E.D. Tenn.: Plain view applied to a recorder on a security camera which would have evidence of a shooting suspect

Consent to enter to look for the driver of a vehicle police believed was involved in a drive-by shooting led to a valid plain view of the recorder to a security camera trained on the vehicle because it would logically show the driver. United States v. Davis, 635 F. Supp. 2d 752 (E.D. Tenn. 2009):

Officers Willett and Rader undeniably had authority to be in the defendant’s house generally. Since they had the occupants’ consent to search for the defendant himself, based upon their experience and training that fugitives frequently hide in attics, not to mention evidence that someone had recently climbed into the attic, it was within the scope of their permission for these officers to enter the attic.

Once they were into the attic – a place they had a right to be, as just discussed – they immediately saw the digital recording machine. It was in plain view, sitting atop a pedestal adjacent to the entrance.

Lastly, Officer Willet immediately knew the significance of the recording machine in light of the surveillance cameras affixed to the house. More specifically, he knew the significance of the recording machine with relation to the crime he was then investigating, since the camera at the outside of the building was aimed directly at the Dodge Durango and would have recorded the movements of that vehicle. He knew by eyewitness accounts that that vehicle was the one used by defendant when he sprayed a hail of bullets into Chris Brotherton. A visual record of the arrival of that vehicle at 1600 Kingsport Highway would be additional evidence regarding the identity of the shooter. In other words, there was probable cause to believe that the recorder contained evidence of the crime for which Officer Willett was then actively pursuing defendant.

The “plain view” exception to the Fourth Amendment’s requirement for a warrant applies, and the recorder was properly seized.

Defendant’s traffic stop was with probable cause because the temporary paper tag looked like it could have been made on any printer and the paper was not of sufficient thickness to be valid. However, the paper tags later turned out to possibly be valid based on the paperwork in hand. Nevertheless, defendant seemed unusually nervous, and the officer’s testimony was credited on that. United States v. Dejesus, 2009 U.S. Dist. LEXIS 98423 (M.D. Ala. October 22, 2009), USMJ R&R United States v. Dejesus, 2009 U.S. Dist. LEXIS 98529 (M.D. Ala. August 6, 2009)*:

The court is not without its concerns as to some of Trooper Martin’s rationalizations for his continued suspicion and detention of Mr. DeJesus and his vehicle. While it is perhaps true that drug mules frequently consume energy drinks, so do many other, innocent, people, and the fact that Trooper Martin spotted a can of an energy drink (much less other “snacks”) in Mr. DeJesus’s reach is not a strong basis for suspicion. Even less intelligible are Trooper Martin’s observations about Mr. DeJesus’s possession of dry-cleaned clothing. Finally, the court is skeptical that it would be possible to literally observe a person’s clothing moving as the result of a strong heartbeat, especially when, as acknowledged by Trooper Martin, Mr. DeJesus was wearing multiple layers of clothing, as was understandable on a February morning.

Nonetheless, these questionable observations were not the sole, or even the major, rationales behind the continued detention of Mr. DeJesus. Despite the concerns about the observations mentioned above, the court must give at least some credence to Trooper Martin’s observation that Mr. DeJesus appeared nervous and more ill at ease than the average subject of a traffic stop. Likewise, Trooper Martin could have considered as part of the totality of the circumstances that Mr. DeJesus’s stated route from Houston to Atlanta was known to be along a major drug-trafficking corridor. Further, Mr. DeJesus does not contest that, after he gave Trooper Martin his driver’s license and other documents, Trooper Martin placed a call to the El Paso Intelligence Center, an information clearinghouse for drug-related investigations. Officials there informed Trooper Martin that Mr. DeJesus was a party to an open drug-trafficking investigation. Considering the totality of the circumstances, the court cannot say that Trooper Martin lacked reasonable suspicion to detain Mr. DeJesus for the length of time (between 15 and 20 minutes, on the basis of the DVD of the stop in the record) he did prior to obtaining Mr. DeJesus’s consent to search. See United States v. Sokolow, 490 U.S. 1, 7 (1989); United States v. Hardy, 855 F.2d 753, 761 (11th Cir. 1988) (upholding a Terry stop of 50 minutes, while citing authority that a duration of up to 20 minutes was standard).

Defendant’s stop was justified and a dog alert made the search with probable cause, so defendant’s effort to apply Gant fails. United States v. Robinson, 2009 U.S. Dist. LEXIS 98432 (W.D. N.C. October 8, 2009).*