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United States v. Mosley

United States District Court, M.D. North Carolina

July 16, 2019



          Catherine C. Eagles, District Judge.

         The defendant, Brad Mosley, moves to suppress evidence against him based on a lack of reasonable suspicion or probable cause to stop his vehicle, detain him, or search his vehicle. Doc. 13. The Court heard evidence during two hearings, beginning on May 9, 2019, and concluding on May 17, 2019.

         The sole valid justification for the stop was Mr. Mosley's violation of a noise ordinance, but officers did not diligently pursue that valid purpose, instead performing an unrelated drug investigation, including a dog sniff for narcotics. By the time the K-9 alert provided probable cause to search the vehicle, officers had unreasonably extended the duration of the stop, in violation of the Fourth Amendment. As such, the motion to suppress will be granted.


         In addition to the testimony at the hearings, the Court has weighed and considered the exhibits, including audio and video recordings and the written reports by law enforcement made at or near the time of the events. Having taken the matter under advisement, and for purposes of resolving the motion to suppress, the Court makes the following findings of fact.

         On June 6, 2018, the Winston-Salem Police Department and the Alcohol Law Enforcement branch of the North Carolina State Bureau of Investigation were conducting an ongoing joint investigation directed at identifying and gaining access to suspected illegal drink and drug houses in Winston-Salem. To this end, ALE Agent Chris Kluttz and a confidential informant were working undercover at a shopping center on North Cherry Street, developing relationships in an attempt to gain access to drink or drug houses. The CI has a long-term relationship with ALE, has worked with Agent Kluttz many times, is paid for his work, and has been found to be reliable on several occasions in ALE operations with different agents around the state.

         In recent years, Winston-Salem police officers were often in the North Cherry Street area in connection with drug enforcement-related activity, to serve warrants, and in response to one homicide. Agent Kluttz also reported suspicious drug and other criminal activity to Winston-Salem police officers as part of the operation, and on numerous previous occasions he had observed hand-to-hand drug transactions, open use of marijuana, and open carrying of weapons near and around the shopping center.

         On June 6, Agent Kluttz wore a wire and ALE Agent K. Brandsema was able to listen to Agent Kluttz's conversations with the CI and others via that wire. From time to time, Agent Kluttz also narrated events he was observing into the wire microphone so that Agent Brandsema knew what was happening on the ground. These wire communications were recorded. Agent Kluttz also had a cell phone he used to speak with Agent Brandsema, who communicated with Winston-Salem police officers via a secure channel on another communication device. A camera installed on a nearby telephone pole provided video of the scene but no audio. Winston-Salem police officers were in the vicinity to assist and follow-up on any needed investigation.

         The shopping center was small. It contained a convenience store and a barber shop, with a vacant storefront formerly housing a beauty salon in between the two. Agent Kluttz and the CI arrived around 2:30 p.m. and were drinking beer on the sidewalk, purportedly waiting on their boss to come pay them. They observed traffic in and out of the two businesses and engaged pedestrians and customers in conversations.

         Agent Kluttz saw a red Camaro pull up in front of the shopping center. An unidentified black male in a black shirt and baseball cap (Person #1) came out of the barber shop and entered the Camaro, and the driver and Person #1 engaged in a quick hand-to-hand transaction. Agent Kluttz suspected this was a drug transaction, which he reported to Agent Brandsema. Winston-Salem police officers Hill and Thomas, who were part of the joint operation, stopped the Camaro and located drugs during a search.

         A short time later, Person #1 was standing outside the barber shop and received a phone call. Agent Kluttz heard Person #1 say something to the effect that he was not leaving and that the other person could come to the barber shop to get “it.” A short, stocky man (Person #2) arrived soon thereafter and interacted with Person #1, but he did not go into the barber shop. Agent Kluttz suspected that Person #2 was the person who had been on the phone with Person #1. Person #2 left.

         By this point, Agent Kluttz had been on the scene for about two hours and had consumed two 24-ounce beers over this period. The CI consumed a similar amount of beer--at least 32 ounces and perhaps as much as a six-pack.

         The defendant, Mr. Mosley, drove up in a blue Mazda and parked in front of the vacant shop. Agent Kluttz was across the street on his cell phone and Person #1 was standing outside the barbershop talking with another man, Person #5. Mr. Mosley got out of his car and Agent Kluttz crossed the street back towards the shopping center. There was no one else in the Mazda. Mr. Mosley went into the convenience store. There was nothing suspicious about Mr. Mosley's behavior or his actions and he did not seem to be looking for anyone.

         While Mr. Mosley was in the convenience store, Agent Kluttz had a brief conversation with two women, Persons #3 and #4, standing on the sidewalk near the CI. Agent Kluttz and Person #4 followed Mr. Mosley into the store. The CI and Person #3 remained on the sidewalk. Person #5 went into the barber shop and Person #1 smoked a cigarette outside. Person #1 then went into the barbershop.

         After being in the store for about a minute, Mr. Mosley left the store and walked over to and entered the barber shop, where he stayed for approximately one minute. When he came out, he greeted the CI in passing. Mr. Mosley took out a cigarette and then spoke with Person #3, who gave Mr. Mosley a lighter or a match. The CI walked over, standing somewhat near Mr. Mosley and Person #3 for approximately 15 seconds while Mr. Mosley lit a cigarette and returned the lighter to Person #3. Mr. Mosley walked a few feet towards his car and smoked the cigarette. The CI went into the convenience store very briefly and then came back out. Mr. Mosley got in his car, put on his seat belt, and drove off. There was nothing visibly suspicious about Mr. Mosley's actions or behavior, and there were no hand-to-hand transactions other than the exchange of the cigarette lighter.

         In the meantime, Agent Kluttz was told that the WSPD found drugs in the red Camaro. When Agent Kluttz came out of the convenience store, Mr. Mosley was driving away. The CI told Agent Kluttz that Mr. Mosley had offered “dope” to Person #3, which Agent Kluttz understood to be crack, and that the CI had asked Mr. Mosley for marijuana, but Mr. Mosley stated he did not have any. ...

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