Order Denying Motion to Suppress Evidence — United States v. Xavier D. Cooper (Document 33)
Summary
This is an order denying a motion to suppress evidence in the Southern District of Mississippi, Northern Division, Cause No. 3:19-cr-60-DCB-FKB, United States against Xavier D. Cooper. The Court recounts a hearing on August 25, 2020 and supplemental briefing on whether a traffic stop was proper, given the timing of the stop and when officers received confirmation of a license tag violation. The background describes a be-on-the-lookout alert for a yellow Camaro tied to gas station burglaries in the Clinton area on May 22, 2017. The Court calls the timing issue a close call, and states that officers had confirmation of a switched license plate in violation of Mississippi law. It orders the Motion to Suppress Evidence as Fruit of an Illegal Stop DENIED on October 1, 2020.
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“Order Denying Motion to Suppress Evidence — United States v. Xavier D. Cooper (Document 33).”
Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-3-19-cr-00060-dkt-33-s-d-miss-9d67cf6832/
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Case 3:19-cr-00060-DCB-FKB Document 33 Filed 10/01/20 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
UNITED STATES
v. CAUSE NO. 3:19-cr-60-DCB-FKB
XAVIER D. COOPER DEFENDANT
ORDER DENYING MOTION TO SURPRESS EVIDENCE
This matter is before the Court on Defendant Xavier D.
Cooper (“Cooper”)’s Motion to Suppress Evidence as Fruit of an
Illegal Stop [ECF No. 26](the “Motion”). The Court held a
hearing on August 25, 2020, during which the Court heard
arguments from both parties and testimony from the Government’s
witness. At the close of the hearing, the Court requested
supplemental briefing from the parties regarding whether the
traffic stop was proper under Fourth Amendment search and
seizure law given the timing of (i) the traffic stop; and (2)
when the arresting officers received confirmation of Cooper’s
license tag violation. Having reviewed the Motion, response
thereto, the parties’ supplemental briefs, the hearing
transcript and documents entered into evidence at the hearing,
applicable statutory and case law, and being otherwise fully
informed of the premises, the Court finds as follows:
1
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Background
On the evening of May 22, 2017, while on a routine patrol in
Hinds County, Mississippi, Officers Manor 1 and Trussell of the
Clinton Police Department (“CPD”) received a be-on-the-lookout
alert (“BOLO”) for a yellow Camaro. Hearing Transcript [ECF No.
31-1] (“Tr.”) at 11. CPD disseminated the BOLO in connection with
prior armed robberies or burglaries of gas stations in the Clinton
area, which had put employees on high alert. CPD Incident Report
No. 17-00013629-001, Govt.’s Hearing Ex. G-1 at 15. 2 The yellow
Camaro had been seen at or around the time of one of the burglaries
through video surveillance and was spotted again at two of the
burglarized stations on May 22, 2017. Tr. at 10; Ex. G-1 at 7.
Two different named individuals who worked at the burglarized gas
stations reported information regarding the suspicious vehicle to
CPD on May 22, 2017. Ex. G-1 at 7, Exs. G-3 & G-4. The operator
of the Shell station on Northside Drive at Briars Drive in Hinds
County called CPD around 8:15 p.m. on May 22, 2017 to report that
1
At the time of the hearing, Officer Manor had been promoted to
Sergeant. Tr. at 8. To avoid confusion, he will be referred to
as “Officer” throughout this Order.
2
The document admitted into evidence as Government’s Hearing
Exhibit G-1 also can be found at ECF No. 28-1. The Government
introduced four exhibits into evidence at the Motion hearing.
The Court admitted all four exhibits into evidence, without
objection from the defense. See Tr. at 4-6. The hearing
exhibits will be referred to in this Order as Exs. G-1 through
G-4.
2
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he had information about a suspect in the burglary of his station.
