Opinion and Order — United States v. Diop McKenzie (M.D. Fla.)

Record facts

U.S. District Court, Middle District of Florida (Fort Myers Division) · No. 2:23-cr-00088-SPC-KCD · Doc. 64 · 2024-04-24 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
 
UNITED STATES OF AMERICA 
 
v. 
CASE NO.: 2:23-cr-88-SPC-KCD 
DIOP MCKENZIE 
 
 
OPINION AND ORDER 
Before the Court is Defendant Diop McKenzie’s Motion to Suppress (Doc. 
45), along with the Government’s Response in Opposition (Doc. 51).  The Court 
held an evidentiary hearing on the motion, at which time Defendant was 
present and represented by counsel.  The Court reserved its ruling at the 
hearing and now denies Defendant’s motion.  
 
At the hearing, the Government called law enforcement witnesses, 
including Andrew Gallo of the Cape Coral Police Department, and presented 
exhibits in the form of body-worn camera footage.  Defendant offered no 
witnesses.  The Court makes these findings of fact based on the record, the 
parties’ papers, and admitted exhibits.  
 
Defendant’s Motion to Suppress arises from a traffic stop that occurred 
on September 14, 2020.  On that date, Defendant was stopped by Officer Gallo 
for driving with a suspended license.   
But before we get to the stop itself, we need to discuss Defendant and 
Gallo’s history.  Just over a week before, Gallo responded to a domestic 
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disturbance at Defendant’s home.  The disturbance was a fight between 
Defendant and Lindsey Neal.  Defendant spoke to Gallo about what happened, 
and the interaction between Gallo and Defendant was cordial.  Then Gallo 
spoke to Neal.  During the conversation, Neal mentioned that Defendant does 
not work—he obtains money by committing fraud.  Gallo inquired further and 
Neal said there are already open cases against Defendant in Orlando, that he 
buys identities off the black market, and that he just got a PPP loan for 
$100,000.  She told Gallo that Defendant also has an open case with the Cape 
Coral Police Department.  Gallo asked her if she had any proof of Defendant 
stealing identities.  Neal said she had the last digits of a credit card with 
someone else’s name on it.   
Fast-forward to the traffic stop on September 14th.  The stop unfolded in 
several stages: ticket one (driving with a suspended license), an inventory 
search, ticket two (driving an unregistered motor vehicle), and then the search 
that is the subject of the motion to suppress.   
Gallo pulled Defendant over at 20:08 for driving with a suspended 
license.1  Gallo was training a fellow officer, Officer Hurst, that day.  It is also 
clear that Gallo recognized Defendant as the driver before he pulled him over.  
Gallo instructed Hurst that when he approached the driver, he should state 
 
1Time stamps are given based on Officer Gallo’s and Officer Hurst’s body-worn camera 
footage, admitted as Government Exhibits 4 and 5. 
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why he was pulled over and ask to see the driver’s license.  Then Gallo told 
Hurst to “verify his identity as McKenzie Diop and then we’ll have him get out 
of the car, okay?  Call for Code 10.”   
After being pulled over, Defendant confirmed that his license was 
suspended, but per department protocol, the officers waited for dispatch to 
confirm as well.  Gallo assured Defendant a few minutes into the stop that 
because of COVID policies, he would not be arrested.  About eight minutes into 
the stop, additional officers arrived, and Hurst began writing Defendant’s 
ticket.2  Gallo explained to the Defendant that his car would need to be towed 
and that the officers needed to conduct an inventory beforehand.   
At about 12 minutes into the stop, it began to rain.  Gallo said to 
Defendant, “If you’d like, I’ll pat you down and make sure you don’t have any 
weapons and then you can sit in the back of my car so we don’t get soaking wet.  
How does that sound?”  Defendant turned, placed his hands on the police car, 
and said, “Yeah.”  Gallo then patted him down.  For the next half hour, 
Defendant sat in the back of the police car.   
At this point, the inventory search was already underway.  Gallo told the 
inventorying officer that Defendant was suspected of identity theft and to grab 
any credit cards or IDs.  About 20 minutes into the stop, Gallo found a small 
 
