W.D.Tenn.: Court just doesn’t buy that officers could see def not wearing seatbelt at night or that MJ was smelled in the car

The USMJ just doesn’t buy the testimony that the Memphis P.D. officer could see the defendant driving without a seatbelt at night coming from the other direction because the officers’ testimony on the basis for the stop disagreed. After that, the court was also “wary” about even believing that they smelled marijuana in the car because it was absent from reports. United States v. Townsel, 2016 U.S. Dist. LEXIS 169199 (W.D.Tenn. Sept. 8, 2016), adopted, 2016 U.S. Dist. LEXIS 168053 (W.D. Tenn. Dec. 6, 2016):

The court cannot credit Officer Jones’s testimony with respect to his observations of Townsel driving without wearing a seatbelt on two different occasions prior to initiating the traffic stop because it is contradicted in part by Officer Brown’s testimony. Officer Jones testified that he observed the seatbelt violation twice before he activated his blue lights and initiated the traffic stop, once while driving on South Lauderdale in the opposite direction and a second time through Townsel’s rear windshield while following Townsel on Longview. Officer Brown testified, however, that Officer Jones initiated a traffic stop of Townsel by turning on his blue lights while he was making a U-turn on South Lauderdale before Officer Jones would have had the opportunity to observe a seatbelt violation for the second time while traveling behind Townsel. Officer Brown’s testimony, therefore, does not support Officer Jones’s testimony. The contradictory versions of the incident are troubling and make Officer Jones’s testimony regarding the circumstances leading to the stop of Townsel unreliable.

Officer Jones’s testimony is further undermined by other evidence. Officer Jones testified that he was able to observe the seatbelt violation because: (1) there was natural light coming from the moon; (2) there was ambient light coming from street lights; and (3) his headlights on his patrol vehicle. As stressed by Townsel, however, on January 7, 2016, the moon was barely visible at 6%. Further, the video taken by Pryor as he was driving a GMC truck shortly after midnight along South Lauderdale, Longview and Alton, demonstrate that neither the ambient lights in the area nor the regular, low beam headlights on his truck provided sufficient lighting to allow the driver to observe inside another vehicle traveling in the opposite direction. Officer Jones’s assertion is further belied by his admission that he was driving at least 35 miles per hour. It defies logic that a driver at night traveling at 35 miles per hour would have sufficient opportunity to observe whether the driver of an oncoming vehicle was wearing a seatbelt particularly when the car was operating with its low beams which shine downward and not into the interior of the approaching car.

. . .

Here, both Officers Jones and Brown testified that they smelled a faint odor of marijuana emanating from Townsel’s vehicle. Having found the officers’ testimonies as to the circumstances regarding the traffic stop and the inventory search unreliable, the court is also wary of their testimony regarding the odor of marijuana. Furthermore, the officers did not state either in the Affidavit of Complaint or the Arrest Ticket that they detected the odor of marijuana or that Haywood told them Townsel placed something under the driver’s seat. In these documents, the officers justified the search as either an inventory search or a search incident to arrest, neither of which the court has determined was a legal search under the Fourth Amendment. In short, before the response to the motion to suppress was filed, there was no indication that the officers searched Townsel’s vehicle because they detected the smell of marijuana. See Martinez, 356 F. Supp. 2d at 870 (stating that the agent’s credibility was undermined because he initially asserted a different reason for stopping the vehicle than that asserted at the suppression hearing). In fact, no marijuana was ever found in Townsel’s vehicle to corroborate the officer’s testimonies. Given the other inconsistencies in the officers’ testimonies, the Affidavit of Complaint, and the Arrest Ticket, the court finds the officers’ assertion that they smelled marijuana unreliable. The government has not met its burden, therefore, to prove that the search of Townsel’s vehicle was a proper automobile search.