Exs. G-3 & G-4. He asked that a police officer come by the Shell
station. Id. Around the same time, the operator of the Quik Stop
on Northside Drive and Cynthia Street in Hinds County spoke
directly with the investigating detective, Frank Pennell, about
the sighting. Ex. G-3. Shortly thereafter, CPD dispatch called
Detective Pennell to advise him of the call from the Shell station
operator. Id. Detective Pennell confirmed that he already was
aware of the vehicle sighting because he had just spoken with the
Quik Stop operator. Id. He further confirmed that he knew the
full names 3 of both operators who reported the information, and he
instructed dispatch to have the vehicle stopped and its occupants
identified if there were any further sightings. Exs. G-3 & G-4.
Around 10:00 p.m., within two hours of CPD receiving the
report on which the BOLO was based, Officers Manor and Trussell
spotted a yellow Chevrolet Camaro that matched the description of
the suspicious vehicle. Tr. at 11. They saw the vehicle within
one mile of one of the robbed gas stations. Id. Officer Manor
testified that it was the only yellow Camaro that he saw in the
area that night and that “[y]ellow Camaros kind of stand out.”
Id. The officers followed the vehicle and Officer Manor relayed
3
These names are contained in the Government’s exhibits that were
admitted into evidence at the hearing. Exs. G-3 & G-4.
3
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the license tag information to CPD dispatch so that the plate could
be run. Id.; Ex. G-2. 4
According to the hearing testimony of Officer Manor on cross-
examination, the following sequence of events next occurred:
Defense Counsel: And did you turn on your blue lights
prior to getting the result back for the tag?
Officer Manor: Yes. When I initiated the traffic stop, most
likely, is when the first information is given, and that's
the incident date and time.
Defense Counsel: Okay. So you had turned on your blue
lights. You called in to dispatch the tag. Dispatch came
back. And that's when the car pulled over, and you got out
and proceeded with the traffic stop?
Officer Manor: Yes.
Tr. at 17-18.
The tag results received from dispatch confirmed that the
license plate was for a 2008 silver Dodge, not a yellow Chevrolet
Camaro. Ex. G-1 at 7; Ex. G-2 at 1. Based on his training and
experience, Officer Manor knew that the mismatched tag information
meant that the license plate had been switched. Tr. at 12. 5 The
4The document admitted into evidence as Government’s Hearing
Exhibit G-2 also can be found at ECF No. 28-2.
5 Operating a vehicle on Mississippi highways with a license tag
that was issued for another vehicle is a violation of
Mississippi law. Miss. Code Ann. § 27-19-131.
4
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Camaro came to a stop after the officers received the tag
information. Tr. at 12, 15, 17-18, & 21. 6
The officers got out of their patrol car and approached the
Camaro. Ex. G-1 at 7, 11, 15. While at the driver’s window,
Officer Manor smelled marijuana. He asked Cooper to exit the
vehicle and then asked for Cooper’s driver’s license. Ex. G-1 at
7. Cooper told Officer Manor that his license was suspended. Ex.
G-1 at 7,11. A search of Cooper’s Mississippi Identification
Number confirmed that Cooper’s driver license was suspended and
revealed an active warrant for his arrest through Hinds County.
Ex. G-1 at 7. Officer Manor conducted a search of the vehicle and
discovered a backpack in the trunk that contained a Draco AK-47
assault rifle (serial number DA-9502-16 RO), screwdriver, large
utility knife, gloves, sunglasses, and a respirator type mask.
Ex. G-1 at 7&15. The officers then took Cooper into custody and
transported him to the Clinton City jail. Id.
6 In his Motion, Cooper contradicts Officer Manor’s testimony and
alleges that the officers did not run his license tag until
after he had stopped his car, exited the vehicle, and was
standing behind it. Motion at 2. Defense counsel states in the
Motion that she was unable to have the defendant sign an Unsworn
Declaration Under Penalty of Perjury under 28 U.S.C. § 1746
attesting to his allegations because of the Covid-19 pandemic.
Regarding the timing of when the license tag was run, the Court
finds the hearing testimony of Officer Manor to be credible.
This testimony is further supported by the precise computer-
generated time stamps in the Computer Aided Dispatch (“CAD”) Log
dated May 22, 2017, which show exact times down to the second.
Ex. G-2 at 1.
