U.S. v. Gunn

• Decision Date: 24 June 1997
• Docket Number: Criminal Action No. 97-181-A.
• Citation: 968 F.Supp. 1089
• Parties: UNITED STATES of America, Plaintiff, v. Antonio Lamont GUNN, and Collins Kusi Sakyi, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

968 F.Supp. 1089

UNITED STATES of America, Plaintiff, v. Antonio Lamont GUNN, and Collins Kusi Sakyi, Defendants.

Criminal Action No. 97-181-A.

United States District Court, E.D. Virginia, Alexandria Division.

June 24, 1997.

Helen F. Fahey, United States Attorney, Elizabeth A. Jex, Special Assistant United States Attorney, Alexandria, VA, for U.S.

Robert Stanley Powell, Arlington, VA, for Defendant Sakyi.

Frank Salvato, Alexandria, VA, for Defendant Gunn.

MEMORANDUM OPINION

ELLIS, District Judge.

This is a prosecution of two defendants arrested after a routine traffic stop resulted in the discovery of drugs and a firearm. Both defendants filed pretrial severance and suppression motions, which motions presented two questions of special significance:

(1) whether a police officer may conduct a pat-down search on any passenger lawfully ordered to exit a vehicle after a traffic stop or whether the validity of such a search requires reasonable, articulable suspicion based on the totality of the circumstances; and

(2) whether a charge of weapon possession by a felon should be severed from other charges because of the "spillover" prejudicial effect on the other charges of disclosing to the jury that defendant has a prior felony conviction.

I

The pertinent facts are easily and briefly summarized. While patrolling in the early evening of April 2, 1997, Officer Frank Ferstl, a uniformed member of the U.S. Park Police, observed a brown Plymouth traveling southbound on the George Washington Parkway with a defective left brake light. Officer Ferstl followed the Plymouth briefly to confirm that the brake light was not working. Then, at the exit to Belle Haven Road, he pulled the vehicle over to issue the driver a traffic citation. Safety concerns prompted him to approach the vehicle on the passenger's side. There, he asked the driver, defendant Antonio Lamont Gunn, for his license and registration. In response, Gunn informed Officer Ferstl that he had forgotten his license, that the Plymouth actually belonged to his girlfriend who had loaned it to him, and that the vehicle title was in the glove compartment. When Gunn opened the passenger's side glove compartment to retrieve the title, Officer Ferstl, from where he was standing, noticed a Phillies Blunt cigar box in plain view. Officer Ferstl considered this fact to be significant because, in his six and one half years of experience as a U.S. Park Police Officer, he had frequently observed that Phillies Blunt cigar boxes were used with marijuana.¹ As he handed the vehicle title to Officer Ferstl, Gunn told Officer Ferstl his name, date of birth, and social security number. Then, Officer Ferstl asked Gunn about the status of his license. In response, Gunn contradicted his earlier statement, noting that he had never obtained a license.

Now certain that Gunn could not drive the vehicle away from the scene, Officer Ferstl asked Gunn's passenger, defendant Collins Kusi Sakyi, whether he had a valid driver's license. Sakyi replied that he did, but did not have it with him at that time. Sakyi also told Officer Ferstl that his name was Michael Sakyi, that he was born on May 2, 1968, and that his social security number was 230-53-9492. This information proved to be false, although Officer Ferstl did not learn this until later.

Officer Ferstl then radioed this information to the U.S. Park Police communications center and requested a computer check of Gunn's driving status. While waiting for the requested information, Officer Ferstl asked Gunn to step out of the vehicle. Officer Ferstl queried Gunn about whether the Plymouth contained any contraband. Gunn promptly responded that "[t]here isn't any." Officer Ferstl again asked that question, and Gunn offered the same reply. Following this exchange, the communication center verified what Officer Ferstl had suspected, namely that Gunn's license had been revoked. Officer Ferstl then arrested Gunn for operating a vehicle on a revoked license and placed him in the rear of his cruiser.

At about this time, U.S. Park Police Lieutenant David H. Stover arrived on the scene. While Lieutenant Stover kept his eye on Gunn, Officer Ferstl asked Sakyi to exit the Plymouth so that the vehicle could be searched incident to Gunn's arrest. Sakyi readily cooperated. Before conducting the vehicle search, Officer Ferstl proceeded to subject Sakyi to a pat-down search for weapons. According to both Officer Ferstl and Lieutenant Stover, as Officer Ferstl patted Sakyi down, a piece of tin foil fell from Sakyi's right pant leg onto the ground. Suspecting that the tin foil contained "crack" cocaine, Officer Ferstl opened it and observed a white rock-like substance, which he believed (and tests later confirmed) was crack cocaine. Sakyi was then placed under arrest and put in the cruiser.

