IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

JAZMAN ANTOINE MOORE, 

Defendant. 

PORTLAND DIVISION 

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~~~~~~~~~~~~~~~) 

JONES, District Judge, 

3:16-cr-00171-JO 

OPINION & ORDER 

Defendant is charged with violating 18 U.S.C. § 922(g)(l ), Felon in Possession of a Firearm. 

The matter is before the cou1i on defendant's motion to suppress evidence obtained by police during 

a traffic stop. [ # 45] Defendant contends that he was seized and his vehicle was searched in violation 

of his Fourth Amendment rights. I heard testimony and received exhibits at an evidentimy hearing 

on December 20, 2016. Based on that evidence and the arguments of the pmiies I make the 

following findings of fact and conclusions oflaw. 

In sum, the police officers conducted a legal traffic stop and received voluntmy consent from 

defendant to search him and his vehicle. The defendant's motion is DENIED. 

BACKGROUND 

On the night of March 4, 2016, Portland Police Bureau Officers Hughes and Sherwood of 

the Gang Enforcement Team were patrolling an area ofN01iheast Pmiland when they observed a 

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Cadillac proceeding on a city street without illuminated taillights in violation of state traffic laws. 

The officers initiated a traffic stop. Officer Sherwood approached the driver side of the Cadillac and 

spoke to defendant. Officer Hughes approached the passenger side of the vehicle and spoke to-the 

passenger, Xavier Theole. Officer Sherwood requested defendant's driver's license, vehicle 

registration, and proof of insurance. Defendant responded that his driver's license was suspended 

and he did not have a vehicle registration or proof of insurance. 

Officer Sherwood returned to the patrol vehicle where he conducted a record check which 

confirmed that defendant's license was suspended and revealed that defendant was a documented 

member of the Loe' d Out Piru Blood gang. Officer Hughes remained at the passenger side of the 

Cadillac where Mr. Theole told him that he was on parole for armed robbery. 

At this time, PPB Gang Enforcement Team Officers Fender and Polas anived in a second 

patrol vehicle. Officer Polas recognized defendant from previous interactions with him and knew 

that he was a documented Loe' d Out Piru Blood gang member. He recalled that defendant had been 

shot during a gang related incident within the last year. The officers were aware that Portland had 

seen an increase in gang related violence during 2015 and that gang members often possessed 

fireaims as a means of protection and to further the criminal purposes of their gangs. Officers 

Sherwood, Hughes and Polas each independently concluded it was necessary for their own safety 

to ask defendant if he had fireaims in the Cadillac. 

Officer Polas approached defendant and asked if there were any weapons in the vehicle. 

Defendant said there were not. Officer Polas asked if he could search the vehicle and defendant 

consented. Officer Polas info1med Officer Hughes that defendant had consented to a semch of his 

car. Officer Hughes asked defendant again ifthere were weapons in the car. Defendant again denied 

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having any weapons. Officer Hughes asked again if it was okay to search the car, and defendant 

confirmed his consent. Officer Hughes asked if he could search defendant's person, and defendant 

consented. Officer Hughes then instructed defendant to get out of the car with his hands on his head, 

and defendant complied. 

While Officer Hughes was patting defendant down, defendant dropped his hands, lowered 

his head, began breathing heavily, and hunched over. He said he was experiencing a panic attack. 

After completing the pat down, Officer Hughes suggested defendant move to the sidewalk to get out 

of the traffic on the roadway. Defendant asked to use his cell phone to call his mother. Officer 

Hughes retrieved the phone from defendant's car and told defendant to call from the sidewalk. 

When defendant did not move, Officers Hughes and Polas took him by the aims and escorted him 

to the curb. 

After defendant moved to the sidewalk, Officer Po las observed a small plastic bag containing 

a white substance that looked like crack cocaine on the street where defendant had stood after exiting 

his vehicle. Defendant watched Officer Sherwood collect the plastic bag and without being 

prompted said that the bag contained a mixture of cocaine and Percocet. Officer Sherwood field 

tested the substance and received a positive result for cocaine. 

Officers Po las and Sherwood then searched the Cadillac. While crouching down to see under 

the driver's seat, Officer Po las saw the magazine and handle of a fireaim protrnding from beneath 

the center console, just to the right of the driver's seat. Officer Polas retrieved the firearm which was 

a Ruger 9mm, model SR9C. Its serial number matched that of a fireaim that had been stolen in 

December 2015. 

Officer Hughes read Mr. Theole his ivliranda rights and Mr. Theo le indicated he understood 

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them. Mr. Theole said he had never been in the Cadillac before and he denied having knowledge 

of the firearm or the cocaine. Officer Hughes asked Mr. Theole if his DNA would be found on the 

firearm. Mr. Theole said it would not and consented to a DNA swab. 