5
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Legal Analysis and Discussion
The Fourth Amendment provides that “[t]he right of the people
to be sure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” When
there is a Fourth Amendment violation, the exclusionary rule
provides the remedy by suppressing evidence uncovered as a direct
result of the violation, as well as evidence indirectly derived
from the violation, at trial. United States v. Mendez, 885 F.3d
899, 909 (5th Cir. 2018).
A traffic stop is considered a seizure within the meaning of
the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653
(1979). The Fifth Circuit analyzes the constitutionality of a
traffic stop under the standard articulated in Terry v. Ohio, which
asks “whether the officer’s action was: (1) ‘justified at its
inception’; and (2) ‘reasonably related in scope to the
circumstances which justified the interference in the first
place.’” United States v. Demouchet, Cr.No. 16-26, 2016 WL 7331562,
at *11 (M.D. La. Dec. 16, 2016) (quoting Terry, 392 U.S. 1, 19–20
(1968)); see also United States v. Jenson, 462 F.3d 399, 402 (5th
Cir. 2006). “For a traffic stop to be justified at its inception,
an officer must have an objectively reasonable suspicion that some
sort of illegal activity, such as a traffic violation, has
occurred, or is about to occur, before stopping the vehicle.”
6
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United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2001)
(citing United States v. Breeland, 53 F.3d 100, 102 (5th Cir.
1995)). “Reasonable suspicion need not rise to the level of
probable cause.” Lopez- Moreno, 420 F.3d at 430 (citing United
States v. Arvizu, 534 U.S. 266, 274 (2002)).
In making reasonable suspicion determinations, a court “must
look at the totality of the circumstances of each case to see
whether the detaining officer has a particularized and objective
basis for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273
(internal quotation marks and citation omitted). The detaining
officer must be able to “point to specific and articulable facts
that, when taken together with rational inferences from those
facts, reasonably warrant the search and seizure.” United States
v. Estrada, 459 F.3d 627, 631 (5th Cir. 2006). Officers are
permitted to draw on their own experience and specialized training
to make inferences about the cumulative information before them.
Id. at 632. That cumulative information which the officer finds
of value may elude an untrained person. Id.
Reasonable Suspicion Based on Witness Reports
Cooper argues that the stop was based solely on the two tips
from gas station employees regarding a suspicious yellow Camaro
and is insufficient to establish reasonable suspicion. Cooper
challenges the basis for the stop itself; that is, the first prong
of the Terry test. Motion at 3-4; Defense’s Response to Order and
7
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Supplemental Briefing [ECF No. 31](“Def. Supp.”) at 8-12. Cooper
does not challenge the events that occurred after the stop. In
contrast, the Government asserts that the officers were justified
in stopping the yellow Chevrolet Camaro because the BOLO was based
on reliable reports of suspicious activity that CPD received from
readily identifiable sources at two different gas stations, both
of which had recently been robbed. Government’s Response in
Opposition to the Motion [ECF No. 28](“Govt. Opposition”) at 4-5;
Government’s Response to Order and Supplemental Briefing [ECF No.
30](“Govt. Supp.”) at 4-5.
“‘[A]n alert or BOLO report may provide the reasonable
suspicion to justify an investigatory stop.’” United States v.
Rodriguez, 564 F.3d 735, 742 (5th Cir. 2009) (quoting United States
v. Gonzalez, 190 F.3d 668, 672 (5th Cir. 1999)). The determination
regarding whether a tip or BOLO provides a sufficient basis for an
investigatory stop “may depend upon [1] the credibility and
reliability of the informant, [2] the specificity of the
information contained in the tip or report, [3] the extent to which
the information in the tip or report can be verified by officers
in the field, and [4] whether the tip or report concerns active or
recent activity, or has instead gone stale.” Id. This four-part
test has been referred to in our precedent as the Gonzalez factors.
