678 F.3d 293 (4th Cir. 2012), 11-4268, United States v. Jones

Docket Nº:11-4268.
Citation:678 F.3d 293
Opinion Judge:DIANA GRIBBON MOTZ, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frederick A. JONES, Defendant-Appellant.
Attorney:Nia Ayanna Vidal, Office of the Federal Public Defender, Richmond, Virginia, for Appellant. Erik Sean Siebert, Office of the United States Attorney, Richmond, Virginia, for Appellee. Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, for Appellant. Neil H. MacBride, United Stat...
Judge Panel:Before MOTZ, KING, and GREGORY, Circuit Judges. Reversed and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge KING and Judge GREGORY joined.
Case Date:May 10, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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678 F.3d 293 (4th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Frederick A. JONES, Defendant-Appellant.

No. 11-4268.

United States Court of Appeals, Fourth Circuit.

May 10, 2012

Argued: March 22, 2012.

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[Copyrighted Material Omitted]

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ARGUED:

Nia Ayanna Vidal, Office of the Federal Public Defender, Richmond, Virginia, for Appellant.

Erik Sean Siebert, Office of the United States Attorney, Richmond, Virginia, for Appellee.

ON BRIEF:

Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, for Appellant.

Neil H. MacBride, United States Attorney, Alexandria, Virginia, Stephen W. Miller, Assistant United States Attorney, Office of the United States Attorney, Richmond, Virginia, for Appellee.

Before MOTZ, KING, and GREGORY, Circuit Judges.

Reversed and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge KING and Judge GREGORY joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Two police officers, in a marked patrol cruiser, closely followed a car from a public road onto private property, and then blocked the car's exit. The officers observed no traffic violation. The only assertedly suspicious activity they saw was the car's presence in a high-crime neighborhood with out-of-state tags. These facts alone led the officers to suspect that the car's occupants, four African American men, were involved in drug trafficking. Immediately after the driver, Frederick Jones, exited his car, the officers approached him and asked that he lift his shirt, which he did. The officers then asked him to consent to a pat down search, which he did.

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After neither the shirt lift nor the search revealed anything, the officers discovered that Jones had committed a traffic violation, and so detained him. Subsequently, they found he possessed a firearm and a small quantity of marijuana. The district court denied Jones's motion to suppress this evidence, reasoning that the initial encounter— prior to the discovery of the traffic violation— was consensual and therefore did not infringe on Jones's Fourth Amendment rights. Because a reasonable person in Jones's position would not have felt free to terminate the initial encounter with the officers, we must reverse.

I.

The parties do not seriously dispute the facts of this case. During the early evening of August 13, 2008, Detective Edward Aeschlimann and his partner, Officer Adrienne Rice, were patrolling the 2100 block of Afton Avenue in Richmond, Virginia. Det. Aeschlimann patrolled this area as part of the Focus Mission Team to interdict illegal drugs and firearms and deter robberies and burglaries. He had been on this assignment for six months and had been with the Richmond Police Department for five years.

At approximately 7:00 p.m., " in the daylight hours of the early evening," Det. Aeschlimann saw a dark blue Dodge Avenger, which he did not recognize, traveling on Afton Avenue. Det. Aeschlimann explained that the car " caught [his] attention" because it had New York tags, and " drugs are frequently trafficked between Richmond, Florida and New York on Interstate 95." He further explained that his interest " was piqued because [he] thought that that vehicle did not belong there and that the people in the vehicle didn't belong there." Four African American men occupied the vehicle.

Although initially driving in front of the car, Det. Aeschlimann turned around— possibly in a roundabout at the end of Afton Avenue— and " pulled behind" the car so as to follow it in his marked police patrol car.1 Det. Aeschlimann, although looking for a traffic violation, was unable to " see any equipment violations that [he] could have stopped the [out-of-state] vehicle for."

Apartment complexes line Afton Avenue on both sides. Shortly after Det. Aeschlimann began following the car, it turned into the driveway of one such complex— the Graystone Apartments. The detective followed the car into the driveway of the Graystone Apartments, which has a " no trespassing" sign posted on the property. Det. Aeschlimann testified that he suspected the men in the vehicle were trespassing and that " in that area" it was his common practice to follow " any car with an out-of-state tag" to determine whether the occupants of the vehicle were trespassing. The detective did not activate the lights or sirens of his marked police cruiser. He did, however, stay close to the out-of-state car— losing sight of it only for a second as it rounded a corner— because he " wanted to try to make contact with the folks inside

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the vehicle to see if they lived there because it's private property."