Officer Hughes read defendant his Miranda rights and defendant indicated he understood 

them. Defendant said he had recently purchased the Cadillac and that the day before he bought it, 

the seller had shown him a firearm. Defendant said he handled the firearm but denied keeping it. 

Defendant also consented to a DNA swab. 

Officers Hughes and Sherwood knew from experience that gang members often take pictures 

of themselves with firearms. Officer Hughes asked defendant and Mr. Theole if he could search 

their cell phones, and they both consented. On Mr. Theole's cell phone, Officer Hughes found 

photographs of defendant holding what appeared to be the same firemm found in the car. 

Officer Hughes told defendant the cell phones would be seized. Defendant then asked ifhe 

could keep his cell phone ifhe admitted the firearm was his. Defendant then admitted that he canied 

a firearm for protection because he was a target of rival gang members and felt unsafe without one. 

Defendant said Mr. Theole did not know about the firemm. Defendant also said he used a mixture 

of cocaine and Percocet for the constant pain he experienced since being shot. 

Officer Sherwood obtained confirmation from both Mr. Theole and defendant that each 

consented to have DNA swabs taken. He then collected oral DNA swabs from them. A laboratory 

analysis later revealed that the DNA on the firearm came from four contributors. A comparison of 

the DNA taken from Mr. Theole excluded him as a predominant contributor. The analysis could not 

exclude defendant as a predominant contributor. 

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STANDARDS 

The Fomth Amendment protects against unreasonable searches and seizures by the 

government and applies to searches and seizures by state law enfereement officers through the 

Fomteenth Amendment. Elkins v. United States, 364 U.S. 206, 213 (1960). The tempormy 

detention of a person during a vehicle stop by police is a seizure of that person within the meaning 

of the Fourth Amendment, and subject to the requirement that it be reasonable under the 

circumstances. Whren v. United States, 517 U.S. 806, 809-810 (1996). 

Searches and seizures conducted without a warrant issued by a judicial officer upon a 

showing of probable cause are unreasonable subject to a few specific exceptions. Katz v. United 

States, 389 U.S. 347, 357 (1967). One such exception is that police officers who observe a traffic 

violation may conduct a wanantless traffic stop to investigate that violation. The scope of such a 

detention must be tailored to address the underlying traffic violation and attend to related safety 

concerns and can become unlawful if unrelated inquiries prolong the duration of the roadside 

detention beyond what is reasonably necessary to complete the purposes of the stop. Rodriguez v. 

United States, 135 S.Ct. 1609, 1614-1615 (2015); Illinoisv. Caballes, 533 U.S. 405, 407-408 (2005). 

Another established exception to the wanant and probable cause requirements is that a search 

authorized by consent is constitutionally permissible. Schneckloth v. Bustamante, 412 U.S. 218, 222 

(1973); United States v. Patayan Soriano, 361F.3d494, 501 (9th Cir. 2003). 

DISCUSSION 

Defendant argues that the police violated his Fou1th Amendment rights when they requested 

that he exit his vehicle because they did not have a reasonable suspicion that he was involved in any 

criminal activity other than the traffic violation for which he was stopped. He contends the officers 

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exceeded the reasonable scope of the traffic stop to conduct an investigation into other unrelated 

crimes without reasonable suspicion that any other crime had been committed. He further argues 

that the police officers based their suspicion of other criminal activity solely on his race and ethuic 

appearance in violation of the Equal Protection Clause of the Fourteenth Amendment. 

I. Lawful Traffic Stop 

Officers Sherwood and Hughes initiated a lawful traffic stop because they observed 

defendant operating his car after dark without lighting equipment required by Oregon statutes. 

Defendant does not challenge the initial traffic stop in his present motion. Instead, he argues that 

the officers detoured from the purpose of the traffic stop to investigate unrelated crimes without 

reasonable suspicion or probable cause. 

When making a routine traffic stop, the permissible scope of inquiry by law enforcement 

officers includes determining whether to issue a traffic ticket, checking the driver's license, 

determining whether there are outstanding wmrnnts against the driver, and inspecting the vehicle 

registration and proof of insurance. Rodriguez, 135 S.Ct. at 1611. In addition, an officer may make 

unrelated inquiries during a lawful traffic stop, so long as they do not measurably increase the 

duration of the stop. 135 S.Ct. at 1615. Officer Sherwood was in his patrol car engaged in a records 

check when Officer Po las asked for and received defendant's consent to search the Cadillac and 

Officer Hughes asked for and received defendant's consent to pat him down for weapons. Their 

inquiries about weapons and requests for consent to search did not prolong the duration of the 

detention beyond the time necessmy to perform the permissible purposes of the traffic stop. 

