IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

UNITED STATES OF AMERICA, )

)
vs. ) Case No. 3:10-CR-73
) VARLAN / GUYTON
DARREN WESLEY HUFF )

OBJECTIONS TO THE REPORT AND RECOMMENDATION

The defendant, Darren Huff, pursuant to 28 U.S.C. 636(b)(1) and Local

Rule 72(b), makes the following objections to the Report and Recommendation of the

magistrate judge filed on December 6, 2010. He would rely on the transcript of the

suppression motion, the exhibits entered at the hearing, the findings of the Report and

Recommendation, and the memoranda filed in support of the original Motion to support

his argument.

The Report and Recommendation errs in making the following findings of fact:

1) that the evidence supports a finding that Mr. Huff was following too closely to the car

in front of him as that offense is defined by Tennessee state law; 2) that a “stop line”

existed at the intersection, 3) that Mr. Huff failed to stop before entering the

intersection as required by Tennessee state law, and 4) that the trooper had a

reasonable belief, based on those facts, that Mr. Huff had committed traffic offenses

that justified the stop and seizure of his person. Because the Report relies on these

erroneous findings of fact, it must be reversed and any and all evidence that resulted

from the traffic stop of Mr. Huff must be suppressed.

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 ARGUMENT

Contrary to the findings of the Report and Recommendation, Mr. Huff was not

following too closely to the car ahead of him. The statute regarding Tennessee’s law

against following too closely provides:

(a) The driver of a motor vehicle shall not follow another vehicle more
closely than is reasonable and prudent, having due regard for the speed
of such vehicles and the traffic upon and the condition of the highway.
Tenn.Code Ann. § 55-8-124.

The video shows that during the time period wherein the trooper claims Mr. Huff

was following too closely to a gray Honda, those two vehicles were both slowing as they

traveled uphill on the exit ramp and approached a stop sign. The vehicle in front of the

gray Honda was a large semi-trailer truck which obviously needed an above average

amount of time to negotiate a right turn, necessitating a full stop by both Mr. Huff and

the Honda. Contrary to Trooper Wilson’s assertions, there was no near accident

between Mr. Huff’s vehicle; in fact, the video clearly shows that the gray Honda did not

stop at the stop sign, but rolled through it, and was an adequate distance in front of Mr.

Huff’s vehicle to prevent an accident. Likewise, the passenger in Mr. Huff’s vehicle,

who was in a far better position to know what was happening between the two vehicles

that the trooper, testified under oath that he never felt that Mr. Huff was in danger of

hitting the Honda.

Trooper Wilson’s testimony regarding the “safety standards” that are often taught

as part of drivers education classes and his strict belief that there had to be no less

than a car’s length between two vehicles approaching a stop at a stop sign shows that

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he was holding Mr. Huff to standards which are simply not legal requirements under

Tennessee law; he was clearly looking for a reason to make a pretextual vehicle stop.

Likewise, the applicable portion of the Tennessee statute regarding the

requirements for stopping at a stop sign is as follows:

(c) Every driver of a vehicle and every operator of a streetcar approaching

a stop sign shall stop before entering the crosswalk on the near side of
the intersection, or in the event there is no crosswalk, shall stop at a
clearly marked stop line, but if none, than at the point nearest the
intersecting roadway where the driver or operator has a view of
approaching traffic on the intersecting roadway before entering the
intersection, except when directed to proceed by a police officer or traffic
control signal.
Tenn. Code Ann . § 55-8-149.

As previously stated, the testimony at the hearing was unanimous that Mr. Huff’s

vehicle did stop at the intersection; both the trooper and Mr. Huff’s passenger testified

that he did stop. The dispute appears to have turned into whether the stop was long

enough in duration. The requirements of the Tennessee statute regarding stop signals,

however, does not include a provision as to the duration of the stop, thus both the

trooper and the Report and Recommendation relied upon a faulty understanding of the

law. The video shows Mr. Huff did come to a complete stop, albeit a brief one. And,

although the Report and Recommendation appears to find that there was some sort of

line at the intersection to indicate where a stop should take place, in fact there simply

was no “stop line” at the intersection. As such, Mr. Huff did exactly what was required

of him by the statute when there is no stop line - he stopped his vehicle before entering

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the intersection and only entered the intersecting roadway after his stop and as his

vehicle was turning to the right.

