U.S. v. General
| Decision Date | 01 May 2006 |
| Docket Number | No. 5:05-CR-125-1D.,5:05-CR-125-1D. |
| Citation | 435 F.Supp.2d 502 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | UNITED STATES of America v. Maurice Terrell GENERAL, Defendant. |
Sherri R. Alspaugh, Federal Public Defender's Office, Raleigh, NC, for Maurice Terrell General (1), Defendant.
Robert Skiver, Office of U.S. Attorney, Eastern District of North Carolina, Raleigh, NC, for USA, Plaintiff.
On May 4, 2005, a federal grand jury indicted Maurice Terrell General ("General" or "defendant") for (1) possession with the intent to distribute cocaine base (crack), (2) knowingly carrying a firearm during and in relation to a drug trafficking crime, (3) being a felon in possession of a firearm, and (4) being a felon in possession of ammunition. On February 10, 2006, General filed a Motion to Suppress and Incorporated Memorandum of Law. On April 19, 2006, the court held an evidentiary hearing. As explained below, the motion to suppress is denied.
The court makes the following findings of fact. In making these findings, the court has considered the testimony of Officer Walker, the exhibits attached to the defendant's motion to suppress, and the exhibit that the government introduced at the hearing.
On September 25, 2004, at approximately 5:30 a.m., while patrolling a known high-crime area, Fayetteville Police Officers Fette and Walker observed a blue Dodge Neon parked (along with three or four other cars) in the yard at 116 Scott Avenue in Fayetteville, North Carolina. See Hr'g Tr. 2-4. Although dawn was breaking, it was dark outside. Id. at 6. Both officers were familiar with this one story house. Officer Walker testified that within the previous six months there had been "over a dozen" calls to the police on Walker's shift about illegal drug activity at that house and that there had been an arrest arising from the possession of a stolen car found in the yard at that house. Id. at 5-6. Officer Fette had made a narcotics arrest at that house several months earlier and Walker was aware of that arrest. Id. at 5. Additionally, the officers knew that there had been several calls to the police about shots being fired within a block or half-mile radius of the house. Id. at 4-5. There had been no calls to the police about the house or the neighborhood during the evening of September 24 or the early morning of September 25, 2004. See id. at 11-12.
Officer Fette began writing down the license plate numbers of the cars in the yard. Id. at 15. Officer Walker observed that General and another man appeared to be unconscious in the driver and passenger seats of the Neon, respectively. Id. at 6-7. Walker notified Fette of their presence. Id. at 7. Walker approached the driver's door, while Fette went to the passenger's door. Walker knocked on the window. Id. at 7. General and the passenger each opened their eyes. Walker asked General to step out of the car, and General got out of the car. See id.; Def. Mot. Ex. C, Walker Narrative. After General was out of the car, Walker asked General if he was okay because he was unsure if General was unconscious, hurt, or just sleeping. Hr'g Tr. at 8. General said he was fine and placed his right hand on his right thigh. Id. Based on this hand movement, Walker feared that General might have a weapon. Id. Walker told General to remove his hand from his thigh, face away from Walker, and place his hands on the car. Id. Walker then began a pat-down of General's right leg. General put his right hand back on his right thigh. Id. Walker told him to put his hand back on the car, but General ran away. Id. at 8-9. After the officers chased and caught General, Fette detained and searched him. Id. at 9. Fette found a loaded .38-caliber revolver, four individually wrapped packages of cocaine base in his right pocket, and four or five bullets in his left pocket. Id. at 9. The individually wrapped packages field tested positive as 1.6 grams of crack cocaine. See Def. Mot. Ex. A at 1, Statement of Investigating Officer in Detail. The officers seized the drugs, gun, and bullets and arrested General.1
General alleges that the police-citizen encounter between General and Officers Fette and Walker became an investigative detention when Walker asked General to step out of the car. Def. Mot. 3 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Additionally, General claims that the investigative detention was illegal because the officers lacked a reasonable, articulable suspicion that "criminal activity may be afoot." Def. Mot. 3-5 (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Accordingly, General argues that because the initial stop and frisk was illegal, all subsequently seized evidence must be suppressed. Def. Mot. 5 (citing United States v. Terzado-Madruga, 897 F.2d 1099, 1112 (11th Cir.1990); Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Weeks v. United States, 232 U.S. 383, 391-93, 34 S.Ct. 341, 58 L.Ed. 652 (1914)).
