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United States v. Rose

United States District Court, N.D. Oklahoma

October 11, 2019




         Before the Court is the defendant's Motion to Suppress (Doc. 14), to which the government responded (Doc. 15). The Court conducted a hearing on the motion and heard the testimony of one witness, Tulsa Police Officer Edward Trice, and received in evidence the police reports (Exhibit 1) associated with the defendant's arrest.

         I. Suppression Proceedings

         The purpose of suppression proceedings is to “determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments.” See United States v. Merritt, 695 F.2d 1263, 1269 (10th Cir. 1982). A motion to suppress is governed by Rule 12. See Fed. R. Crim. P. 12(b)(3)(C). Pursuant to Rule 12(d), “[w]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record.” This opinion shall serve as the Court's essential findings on the defendant's suppression motion.

         II. Background

         The defendant is charged by Indictment (Doc. 2) with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). His arrest stemmed from an investigatory stop by Tulsa Police officers on April 16, 2019. On that day, Tulsa Police Department (TPD) Officers Edward Trice and Brett Sanders were assisting Tulsa International Airport Corporal Dan Fritz in an investigation of trash dumping and an abandoned vehicle on airport property. Officer Trice is a TPD bomb dog handler assigned to the Tulsa International Airport. The area where the officers were located was one of several areas of airport property where illegal dumping of household items, tires, and stolen property had become a problem.

         Just before noon on April 16, 2019, the officers saw a blue truck with two occupants turn off of Port Road onto a drive leading into a rural field on airport property, where the officers were conducting their investigation into dumping. The driveway was off of Port Road in a rural area and was partially paved with asphalt, turning into a horseshoe-shaped dirt road around a tree. The truck's bed was loaded with items covered by a blue tarp, which extended above the truck's bed, and Officer Trice believed that the tarp appeared as if it may be covering trash.

         Officer Trice testified that he commented to the other two officers that the occupants of the truck may be who had been dumping at that location. (See also Exhibit 1 at 2 [Trice reported that he commented that the occupants “may be our illegal dumpers”]). Once the driver of the truck saw the police officers, the driver quickly turned the truck around and drove back to Port Road. Officer Trice got in his truck and followed. The driver was driving fast enough that he gained some distance ahead of Officer Trice's truck and had already made it to the east of Highway 169. Trice testified that it appeared that the driver was attempting to get further ahead of the officers, who were a few car lengths behind him in a construction zone. Ultimately, Trice caught up to the vehicle and initiated a stop on the suspicion that the occupants of the truck had illegally dumped and/or were there to illegally dump on airport property.

         Upon stopping the vehicle and approaching the driver in the truck, Officer Trice noticed boards, construction tools, construction trash, papers, and tubes of stuff. Officer Trice told the driver, Clinton Rose, that he was being stopped because the airport had a problem with illegal dumping and the way the truck's load was covered and the way Rose pulled in and then immediately turned around upon seeing officers appeared suspicious. Trice informed Rose that he wanted to make sure that Rose was not dumping trash on airport property. Rose informed Trice that he only had work tools, he was not illegally dumping, and he had just made a wrong turn. Rose's claim that he had made a wrong turn did not appear to Officer Trice to be true given the specific location and the fact that, before exiting Port Road onto the driveway, Rose could have more safely and easily made a legal U-turn from the left turn lane on Port Road rather than having to cross the road and traffic again from the driveway on the north, where the officers first saw him.

         Officer Trice requested Mr. Rose's driver's license. Rose produced an Oklahoma driver's license, with an expiration date of February 28, 2018. (See Exhibit 1). Officer Trice noted that the license was expired, and Rose indicated that the license had been suspended. Officer Trice returned to his vehicle to run a records check on Mr. Rose and the passenger of the truck. A records check revealed that Mr. Rose had a master file with the TPD, he was an ex-convict, his driver's license was suspended, and he had an outstanding warrant from Wagoner County.

         When Officer Trice returned to the truck, he returned the license to Mr. Rose. As Trice was handing the passenger's identification back, he noticed the barrel of a gun under the center armrest. Trice looked directly at the passenger and asked the passenger whether the gun was his, because Trice knew that Mr. Rose was an ex-con. The passenger said it was not his gun. Mr. Rose then stated that it was Rose's gun. Trice told Rose that he is a convicted felon and was not supposed to have a firearm. Mr. Rose was then placed under arrest and was subsequently charged by Indictment in this case for being a convicted felon in possession of a firearm. Only approximately 10 minutes elapsed from the time Trice stopped Mr. Rose's vehicle to the time he placed Mr. Rose under arrest.

         III. Discussion

         Mr. Rose moves to suppress “all evidence and statements related to the stop and search of Mr. Rose's vehicle, the gun located therein, and statements made.” (Doc. 14). He argues that “[t]here was no probable cause or reasonable suspicion to stop, detain, question or search Mr. Rose's vehicle” and “[t]here was no indication of any wrongdoing by Mr. Rose, or that he had engaged, or attempted to engage, in the misdemeanor offense of illegal dumping. . . .” (Id. at 1).

         A. ...

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