Courts of Appeals decisions subsequent to Whren v. United States, 517 U.S.

806 (1996) have repeatedly held that an officer's mistaken view of the law cannot justify

a stop under the Fourth Amendment. For example, in United States v. Lopez-Soto, 205

F.3d 1101, 1103 (9th Cir. 2000), a police officer had an erroneous belief that the

absence of a vehicle registration sticker visible from the rear provided a reasonable

basis for suspicion of a vehicle code violation. The applicable code section, however,

directed that the sticker be displayed on the windshield. Id. The Ninth Circuit noted that

in forming reasonable suspicion for an investigative stop, a police officer is entitled to

rely on his training and experience in drawing inferences from the facts he observes,

but those inferences must also be grounded in objective facts and be capable of

rational explanation. Id. at 1105. The Court found that the "good faith" exception to the

exclusionary rule did not apply when the police did not act in accordance with governing

law. Id. at 1106; see also United States v. Ramstad, 219 F.3d 1263 (10th Cir. 2000);

United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999); United States v.

Gonzalez-Quinonez, 287 F.Supp.2d 1032 (D.Ariz. 2003) (with respect to violations of

traffic law, an officer’s good-faith belief that the law prohibits certain conduct is not

sufficient to justify a traffic stop under the Fourth Amendment if the law does not

actually prohibit such conduct; thus, an officer’s belief that a violation of law has

occurred must be grounded in the law, his suspicions must be reasonable, and they

cannot be if they are not sufficient to cause an officer to believe that the driver has done

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something illegal.)

Even an officer’s mistake of fact must be reasonable, however, and an officer’s

belief in that mistaken fact must be held reasonably and in good faith. See United

States v. Miguel, 368 F.3d 1150 (9th Cir. 2004). The circumstances presented in this

case do not permit a finding that this trooper acted on reasonably held belief, either as

to his mistaken view of the law of the state of Tennessee, or his mistakes of fact. Here,

the trooper stopped the Defendant’s vehicle within a matter of seconds after observing

what he determined to be “suspicious” lettering, and the pretextual nature of his stop of

Mr. Huff’s vehicle is supported by the fact that he permitted the other two vehicles

ahead of Mr. Huff to “run” the stop sign without consequences. The trooper in this case

could not legitimately hold the belief that Mr. Huff’s actions violated any Tennessee

statute or local motor vehicle ordinance consistent with vehicle laws, where there was in

fact no violation. See, e.g. United States v. Gold, 77 F.Supp.2d 936 (S.D.Ind. 1999).

Without question, Mr. Huff’s vehicle was pulled over as part of a pretextual stop

in the hope that evidence of a crime might eventually be discovered. In this case, the

government is asking the Court to grant the officers involved unfettered discretion in

order to legitimate a fishing expedition by reference to alleged infractions where none

existed. The testimony of Trooper Wilson as to his “probable cause” for the stop must

be viewed in light of the pretextual nature of the stop, and the Report and

Recommendation errs when it finds that this officer had probable cause. In fact, he had

no more than a mere suspicion that Mr. Huff’s vehicle might have some relationship to

the briefing that he had received that morning, and no objective reason to believe that

the traffic offenses he cited actually occurred.

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 Whren v. United States, 517 U.S. 806 (1996) generally establishes that a traffic

infraction may justify the investigative stop of a vehicle regardless of the officer's

subjective intent. The Whren decision, however, also makes clear that a valid traffic

infraction must have occurred to allow for such a stop. "[I]f officers are allowed to

stop vehicles based upon their subjective belief that traffic laws have been violated

even where no such violation has, in fact, occurred, the potential for abuse of traffic

infraction as pretext, for effecting stops seems boundless and the costs of privacy rights

excessive." United States v. Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999). Although

Whren gives officers some leeway, the flip side of that leeway is that the legal

justification for a stop must be objectively grounded. See Whren, 517 U.S. at 812-14.

Sixth Circuit decisions subsequent to Whren have supported the fact that

probable cause stops must be objectively grounded. For instance, in United States v.

