IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

JAMES E. JOHNSTON, et al.,

Defendants.

Case No. 2:11-cr-185

Judge Peter C. Economus

OPINION AND ORDER

This matter is before the Court for consideration of Defendant’s Motion to Suppress

Fruits of Illegal Stop and Unconstitutional Arrest (Dkt. 113), on which this Court held a hearing 

on September 26, 2012. For the reasons set forth below, the Court DENIES Defendant’s 

motion. 

I. Background

On September 29, 2008, Utah State Trooper Charles Taylor initiated a traffic stop of a 

white Ford Crown Victoria in which Defendant James Johnston was a passenger and Defendant 

Karim Soto-Huerta was the driver. The traffic stop was based on Trooper Taylor’s reported 

observation of two violations: (1) the vehicle’s cracked windshield, which Trooper Taylor 

initially observed while he was refueling his car and observed more closely upon following the 

vehicle, and (2) both passenger side wheels of the vehicle crossing the road’s solid white line and 

driving in the emergency lane. (Gov’t Ex. 1 at 2 (Dkt. 119-1 at 1–5, hereinafter, “Police 

Report”); Hr’g Tr. 7–12.)

After pulling over the Crown Victoria, Trooper Taylor smelled a strong odor of air 

freshener and observed trash lying throughout the vehicle. In response to the officer’s inquiry, 

Johnston informed him that the car did not belong to them, and provided registration indicating 

that the vehicle owner was Dennis Ross in Ohio. (Police Report at 3.)

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Trooper Taylor asked Soto-Huerta to exit the vehicle and wait at the front of the patrol 

car. Trooper Taylor asked him where he was going and who the owner of the vehicle was. SotoHuerta, who appeared to be overly nervous, stated that he owned a car dealership on the U.S. 

border, Dennis Ross owned a car dealership in Ohio, and Johnston had a dealership “where he 

was going to trade cars.” Soto-Huerta stated that “he was trying to go to Ohio to possibly get 

some cars.” (Police Report at 3; Hr’g Tr. 19.)

Trooper Taylor then returned to the Crown Victoria’s passenger window and asked 

Johnston about the vehicle and the purpose of the trip. Johnston stated that he was a real estate 

agent and did not own a car dealership. He explained that Dennis Ross had sent him to Arizona 

to look at antique cars and to attend an auction. He stated that Dennis Ross owned a towing 

company, not a car dealership. (Police Report at 3.)

Trooper Taylor returned to his patrol car and requested information from the police 

dispatch regarding Johnston and Soto-Huerta’s license status and criminal histories, among other 

information. While Trooper Taylor waited for this information and was in the process of 

completing a warning for the traffic violations, Soto-Huerta sat in the passenger seat of the police 

cruiser. At some point, Soto-Huerta told Trooper Taylor that he had met Johnston at an auction 

in Arizona. (Police Report at 3.)

While Trooper Taylor was in the patrol car, Sergeant Eldredge arrived to assist and 

apparently questioned Johnston. Sergeant Eldredge told Trooper Taylor that Johnston had stated 

that he and Soto-Huerta had met in Columbus and that Johnston was thinking of starting a car 

dealership. (Police Report at 3.)

Because the police dispatch informed Trooper Taylor that Soto-Huerta had a suspended 

Arizona license, and Johnston had a valid Ohio license, Trooper Taylor then informed Johnston 

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that he must drive the vehicle. He gave them the warning, the men thanked him, and they started 

to walk back toward the vehicle. (Police Report at 3.) Trooper Taylor reported:

Based on the conflicting information given by both subjects, the 

strong cover odor in the vehicle, the prior drug history [as reported 

by the police dispatch] and the third party registration, I had made 

a decision to ask the occupants of this vehicle for a consent search. 

As both subjects walked away, I called out to James by name and 

asked if before he left if I could ask him some more questions. 

James stated “Yes, you may.” I then asked James if they were 

doing anything illegal. James stated “No sir.” James then stated 

“Your [sic] welcome to look.” I followed that statement up with 

the question, “Can I search your car?” James stated, “I have no 

problem with that.” I turned to Karim and told him that James had 

given me permission to search the car. I asked Karim if that was 

OK with him. Karim indicated that he was consenting to the 

search as well.

(Police Report at 3.)

A police canine was then walked around the vehicle and indicated something in the trunk, 

where the officers found empty duffle bags, duct tape, empty vacuum seal space saver bags, and 

a vacuum to seal the bags. After completing the search, Trooper Taylor thanked Johnston and 

Soto-Huerta for their cooperation and allowed them to leave. (Police Report at 3.) 

