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United States v. Oocumma

United States District Court, W.D. North Carolina, Asheville Division

December 11, 2017

UNITED STATES OF AMERICA, Plaintiff
v.
JORDAN HEATH OOCUMMA, Defendant

          MEMORANDUM AND RECOMMENDATION

          Dennis L. Howell, United States Magistrate Judge

         THIS MATTER is before the Court upon Defendant's Motion to Suppress Evidence (# 37). The Government filed a Response to Defendant's Motion to Suppress (# 38). The undersigned conducted a hearing and heard evidence and arguments from the Government and Defendant. Having carefully considered the evidence, briefs, and arguments of counsel, the Court enters the following findings, conclusions, and recommendation.

         FINDINGS AND CONCLUSIONS

         I. Procedural Background

         Defendant is charged with various controlled substance offenses in a six-count, multi-party bill of indictment (# 1). There are charges presented against Defendant in Counts One, Two and Five. Count One alleges during the period from August 2016, until September 2016, Defendant conspired with others to distribute and possess with intent to distribute a quantity of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C § 841(b)(1)(A) and 21 U.S.C. § 846. Count Two alleges on August 26, 2016, Defendant knowingly and intentionally distributed methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). Finally, Count Five alleges on September 13, 2016, in Jackson County, Defendant knowingly and intentionally possessed, with intent to distribute a quantity of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1).

         On July 17, 2017, Defendant filed his Motion to Suppress (# 37). In the Motion, Defendant moves to suppress evidence obtained by the Government from a stop and subsequent search of a vehicle Defendant was operating on September 13, 2016 (# 37). As a result, it appears Defendant's Motion is directed at Count Five of the Bill of Indictment. On July 24, 2017, the Government filed its Response to Defendant's Motion to Suppress (# 38). On August 1, 2017, the Grand Jury issued a superseding Bill of Indictment (# 39) which added additional defendants, but did not change the charges against Defendant (# 39). On August 22, 2017, the Court held a hearing on the Motion (# 37).

         II. Factual Background

         A. Michael Holcombe

         At the hearing, the Government called as a witness Michael Holcombe, who is a trooper with the North Carolina Highway Patrol. (T. p. 6) Trooper Holcombe has twenty-four years of law enforcement experience (# 6). Trooper Holcombe spent a year and a half working with the Canton Police Department, three years with the Asheville Police Department, and twenty years with the North Carolina Highway Patrol. (T. p. 6) His duties in each of these positions included traffic law enforcement, investigation of collisions between vehicles, and operating a radar. (T. p. 7) Generally, his duty in each venue of employment was to enforce the motor vehicle safety laws for the State of North Carolina. (T. pp. 7-8, 13)

         Trooper Holcombe testified to his experience in speed detection, including making a determination of a vehicle's speed from observation and by use of radar. (T. pp. 9-10) From his training and experience, including driver's education, Holcombe has developed the opinion that a safe traveling distance when following behind another vehicle is one car length for every ten miles per hour of speed. (T. pp. 10-12)

         In the summer of 2016, Trooper Holcombe was assigned to the Criminal Interdiction Unit of the North Carolina Highway Patrol. (T. pp. 8-9) The Criminal Interdiction Unit is a division of the Special Operations within the North Carolina Highway Patrol (# 14). The mission of the unit is to aggressively enforce the motor vehicle statutes, apprehend wanted persons, recover stolen vehicles, and aggressively enforce the controlled substance law of North Carolina. (T. p. 14) Trooper Holcombe's unit covered the area of North Carolina from Statesville, North Carolina, to the western border. (T. p. 15) The unit consisted of five troopers and a sergeant. (T. p. 15) The unit works in cooperation with other law enforcement agencies such as the DEA, SBI and other local, state and federal agencies. (T. pp. 15-16)

         On September 13, 2016, at the direction of Sgt. Ray Blanton, the unit leader, Trooper Holcombe went to a meeting at the Holiday Inn located on U.S. Highway 74 in Jackson County, North Carolina. (T. pp. 16-17, 50-51) The meeting was in the evening, but was before dark. (T. p. 17) At the meeting was Agent Stites, who the Court recognizes to be Special Agent Billy Stites, a law enforcement officer for the Bureau of Indian Affairs. Agent Stites advised the troopers of persons who were the subject of a federal drug investigation. (T. p. 17) Stites gave the troopers a description of a black Toyota Camry vehicle that had been tracked to Atlanta, Georgia, that was now returning and suspected of being involved in criminal activity. (T. pp. 17-18, 59) Agent Stites told the troopers that Stites had obtained a tracking warrant and had placed a tracking device on the Toyota Camry. (T. p. 85) Stites further told the troopers if they were able to locate the vehicle and establish reasonable suspicion to stop the vehicle, it might possibly be transporting narcotics. (T. p. 18) Stites did not tell the troopers to stop the vehicle without an independent reason, and Trooper Holcombe testified that he would not have done so. (T. p. 18) It was discussed that if the vehicle were found, then the troopers were to establish their own reasonable suspicion, if possible, to stop the vehicle. (T. p. 19)