Freeman, 209 F.3d 464 (6th Cir. 2000), the Sixth Circuit dealt with a section of the

Tennessee Code which provides that a vehicle “shall be driven as nearly as practicable

entirely within a single lane.” Id. at 465. The Court found that one isolated incident of

a large motor home partially weaving into the emergency lane for a few feet and an

instant in time did not constitute a failure to keep a vehicle within a single lane “as

nearly as practicable.” Id. at 466. In his concurring opinion, Justice Clay noted that the

officer may have been using the Tennessee statute and the authority provided under

Whren v. United States, 517 U.S. 806, (1996) as a subterfuge to search the vehicle for

contraband. Id. at 468 (Clay, J., concurring). Quoting from United States v. Mesa, 62

F.3d 159, 162 (6th Cir. 1995), Justice Clay stated “`we [have given] the green light to

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police officers to stop vehicles for any infractions, even if the officer’s real purpose was

to hope that narcotics or other contraband would be found as a result of the stop, [and

because] .. we have extended this authority to the broadest extent possible, ... we have

a duty to see that the authority is not abused.” Id. at 470-71. (Clay, J. concurring).

In United States v. Hill, 195 F.3d 258, 267 (6th Cir. 1999), cert. denied, 528 U.S.

1176 (2000), the Sixth Circuit stated “it is the responsibility of the court to make sure

that police officers act appropriately and not abuse the power legally afforded to them

by, among other things, carefully scrutinizing a police officer’s testimony as to the

purpose of the initial traffic stop.” Similarly, in United States v. Mesa, 62 F.3d 159 (6th

Cir. 1995), the Sixth Circuit stated:

The rationale behind our decision in Ferguson was not to authorize “fishing
expeditions,” no matter how well-intentioned, by police agencies. Rather, it was
premised on the proposition that the judicial branch of government should not
dictate to the executive branch the manner in which it carries out its enforcement
function as to the laws passed by the legislature. Since we have extended this
authority to the broadest extent possible, however, we have a duty to see that
the authority is not abused. Id. at 162 (citations omitted).

And, as recently stated by District Judge Gertner:

“Pretext” after all, does not mean that officers can testify about traffic
violations when the record suggests they did not happen. In this case,
testimony about the traffic violation is so contrived, so little supported by
the evidence, so shot through with inconsistencies, I cannot believe it
provided an objective basis for the stop at all.

At the same time, I do find there was reasonable suspicion to stop

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 the vehicle for drugs based on the facts then known to the DEA - although
they are facts different from those the government highlights. I have
considered the calls overheard on Canelo's phone between May 24 and
May 31. However, I find that a critical call, one occurring just before the
stop, was not known to the officers from either the Massachusetts State
Police or the DEA, notwithstanding the sworn testimony to the contrary.

Perhaps because the officers were supposed to have been

executing a traffic stop, even though their real goal was a narcotic
investigation, the conduct of the search was problematic. They were
clearly pushing the envelope, doing just about as much as they could do
without revealing the true purpose of their acts. Evaluating the stop post
hoc for what it was, a drug stop based on reasonable suspicion, I find that
its duration and scope far outstripped its rationale.

United States v. Alix, 630 F. Supp. 2d 145, 147-48 (D. Mass. 2009).

Conclusion

Based on the foregoing and the record before the Court, Defendant Huff prays

for the entry of an order suppressing all evidence recovered as a result of the

unconstitutional stop of his vehicle including any and all statements made by him, any

evidence that he possessed a Colt firearm on that date, and all fruits of that stop,

including, but not limited to, any statements or information provided by passenger Mike

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DeSilva, who would not have been identified absent the stop in the case.

Respectfully submitted this 20th day of December, 2010.

s/ Paula R. Voss
Paula R. Voss BPR No. 7148
Assistant Federal Community Defender
FEDERAL DEFENDER SERVICES OF
EASTERN TENNESSEE, INC.
800 S. Gay Street, Suite 2400
Knoxville, TN 37929
(865) 637-7979

CERTIFICATE OF SERVICE

I hereby certify that on December 20, 2010, a copy of the foregoing

Objections to the Report and Recommendation was filed electronically. Notice of this

filing will be sent by operation of the Court’s electronic filing system to all parties

indicated on the electronic filing receipt. All other parties will be served by regular U.S.

mail. Parties may access this filing through the Court’s electronic filing system.

s/ Paula R. Voss

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