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United States v. Gordon

United States District Court, E.D. Michigan, Southern Division

June 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
REMOND GORDON, Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOT.ION TO SUPPRESS EVIDENCE

          Paul D. Borman, United States District Judge.

         Defendant Remond Gordon has been charged in a one-count indictment with Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). The indictment arises from the seizure of a pistol from Defendant's passenger Ms. Brieanna Expose by the Michigan State Police during a routine traffic stop.

         Defendant moves to suppress the seized firearm as evidence, alleging that Trooper Benjamin Sonstrom unlawfully prolonged the traffic stop without reasonable suspicion, and that the firearm was discovered in a search conducted after such prolongation. For the reasons that follow, the Court finds that there was a violation of Defendant's rights under the Fourth Amendment, and therefore grants Defendant's Motion to Suppress.

         I. BACKGROUND

         Trooper Benjamin Sonstrom pulled Defendant over on southbound Interstate 275 in Romulus, Michigan at approximately 2:10 PM on July 12, 2017, for following too closely. (ECF No. 21, Gov't Resp. Ex. A, Incident Report.) Sonstrom was driving a fully marked patrol car, which was parked in the median of Interstate 94 just east of the juncture between 1-94 and 1-275, when he observed Defendant's vehicle "travelling at approx[imately] 1-2 car lengths behind the vehicle that was in front of it at freeway speeds." (Id. at 1, Pg ID 131.) Sonstrom illuminated his emergency lights, and Defendant pulled over on the shoulder of Interstate 275. (Id.)

         VIDEO OF TRAFFIC STOP

         Defendant has introduced into evidence a video of the traffic stop and subsequent arrest from Sonstrom's dashboard camera. (ECF No, 19, Def.'s Mot. Ex. A, Video.) The factual summary that follows reflects the events of the traffic stop as they are depicted in the video, except where otherwise noted.

         After exiting his patrol vehicle, Sonstrom approached the passenger side of Defendant's vehicle, advised Defendant that he had pulled him over for driving too closely to the car in front of him, and requested Defendant's driver's license, registration, and proof of insurance. (Video at 02:10:09-02:10:36.) Defendant hands Sonstrom certain items, and Sonstrom asks the passenger in the vehicle, Ms. Biieanna Expose, whether she has identification as well. (Video at 02:10:37- 02:11:10; Incident Report at 1, Pg ID 131.)

         Sonstrom tells Defendant that he is going to run his registration, and asks Defendant to stand in front of Sonstrom's car so that he can communicate with him more easily. (Video at 02:11:42-02:11-50.) Defendant asks Sonstrom whether he is required to exit his car, to which Sonstrom responds that he does, adding that he couldn't hear him easily from where he was seated in the car. Defendant asks again whether he has to exit his car, and Sonstrom responds in the affirmative. Defendant asks whether he has to leave his car even if he does not want to, and Sonstrom responds that he is legally required to do so, and "can go to jail for resisting and obstructing a police officer." (Video at 02:11:50-02:12:20.)

         Defendant exits his vehicle and approaches Sonstrom, who explains to Defendant that he needs to "run your stuff and that he could not hear Defendant when Defendant was still seated in his car. Sonstrom asks Defendant if he has any weapons on his person, and asks to see his waistband. Sonstrom gets into the driver's seat of his patrol vehicle while Defendant remains outside on the passenger side, and the two men speak through the open passenger-side window:

Sonstrom: Do you want to sit in here, or no?
Defendant: Uh, do you mind if I just stand out here?
Sonstrom: That's cool, man. How are you doing today?
Defendant: I can't complain. How about yourself?
Sonstrom: All right.

(Video at 02:12:28-02:13:10.) Sonstrom proceeds to ask Defendant a series of questions, and in the course of that conversation Defendant indicates the following: (1) the car is registered in his name; (2) Ms. Expose is "just a friend"; (3) Defendant and Expose were on their way to a car auction in Carleton, Michigan; (4) Defendant intends to buy a car at the auction, but that has not decided what kind of car; (5) Defendant's driving record is "fair" and his license is not suspended. (Video at 02:13:11-02:14:28.)

Sonstrom and Defendant then have the following exchange:
Sonstrom: Listen. My computer is slow for whatever reason. You ever been in trouble for anything before?
Defendant: No, sir.
Sonstrom: You ever been arrested?
Defendant: Um, sir—I mean, I'm not being disrespectful, but, I mean, is this a traffic stop, or what's going on? I'm just not trying to be disrespectful, but what's going on?
Sonstrom: I just, it's—I'm communicating with you. It's part of my job. You know what I'm saying?
Defendant: Okay.
Sonstrom: So—
Defendant: I mean, if you don't mind, I'd just rather—I mean, if you're going to write me a ticket or whatever, I'd just kind of rather at this point remain silent.
Sonstrom: Hang tight for me for a minute, okay?
Defendant: Sorry?
Sonstrom: Hang tight right here. I'll be right back.

