United States of America v. Joe M. Borne

The Hon. John R. Adam s, United States District Judge for the Northern District of Ohio, sitting by
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designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0566n.06
Filed: August 9, 2007
06-5251
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOE M. BORNE,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
Before: DAUGHTREY and GILMAN, Circuit Judges, and ADAMS, District Judge.*
PER CURIAM. The defendant, Joe M. Borne, pleaded guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and to attempted
manufacture of methamphetamine, in violation of 21 U.S.C. § 846, but reserved the right
to challenge the district court’s denial of his motion to suppress. He was sentenced to 120
months’ imprisonment, the mandatory minimum for his convictions. On appeal, he claims
that the arresting officer lacked probable cause to stop him for a traffic violation, to conduct
a search of his person for weapons, and to reach into his pants pocket during the search.
He also challenges the basis for the district court’s determination that the arresting officer
detected an odor associated with methamphetamine at the time of the stop. The district

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court denied the motion to suppress, adopting the thorough report and recommendation
by the magistrate judge who held the suppression hearing. Our review convinces us that
this decision was both factually correct and legally sound. We therefore sustain the denial
of the motion to suppress and affirm the judgment of conviction.
The magistrate judge held that the initial stop of the defendant’s vehicle was based
on probable cause, crediting the testimony of Tim Garner, the Tennessee Highway Patrol
trooper who made the stop on the basis of a muffler violation, over that of the defendant,
who denied that his muffler was defective on the night of his arrest. The judge noted that
police may stop a vehicle when there is probable cause to believe that a traffic violation
has occurred and may detain the vehicle and its occupants briefly, even if the traffic
offense is minor and the officer had additional subjective reasons for making the stop.
Whren v. United States, 517 U.S. 806, 813 (1996). Here, the stop was predicated on a
violation of Tennessee Code Annotated section 55-9-202, requiring that a “motor vehicle
on any road, street or highway . . . [be] equipped with a muffler in good working order,” as
defined by the statute.
Once the vehicle was stopped, the trooper asked to see the driver’s license and
registration. As it turned out, Garner recognized Borne as someone he knew from the
community. He also knew that Borne had been arrested and convicted in the past for
methamphetamine-related offenses. When Borne rolled down his window to speak to
Garner, Garner immediately noticed a “strong chemical odor” that from his past experience
he could identify as methamphetamine. As a result, he ordered Borne out of the car.
Although a police officer may not continue to detain a motorist after the purpose of the

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traffic stop has been accomplished, “unless something that occurred during the stop
cause[s] the officer to have a reasonable and articulable suspicion that criminal activity [is]
afoot,” United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999), the magistrate judge found
that the pronounced chemical odor that Garner associated with methamphetamine was a
sufficient basis upon which to extend the defendant’s detention.
The magistrate judge also held, correctly, that the trooper was justified in conducting
a Terry frisk of the defendant’s person for weapons, given his testimony that
methamphetamine traffickers in that area were known to go armed. See United States v.
Jacob, 377 F.3d 573, 579 (6th Cir. 2004) (officers who stop a person reasonably believed
to be carrying or dealing in drugs “are entitled to rely on their experience and training in
concluding that weapons are frequently used in drug transactions, and to take reasonable
measures to protect themselves” (internal quotation marks omitted)). In conducting the
pat-down, Garner felt what he thought was narcotics in distinctive packaging in the pocket
of Borne’s jeans. Reaching in, he retrieved what turned out to be a small amount of
methamphetamine wrapped in a bag with a knot. Although Garner claims that the contents
of the package could not have been identified as contraband merely by feel, the magistrate
judge credited the testimony of the trooper and held that the seizure was justified under
what has been commonly referred to as the “plain feel” doctrine and recognized as an
exception to the Fourth Amendment’s warrant requirement. See Minnesota v. Dickerson,
508 U.S. 366, 375-76 (1993).
The consensual search of the vehicle that followed turned up what amounted to a
portable methamphetamine lab and a handgun in the trunk of the car. The subsequent

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convictions for felon-in-possession and attempted manufacture of methamphetamine were
based on this evidence. We conclude, as did the magistrate judge and the district court,
that the initial stop of the defendant’s car, his detention and ultimate arrest, and the search
of his vehicle were valid under the Fourth Amendment. It follows that the motion to
suppress was properly denied. Further, we find no clear error in the court’s decision to
credit the trooper’s testimony that he detected chemical odors associated with
methamphetamine when the defendant rolled down the window to speak to him and that
he detected the same odors later when the trunk of the car was opened. The fact that
officers who later came to the scene did not detect the same strong odors could be
explained by the fact that the odors had dissipated over time or that the officers’
experience with methamphetamine was not as extensive as Garner’s. In any event, the
ruling turned on questions of credibility that we are loathe to review on appeal.
After a close reading of the briefs and a study of the record in this case, we are not
persuaded that the district court erred in denying the motion to suppress. Because the
reasons for that ruling have been fully articulated by the magistrate judge and adopted by
the district court, the issuance of another detailed opinion by this court would be duplicative
and would serve no useful purpose. Accordingly, we AFFIRM the judgment of the district
court upon the reasoning set out by the magistrate judge in her report and
recommendation, as adopted by the district court in its memorandum and order of
September 20, 2005.

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