Officer Ferstl then searched the Plymouth and recovered an unloaded Remington Viper .22 caliber rifle from the trunk. When Officer Ferstl brought the weapon to his cruiser, both Gunn and Sakyi volunteered that the rifle was a BB gun. After securing the rifle in his trunk, Officer Ferstl transported Gunn and Sakyi to the Fairfax County Police Station at Mt. Vernon for processing. There, Officer Ferstl advised both Gunn and Sakyi of their Miranda rights, and they both elected to answer his questions. A subsequent computer search at the station disclosed Gunn's prior felony conviction for possession of cocaine with intent to distribute.

On April 24, 1997, a federal grand jury returned a three count indictment charging Gunn with three offenses and Sakyi with one. Specifically, Gunn was charged with: (i) possession with intent to distribute 5 grams or more of crack cocaine and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count I); (ii) possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g) (Count II); and (iii) operating a motor vehicle after revocation, in violation of 36 C.F.R. § 4.2, assimilating Va. Code § 46.2-301 (Count III). Sakyi was charged only in Count I with aiding and abetting the drug trafficking violation.

Both defendants filed pretrial motions. Both filed separate motions to sever their joint trial on the ground that joinder would result in prejudice under Rule 14, Fed. R.Crim.P. In his motion, Sakyi contends that evidence of Gunn's prior felony conviction under Count II would unfairly prejudice the jury's consideration of Count I, while Gunn argues that Sakyi's allegedly inculpatory statements concerning the charges against Gunn would impair his ability to obtain a fair trial. Further, Gunn seeks to sever Count II from Counts I and III pursuant to Rules 8(a) and 14, Fed.R.Crim.P. In particular, Gunn asserts that the felon possessing a firearm count is not sufficiently related to the other counts and that, in any event, the inevitable introduction of prior crimes evidence would create undue prejudice. Finally, both Gunn and Sakyi independently sought to suppress evidence and statements related to their arrest by Officer Ferstl. Oral argument on the motions was heard on June 9, 1997, after which Sakyi's motion to suppress and the motions to sever were taken under advisement, Gunn's motion to suppress was denied, and the parties were directed to submit supplemental authority. United States v. Gunn and Sakyi, Crim. No. 97-181-A (Order, June 9, 1997). The parties complied, and the outstanding motions were resolved by Order dated June 18, 1997. United States v. Gunn and Sakyi, Crim. No. 97-181-A (Order, June 18, 1997). Specifically, Gunn's motion to sever Count II was granted, Gunn's and Sakyi's motions to sever their joint trial were denied, and Sakyi's motion to suppress all evidence seized as a result of Officer Ferstl's pat-down was also denied. This Memorandum Opinion elaborates on these rulings.

II

In his motion to suppress, Sakyi contends that Officer Ferstl was not justified in conducting the pat-down that ultimately uncovered the tin foil containing "crack" cocaine. In particular, Sakyi maintains that he cooperated fully and that Officer Ferstl lacked the reasonable suspicion necessary to "frisk" him for weapons. The government counters that the "totality of the circumstances" supported Officer Ferstl's decision to search Sakyi.

The principles dispositive of this dispute are well-established. In Whren v. United States, ___ U.S. ___, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the Supreme Court recently confirmed that probable cause to believe that a routine automobile violation has occurred justifies a traffic stop. As a general rule, an ordinary traffic stop constitutes a "seizure" within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). But since a traffic stop is a limited seizure, more akin to an investigative detention than a custodial arrest, the reasonableness of such a stop is assessed under the precepts of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3149-50, 82 L.Ed.2d 317 (1984); United States v. Rusher, 966 F.2d 868, 875 (4th Cir.), cert. denied, 506 U.S. 926, 113 S.Ct. 351, 121 L.Ed.2d 266 (1992).

Specifically, Terry commands that a police officer have a reasonable suspicion, based on articulable facts, that criminal activity is afoot. Terry, 392 U.S. at 29, 88 S.Ct. at 1883-84; see also United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); United States v. Crittendon, 883 F.2d 326, 328 (4th Cir.1989). And during the brief stop, the officer may conduct a limited, protective search for weapons provided he has articulable suspicion to believe that the detained individual is armed and dangerous. See Terry, 392 U.S. at 30, 88 S.Ct. at 1884-85; Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). But a "stop and frisk," as such an event is commonly called, must not be based on...