Trooper Taylor testified that it took about ten to fifteen minutes to ask questions of 

Johnston and Soto-Huerta, including time spent waiting for information from the police dispatch, 

and another ten to fifteen minutes from the time of the consent to when they drove away. (Hr’g 

Tr. 14, 22.)

Based on the items they found in the trunk of the Crown Victoria, Trooper Taylor and 

Sergeant Eldredge believed that the car may have been a “follow/lookout vehicle.” Trooper 

Taylor recalled that, while following the Crown Victoria, he had noticed a rental vehicle with 

South Dakota plates following in close proximity to it. He testified that he noticed this car 

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because the driver appeared to avoid eye contact with the officer as he passed, and sat far back so 

that he was “almost right behind the pillar . . . where the doorjamb is.” (Police Report at 3.)

Acting on their advice, another trooper, Trooper Jones, spotted the rental vehicle, waited 

for a minor traffic infraction, and then pulled it over. (Police Report at 3.) The driver, Brian 

Ross, is the son of Dennis Ross, the registered owner of the Crown Victoria. The officers found 

over 100 pounds of marijuana in the rental vehicle. (Id. at 4.) The Crown Victoria was again 

stopped, and Johnston and Soto-Huerta were arrested. Among other evidence linking the two 

cars, Johnston’s wallet contained a tally sheet with the weights of the packages of marijuana

found in the rental vehicle. (Police Report at 4.) 

Defendant moves to suppress all evidence resulting from the initial traffic stop, including 

the evidence found in the Crown Victoria, Johnston’s statements to officers at the scene of the 

stop, “all other related evidence,” and the marijuana seized from the rental vehicle “as the fruit of 

the poisonous tree.” (Mot. 10–11.) Defendant argues that (1) the stop was impermissible

because Trooper Taylor lacked reasonable suspicion of legitimate traffic violations, (2) Trooper 

Taylor impermissibly expanded the scope of the detention when he conducted a drug 

investigation, and (3) Johnson’s consent was invalid because it followed a Fourth Amendment 

violation.1

II.

Defendant first argues that “[t]he initial traffic stop was impermissible and all evidence 

flowing therefrom must be suppressed.” (Mot. at 3.) Defendant asserts that “Trooper Taylor did 

not have reasonable suspicion that legitimate traffic violations occurred,” and “the stop was an 

impermissible pretext to search for evidence of drug activity.” (Id. at 5.)

Permissibility of Initial Traffic Stop

 1 Defendant also argues that he has standing to challenge the subsequent search; the Government does not 

contest this. (Mot. at 5–7; Resp. at 8.)

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The Fourth Amendment’s protection against unreasonable searches and seizures applies 

to traffic stops, even when the stop is “only for a brief period and for a limited purpose.” Whren 

v. United States, 517 U.S. 806, 809–10 (1996) (citations omitted). A traffic stop is “thus subject 

to the constitutional imperative that it not be ‘unreasonable’ under the circumstances. As a 

general matter, the decision to stop an automobile is reasonable where the police have probable 

cause to believe that a traffic violation has occurred.” Whren, 517 U.S. at 810 (citations 

omitted); United States v. Ferguson, 8 F.3d 385, 391 (6th Cir. 1993) (“so long as the officer has 

probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop 

is not unlawful and does not violate the Fourth Amendment”).

The parties agree that the initial traffic stop was premised on Trooper Taylor’s reported 

observation of (1) the vehicle’s cracked windshield and (2) the vehicle crossing the road’s solid 

white line. They disagree as to whether Trooper Taylor had probable cause to believe a traffic 

violation occurred.

A.

Defendant asserts, and the Government does not dispute, that the Utah law applicable to 

this traffic stop prohibited the operation of a vehicle with a windshield crack of 24 inches or 

more.

Cracked Windshield

2

 2 Utah Code Ann. § 41-6a-1601(1)(a) (2008) prohibits the operation of a vehicle which is in an 

unsafe condition or is not equipped in proper condition as required. The 2008 statutes include no 

requirements specifically applicable to windshield cracks, but § 41-61-1601(2) (2008) authorizes 

regulations “setting minimum standards covering the design, construction, condition, and operation of 

vehicle equipment for safely operating a motor vehicle on the highway as required under this part.” 

