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United States v. Fowler

United States District Court, N.D. Indiana, South Bend Division

February 20, 2019

UNITED STATES OF AMERICA
v.
DONYEA FOWLER

          OPINION AND ORDER

          JON E. DEGUILIO JUDGE

         Defendant Donyea Fowler is charged with six robbery counts, six § 924(c) counts, and one felon in possession count. He was arrested on a warrant after officers spotted him get into a car. Upon approaching the car, officers viewed evidence of recent robberies in the car, in which Mr. Fowler was the named suspect. After seizing the car and securing a search warrant, a search of the car's trunk revealed gloves and a blue satchel containing a .380 caliber semi-automatic handgun with a chrome-colored slide matching those used during the robberies. Mr. Fowler has now moved to suppress the evidence, arguing that the stop and search of the car was unlawful. For the following reasons, the Court denies the motion.

         I. FACTUAL BACKGROUND

         In this district, armed robberies took place on: December 14, 2017, at the Mega Liquor store; January 17, 2018, at the Blarney Stone liquor store; January 30, 2018, at the BP Gas Station; February 9, 2018, at the Blarney Stone liquor store; February 21, 2018, at the Blarney Stone liquor store; and in the early morning hours of February 23, 2018, at the BP Gas Station. A break in the investigation occurred when a lottery ticket stolen during the December 14th robbery was discovered to have been cashed in at ¶ 7-Eleven store approximately eight minutes after that robbery, but not within walking distance of the robbed Mega Liquor store. Detective Devon Gilbert of the South Bend Police Department was able to obtain surveillance images of the person cashing in the winning ticket. On the video, Detective Gilbert observed the unmasked suspect exit a car from the front passenger side and enter a 7-Eleven to redeem the ticket.

         From Detective Gilbert's review of the surveillance videos of the robberies (with only the first robbery's video being of poor quality), it became clear that the same person was committing the crimes given the similarity of the suspect's clothing and modus operandi. Specifically, the robber wore very distinct maroon jogging pants, a face mask, and mismatched gloves in all six of the robberies, white shoes in five of the robberies, and a black hoodie at first and then a grey hoodie in later robberies.[1] Moreover, the robber carried a similar chrome semi-automatic gun in all six of the robberies, and after the third robbery he started carrying a blue satchel with a distinct emblem on it. The robber was also consistently stealing the same items: cash, alcohol, lottery tickets, Newport cigarettes, and Swisher Sweets cigarillos; and, he even became increasingly confident with each robbery. It appeared that the robber consistently used a car, given the location of the robberies, the discovery of tire tracks and footprints in the snow, and the review of video surveillance from the first robbery revealing a dark-colored, four-door sedan from which the suspect exited and later re-entered.

         Using a photo of the suspect from the 7-Eleven surveillance video, police reached out to the community to identify the suspected robber. After several tips confirmed Mr. Fowler's identity, Detective Gilbert compared Mr. Fowler's BMV photo, booking photos, and social media pictures to verify that they matched the suspect as being Mr. Fowler. To locate Mr. Fowler, police obtained a warrant (the validity of which is uncontested) to track the location of Mr. Fowler's cell phone through “fairly accurate” GPS tracking methods.

         On the afternoon of February 23, 2018, information (or “pinging”) from the GPS tracking device indicated that Mr. Fowler's phone was near an address on South Bend Avenue. Lieutenant Kyle Dombrowski of the South Bend Police Department's Strategic Focus Unit and other officers set up surveillance in this area to find Mr. Fowler-known by the officers as a suspect in the six recent armed robberies and for having an unrelated and active felony arrest warrant. While monitoring the area, officers saw someone they believed to be Mr. Fowler enter a black car around South Bend Avenue.[2] The cellphone “ping” then began to move consistent with the movement of the car. After tailing the car, Lieutenant Dombrowski performed a traffic stop of the car for speeding (although the driver wasn't advised of the reason for the stop nor given a ticket).