Rodriguez, 564 F.2d at 742. Both parties agree in their briefs
that this is the test to be applied in this case. Motion at 3;
8
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Govt. Opposition at 4. However, Cooper argues that none of the
four Gonzalez factors is satisfied, Motion at 4, and the Government
asserts that all four Gonzalez factors are met on the facts of
this case. Govt. Opposition at 5. The Court will review each
Gonzalez factor in light of the evidence and law:
1. Credibility and reliability of the informant: Cooper
erroneously states in his briefs that the identity of the
“purported owner” of the gas station who provided the
information to CPD is not known. Motion at 3-4; Def. Supp.
at 9. However, evidence admitted at the hearing indicates
that, not only were the sources of the information known to
be linked to the earlier robbed gas stations, but the
detective in charge of the investigation knew each of the
sources by name. Ex. G-3. Further, CPD dispatch provided
the full name of the caller from the Shell station in its
“Closed Incident Report” dated May 22, 2017 at 8:15 p.m.
(i.e., 20:15:14). Ex. G-4. In addition, Officer Manor
testified that he knew that the BOLO was based on
information received from the owner or manager of the “Shell
station on Northside Drive at Briars Drive.” Tr. at 10-11.
This was not an anonymous tip; rather, it was information
reported from business persons working in the community, who
were identified by name and were themselves victims of the
9
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crimes. Their standing in the community as parties
interested in reporting suspicious activity, solving past
crimes that affected them and their businesses personally,
and stopping further gas station crimes lends weight to the
credibility of their reports of suspicious activities in
their parking lots. The evidence presented in this case
leads the Court to find these sources and their corroborated
observations to be reliable and credible. The first Gonzalez
factor is met.
2. Specificity of the information contained in the tip or
report: Although we do not have the exact text of the BOLO
that CPD disseminated on the night of May 22, 2017, the
Court nonetheless finds the testimony of Officer Manor at
the hearing to be credible regarding the tip or report that
CPD received from the Shell station operator. Following
instructions from CPD, Officer Manor knew to be on the
lookout for a yellow Chevrolet Camaro, a “stand out” vehicle
in the area. Tr. at 10-11. He knew that that a yellow
Chevrolet Camaro had been seen on video surveillance at or
around the time of one of the gas station burglaries. Tr.
at 10. Officer Manor testified that the information in the
BOLO regarding the vehicle came around 8:00 that night from
the owner or manager of the burglarized Shell station at
Northside Drive and Briars Drive. Tr. at 10-11; see also
10
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Closed Incident Report, Ex. G-4 (confirming Officer Manor’s
testimony). In his cross-examination testimony, Officer
Manor identified Detective Frank Pennell as the investigator
who had talked with CPD dispatch that night regarding the
information in the BOLO. Tr. at 19; see also Ex. G-3.
Based on the victims’ reports of new sightings of the yellow
Camaro at their places of business, Detective Pennell was
sufficiently satisfied with the new information that he
ordered dispatch to have the vehicle stopped and its
occupants identified if further sightings occurred. Exs. G-
3 & G-4. 7 About two hours later, Officer Manor spotted a
yellow Chevrolet Camaro, the only one that he saw that
night, which matched the description in the BOLO and was
located within one mile of one of the robbed gas stations.
Tr. at 11.
This situation is similar to that faced by the court in
United States v. Reed, Cr. No. 6:15-cr-00113, 2015 WL
10739299 (W.D. La. Dec. 28, 2015)(report and recommendation
adopted by district court at 2016 WL 1704402 (April 26,
2016)). In Reed, the police received information describing
7 Detective Pennell’s knowledge of the specific reports and
details may be imputed to Officers Manor and Trussell under the
collective knowledge doctrine. See United States v. Carmenate,
344 Fed. Appx. 941 (5th Cir. 2009) (collective knowledge
supported reasonable suspicion for traffic stop).
11
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a red truck seen near the Family Dollar on the night of the
robbery, which came from two reliable sources – an eye
witness who called in a report to the police and
surveillance videotapes from a local business. The
information described the red color of the truck and gave
identifying details such as chrome rims, headlights, and the
existence of a front license plate (but not the tag number).
The police did not have the truck’s make or model. Eight
days after the robbery, police officers observed the
defendant driving a red truck that met the description of
the vehicle suspected to have been used in the crime. The
court concluded that this gave the officers reasonable
suspicion that the defendant might be connected to the
crime, and “the officers were justified in asking some
general questions, including whether there was a weapon in
the truck.” Id. at *6.