 (Mot. at 5; Resp. at 6 (both citing State v. Galvan, 2001 UT App 329, P16 (Utah Ct. App. 

The 2008 regulations also lack requirements applicable to windshield cracks, but the 2008 version 

of the Official Vehicle Safety Inspection Manual for Passenger Vehicle and Light Duty Truck, published 

by the State of Utah Department of Public Safety, provides that a windshield cannot pass a safety 

inspection if it is cracked more than 1 inch in the “acute area,” which is the part of the windshield more 

than 6 inches in from the outside edges. (This requirement is currently contained in state regulations at

U.A.C. R714-160-13, which was enacted in 2011.) 

However, neither party has briefed this issue, and both parties appear to assume that Utah law in 

effect in 2008 prohibited windshield cracks of 24 inches or more.

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2001)). In Galvin, the Utah appellate court reversed the trial court’s denial of a motion to 

suppress. “[A]nalyz[ing] the stop on the presumption that the 24 inch standard is the law in Utah 

regarding windshield cracks,” the court “conclude[d] it was not reasonable of Trooper to believe 

that a windshield crack safety violation occurred based merely on Trooper’s observation of a 

sparkle in the windshield.” Galvin, 37 P.3d at 1200, 1201.

In his motion, filed without benefit of hearing testimony, Defendant stated that Trooper 

Taylor allegedly observed the vehicle’s cracked windshield “from an unreported distance” and 

claims that “[t]here is no evidence that asserts the windshield was cracked 24 inches.” (Mot. at 

2, 5.)3

Defendant’s post-hearing brief addresses neither this testimony nor whether Trooper 

Taylor had probable cause to believe that a equipment violation had occurred. (Def. Post-Hr’g 

Br.) In fact, Defendant has offered no reason to disbelieve Trooper Taylor. Thus, the Court 

finds Trooper’s Taylor’s testimony to be credible and concludes that he had probable cause to 

believe that a equipment violation had occurred. Unlike the officer Galvin, who observed a mere 

sparkle in the windshield, Trooper Taylor was able to observe a large crack in the driver’s view. 

 Trooper Taylor testified at the hearing that he first observed what he believed to be a 

broken windshield as he was pumping gas, so he followed the Crown Victoria in his patrol car to 

get a closer look. As he was driving behind the vehicle, he could see through the back window 

and confirmed that the windshield was broken. (Hr’g Tr. at 17.) He testified that the windshield 

had a “large crack” that “was distinctly in the driver’s view, and [he] believe[d] it was longer 

than 21 inches or 24, but it was longer than that, and it didn’t meet the [Utah state] standards.” 

(Id. at 16–17.) 

 3 Defendant makes no arguments as to this equipment violation in his post-hearing brief. (Def. Post-Hr’g Br..)

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B.

Trooper Taylor reported and testified that he observed the Crown Victoria “cross over the 

white line with [both] passenger side wheels and drive in the emergency lane.” (Police Report at 

2; Hr’g Tr. at 10.) He testified that the road was straight, level, dry, and in good condition. The 

weather was clear and the traffic light. The Crown Victoria was traveling at about 30-40 miles 

per hour in a 30 miles per hour zone. (Hr’g Tr. at 8–9, 30.)

Vehicle Crossing the Line

In his post-hearing brief, Defendant argues that Trooper Taylor cited the wrong Utah 

statute in his warning. (Def. Post-Hr’g Br. at 3.) In the warning, Soto-Huerta is cited for two 

violations: the faulty windshield and “unsafe lane travel,” for which § 41-6a-804(1)(a) is cited. 

(Govt. Ex. 3 (Dkt. 119-1 at 7).) Defendant asserts that § 41-6a-804(1)(a) pertains to turning and 

signaling for turns; “[t]hus, the stated premise for the stop is flawed.” (Def. Post-Hr’g Br. at 3.) 

The 2008 version of § 41-6a-804(1)(a) provides that “[a] person may not . . . move right or left 

on a roadway or change lanes until: (i) the movement can be made with reasonable safety; and

(ii) an appropriate signal has been given.” 

In another case applying Utah law, where a trooper observed the defendants drift into the 

emergency lane, the Tenth Circuit found that the trooper thereby observed the defendants 

committing a traffic violation under two provisions of Utah law: former § 41-6-69(1)(a), which 

provided that “[a] person may not turn a vehicle or move right or left upon a roadway or change 

lanes until . . . an appropriate signal has been given” (analogous to § 41-6a-804(1)(a), prohibiting 

unsafe lane travel), and former § 41-6-61(1), which required that “[a] vehicle shall be operated as 

nearly as practical entirely within a single lane.” United States v. Parker, 72 F.3d 1444, 1449 

(10th Cir. 1995). 

