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United States v. Foggie

United States District Court, N.D. Indiana, Hammond Division

October 1, 2019




         Martin 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.

         Factual Background

         At the 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.

         Kilgore 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 nervous manner.

         About 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.

         Sergeant 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 door open.

         About 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.

         Foggie 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.

         At this 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.

         During 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.

         At this 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.


         Foggie 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. ...

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