"The Supreme Court has identified three distinct types of police-citizen encounters, each requiring a different level of suspicion to be deemed reasonable under the Fourth Amendment: (1) arrest, which must be supported by probable cause; (2) brief investigatory stops, which must be supported by reasonable articulable suspicion; and (3) brief encounters between police and citizens, which require no objective justification." United States v. Brown, 401 F.3d 588, 592 (4th Cir.2005) (quotation omitted).
"[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or another public place." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quotation omitted). In Bostick, the Court evaluated the constitutionality of the search of a bus passenger's bag when armed sheriff's deputies boarded the bus during a stopover, and, without articulable suspicion, asked to inspect the defendant's ticket and identification, returned the documents, and then asked for consent to search the defendant's luggage. Id. at 431-32, 111 S.Ct. 2382. The Court reiterated that, "[s]o long as a reasonable person would feel free to disregard the police and go about his business, ... the encounter is consensual and no reasonable suspicion is required." Id. at 434, 111 S.Ct. 2382 (quotation omitted). Additionally, under circumstances where the defendant's "freedom of movement [is] restricted by a factor independent of police conduct[,] ... the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." Id. at 436, 111 S.Ct. 2382.
As part of a "police-citizen encounter" described in Bostick, "an officer is not entitled, without additional justification, to conduct a protective search." United States v. Burton, 228 F.3d 524, 528 (4th Cir.2000). Rather, "an officer may not conduct [a] protective search for purposes of safety until he has a reasonable suspicion that supports the investigative stop ... [because] ... [p]olicemen have no more right to pat down the outer clothing of passers-by, or persons to whom they address casual questions, than does any other citizen.'" Id. (quoting Terry, 392 U.S. at 32, 88 S.Ct. 1868 (Harlan, J., concurring)); see United States v. Sakyi, 160 F.3d 164, 169 (4th Cir.1998) ().
A Terry stop is different. Under Terry, an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is or may be afoot. See United States v. Arvizu, 534 U.S. 266, 273-75, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); Sokolow, 490 U.S. at 7-11, 109 S.Ct. 1581. "Though the quantum of suspicion necessary for a Terry stop is less demanding than that for probable cause, an officer must be able to articulate something more than an inchoate and unparticularized suspicion or hunch." Brown, 401 F.3d at 596 (quotations omitted). As part of a Terry stop, an officer may conduct "a reasonable search for weapons for the protection of the police officer, where [the officer] has reason to believe that [the officer] is dealing with an armed and dangerous individual, regardless of whether [the officer] has probable cause to arrest the individual for a crime." Terry, 392 U.S. at 27, 88 S.Ct. 1868. In Terry, the Court expressly approved a pat-down of the petitioner's outer garments to check for weapons. Id. at 29-31, 88 S.Ct. 1868.
Here, the government argues that numerous factors supported the officers' reasonable suspicion that criminal activity may have been afoot: (1) General and another person appeared to be unconscious in a parked car; (2) the car was parked in front of a house known to be the scene of approximately a dozen recent complaints about illegal narcotics activity and one of the officers had recently made a drug arrest at the house; (3) the car was parked (along with three or four other cars) in a yard at a house where there had been a recent arrest involving possession of a stolen car; (4) the house was in a high-crime area; (5) it was 5:30 a.m. and still dark; (6) when General got out of the car he touched his right thigh and thereby made Officer Walker believe that he might have a weapon; and (7) when Officer Walker began a pat-down, General ran away.
General argues that he was seized for Fourth Amendment purposes when Walker asked him to exit the car. General relies on ...
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