U.S. v. Morton
| Decision Date | 02 November 2005 |
| Docket Number | No. CRIM. 3:05CR256.,CRIM. 3:05CR256. |
| Citation | 400 F.Supp.2d 871 |
| Parties | UNITED STATES of America v. Fred L. MORTON, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Carolyn V. Grady, Esquire, Office of the Federal Public Defender, Richmond, VA, for Defendant.
This matter is before the Court on Defendant's Motion to Suppress (Docket No. 15) a handgun confiscated from Defendant by police and Defendant's statement that he was a convicted felon, which he spontaneously uttered while being detained by officers investigating whether he was illegally in possession of a handgun. For the reasons set forth below, the motion is denied.
On December 30, 2004, Detective T. Walker received a telephone call from a confidential informant ("CI"), who previously had provided information to Walker which always had proved to be accurate. The CI, who identified himself when he called, had been a paid informant providing information to Walker since 2001, and throughout that time, the CI's information had resulted in the issuance of five arrest warrants and approximately a dozen arrests.
On December 30, 2004, the CI reported that, while he was in the Community Pride grocery store located in the 1900 block of Mechanicsville Turnpike, he had seen a man carrying a handgun concealed under his long white T-shirt. The CI saw the handgun when the man lifted his T-shirt above his waist to show the CI the gun, which was in the man's pants pocket.
Walker asked for a description of the man, and the CI responded that he was a light-skinned black male, wearing a long white T-shirt under a dark colored jacket, blue jeans, blue and yellow Nike sneakers, a fitted baseball cap and a black glove on one hand. When asked about the color of the jacket, the CI said that he was not sure whether it was blue or black, but that it was one or the other. The CI did not provide any other descriptive information about the man.1
About five minutes after the CI's initial call, Walker, along with several other officers, set up a surveillance outside the Community Pride store. Upon arrival, Walker called the CI to ask the whereabouts of the suspect. At that time, Walker saw the CI walk from his vehicle in the parking lot into the store. A short time later, the CI appeared at the entrance to the store and called Walker to report that the suspect was no longer in the store. The CI reported that the suspect might have gone to Maddox Street, which is where the CI knew the suspect to "hang out."
The police officers immediately traveled to Maddox Street which is located one street away from Mechanicsville Turnpike, and according to Walker, is situated one to two blocks away from the Whitcomb Court housing projects. Walker, an experienced police officer, explained that Whitcomb Court is known to have a high incidence of crime and that he personally has come into contact with several individuals armed with handguns in the Whitcomb Court area. Walker also testified that other than the CI's tip, Walker knew nothing about Morton.
When Walker arrived on Maddox Street, he saw a light-skinned black man standing in the street with another man both of whom were talking to the driver of a parked vehicle. The light-skinned black man was wearing a black or blue jacket, a long white T-Shirt, and blue and yellow sneakers. The man had his hands in his pockets so that the only descriptor given by the CI which Walker could not visually verify was the report that the man was wearing a black glove on one hand.
Walker, who was wearing a black vest emblazoned with the word "POLICE" in yellow print, exited his unmarked vehicle, approached the defendant to determine whether, as reported by the CI, he was carrying a concealed weapon. As Walker approached Morton, Walker told Morton to remove his hands from his jacket pockets. Morton stared at Walker and did not remove his hands from his pockets. Walker drew his weapon and again ordered Morton to show his hands, but Morton remained frozen and did not comply. At that point, Sgt. Harrison, another of the officers on the scene, approached Morton from behind and held Morton's arms. Morton then took his hands out of his pockets, and the officers were able to handcuff him. Morton had a black glove on one hand. Walker moved closer to Morton, then saw a handgun in Morton's rear pants' pocket, patted down Morton, and retrieved a Glock-9 mm from Morton's pants pocket.
Morton began shouting obscenities at the officers. After he calmed down, and without any questioning by the officers, Morton shouted to some people on a nearby porch that he was "gone for good" because he was a convicted felon. At that point, the officers arrested Morton and subsequently a grand jury indicted him for possession of a firearm by a convicted felon.