Here, the police had eye-witness reports from the
victims of the gas station robberies who identified a
distinctive yellow Chevrolet Camaro (a less than common
vehicle in the area), video surveillance of the Camaro taken
at or around the time of one of the robberies, subsequent
sightings of the yellow Camaro at the same burglarized gas
stations as reported by two named and identified
owner/operators, and the direct involvement of the detective
12
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in charge of the investigation in reviewing and assessing
the information received. Officers Manor and Trussell acted
upon sufficiently specific information to satisfy the second
Gonzalez factor.
3. Extent to which the information in the tip or report can be
verified by officers in the field: Officer Manor knew the
source of the information contained in the BOLO (i.e., the
owner or manager of the Shell station), and he knew the
exact location of that gas station. Tr. at 10. He
testified that the officers were within one mile of a robbed
gas station when he saw the yellow Camaro traveling on
Berkshire Street. Tr. at 11. Because of their proximity to
the site of the crime, the police officers in the field
could verify, if need be, the information directly and in
person with the Shell station owner/manager. In addition,
knowing that Detective Pennell was in charge of the
investigation, the officers could verify the information
about the robberies with a call to Detective Pennell, who
already had spoken directly with one of the gas station
operators. The third Gonzalez factor is met.
4. Whether the information in the report has gone stale:
According to the testimony of Officer Manor, which the Court
found to be credible, the report that the BOLO was based on
was made around 8:00 p.m. on May 22, 2017, and the stop
13
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occurred within about two hours at approximately 10:00 p.m.
This testimony is supported by documentation admitted into
evidence at the hearing. See Exs. G-3 & G-4. The report
had not gone stale, and the fourth Gonzalez factor was met.
This Court is satisfied that the four Gonzalez factors have
been met based on the evidence presented and the totality of the
circumstances in this case. Accordingly, the Court finds that
the information regarding the yellow Camaro that was provided to
CPD by the victims of the crimes and video surveillance gave
Officers Manor and Trussell the reasonable suspicion necessary
to conduct a Terry stop of Cooper’s vehicle on May 22, 2017.
Reasonable Suspicion Based on the Switched License Tag
Cooper does not dispute that he was driving the yellow Camaro
with a mismatched tag in violation of Mississippi law. Section 27-
19-131(2) of the Mississippi Code states: “Any ... operator ...
who shall operate ... upon the highways of this state, without
having paid the privilege license tax or fee required by the
provisions of this article and who knowingly and intentionally ...
displays a license tag or decal on the motor vehicle which was
issued for another vehicle, shall upon conviction be fined not
more than One Thousand Dollars ... or be imprisoned in the county
jail not more than one (1) year, or both.”
14
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An officer’s reasonable suspicion that there is a traffic
violation — including a defect in a license tag — is an appropriate
basis for stopping a vehicle. See, e.g., Lopez-Moreno, 420 F.3d
at 431 (non-functioning break light provided reasonable basis for
stop); United States v. Smith, 355 F. Supp. 3d 544, 549 (N.D. Miss.
Nov. 27, 2018), aff’d, 952 F.3d 642 (5th Cir. 2020) (“No party
disputes that Solomon had reasonable suspicion to initially stop
Smith for driving a vehicle without a visible tag.”); see also
United States v. Johns, Crim. No. 13-cr-00071, 2013 WL 4587744, at
*4 (W.D. La. Aug. 27 2013) (“The combination of the BOLO and the
unreadable (or altered) temporary license tag gave the officers
reasonable suspicion to stop the vehicle.”); United States v.
Alfaro, Crim. No. 3:14-cr-97-TSL-LRA, 2014 WL 12670487(S.D. Miss.
Dec. 4, 2014), aff’d, 638 Fed. Appx. 374 (5th Cir.2016)(obstructed
tag provided reasonable basis for stop).
The Government argues that, because the vehicle’s license
plate violated Mississippi law, the police officers had an
additional ground for stopping the vehicle, separate and distinct
from the reasonable suspicion derived from the gas station reports.