         After the meeting, Trooper Holcombe traveled in his patrol vehicle to a fire department located on U.S. Highway 74 in Jackson County, North Carolina, which is located in the Whittier community. (T. pp. 19-20, 50) Trooper Holcombe stopped his patrol vehicle in the parking lot of the fire department and listened to his law enforcement communications radio. (T. pp. 19-20, 50) He could hear Agent Stites communicating on the radio concerning the location of the black Toyota Camry. (T. p. 20)

         U.S. Highway 74 in that area is a four-lane, divided highway. (T. p. 20) There are two lanes of eastbound travel and two lanes of westbound travel. (T. p. 20) The highway is divided by a concrete median in some locations and a grass median in other locations. (T. p. 20) There is an emergency strip on the right side of the road which is two to three feet wide. (T. p. 20) Just over the white fog line there is a rumble strip that has been cut into the emergency strip. (T. pp. 20-21) The speed limit on U.S. Highway 74 at that point is 55 miles per hour. (T. p. 21)

         While Trooper Holcombe was parked, he saw a black Toyota Camry travel westbound. (T. pp. 21-22) Holcombe then drove his patrol vehicle on to U.S. Highway 74, traveling west in order to observe the black Toyota Camry. (T. p. 22) Trooper Holcombe made a call on his radio stating to the other officers that he thought he had located the black Toyota Camry vehicle. (T. pp. 49-50)

         While following the black Toyota Camry vehicle, Trooper Holcombe made a visual observation that the subject vehicle was traveling at approximately 60 miles per hour. (T. p. 23) Trooper Holcombe had radar in his vehicle but did not use it to clock the speed of the vehicle. (T. p. 48) As he traveled behind the vehicle, Trooper Holcombe observed the black Toyota Camry vehicle run across the white fog line and further saw both right side tires of the vehicle cross the fog line and travel into the emergency strip. (T. pp. 75-76) This occurred in a left-hand curve. (T. p. 23) Trooper Holcombe then observed the black Toyota vehicle approach a white pickup truck that was also traveling in the westbound lane. (T. p. 24) At one point, the Toyota Camry vehicle was traveling less than one car length behind the white pickup truck. (T. pp. 24, 57) Based upon Trooper Holcombe's training and experience, a vehicle traveling at 60 miles per hour should be traveling six car lengths behind the vehicle which it is following-one car length for every ten miles per hour of speed- in order to be traveling at a safe distance. (T. pp. 24-25, 72, 76)

         After seeing the black Toyota Camry vehicle being operated in this fashion, Trooper Holcombe had concern that the operator might be under the influence of alcohol or falling asleep at the wheel. (T. pp. 25-26) Based upon what he had seen, Holcombe made a decision to stop the Toyota Camry vehicle. (T. pp. 25-26) The Toyota Camry vehicle then exited U.S. Highway 74 and turned right onto U.S. Highway 441 traveling in the direction of Cherokee, North Carolina. (T. p. 26) Once the vehicle exited the off-ramp and traveled onto U.S. Highway 441, Trooper Holcombe activated his patrol vehicle blue light. (T. p. 26) The vehicle then made a right turn into the parking lot of the Quality Plus gas station and stopped. (T. pp. 26-27) Trooper Holcombe testified that if he had not observed the movements and violations of traffic laws by the Toyota Camry vehicle, then he would have continued to follow the vehicle into Cherokee. (T. pp. 26, 74) If Holcombe had not observed any violation en route to Cherokee, then he would have returned to normal patrol. (T. pp. 26, 74)

         After the Toyota Camry vehicle stopped in the parking lot of the Quality Plus gas station, Trooper Holcombe stopped his vehicle behind the Toyota Camry. (T. pp. 27-28) Holcombe then exited his patrol vehicle, and began to speak with Defendant, who was the operator of the Toyota Camry vehicle. (T. pp. 27-28) When Holcombe began speaking with Defendant, he immediately detected the odor of marijuana emanating from the interior of the Toyota Camry vehicle. (T. p. 28) Holcombe then searched the Toyota Camry vehicle and found an orange Nike shoe box in the back seat of the vehicle which contained 262 grams of crystal methamphetamine and 19 grams of marijuana. (T. pp. 29-30) Trooper Holcombe also found a marijuana cigarette underneath the driver's seat. (T. p. 30)

         Trooper Holcombe testified that on September 13, 2016, he had a camera system in his patrol vehicle that recorded at all times when the vehicle was being operated. (T. p. 29) When the blue lights on the patrol vehicle are activated the camera automatically backs up to the last two minutes of video that was captured and places that video on a DVD drive in the camera. (T. pp. 29, 49) The DVD containing these events was introduced into evidence by the Government. (T. pp. 30-35) (Gov. Ex. 1) The video was played in open court and has been reviewed by the undersigned on multiple occasions. (T. pp. 30-35) Trooper Holcombe testified that the quality of the video is not the best and is a two dimensional image of what occurred. (T. pp. 42-43, 76) Further, the video shows that it was completely dark when Trooper Holcombe began to follow the Toyota Camry vehicle. (Gov. Ex. 1)

         The Government introduced still photographs captured from the DVD from the patrol vehicle's video camera system (T. pp. 31-33) (Gov. Ex. 2-30). On the photographs a red circle, or arrow, has been superimposed to indicate the location of the black Toyota Camry vehicle (T. p. 33). A time ...


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