The Fourth Amendment protects citizens from "unreasonable searches and seizures." U.S. Const. amend. IV. The jurisprudence animating the Fourth Amendment is well-settled that, in carrying out their duties, law enforcement officers temporarily may stop and detain a citizen "where [the] police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officer must be able to articulate more than an "inchoate and unparticularized suspicion or `hunch'" of criminal activity. Id. at 27, 88 S.Ct. 1868. "If the officer believes that the suspect `may be armed and presently dangerous,' the officer may frisk the person by patting his outer clothing `in an attempt to discover weapons which might be used to assault [the officer]." United States v. Mayo, 361 F.3d 802, 805 (4th Cir.2004) (quoting Terry, 392 U.S. at 30, 88 S.Ct. 1868). As the Fourth Circuit has made clear:
An officer may encounter citizens and attempt to question them without implicating the Fourth Amendment. But during such a police-citizen encounter, an officer is not entitled, without additional justification, to conduct a protective search. To conduct such a protective search, an officer must first have reasonable suspicion supported by articulable facts that criminal activity may be afoot.
United States v. Burton, 228 F.3d 524, 528 (4th Cir.2000). To determine whether an officer had reasonable suspicion justifying a Terry stop, courts look at the totality of the circumstances to assess whether the "officer had `a particularized and objective basis' for suspecting legal wrongdoing." Mayo, 361 F.3d at 805 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)).
Under the totality of the circumstances test, a report of wholly legal activity can establish reasonable suspicion when combined with additional circumstantial factors. See Illinois v. Wardlow, 528 U.S. 119, 125-26, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). Indeed, the purpose of Terry stops are to stop illegal activity before it occurs. Id.
Moreover, courts must give credit to the "practical experience of officers who observe on a daily basis what transpires on the street." United States v. Lender, 985 F.2d 151, 154 (4th Cir.1993). Consequently, "The Supreme Court has consistently rejected the notion that courts can second-guess police officers by speculating on possible innocent reasons for a defendant's actions." United States v. Perkins, 363 F.3d 317, 327 (4th Cir.2004) (citing Arvizu, 534 U.S. at 277-78, 122 S.Ct. 744 (2002)).
In assessing the totality of the circumstances, courts must look to "factors traditionally relied upon by police officers, such as whether a stop occurred in a high-crime area, or whether the suspect engaged in evasive behavior or acted nervously," Mayo, 361 F.3d at 805-06 () (internal citations omitted), as well as information relayed from an informant. Florida v. J.L., 529 U.S. 266, 268, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (anonymous tip); Adams v. Williams, 407 U.S. 143, 146-47 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (); Perkins, 363 F.3d at 320 (quasi-anonymous informant). These general principles guide the resolution of Morton's motion to suppress.
If an informant's tip is relied upon as part of the justification for a Terry stop, the tip, must possess "sufficient indicia of reliability." Perkins, at 323 (citing J.L., 529 U.S. at 270, 120 S.Ct. 1375; Adams, 407 U.S. at 147, 92 S.Ct. 1921). The reliability assessment tests the veracity of the informant and the basis of his knowledge, and, consequently, whether his information is credible enough to provide the basis for the reasonable suspicion required to conduct a Terry stop. See Alabama v. White, 496 U.S. 325, 328-39, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); J.L., 529 U.S. at 272, 120 S.Ct. 1375.
In discussing "the reliability needed for a tip to justify a Terry stop," the Supreme Court also has held that "[t]he reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." J.L., 529 U.S. at 272, 120 S.Ct. 1375. The Court explained that "[a]n accurate description of a subject's readily observable location and appearance is of course reliable" in the sense that Id.2
Several factors in this case establish that the confidential informant here was reliable. The CI revealed his name to Walker and previously had provided tips that had resulted in arrests and convictions. Adams, 407 U.S. at 146, 92 S.Ct. 1921 (...
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