Cooper counters with a temporal argument and claims that the
officers already had initiated the stop by turning on the patrol
car’s blue lights before they had the results of the license plate
check. Cooper asserts that there can be no reasonable suspicion
based on the switched license plate because the officers had no
15
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knowledge of the traffic violation when the stop began (i.e., when
they turned on the blue lights). The testimony of Officer Manor
on cross-examination confirms that he turned on the blue lights
before he had the license plate results in hand. Tr. at 18.
Officer Manor further testified that he had the license plate
results and knew the tag was switched before the yellow Camaro and
the patrol car came to a stop. Tr. at 20-21.
In its supplemental briefing, the Government points to cases
that hold no seizure occurs when the police are continuing to
pursue a suspect who has not yielded to a show of authority such
as flashing lights. Govt. Supp. at 3; see, e.g., Galas v. McKee,
801 F.2d 200, 203 (6th Cir. 1986). Cooper argues that such cases
are distinguishable from his actions because there is no evidence
that he tried to flee after Officer Manor turned on the patrol
car’s blue lights. Def. Supp. at 6-7. Cooper further asserts
that, because he submitted to the officers’ show of authority by
voluntarily pulling over to the side of the road, the seizure began
while the patrol car and the Camaro were moving down the road,
prior to confirmation of the tag violation and, consequently,
without reasonable suspicion. Id. at 4-6 (citing, e.g., United
States v. Hill, 752 F.3d 1029 (5th Cir. 2014)).
Given that the Court has found, supra, that reasonable
suspicion existed based on the information reported to CPD, an
independent finding of reasonable suspicion based on the tag
16
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violation is not essential to deny the defense’s Motion.
Nonetheless, the Court has considered the parties’ arguments,
reviewed the evidence and applicable law, and concludes that the
violation of Mississippi law under Miss. Code Ann. § 27-19-131(2)
creates an additional basis for a finding of the reasonable
suspicion necessary to conduct a proper Terry stop.
On the issue of the timing of the commencement of the stop,
the Court is guided by the United States Supreme Court opinion in
Arizona v. Johnson, 555 U.S. 323 (2009). Writing for a unanimous
Court, Justice Ginsburg instructed in Arizona that “[a] lawful
roadside stop begins when a vehicle is pulled over for
investigation of a traffic violation.” Id. at 333. This Court
finds further guidance from the Fifth Circuit in United States v.
Smith, 952 F.3d 642 (5th Cir. 2020). The unanimous panel in Smith
wrote that “[a] Fourth Amendment ‘seizure’ occurs when an officer
stops a vehicle and detains its occupants.” Id. at 647. While
the timing issue raised in this case could be considered a close
call, this Court is mindful that the United States Supreme Court
has made it clear that the constitutional reasonableness of a
traffic stop does not hinge on “the actual motivations of the
individual officers involved.” Whren v. United States, 517 U.S.
806, 813 (1996). So long as police officers have an objectively
reasonable suspicion that some sort of illegal activity, such as
a traffic violation, has occurred, or is about to occur, the true
17
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reason for which the officer initiated the seizure is irrelevant.
Id.; see also Smith, 952 F.3d at 647; Lopez-Moreno, 420 F.3d at
430; Johns, 2013 WL 4587744, at 3 (“An officer may stop a motorist
for a traffic violation even if, subjectively, the officer's true
motive is to investigate unrelated criminal offenses.”). With
that in mind, the question whether Officers Manor and Trussell
decided to turn on the blue lights and subsequently pull the
defendant over because of the information reported in the BOLO, or
because they suspected a problem with the license tag, or both is
less relevant. The evidence shows that, by the time the Camaro
and the patrol car were pulled over and stopped, the police
officers had in hand confirmation of Cooper’s switched license
plate in violation of Mississippi law, which opened yet another
door to a permissible Terry stop.
Accordingly,
IT IS HEREBY ORDERED that Cooper’s Motion to Suppress
Evidence as Fruit of an Illegal Stop [ECF No. 26] is DENIED.
SO ORDERED, this the 1st day of October, 2020.
/s/ David Bramlette_________
UNITED STATES DISTRICT JUDGE
18
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