2 Gallo testified that per department policy, some procedures require more than one officer.  
Per policy, a trainee officer is not counted as an officer in these instances.  
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backpack in Defendant’s trunk and lamented to his fellow officer that it was 
empty.   
Now for the second ticket.  Between completing the vehicle inventory and 
the tow truck’s arrival, Gallo and Hurst learned that Defendant’s car was 
unregistered.  Gallo told Defendant they would have to write him a second 
ticket for driving an unregistered vehicle.   
The tow truck arrived, but the second ticket was not finished.   The stop 
had been underway for about 35 minutes.  A few minutes later, Gallo told the 
officer who conducted the inventory that he “was going to try to get consent to 
search [Defendant] . . . All he has is a wallet, but I just want to see what’s in 
it.  So I imagine he is going to say ‘yes.’” 
About 45 minutes into the stop, Hurst was still writing the second ticket.  
Gallo, seemingly annoyed with his trainee, told Hurst that the second ticket 
should include the same information as the first, except the cited statute.  
Defendant stepped out of the police car to call for a ride.  At 20:56, the second 
ticket was finally ready.  Hurst and Gallo then explained the tickets to 
Defendant.    
Now we reach the final stage of the stop—the search.  Gallo told 
Defendant, “You are free to leave, man.”  Defendant turned to walk away, and 
then the following exchange happened.   
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Gallo: “Hey, before you leave would you have any 
issues with me just making sure you don’t have 
anything on you, nothing illegal?”  
  
Defendant: “No, man.” 
 
Gallo: “You got no issues with that?”   
 
Defendant, with no prompting, walked over the police 
car and put his hands on the hood.   
 
Gallo: “We’re doing some training here, so . . . Today’s 
training is going to be consensual searches, alright?  
So you’re giving me consent to search you, right?” 
   
Defendant: “Yeah.”   
 
Gallo: “Cuz you got nothing on you.”   
 
Gallo began patting Defendant down.  He pulled out 
Defendant’s wallet and handed it to Hurst before 
continuing the patdown.   
 
Gallo: “Nothing in your wallet?”   
 
Defendant: “No.”   
 
Gallo concluded the patdown, removed Defendant’s wallet from his 
pocket, and opened it.  Defendant narrated the contents as Gallo flipped 
through the cards.  Gallo pulled out two credit/debit cards.  Defendant 
explained the cards were his stepdad’s.  Gallo said he wanted to confirm there 
was nothing criminal about the cards because the cards were not in 
Defendant’s name.  Hurst read Defendant his rights.  Gallo asked Defendant 
if he understood his rights and asked him who the cards belonged to.  
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Defendant again claimed the cards belonged to his stepdad.  Gallo asked the 
Defendant to call his stepdad so Gallo could verify.   
Defendant did not want to call his stepdad and told Gallo to just keep 
the cards.  Gallo asked him some follow-up questions to confirm that Defendant 
was surrendering the cards to the police department.  At 21:04, Gallo began 
writing the property release form.  At 21:08, Defendant signed the form and 
went on his way.   
The two cards found in Defendant’s wallet belonged to M.D.  Defendant 
is now charged with wire fraud based on the “electronic transmission of 
fraudulent EIDL application in the name of M.D..”  (Doc. 1 at 10).  Defendant 
argues that “the Government’s entire investigation had its genesis in the traffic 
stop” and that the cards and their fruits should be suppressed.  (Doc. 45 at 7).   
DISCUSSION 
 
Defendant’s argument is two-tiered.  He argues that any consent is 
invalid because it happened during an unlawfully prolonged traffic stop.  And 
he argues that Gallo ultimately did not have consent to search his wallet.3 
 
Defendant’s prolonged-stop argument must fail because he was already 
free to leave when the search occurred.  “[B]rief, consensual, and non-coercive 
 
3 Defendant also argues that the Government cannot rely on the “inevitable 
discovery/independent source” rule or that Defendant “abandoned” the cards by signing them 
over to the Cape Coral Police Department (Doc. 45 at 16-19). Based on the facts here, the 
Court need not delve into these arguments.  
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interactions [with police] do not require Fourth Amendment scrutiny.”  United 
States v. Perkins, 348 F.3d 965 (11th Cir. 2003) (citing Florida v. Bostick, 501 
U.S. 429 (1991)).  Gallo told Defendant, “You are free to leave, man.”  And 
Defendant understood he could leave because he turned and began walking 
away from Gallo.  Only after this did Gallo ask for consent to search Defendant.  
So, at the time of the search, Defendant’s encounter with police was 
consensual.4   
 
But even if the Court assumed an unlawfully prolonged traffic stop could 
taint a subsequent consensual encounter, Defendant’s argument falls short 
because the traffic stop was not unlawfully prolonged.   
 