(Video at 02:14:29-02:15:03.)

         Sonstrom approaches the passenger side of Defendant's vehicle to speak with Ms. Expose. They speak for approximately 45 seconds, and while their conversation is not fully audible in the video, Sonstrom described it as follows in the incident report:

I briefly exited my car and made contact with the passenger, EXPOSE. She was playing a video game on her phone. I asked where she was heading and she said she was just riding. She advised she was going to hang out with GORDON. She could not tell me exactly where she was heading.

         (Incident Report at 2, Pg ID 132.)

         Sonstrom gets back into his patrol vehicle, and over the next minute and a half, he can be heard in the video speaking into his radio in short intervals. Specifically, Sonstrom can be heard communicating his location on Interstate 275, and then reading an eight-digit number into the radio. (Video at 02:16:00-02:17:33.) Sonstrom tells Defendant, who is still standing outside of Sonstrom's passenger-side window, that he is going to roll up the window to make a phone call. Defendant asks if he can go back to his car, and Sonstrom tells him that he can wait in front of the patrol vehicle, but not get back into his car yet, (Video at 02:17:34-02:17:49.)

         Sonstrom then places a call, stating: "I am on a traffic stop, and I need to run an individual—two people in a car, please. Thanks." (Video at 02:18:28-02:18:45.) Shortly thereafter, a voice on Sonstrom's radio states: "I'm showing a couple of felony 3500s from '91 and '92, and a felony 5200 from '99." (Video at 02:19:22-02:19:42.)

         About a minute and 20 seconds later, Sonstrom can be heard making a phone call apparently regarding the traffic stop: he provides his name and a four-digit number, identities his location, states "it's going to be 'following too close, '" and provides identifying information about Defendant. (Video at 02:21:00-02:22:24.) Sonstrom then radios to ask whether there are any female officers in the area, and is told that a female officer would come to the scene within about five minutes. (Video at 02:24:50-02:25:15.) Ten seconds after that, Sonstrom can be heard saying: "Okay. Pull up previous queries. I'm trying to see if one was mine or not." After a 15-second pause, he says: "Okay. That wouldn't have been me. That's okay. If that's the most recent one, don't worry about it." (Video at 02:25:25-02:25:56.) About 30 seconds later, he says: "What's the NADDIS number?[1] Okay. Okay. Um, that's okay. Yep." Sonstrom then identifies "the second subject" as Ms. Expose, spells her name, and provides identifying information. (Video at 02:26:31-02:27:34.)

         Approximately three minutes later (and by this time approximately 20 minutes into the traffic stop), Sonstrom apparently receives a second phone call:

Ma'am, can I put you on hold for one second? Okay.
Hey, bro. Sorry, I'm on with Epic.[2] What's cooking? Yeah. Oh. Okay. No, I—he looks very familiar. I'm trying to figure the guy out. Let me finish with Epic and I'll call you right back. Good to know. Yeah, bye.
Hello? You know what? Okay. Anything on—negative for her? Okay. I'm good, I'm on the phone with DEA now, so I'm all set. Thank you. Yeah, bye.

         (Video at 02:30:16-02:31:06) Sonstrom requests additional backup on his radio, and a few seconds later, he says: "Is that the NADDIS number?" He then confirms his location on 1-275 over the radio for the backup trooper he had requested. (Video at 02:31:30-02:32:26.)

         Then, after about twenty seconds of silence, Sonstrom can be heard laughing, and then saying the following:

What did I stop him for? Did I get anything? Out of where? Okay. Yes, yes, yup, yup. He came out of the Dollar Store or something, right? Or the Aldi's, or whatever it was. Okay. He's being real evasive. Denied a criminal history. He's got a girl in the car. Says he's going to car auction but doesn't know what kind of car he's getting. She says she's just riding, going to spend time with her boy. They're doing something up to no good, you know? Well, hopefully today will be that day, so. Okay. I will. Thanks. Yeah, bye.

(Video at 02:32:43-02:34:05.)

         After Sonstrom concludes the call, Defendant approaches the passenger side of his patrol car, and the two men have the following exchange:

Defendant: What's going on, sir?
Sonstrom: I've got to finish doing all of my investigation work here.
Defendant: I'm sorry?
Sonstrom: I've got to finish doing all of my ...

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