United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. ...