The Fourth Amendment does not require a traffic stop to be completed 
within a set timeframe.  See United States v. Braddy, 11 F.4th 1298, 1310 (11th 
Cir. 2021) (quoting United States v. Holt, 777 F.3d 1234, 1256 (11th Cir. 2015)) 
(“[W]e measure the reasonableness of a stop’s duration under the totality of 
the circumstances . . . [r]igid time limitations and bright-line rules are 
 
4 Defendant likens this stop to the stop in Florida v. Royer, 460 U.S. 491 (1983).  But in 
Royer, the Court found that Royer was detained because “the officers identified themselves 
as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked 
him to accompany them to the police room, while retaining his ticket and driver’s license 
and without indicating in any way that he was free to depart.” Royer, 460 U.S. at 501.  
Here, the facts are completely different, and Defendant was not detained at the time of the 
search.  Defendant was not informed that he was suspected of anything, remained in full 
public view on a busy roadway, had his license returned to him, and was expressly told he 
was free to leave.  See Royer, 460 U.S. at 504 (“[B]y returning his ticket and driver’s license 
and informing him that he was free to go if he so desired, the officers might have obviated 
any claim that the encounter was anything but a consensual matter from start to finish”) 
(emphasis added). 
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generally inappropriate”).  “[T]he tolerable duration” of a traffic stop is 
determined by the stop’s “mission—to address the traffic violation that 
warranted the stop and attend to related safety concerns . . . Authority for the 
[stop] thus ends when tasks tied to the traffic infraction are—or reasonably 
should have been—completed.”  Rodriguez v. United States, 575 U.S. 348, 354 
(2015) (internal citations omitted).   
This stop was reasonable in length.  This stop comprised several 
segments—ticket one, the inventory search, ticket two, and the consent search.  
Gallo pulled Defendant over at 20:08 for driving with a suspended license.  
Defendant could not legally drive away.  However, other officers needed to 
arrive and inventory the car before it could be towed.  At about 20:16, those 
additional officers arrived, and Hurst began writing Defendant’s ticket.  
Because the inventory search still needed to be done and the car still needed 
to be towed, this delay in ticket writing did not elongate the stop.  The 
inventory search moved forward in an expeditious fashion.   
At 20:28, Hurst called for a tow truck.  At 20:31, Hurst completed writing 
the first ticket and handed it to Gallo for review.  While corrections were being 
made, Gallo conducted a search on his laptop.  Defendant watched the screen 
and asked from the back seat “does that tag belong to [unintelligible]?”  About 
a minute later, the police confirmed via a database check that Defendant’s car 
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was unregistered, and a second ticket was required.  Hurst began writing the 
second ticket.   
At 20:41, the tow truck arrived but Hurst had not yet completed writing 
the second ticket.  Hurst’s body-worn camera footage confirms that he was 
working expeditiously to complete the ticket, only taking a break to give the 
tow truck access to Defendant’s car.  Gallo repeatedly prompted his trainee 
Hurst to complete the second ticket.  At 20:54, Hurst handed the second ticket 
to Gallo for review.  The second ticket was completed at 20:56. Hurst explained 
the tickets to Defendant, and—a mere three minutes after the second ticket 
was completed—Gallo told Defendant he was free to leave.     
 
The “[a]uthority for [a stop] . . . ends when tasks tied to the traffic 
infraction are—or reasonably should have been—completed.”  Rodriguez, 757 
U.S. at 354.  Here, the tasks tied to the traffic infractions were not complete 
until moments before Defendant was told he was free to leave.  And, under 
these circumstances, the officers completed those tasks in a reasonable time.   
 
The Court will now address the voluntariness and scope of the consent.  
Defendant argues that his consent was invalid because he was “grossly misled 
as to the purpose of the search” and “even if the consent to search his person 
had been valid, there was no consent to search his wallet.”  (Doc. 45 at 12).   
 
Defendant’s argument about being misled is a non-starter.    While deceit 
by police can affect voluntariness under limited circumstances, generally “[t]he 
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subjective motivation of the officers is irrelevant” because “coercion is 
determined from the perspective of the suspect.”  United States v. Spivey, 861 
F.3d 1207, 1215 (11th Cir. 2017).  Accordingly, “whether officers deliberately 
lied does not matter because the only relevant state of mind for voluntariness 
is that of [the suspect] himself . . . And officers are entitled to be silent about 
their motivations.” Id. (internal citations omitted). 
 
