United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.
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.
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).
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. (Doc. 28-1 at 3, Doc. 28-2 at 2).
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). (Doc. 1 at 1-3).
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
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).
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
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
Q Does it appear to you that the black Charger came to a
complete stop before the middle ...