         As Lieutenant Dombrowski and other uniformed officers approached the car with guns drawn (due to the “high risk” nature of the situation), he and South Bend Police Officer Andrew Hines clearly saw Mr. Fowler through the backseat window. As a result, officers commanded Mr. Fowler to show his hands. Rather than obey the show of force, Mr. Fowler was noncompliant and had to be physically removed from the car. Mr. Fowler then resisted arrest, but officers were able to take him to the ground and detain him in handcuffs. Mr. Fowler was clutching something in his left hand which was confiscated and field tested positive for marijuana. A pat-down of his person also revealed approximately six-hundred dollars in cash and cocaine in his pockets. While standing outside of the car, officers viewed Newport cigarettes and Swisher Sweets cigarillos on the back seat of the car, which Detectives Dombrowski and Gilbert suspected were proceeds from the robberies.[3] In the panel of the door, officers also viewed Grey Goose Vodka which was known to have been taken during the robberies.

         Police impounded the car and had it towed to the South Bend Police Department's secured garage while they obtained a search warrant. The driver was identified as Sanjuana Tijerina, who indicated that she had rented the car in her name alone for a weekend trip to Ohio. She planned to go with Darnell Williams, who was found to be the front seat passenger during the stop. Darnell had invited his cousin, Mr. Fowler. Prior to leaving on the trip, she knew that both men had placed bags in the trunk, as had she. And after officers pulled her over, she didn't feel free to leave and she didn't consent to their taking her rental car.

         After securing a search warrant, a search of the car's trunk revealed gloves and a blue satchel containing a .380 caliber semi-automatic handgun with a chrome-colored slide matching those used during the robberies. Also recovered were coins, alcohol, Newport cigarettes, and Swisher Sweets cigarillos.

         Mr. Fowler moves to suppress the evidence recovered through the search of the trunk premised solely on the alleged illegality of the car's search and seizure.[4] For the reasons discussed below, the Court finds that the stop and search of the car were based on sufficient probable cause.

         II. DISCUSSION

         The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of the vehicle here. Terry v. Ohio, 392 U.S. 1, 16-19 (1968). Little authority is required to support the conclusion that police may conduct a traffic stop for the purpose of executing an arrest warrant for someone in the car. See United States v. Cortez, 449 U.S. 411, 417 n.2 (1981) (“Of course, an officer may stop and question a person if there are reasonable grounds to believe that person is wanted for past criminal conduct.”); United States v. Rosario, 305 Fed.Appx. 882, 885 (3rd Cir. 2009) (“[T]he Government established probable cause to stop the vehicle to execute the . . . arrest warrant.”); United States v. Shields, 519 F.3d 836, 837 (8th Cir. 2008); United States v. Helton, 232 Fed.Appx. 747, 749 (10th Cir. 2007) (the traffic stop was a reasonable investigative stop for purposes of executing an arrest warrant, even though the passenger in the car turned out not to be the subject of the warrant). The question is whether the arresting officers had a good faith, reasonable belief that the arrestee was the subject of the warrant. See Hill v. California, 401 U.S. 797, 804 (1971) (“[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers' mistake was understandable and the arrest a reasonable response to the situation facing them at the time.”); accord United States v. Marshall, 79 F.3d 68, 69 (7th Cir. 1996) (“[T]he arrest is constitutional if the arresting officers (1) have probable cause to arrest the person sought and (2) reasonably believe that the person arrested is the person sought.”).

         Even absent an active arrest warrant, an investigatory stop not amounting to an arrest is authorized if the officer making the stop is “able to point to specific and articulable facts” that give rise to a reasonable suspicion of criminal activity. United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994). However, to make an arrest without a warrant, probable cause is required. United States v. Tilmon, 19 F.3d 1221, 1228 (7th Cir. 1994). Probable cause to arrest exists when a reasonably cautious and ...


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