway drug interdiction unit. Although they could, and I assume would, stop vehicles committing egregious traffic offenses, traffic patrol was not their primary mission. Nor do they rely on just “getting lucky” when making truly legitimate traffic stops. This would be a non-productive waste of manpower. It is clear to me from the cases that reach our court — including this one — that the officers are looking for “profile” or “target” vehicles and occupants.

A rental truck is a profile or target vehicle. That this was not admitted by the police officers is not controlling in my view. Credibility is the issue here and, in making credibility determinations, a court can utilize what is specifically part of the record, what has been learned from other similar cases, and all reasonable inferences that can be drawn therefrom.1 We routinely tell jurors that although they have to decide the case before them on the basis of the testimony and exhibits, they do not have to leave their common sense at the courthouse door. Surely judges, who are more experienced and sophisticated than the average juror about legal matters and court proceedings, are entitled to factor common sense into the credibility equation.

Rental vehicles are profile vehicles because the police know they have become popular with persons transporting contraband. There are several reasons for this popularity. First, they can be obtained at a relatively low cost. Second, when the plates and registration are checked, they reveal nothing about the vehicle’s occupants. Third, they are little more than a large box on wheels and are completely windowless, thus affording privacy to those carrying -contraband. Finally, if the vehicle is stopped and contraband is found, there is no worry about forfeiting the vehicle since it does not belong to the wrongdoer.

Whether the race of the occupants is also a part of this profile is a very sensitive issue and one I will not push beyond the record. The record does show, however, that before this vehicle containing two African Americans was stopped on February 26, Officer Gooding pulled alongside the vehicle and looked at the driver, then dropped back, put on the lights and pulled over the vehicle.2 The record also shows that before Newburn stopped the vehicle on February 27, it passed him as he sat in the highway median. In this regard, I am willing to credit Newburn’s testimony that he did not recognize the vehicle as the one he stopped the day before. He did not need to; it was yet another target vehicle.3

Before turning to the stop on February 27, a few additional observations about the stop on February 26 are relevant to the credibility issue. First, there is little or nothing from which one can conclude that there was any basis for a reasonable suspicion that the truck was carrying narcotics, yet a narcotics dog was called to the scene.4 But this should not surprise anyone, since a narcotics dog will always be called to the scene when a *459target vehicle is stopped by a drug interdiction unit. These officers work as a team and the dog is never more than minutes away. All that is necessary is to detain the driver long enough for the dog to arrive, which was done here. Why would the driver be put in the back of the police car and held there for an hour or more? Certainly not for exceeding the speed limit by two miles an hour.

Second, although the dog allegedly alerted, no narcotics were found after a thorough search.5 One other fact is telling. Although one or more of the police cars, including the car driven by Gooding (who made the initial stop), was equipped with a video camera, it either (1) was not working, (2) was not turned on, or (3) was out of tape. When asked, the officers professed no knowledge of departmental policy relative to recording stops on video.

Since the arrest was a product of the February 27 stop, the court basically discounts the events of February 26. For me, however, they reveal worlds about what was really going on and are relevant to the all important issue of credibility.

Even if the focus is limited to February 27, the stop on that day will not pass the credibility test. The court resolves this case on the basis of an alleged failure on the part of the defendant to signal a lane change.6 When the totality of the record is examined, however, this theory will not hold water.

Bassett testified as follows:

Q. Were you stopped again by troopers? A. Yes.
Q. Okay. Can you tell me what happened?
A. Well, I was in the left hand — the left lane and was going — we passed him up and then he pulled out and I changed lanes back to the right lane. He pulled behind me, I was doing 55, and he turned on the lights and he told me, he says, “You are swaying and you crossed the yellow line.” This is what he said.
Q. You said you were stopped for an improper lane change?
A. No, he stopped me for crossing the yellow — crossing the yellow line. He said I swayed across the yellow line in the left passing lane.
Q. Okay. So what exactly do you recall the trooper saying to you that day when he first comes up?
A. He says this, he says, ' There you go, you swung across the yellow line, you driving,” you know, you know, “swaying across the line.”
But I had already — I changed over the right lane when he had come behind, but that’s what he said when he stopped me.