The driveway of the Graystone Apartments is a one-way roadway with a row of diagonal parking spaces on one side. The out-of-state car pulled into a diagonal parking space, and the four men emerged from it, including the driver, Jones. At this time, Det. Aeschlimann pulled to a stop and parked the police cruiser in the lane of traffic rather than pulling into one of the diagonal parking spaces. The detective believed that he " had no option [other] than to park where [he] did" to ensure that he would " have the opportunity to make contact with the occupants of the [out-of-state] vehicle."

Det. Aeschlimann conceded that he had no basis to stop Jones, or his car, but testified that " to make things what we term a consensual encounter[,] ... [he] pulled past where Mr. Jones had parked" assertedly " leaving [Jones's] vehicle unobstructed to back out of the parking spot if that's something that he chose to do." However, the detective acknowledged that his police patrol car " obstructed them from leaving the driveway." As Det. Aeschlimann described the situation, " [g]iven that our vehicle was parked on a one-lane driveway that had parking stalls to the left-hand side and bushes and doors to the other row of apartments on the right-hand side, had they immediately backed their vehicle out or gotten back into their car and backed the vehicle out, my vehicle down the driveway probably would have obstructed them from leaving the driveway." Thus, the detective acknowledged the placement of the police cruiser presented Jones with the options of " back[ing] [his] vehicle back up" the one-way driveway going in the " wrong direction" or requesting that the officers move their patrol car. Despite the " Do not enter" sign posted at the entrance to the driveway, Det. Aeschlimann testified that he would not have prevented Jones from backing his car up the one-way roadway in the wrong direction.

As Det. Aeschlimann and Officer Rice exited their patrol car, but before they reached the out-of-state vehicle, they saw two of the vehicle's passengers leave on foot. One of the passengers entered a nearby apartment. The officers did not see where the other man went. The officers did not pursue either man, nor did they attempt to speak to them. Instead, the officers proceeded immediately to speak to Jones, who had just emerged from and was still standing by the driver's door. At this time, the remaining passenger walked over to stand with Jones. Jones was returning from the store and held a slice of pizza in his hand.

The officers approached Jones and his companion; the officers stood at the rear of the car with their side arms holstered. Det. Aeschlimann asked Jones and his companion whether they " live out here." Jones answered that he did. Det. Aeschlimann testified that " [r]ight when I made contact with Mr. Jones and the other party," I said, " Hey, guys, can you do me a favor? Just lift your shirt for me so I can see you have no guns." The detective further testified that this was his " common practice, especially in high crime areas." Det. Aeschlimann acknowledged that Jones and his companion promptly complied by lifting their shirts, as requested. Then Det. Aeschlimann said, " Hey, guys, would you mind if I pat you down for weapons?" Jones and his companion turned around and raised their arms. The detective performed a quick pat down search and felt no weapons.

Jones testified that between the time the officers approached him and he was asked to lift his shirt, he asked why the officers were " stopping us," and Det. Aeschlimann

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responded " because it's a drug area." (Det. Aeschlimann did not contradict this account during his previous testimony and the Government did not recall him to refute Jones's statement.) Jones testified that at no point did he feel free to go. He explained that he did what the detective asked because he believed that the detectives were " looking for us to do something wrong at the time." He further explained that it was not just the presence of the police officers but their manner that led him to conclude that he was not free to go: " it wasn't" " just like how are you doing? Hey, how is your day going? It wasn't like that. It was all of a sudden, ‘ Lift your shirt. Can I pat you down?’ From the beginning."

Not until after the shirt lift and pat down did Det. Aeschlimann ask Jones for identification. Jones replied that he left his license at home. Det. Aeschlimann testified that beginning at that point in the encounter, Jones would not have been free to leave, but rather " was being detained" for driving a motor vehicle without having his driver's license with him in violation of state law. See Va.Code § 46.2-104. Det. Aeschlimann then asked Jones for his personal information, and Jones gave him a false name, date of birth, and Social Security number. Unable to find this information in any of the state databases, Det. Aeschlimann confronted Jones. Jones then provided his true name and date of birth. Either just before or just after Jones gave his true...

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