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Before the warning was entered on the record, both parties’ briefing focused on Utah 

Code § 41-6a-710(1)(a)(i) (formerly numbered § 41-6-61), which requires a driver to “keep the 

vehicle as nearly as practical entirely within a single lane.” (Emphasis added). In both his 

motion and post-hearing brief, Defendant cites United States v. Gregory. In Gregory, the Tenth 

Circuit held that, where “[t]he road was winding, the terrain mountainous and the weather 

condition was windy,” “an isolated incident of moving into the right shoulder of the roadway”

does not give rise to reasonable suspicion of criminal activity under Utah law. United States v. 

Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (citing State of Utah v. Bello, 871 P.2d 584, 586 

(Utah App. 1994) (Bello holding that a single incident of weaving under “extreme wind 

conditions” was not a violation)). In both Gregory and Bello, the statutes at issue were

analogous to current Utah Code § 41-6a-710(1)(a)(i), requiring a driver to stay as nearly as 

practical within a single lane, and in both cases, the driving conditions were such that it may not 

have been practical to expect the driver to keep the vehicle entirely within a single lane. 

The Court credits Trooper Taylor’s testimony and concludes that, as in Parker, SotoHuerta apparently violated both § 41-6a-804(1)(a), which was cited in the warning, and Utah 

Code § 41-6a-710(1)(a)(i), which was heavily briefed by the parties. Because the Crown 

Victoria crossed the white line on a straight road in optimal driving conditions, this case can be 

distinguished from Bello and Gregory. The fact that the warning cites only one of the applicable 

statutes, rather than both, does not render “the stated premise for the stop . . . flawed.” (Def. 

Post-Hr’g Br. at 3 (claiming that the warning “cites an improper Utah statute”).)

The Court concludes that Trooper Taylor had probable cause to suspect two separate 

violations, an equipment violation and a lane violation, either of which alone would be sufficient 

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to justify the traffic stop. Therefore, the Court finds that the stop did not violate the Fourth 

Amendment.

III.

Defendant argues that Trooper Taylor impermissibly expanded the scope of the detention 

when he conducted a drug investigation. (Mot. at 7.) 

Permissibility of Drug Investigation

A.

The Court analyzes the reasonableness of Trooper Taylor’s conduct in effectuating the 

traffic stop under the principles set forth in Terry v. Ohio, 392 U.S. 1 (1968). United States v. 

Stepp, 680 F.3d 651, 661 (6th Cir. 2012) (citing United States v. Hill, 195 F.3d 258, 263–64 (6th 

Cir. 1999), cert. denied, 528 U.S. 1176 (2000)). “‘In evaluating the constitutionality of a Terry

stop, . . . [w]e first ask whether there was a proper basis for the stop,’” and if so, “we ask 

‘whether the degree of intrusion was reasonably related in scope to the situation at hand, which is 

judged by examining the reasonableness of the officials’ conduct given their suspicions and the 

surrounding circumstances.” Id. (quoting United States v. Davis, 430 F.3d 345, 354 (6th Cir. 

2005)). “[I]f ‘something happen[s] during the stop to cause the officer to have a reasonable and 

articulable suspicion that criminal activity is afoot,’” the officer “may extend a stop beyond the 

scope of what was originally permissible.” Id. (quoting Davis, 430 F.3d at 353. Otherwise, “all

the officer’s actions must be ‘reasonably related in scope to circumstances justifying the original 

interference.’” Id. (quoting United States v. Townsend, 305 F.3d 537, 541 (6th Cir. 2002)).

Before the Warning Was Issued

“An officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do 

not convert the encounter into something other than a lawful seizure, so long as those inquiries 

do not measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S. 323, 333 

(2009) (citing Muehler v. Mena, 544 U.S. 93, 100–01 (2005). “A traffic stop is not ‘measurably’

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extended by extraneous questioning even when such questioning undeniably prolongs the stop to 

a minimal degree.” United States v. Stepp, 680 F.3d 651, 662 (6th Cir. 2012) (citing United 

States v. Everett, 601 F.3d 484, 492 (6th Cir. 2010)). To “evaluate the reasonableness of the 

prolonging of a stop,” the Court “consider[s] the totality of the circumstances . . . [including] 

both the duration of the extraneous questioning and its subject matter.” Id. (citing Everett, 601 

F.3d at 494). Permissible subject matter includes “questions relating to travel plans, the driver’s 

authority to operate the vehicle, [and] the safety of the officer.” Id. (citing Everett, 601 F.3d at 

494–95).