At the suppression hearing, Newburn testified:

Q. And approximately 7:00 a.m., or shortly thereafter, did you make a stop?
A. Yes, sir. I believe the radio log has 7:10,1 had it as 7:18 on my case report. I was traveling eastbound on the Ohio Turnpike, just coming over to the crossover, median crossover area, and a vehicle coming westbound — I was still coming out— the vehicle coming westbound, again a U-Haul truck, went from the passing lane to the driving lane, and as I made my turn, went over the white line.
Q. Off onto the shoulder area?
A. It’s not really the shoulder, it’s the paved berm area with a white line border there, and at that time I got behind the vehicle and I stopped the vehicle for that lane violation.7

It was only near the end of Newburn’s testimony in response to a question from the *460court that the matter of failure to signal was even mentioned:

THE COURT: Why, again, did you stop this one?
THE WITNESS: The 27th, I stopped the vehicle for improper lane change.
THE COURT: Meaning what?
THE WITNESS: Meaning that the vehicle went from the passing lane to the driver’s lane and then over on to the white line, sir, without signaling to do so.

This was the first time anyone even mentioned a failure to signal. This is important because it needs to be viewed in a proper context. No paper or record exists of any kind documenting this traffic offense. In all of the cases of this nature that have come before our court, no one, to the best of my knowledge, has ever been issued a violation notice.8 There is universally a complete lack of any type of contemporaneous corroboration of why the vehicle was stopped.

There are two other facts that bear on credibility with regard to the February 27 stop. Once again, old reliable Xaver alerted on the truck and once again no narcotics were found. Nonetheless, the alert enabled Officer Newburn to proceed as follows:

A. [Akram testimony] ... And he informed us to stay in the car and he went back to the car and got the dog and he brought the dog out.
Q. Did you see him come back up with the dog?
A. Certainly. I’m sitting in the passenger’s side and he started on my side.
Q. Did you come to be taken out of the truck at any time that day?
A. Yes.
Q. What happened?
A. He took me to the back of the truck. First he asked for the key, and took the key out of the ignition and went to the back of the truck. And he said, “Open the truck.”
And I, you know, made a gesture to plead with him to let us go.
He said, “Don’t come near me. If you come near me I’m going to shoot you.”
So he said, “Open the truck.” So I opened the truck and that was that.

Legally, the police can now stop a vehicle for any alleged traffic violation and, while the vehicle is stopped, subject it to a canine sniff or hold the vehicle until a dog arrives on the scene. They also can have a profile and stop target vehicles if they find them committing a traffic offense,9 but — they still must have a legitimate traffic offense as the basis for the stop. I do not believe the officers did here— but, more importantly, I do not believe the district judge could properly conclude they did on the basis of this record. The courts have given the police this extraordinary power to make pretextual stops and searches of vehicles, but it is also the responsibility of the courts to make sure the testimony of police officers is given the same critical scrutiny given to a defendant’s testimony. This was not done here, and I would reverse the denial of the suppression motion.

. Officer Newbum was asked:

Q. How many rental vehicles had you stopped the previous day, the 26th?
A. I have no idea, ma’am.

. The parts of the transcript that convey this information were not made part of the appendix.

. Out-of-state plates, particularly those from border states, are usually a component of the profile. This truck had out-of-state plates.

. Gooding relied on the often used "source city” justification. Every urban area in the country is a source city. This is entitled to little or no weight in my view, unless the person stopped just came from someplace like Medellin, Colombia.

. The dog alert is another gray area. Some are "aggressive” alerters and others are passive. The person stopped certainly will not know. Incredibly enough, Officer Gooding, who is part of the "team,” said he did not know what the dog does when it alerts.

. Bassett was apparently the driver of the rental truck on both days, not Akram.

.Akram also testified that when Newburn approached the rental vehicle, he came to the passenger side and said to Akram, " 'What are you doing?’ He said, 'You watching me to see if I’m watching you, and you crossed the yellow line.’ ”

. Warning citations are sometimes issued but these have no legal effect.

. A racial component in the profile would, of course, raise other considerations.