In addition to the inquiries related to the purpose of the traffic stop, law enforcement officers 

may attend to reasonable concerns for their own safety. In the interest of officer safety, the driver 

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and passengers of a vehicle that has been lawfully stopped for a traffic violation can be required to 

exit the vehicle. 135 S.Ct. at 1615 citingPennsylvaniav. iVIimms, 434 U.S. 106, 110-111 (1973) and 

1vlmyland v. Wilson, 519 U.S. 408, 413-415 (1997). Accordingly, the officers request for consent 

to search defendant and his vehicle and their request that he exit the vehicle were constitutionally 

permissible inquiries incident to the lawful traffic stop. 

II. Consent 

In establishing the validity of consent to search, the government bears the burden of showing 

that consent was freely and voluntarily given. Schneckloth, 412 U.S. at 222; United States v. ChanJimenez, 125 F.3d 1324, 1327 (9th Cir. 1997). Voluntariness is dete1mined from the totality of the 

circumstances. Schneckloth, 412 U.S. at 227; Chan-Jimenez, 125 F.3d at 1327. In this inquhy, the 

court must consider any indications of coercion, including such factors as whether the defendant was 

in custody, whether the police officers had drawn their guns, whether 1vliranda warnings were given, 

whether the defendant was informed that he had the right to refuse consent, and whether the 

defendant was told that a search warrant could or would be obtained. United States v. Cormier, 220 

F.3d 1103, 1112 (9th Cir. 2000). 

The totality of the circumstances here leave no doubt that defendant's consent was voluntary. 

He was not under arrest or threatened with being anested when Officers Polas and Hughes obtained 

consent to search his car and his person. None of the officers had drawn weapons. The officers did 

not claim that they could obtain a search warrant. The evidence suggests that defendant consented 

freely and voluntarily without coercive external pressure. The same is true of defendant's later 

consent to the search of his telephone for pictures and to the taking of oral DNA swabs. Although 

the likelihood of anest had become apparent by then, both defendant and Mr. Theole had been read 

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their lvfiranda rights and said they understood them. Notably, defendant does not challenge the 

voluntariness of his consent in his present motion. 

III. Automobile Exception 

A law enforcement officer may conduct a warrantless search of a motor vehicle if there is 

probable cause to believe that the vehicle contains evidence of a crime. United States v. Brooks, 610 

F.3d 1186, 1193 (9th Cir. 2010). Here, after defendant got out of his car, officers observed in plain 

view a small plastic bag of white powder which defendant admitted was a cocaine mixture that 

belonged to him. Under these circumstances, the officers had probable cause to believe that the car 

contained contraband or other evidence that defendant possessed a controlled substance. See United 

States v. Fowlkes, 804 F.3d 954, 971 (9th Cir. 2015) (wanantless search of vehicle lawfully stopped 

for a traffic violation was justified because officers saw an apparent controlled substance in plain 

view on the driver's seat). Accordingly, even if defendant's consent was not valid, the officers had 

an alternative lawful basis to search his vehicle 

IV. Officer Safety 

As noted before, an officer engaged in a lawful traffic stop may take "negligibly burdensome 

precautions in order to complete his mission safely." Rodriguez, 135 U.S. at 1616. An officer is 

permitted to search the passenger compmiment of a motor vehicle, limited to the places in which a 

weapon may be hidden, if the officer has a reasonable belief that an occupant of the car is dangerous 

and may gain immediate control of weapons. lvfichigan v. Long, 463 U.S. 1032, 1049 (1983). Here 

the officers knew that defendant was a member of a gang known to engage in violent acts, that gang 

members often carry firearms for protection, that defendant had been the victim of a shooting in the 

past, and that Mr. Theole was on parole for a violent crime. These circumstances reasonably 

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supported their suspicion that the vehicle contained a weapon and that defendant or Mr. Theo le could 

pose a danger to the officers unless they conducted a protective search of the passenger compartment 

to determine whether weapons were present. The reasonable suspicion that weapons were present 

in the car and the officers' concern for their own safety provide another alternative justification for 

their search, even if defendant had not consented. 

V. Equal Protection 

I have reviewed the exhibits submitted by defendant, including the video of Laurie Palmer's 

interactions with the officers at the scene. I find no factual basis for defendant's claim that he was 

stopped or searched or arrested because of his race, ethnic appearance or identity. 

CONCLUSION 

For the foregoing reasons, defendant's motion to suppress[# 45] is DENIED. 

IT IS SO ORDERED. 

DATED this .:t.ls. day of December, 2016. 

. ones 

tates District Judge 

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