United States District Court, D. Arizona
REPORT AND RECOMMENDATION
THOMAS FERRARO UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant Singleton's motion to suppress
evidence. (Doc. 46.) The government filed a conclusory
response opposing this motion. (Docs. 48, 52.) These matters
came before Magistrate Judge Ferraro for a report and
recommendation as a result of a referral, pursuant to LRCrim
5.1. An evidentiary hearing was held on February 6, 2019.
(Doc. 67.) The Magistrate Judge recommends that the District
Court, after its independent review, deny the motion.
the motions hearing the Court clarified that the
defendant's singular claim is the officer lacked
reasonable suspicion for the stop.
Department of Public Safety (DPS) Trooper Algra testified at
the hearing as follows: On April 27, 2018, at about 9 to 10
p.m., Trooper Algra saw a green Audi automobile traveling in
the number one lane (commonly referred to as the left or
passing lane) westbound on State Route (SR) 80 at about
milepost 360. He followed immediately behind the Audi for
about 4 miles, which was traveling at 52 miles per hour (MPH)
in the number one lane the entire time. Trooper Algra paced
the Audi at this speed and used his radar to verify the
vehicle was traveling at that speed. The posted speed limit
was 65 MPH. There was other traffic on the highway, which
appeared to Trooper Algra did not pass the Audi because they
would have had to travel in the right lane. Thus, in Trooper
Algra's opinion, the Audi was obstructing the flow of
traffic. Trooper Algra stopped the Audi and issued two
warnings for violating Arizona traffic laws to the defendant,
who was driving the Audi.
Mykahl Zebadiah Singleton testified at the hearing as
follows: On April 27, 2019, he was driving the Audi vehicle
on the number two lane (commonly referred to as the slow or
right lane) westbound on SR 80 when he saw a DPS vehicle pull
along side of him in the left lane. The DPS vehicle then
slowed, pulled in behind him and turned on his emergency
lights. The defendant initially testified that he was
traveling at 60 mph, then changed his testimony and said he
was driving at 65 mph but slowed down when the marked DPS
vehicle pull alongside. On cross-examination the defendant
testified that he set his cruise control earlier at 60 MPH
when he saw a posted 55 mph speed limit sign. The defendant
acknowledged on cross-examination that he did not want to be
stopped because he had personal amount of marijuana in the
vehicle. When asked in cross-examination about why he set his
cruse control above the posted 55 mph speed limit, the
defendant did not have an explanation, except that people in
Arizona drive above the speed limit.
Singleton moves to suppress all evidence seized by law
enforcement officers after the stop. He argues the stop was
pretextual, was based on his race and lacked reasonable
suspicion. In support of this claim the defendant makes four
points, which he argues shows the Trooper's racial bias.
First, when the Trooper first saw the green Audi he ran a
registration check and discovered the vehicle was registered
to a “black woman” in Phoenix. Second, the
defendant testified that the Trooper pulled up next to him,
where he presumably could have seen his race, then
immediately pull in behind him and turned on his emergency
lights. Third, on cross-examination the Trooper said there
were not very many blacks who live in the area. Fourth, soon
after stopping the defendant, as he came alongside the
passenger side he drew his taser.
Court considers each of these assertions in order. The
Trooper testified that he runs vehicle registrations hundreds
of times daily and he merely described the registered owner,
who was a black female. The Trooper denied pulling alongside
of the defendant. The Trooper's testimony about the
number of blacks living in the area was in response to a
question on cross-examination. There was no evidence that
this belief played any role in his decision to stop the
defendant. The Trooper also testified that when he approached
the car after the stop he noticed people who appeared to be
illegal aliens inside, so he drew his taser for protection.
The Trooper denied pointing the taser at the defendant but
did aim it at the side of the car. Significantly, this is the
only testimony about Trooper Algra's knowledge of the
occupants in the green Audi. Apparently, he was unaware
before the stop that there were possibly illegal aliens in
Algra provided reasonable explanations for each of the events
defendant claims support his conclusion of racial bias. Thus,
the issue turns on the credibility of Trooper Algra versus
Defendant Singleton. According to Trooper Algra's
testimony the defendant was obstructing travel by driving in
the number one lane at 52 MPH in a posted 65 MPH speed zone.
Trooper Algra stopped the defendant for that reason and he
issued two warnings for those violations. “[T]he
decision to stop an automobile is reasonable where the police
have probable cause to believe that a traffic violation has
occurred.” Whren v. United States, 517 U.S.
806, 810 (1996). If a traffic violation is observed, the
traffic violation forms the reasonable basis for the stop,
even when the ultimate purpose of stopping the vehicle is to
search for contraband. See id. at 812-13.
to the defendant's testimony, he was not traveling below
the speed limit in the number one lane obstructing the flow
of traffic. Rather, he was traveling at the posted speed
limit in the slow lane and when the Trooper pulled alongside
he saw his race and then pulled him over. If the
defendant's version is true, the Trooper's account is
completely fabricated. If Trooper Algra testified falsely
there is a strong inference the stop was not for a traffic
violation, but pretextual. If Defendant Singleton's
testimony is inaccurate it was either the result of mistake,
faulty memory or an effort obstruct justice. This Court need
not determine which of these caused the false testimony to
find the defendant's testimony incredible.
defendant seems to have difficulty remembering his speed at
the time. He variously testified that he set his cruise
control at 60 MPH and 65 MPH. This testimony contradicts
Trooper Algra's testimony that he both paced and check
the speed on radar, which showed he was traveling at 52 MPH.
According to the defendant, he set his cruise control after
he passed a 55 MPH speed sign. It seems unreasonable that the
defendant would have set his cruse control above the speed
limit under the circumstances, because he testified he did
not want to be stopped. The defendant's manner of
testimony when confronted with apparent inconsistencies also
suggests either confusion, memory lapse or deception. He
often paused and seem to have difficulty explaining his
answer. Finally, the defendant has a significant interest in
the outcome of the case. If his motion to suppress is
granted, he may avoid prosecution on the pending felony
contrast, Trooper Algra's testimony was consistent with
his report, he seemed to have a good memory of the events.
The Court also notes that Trooper Algra elected to issue the
defendant warnings rather than citations, which undermines an
inference that the Trooper acted with an improper motive. The
Court finds Trooper Algra's testimony ...