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United States v. Reidy

United States District Court, Ninth Circuit

October 8, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
SCOTT STEVEN REIDY, Defendant.

FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

CAROLYN S. OSTBY, Magistrate Judge.

I. INTRODUCTION

Defendant Scott Steven Reidy is charged by Indictment with one count each of conspiracy to distribute cocaine, possession of cocaine with intent to distribute, and possession of a firearm in furtherance of a drug trafficking crime, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 18 U.S.C. § 924(c)(1)(A). On January 1, 2012, Reidy was stopped on Interstate 90 in Stillwater County, Montana. After a drug detecting canine alerted to the presence of drugs within the vehicle Reidy was driving, it was impounded. A subsequent search pursuant to a search warrant revealed cocaine and a firearm.

Pending before the Court is Reidy's motion to suppress evidence seized from the vehicle he was driving. U.S. District Judge Donald W. Molloy referred the motion to the undersigned in accordance with 28 U.S.C. § 636(b)(1)(B) and L.C.R. 59.1. ECF 20. [1] Reidy's motion raises two issues: (1) whether the initial traffic stop was supported by reasonable suspicion of criminal activity and if so, (2) whether the traffic stop was unlawfully prolonged without reasonable suspicion to do so.

A hearing was held on October 7, 2013. The Court heard testimony from four witnesses: Billings Police Department Detectives Jamie Schillinger and Michael Robinson, Stillwater County Deputy Sheriff Randy Smith, and Defendant Scott Reidy. ECF 24. Because Deputy Smith's stop and questioning were within the bounds of the Fourth Amendment, the motion to suppress should be denied.

II. FACTUAL BACKGROUND

The Court finds the following facts based on: (1) the hearing testimony, (2) the video and audio recording of the traffic stop recorded by Deputy Smith admitted as Government's Exhibit A, (3) Defendant's Exhibits 1-3, and (4) the reports of Deputy Randy Smith ( ECF 15-1 ) and Detectives Michael Robinson and Jamie Schillinger ( ECF 15-2 ).

On December 29, 2011, Drug Task Force agents attached a GPS tracking device to Julie Rozell's 2002 Chevrolet Tahoe as it was parked in her driveway in Billings, Montana. Rozell, who was on state probation, was believed by the Task Force, based on their investigation, to be a methamphetamine dealer who operated a stash house for her source of supply. In the early morning hours of December 30, 2011, the agents learned her Tahoe was headed westbound on I-90. It arrived in Seattle by the end of the day. On January 1, 2012, the Tahoe was again on I-90 headed east. Schillinger testified that a short stay after such a long drive is indicative of a drug run. Once the Tahoe appeared to be headed back to Montana, the agents set up a six-member surveillance team consisting of four FBI Task Force Officers and two Detectives from the Eastern Montana High Intensity Drug Trafficking Area "HIDTA".

Two agents stayed in Billings and monitored Rozell's house to determine if she was home or traveling in the Tahoe. Agents had been informed by a confidential source that Rozell's boyfriend, Defendant Scott Reidy, owned a black Hummer and was also distributing methamphetamine. The two agents noted the black Hummer was parked outside Rozell's house and had been there off and on since the Tahoe left for Seattle on December 30, 2011.

Meanwhile, Detectives Schillinger and Tom Benjamin contacted Deputy Randy Smith of the Stillwater County Sheriff's Office. The agents wanted a uniformed officer who was a canine handler trained in drug interdiction to conduct a "wall stop." Deputy Smith and his canine "Jordy" qualified. After completing his training in canine handling and drug interdiction, Deputy Smith had been patrolling I-90 conducting drug investigations with Jordy since 2006.

A "wall stop" is a traffic stop on a vehicle by a uniformed officer conducted so that the driver is not aware that he is a suspect in a larger drug investigation. Even though agents have evidence that leads them to believe a driver may be trafficking drugs, a stop is not made by the uniformed officer unless a traffic violation is observed. Then, depending on the what the officer learns from his initial contact with the stopped vehicle, the officer may ask for consent to search and deploy the canine if consent is withheld. Schillinger and Benjamin met with Smith in Columbus, Montana, to brief him on the investigation and provide him with a radio to communicate with the surveillance team. Smith was given a description of the Tahoe and told that it was returning to Billings after a brief stop in Seattle and that they did not know who or what was inside. Smith was told that other agents would locate the Tahoe and try to find cause for a traffic stop and that he should wait inside the Stillwater County line. Once the Tahoe passed, he should follow it and conduct the "wall stop" if he had a valid reason to do so. The agents testified that if they did not have a lawful reason to make a traffic stop, they would have followed the vehicle back to Billings without stopping it.

Schillinger and Benjamin tracked the Tahoe's progress via the tracking device and saw the vehicle traveling eastbound on I-90 east of Big Timber, Montana. Det. Robinson worked as the scout, traveling in a separate vehicle to make visual contact with the Tahoe. He did so near Big Timber at approximately 8:00 p.m. Robinson then passed the Tahoe in an attempt to determine who was inside, but was unable to do so because it was dark and the windows were tinted. Robinson testified that as he passed the Tahoe, he could not see any lights illuminating the rear license plate as required by Montana law. See MCA § 61-9-204(3). Robinson communicated this information to Schillinger, who in turn relayed it to Deputy Smith, who was parked in the median along I-90 just inside the Stillwater County line.

Smith had positioned his vehicle facing West, from where the Tahoe was coming, but at an angle so that he could see it as it approached, and also quickly pursue it. Smith testified that he was looking at the license plate because he had been told it was not working correctly and that when the Tahoe passed, he also could not see any lights illuminating the license plate. He then pulled onto the interstate, drove up behind the Tahoe and confirmed with Schillinger that it was the correct vehicle. He followed the Tahoe for a few miles and still could not see any lights illuminating the license plate. Smith updated the agents and initiated a traffic stop at 20:21:29 (8:21 p.m.) at milepost 396. The video does not clearly show whether the Tahoe's license plate was properly illuminated because of the headlights on Smith's patrol car. Smith called in the temporary Montana license plate to dispatch, and approached the Tahoe.

The video of the traffic stop shows Smith approaching the Tahoe within seconds of pulling him over. Smith immediately notifies Reidy that he was stopped because the license plate light was not illuminating the license plate. Smith then asks for Reidy's license, registration, and proof of insurance. The driver produced the documents and the report indicates Smith identified Defendant Reidy by his Montana driver's license.

On the video, Smith asks Reidy whether there was anything illegal in the vehicle, like guns, knives, or drugs. Reidy says no. Smith noted there was some alcohol in the vehicle and Reidy responded that it was from the weekend. Smith then noted it was New Years Day and again asked if there was anything illegal in the vehicle. When asked by Smith whether the Tahoe was his vehicle, Reidy responded that it was his girlfriend, Julie Rozell's vehicle, and that she had let him borrow it for the weekend to go to Bozeman because it got better gas mileage than his Hummer. Smith then noted to Reidy that he seemed a little nervous, and asked him whether he was hungover from a lot of drinking the night before. Reidy responded "Yeah, a little bit." In response to questions, Reidy ...


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