As noted above, Trooper Taylor testified that it took about ten to fifteen minutes to ask 

questions of Johnston and Soto-Huerta, including time spent waiting for information from the 

police dispatch, prior to issuing the warning. (Hr’g Tr. 14, 22.) The Court finds Trooper 

Taylor’s testimony to be credible and concludes that his questioning before the issuance of the 

warning did not “measurably extend the duration of the stop.”

B.

Defendant also apparently challenges Trooper Taylor’s questioning after the warning was 

issued. Defendant claims that, “[a]lthough the Trooper . . . had returned the Defendant’s license 

and paperwork to him, and allowed him to walk toward his car prior to asking for a consent to 

search, Mr. Johnston still was not free to leave.”

After the Warning Was Issued

4

The Sixth Circuit has held that “police officers do not violate the Fourth Amendment by 

asking an individual questions after the initial stop has ended.” United States v. Branch, 537 

F.3d 582, 588 (6th Cir. 2008) (citing United States v. Erwin, 155 F.3d 818, 823 (6th Cir. 1998)).

 (Def. Post-Hr’g Br. at 6–7.) 

 4 Defendant also claims, without any supporting argument, that Defendant “was also further detained when the 

officers continued to follow him for over an hour and for a distance of 62 miles.” (Def. Post-Hr’g Br. at 7.) The 

Court need not address this claim, but the evidence suggests that Sergeant Eldredge followed the vehicle “at a 

distance,” without “maintain[ing] continuous visual contact,” and apparently with the intention of following “far 

enough that they didn’t know he was back there until we knew what we had.” (Tr. at 24, 44.)

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In fact, “law enforcement officers may ask citizens ‘general questions without having any 

reasonable suspicion of criminal activity, so long as the officers refrain from the type of 

intimidating behavior that would lead a reasonable person to believe that the person was not free 

to leave.’” United States v. Davis, 514 F.3d 596, 607 (6th Cir. Tenn. 2008) (citing United States 

v. Waldon, 206 F.3d 597, 603 (6th Cir. 2000); United States v. Foster, 376 F.3d 577, 584 (6th 

Cir. 2004)). There is no evidence that Trooper Taylor engaged in any intimidating behavior. 

As in Branch, “[b]ecause [Defendant] was not seized within the meaning of the Fourth 

Amendment, [Trooper Taylor] did not need any reasonable suspicion to ask him further 

questions.” Branch, 537 F.3d at 588. The Court finds no Fourth Amendment violation in 

Trooper Taylor’s further questioning following the issuance of the warning.

IV.

Defendant argues that his consent to search the Crown Victoria was invalid because it 

“was elicited following a violation of the Defendant’s Fourth Amendment rights.” (Mot. at 9.) 

Because no Fourth Amendment violation occurred during the initial traffic stop, as discussed 

above, this argument fails. Defendant makes no other arguments on this issue. (See Mot. at 9–

10, Def. Post-Hr’g Br.) The Court credits Trooper Taylor’s testimony regarding consent and 

finds Defendant’s consent to be valid.

Validity of Consent

V.

Defendant seeks to suppress the evidence found in the Crown Victoria, Johnston’s 

statements to officers at the scene of the stop,

Conclusion

5

 5 Defendant has identified no specific statements.

“all other related evidence” resulting from the 

initial traffic stop, and the marijuana seized from the rental vehicle “as the fruit of the poisonous 

tree.” (Mot. 10–11.) Because the Court finds that the initial traffic stop, Trooper Taylor’s 

conduct during the stop, and the search were all appropriate under the Fourth Amendment, the 

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evidence obtained during that stop will not be suppressed. Moreover, because no Fourth 

Amendment violation occurred, there is no illegality constituting a “poisonous tree,” and the 

evidence obtained from the rental vehicle need not be suppressed as its “fruit.” See Wong Sun v. 

United States, 371 U.S. 471, 488 (1963); Segura v. United States, 468 U.S. 796 (1984). For the 

reasons set forth above, the Court hereby DENIES Defendant’s Motion. (Dkt. 113.)

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE

/s/ Peter C. Economus - October 12, 2012

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