“Whether a suspect voluntarily gave consent to search is a question of 
fact to be determined by a totality of the circumstances.”  United States v. 
Blake, 888 F.2d 795, 798 (11th Cir. 1989) (citing Schneckloth v. Bustamonte, 
412 U.S. 218, 249-50 (1973)).  The government bears the burden of proving 
consent and that the consent was free and voluntary.  Blake, 888 F.2d at 798 
(citing United States v. Massell, 823 F.2d 1503, 1507 (11th Cir. 1987)).  The 
Eleventh Circuit has considered the following non-exhaustive list when 
assessing voluntariness: the voluntariness of the defendant’s custodial status, 
the presence of coercive police procedure, the extent and level of the 
defendant’s cooperation with police, the defendant’s awareness of his right to 
refuse to consent to the search, the defendant’s education and intelligence, and 
the defendant’s belief that no incriminating evidence will be found.  Blake, 888 
F.2d at 798.   
Defendant’s consent was free and voluntary.  At the time of the consent 
search, he had been informed he could leave and was engaging with Gallo 
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voluntarily.  Defendant knew he was free to leave, as demonstrated by the fact 
that he had already begun walking away from Gallo.  And Gallo phrased the 
search inquiry as a question rather than command (“Hey, before you leave 
would you have any issues with me just making sure you don’t have anything 
on you, nothing illegal?”).  This question made it clear to Defendant that he 
had a right to refuse the search.  Gallo explicitly asked whether he had 
Defendant’s consent (“Today’s training is going to be consensual searches, 
alright?  So you’re giving me consent to search you, right?”).  Defendant 
appears to be intelligent—he answers Gallo’s questions intelligently and says 
he is a business owner who has worked in construction and real estate.    
But most important regarding consent, Defendant cooperated with Gallo 
for the entire stop and repeatedly demonstrated that he was comfortable with 
Gallo.  Defendant recognized Gallo a few minutes into the stop.  They chatted 
about various things.  Gallo showed Defendant how many citations he had for 
driving with a suspended license, and they laughed about it.  Defendant 
mentioned riding a motorcycle and Gallo joked “you mean you don’t ever drive 
it because you don’t have a license, right?”  Defendant said “exactly,” and they 
laugh about that too.   
Defendant remained cooperative and comfortable with Gallo even after 
he was told he was free to leave.  When Gallo asked to search him, McKenzie 
voluntarily placed his hands on the hood of the police car without being 
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directed.  He then remained chatty and cooperative as Gallo looked through 
his wallet.  Defendant discussed fishing with Gallo in response to Gallo finding 
his fishing license.  Defendant narrated the contents of his wallet, noting that 
the business card inside was for his attorney.  Nothing suggests that Defendant 
was uncomfortable with Gallo looking in his wallet or that his consent was less 
than free and voluntary.  
This leaves the issue of the scope of the search.  A consent search is 
reasonable under the Fourth Amendment provided the search does not exceed 
the scope of consent given to police.  United States v. Martinez, 949 F.2d 1117, 
1119 (11th Cir. 1992).  Police are not required to specifically request consent 
to search item by item.  Florida v. Jimeno, 500 U.S. 248, 252 (1991) 
(“Respondents argue . . . that if the police wish to search closed containers 
within a car they must separately request permission to search each container. 
But we see no basis for adding this sort of superstructure to the Fourth 
Amendment’s basic test of objective reasonableness”).  Instead, when police 
receive a general statement of consent, the scope of consent is “constrained by 
the bounds of reasonableness: what a police officer could reasonably interpret 
the consent to encompass.”  United States v. Harris, 928 F.2d 1113, 1117 (11th 
Cir. 1991).   
Here, Defendant provided a general statement of consent.  He consented 
to let Gallo search him for anything “illegal.”  It was reasonable for Gallo to 
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believe Defendant’s general consent included his wallet.  Illegal items can be 
found in wallets.  And Defendant’s actions during the search confirm that it 
did not exceed the scope of Defendant’s consent.  Defendant narrated the 
search of his wallet, volunteering information as Gallo removed items.  Gallo’s 
interpretation of the scope of consent is further buttressed by the context in 
which that consent was given.  During the first search of Defendant, Gallo said, 
“If you’d like, I’ll pat you down and make sure you don’t have any weapons and 
then you can sit in the back of my car so we don’t get soaking wet.  How does 
that sound?”  Contrast this with Gallo’s second request to search: “Hey, before 
you leave would you have any issues with me just making sure you don’t have 
anything on you, nothing illegal?”  The latter request was much broader, and 
so to was Defendant’s consent.   
No unreasonable search or seizure occurred during the September 14, 
2020, traffic stop.  The stop was not unreasonably prolonged.  Defendant 
consented to a search after he was free to leave.  And the search of his wallet 
did not exceed the scope of his consent.   
Accordingly, it is  
ORDERED: 
Defendant’s Motion to Suppress (Doc. 45) is DENIED.  
DONE AND ORDERED in Fort Myers, Florida on April 24, 2024. 
 
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Copies: 
Counsel of Record 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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