United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. SIMON, JUDGE UNITED STATES DISTRICT COURT
Foggie faces a one-count indictment for possession with
intent to distribute a large quantity of methamphetamine
which was seized from him during a traffic stop in April
2019. Foggie contends that the stop was improper because he
was not violating any traffic laws. But evidence adduced at
the suppression hearing suggested the contrary. According to
credible testimony from the arresting officer, Foggie was
following the vehicle in front of him much too closely, and
this infraction provided the arresting officer with probable
cause to pull Foggie over. Everything else flowed from there.
The first officer, and a back up officer as well, both
detected the odor of marijuana coming from Foggie's
vehicle which led to the search of the car which, in turn,
led to the recovery of the stash of drugs. The Motion to
Suppress [DE 25] will therefore be DENIED.
hearing on September 16, 2019, Sergeant Kilgore and Officer
Miller of the Cedar Lake Police Department testified.
Here's what the evidence shows: On April 2, 2019, Foggie
was driving a rental car, going southbound on U.S. 41 near
Crown Point, Indiana. Sergeant Kilgore was working traffic
enforcement that day, and was sitting in the median of the
15300 block of Wicker Avenue in an unmarked truck. Although
it is called Wicker Avenue at that point, the road is
actually U.S. Highway 41 which runs the entire length of the
State of Indiana. It is a very busy route, and, according to
Officer Kilgore, a police officer for approximately 20 years,
he has seen plenty of severe car accidents in that area. The
speed limit was 60 mph there.
noticed a group of four vehicles traveling southbound in the
outside lane. The first was a white van and the second was a
silver Hyundai being driven by Foggie. According to Kilgore,
the Hyundai was traveling very close to the vehicle in front
of it - about two car lengths behind the van and less than 2
seconds, although Kilgore was less sure on the second point.
The bottom line was that, based on his experience and his
eyewitness view of the cars, Kilgore thought the Hyundai was
following the van in front of it too closely, so he pulled
out and began to follow the car. When he got closer, Kilgore
saw Foggie repeatedly look at him through his mirror in a
two miles down the road from where Kilgore first saw the
Hyundai, he activated his lights and pulled the car over.
When he approached the vehicle, Kilgore smelled a burnt
marijuana odor coming from the car. Kilgore claims he is
familiar with the odor of marijuana through his training and
experience. He asked Foggie for his driver's license, and
when Foggie turned over his North Carolina driver's
license, Kilgore noticed that his hands were shaking and he
was breathing heavily. Foggie didn't appear impaired
though, just nervous.
Kilgore returned to his vehicle and ran Foggie's license,
but there was no match. So he went back to the car, asked
Foggie to exit, and requested the rental paperwork. Foggie
exited the vehicle and gave him a rental agreement, but it
had expired a long time ago. After Kilgore asked Foggie if he
had a more recent rental agreement, Foggie went back to the
car to look. He sat in the driver's seat, but left the
this time, Officer Miller arrived as backup. He approached
the passenger side of Foggie's car first, but then moved
over to the driver's side where Foggie was still sitting
with the door open. Miller also detected an odor of marijuana
coming from the car.
eventually produced another more recent contract, which had
expired about a week before the stop. Kilgore returned to his
vehicle and re-ran Foggie's information and this time
confirmed that Foggie had a valid license. Kilgore then
returned to the vehicle again and asked Foggie to exit one
more time. This time, Foggie shut his door, and refused to
exit. Foggie kept asking why Kilgore wanted him to get out of
the car again, so Kilgore told him that he detected the odor
of marijuana, and warned that if he did not get out of the
car, he was going to break the window. Foggie finally
complied and got out of the car.
point, Foggie was patted down. Then, Kilgore searched the car
while Foggie stood with Officer Miller. Before searching the
car, Kilgore asked Foggie if everything in the car belonged
to him, and he confirmed that it did. Miller said that
although he smelled marijuana coming from the car, he did not
smell it on Foggie's person when he stood next to him.
the search of the car, Kilgore found in the driver's seat
door 2 lighters, a book of matches, and spray air freshener.
In the trunk, he found several basketballs, a backpack and 2
plastic bags. One of the plastic bags recovered from the
trunk had five large bundles in it, tightly wrapped in
plastic, with a reddish-tint.
time, Foggie was placed in handcuffs and given his Miranda
warning. He denied knowledge of the plastic bag with the
tightly wrapped bundles. A police K9 unit was called, and
showed a positive indication on the passenger door, trunk,
and the plastic bag. Field testing indicated a positive
response to the presence of methamphetamine, which weighed
approximately 5 pounds. Kilgore gave Foggie a written warning
for following the vehicle in front too closely.
contends that he did not commit any traffic violations, and
Sergeant Kilgore did not have reasonable suspicion to make
the stop. Let's start with the basic observation that the
officer's motivation in stopping Foggie is beside the
point. This is because an arrest or stop is constitutional
regardless of hidden motive “so long as the police are
doing no more than they are legally permitted and objectively
authorized to do, an arrest [or stop] is
constitutional.” United States v. Trigg, 878
F.2d 1037, 1041 (7th Cir. 1989); see also Whren v. United
States, 517 U.S. 806, 813 (1996) (finding actual
motivations of police play no role in probable cause
analysis); United States v. Wanjiku, 919 F.3d 472,
487 (7th Cir. 2019) (“the subjective beliefs or
intentions of law enforcement officers are irrelevant in
determining whether reasonable suspicion to search
existed.”); United States v. ...