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United States v. McBride

United States District Court, M.D. Florida, Orlando Division

July 16, 2019

UNITED STATES OF AMERICA
v.
BARRY MARVIN MCBRIDE, JR.

          ORDER

          GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court after a June 20, 2019 evidentiary hearing on the Motion to Suppress (Doc. 28) filed by the Defendant, Barry Marvin McBride, Jr. (henceforth, “McBride”), and the response in opposition (Doc. 35) filed by the Government.

         I. Background

         McBride was arrested in the early morning hours of October 25, 2017 after a traffic stop conducted by Officer Gabriel Fragoso of the Winter Garden Police Department. According to Fragoso's report, which he prepared within hours of the arrest, he observed a black Dodge approaching a four-way stop intersection “at a high rate of speed”. (Doc. 28-1 at 3). Fragoso, in his patrol vehicle, was heading east on East Bay Street, while the Dodge was southbound on 10th Street. (Doc. 28-1 at 3). Once at the intersection of East Bay and 10th, the Dodge “came to a final stop clearly past the unobstructed stop bar, coming to a final stop in the middle of the intersection.” (Doc. 28-1 at 3). The Dodge then proceeded through the intersection; Fragoso made a right turn and followed it. Shortly thereafter, Fragoso stopped the vehicle, which was being driven by McBride. (Doc. 28-1 at 3).

         Fragoso exited his patrol vehicle and approached McBride's Dodge from the passenger side. (Doc. 28-1 at 3). He looked through the window at the car's console and “observed a green leafy substance, ” which - based on his “training and experience as a law enforcement officer” - he “immediately identified” as cannabis. (Doc. 28-1 at 3). He asked McBride to exit the Dodge and searched him, finding a large sum of cash. After handcuffing McBride and placing him in the back seat of his cruiser, Fragoso searched his car. (Doc. 28-1 at 3). The search turned up, in the console, 3 grams of marijuana and 44 grams of a substance subsequently identified as fentanyl, as well as a Glock handgun under the front passenger seat. (Doc. 28-1 at 3). Fragoso contacted his department and was advised that McBride was a convicted felon. (Doc. 28-1 at 3). At the conclusion of the search, Fragoso transported McBride to the Winter Garden police station. (Doc. 28-1 at 3). In addition to being arrested for possession of the drugs and the weapon, McBride received a citation for running the stop sign.[1] (Doc. 28-1 at 3, Doc. 28-2 at 2).

         On March 14, 2018, McBride was indicted on three counts arising from the search and seizure that occurred on October 25, 2017: one count of possession of fentanyl with intent to distribute in violation of 21 U.S.C. § 841(a)(a); one count of using a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i); and one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).[2] (Doc. 1 at 1-3).

         By way of the instant motion, McBride seeks to suppress all of the evidence obtained as a result of the seizure of his person and subsequent search, including but not limited to the marijuana, the fentanyl, the Glock, the cash, and any statements made during the custodial interrogation following his arrest.

         II. Legal Standard

         The Fourth Amendment guarantees the right of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Temporary detention of individuals during the stop of an automobile by police constitutes a “seizure” of “persons” within the meaning of this provision. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The Fourth Amendment requires that an officer making a traffic stop have probable cause to believe a traffic violation has occurred or reasonable, articulable suspicion that the person stopped is engaged in criminal activity. United States v. Harris, 526 F.3d 1334, 1337-38 (11th Cir. 2008) (citations omitted). A warrantless search of a vehicle is not unreasonable where a law enforcement officer has probable cause to believe the vehicle is carrying contraband. United States v. Ross, 456 U.S. 798, 807, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982).

         III. Analysis

         As noted above, Fragoso wrote in his report that he had pulled over McBride's vehicle because McBride “came to a final stop clearly past the unobstructed stop bar, coming to a final stop in the middle of the intersection.” (Doc. 28-1 at 3). At the hearing, he backtracked from that characterization, instead testifying that, rather than stopping in “the middle of the intersection, ” McBride stopped with his vehicle's front wheels in the shallow drainage depression that ran along the edge of East Bay Street, such that “if another vehicle would have been driving [along East Bay Street], it would have impeded the vehicle's flow and [it] would have had to drive around to avoid [McBride's] vehicle.” (Doc. 41 at 20.)

         The video from the dash cam in Fragoso's patrol vehicle - which Fragoso had never reviewed (Doc. 41 at 21), and the existence of which came as a complete surprise to the prosecution (Doc. 41 at 22) - tells a different story. It shows McBride stopping with the nose of his car several feet short of the drainage depression that bordered East Bay Street - something that, to his credit, Fragoso admitted at the hearing:

Q Does it appear to you that the black Charger came to a complete stop before the middle ...

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