U.S. v. White
| Decision Date | 17 November 2009 |
| Docket Number | Criminal No. 3:09-cr-00021. |
| Citation | 670 F.Supp.2d 462 |
| Parties | UNITED STATES of America v. Branden Altomorre WHITE, Defendant. |
| Court | U.S. District Court — Western District of Virginia |
Ronald Mitchell Huber, United States Attorneys Office, Charlottesville, VA, for Plaintiff.
Frederick Theodore Heblich, Jr., Federal Public Defenders Office, Charlottesville, VA, for Defendant.
This matter is before the Court on Defendant Branden White's Motion to Suppress Evidence (docket no. 21). For the reasons set forth in the following Memorandum Opinion, the Defendant's Motion to Suppress Evidence will be DENIED in an Order, to follow.
On the evening of March 31, 2009, the Charlottesville Police Department received "reports of shots fired," and at approximately 11:20 p.m.,1 units were dispatched to the 700 block of Prospect Avenue in the Blue Ridge Commons housing development. While the units were en route, a further report notified the Police Department that someone had been shot, and was being driven to the hospital in a friend's car.2
At the same time, Officer Dean, a uniformed police officer with the Charlottesville Police Department, was near the 600 block of Monticello Avenue on unrelated police business. Upon hearing the report of the shooting, Officer Dean began to drive to Prospect Avenue in his marked patrol car, intending to travel westbound along Elliott Avenue to 5th Street S.W., where a field abuts the rear of the Blue Ridge Commons development. As Officer Dean drove to Prospect Avenue, he testified that he saw four or five other people who were out on the street. Officer Dean stopped and talked to one individual who "appeared to duck behind some bushes" as he had driven past—asking him to take his hands out of his pockets and getting his identification—before releasing him when the call placed on the radio checked out.3
Following this, when Officer Dean reached the 100 block of Elliott Avenue, he saw an individual (later identified as Cordrick Dade) at the corner of Elliott Avenue and Ware Street. In the Officer's opinion and experience, he believed "[s]ufficient time had passed since the shooting that ... someone involved in the shooting could have travelled to this location[.]" Government's Memorandum in Reply, at 2. This location is between .45 and .87 miles from 700 Prospect Avenue, the location at which it was reported that shots had been fired.4 Officer Dean made a U-turn, pulled the patrol car up along the curb ahead of Mr. Dade, who had also been heading westbound. Officer Dean got out of the patrol car, stepped in front of Mr. Dade, and asked to see his hands because "somebody got shot." In the course of asking for Mr. Dade's identification and where he lived, Officer Dean stated that since the shooting, "it's been a few minutes now that's why we're out here canvassing the area." When Mr. Dade volunteered, "I don't fit the description[,]" Officer Dean responded: During this interaction, Officer Dean stood on the sidewalk, and Mr. Dade was seated on a guardrail that ran along the side of the sidewalk furthest from the road.
At this point, the Defendant approached walking eastbound (from the direction of Blue Ridge Commons) on the same sidewalk toward Officer Dean and Mr. Dade. When he neared the two, the Defendant stepped off the sidewalk and onto the street (and around the parked police car) to walk around the area where the Officer and Mr. Dade were congregated. To Officer Dean, this action made it appear as if the Defendant were trying to avoid him. Officer Dean testified that he believed there was enough space between the patrol car and the sidewalk for the Defendant to have passed through, and that such a course of movement would not have made him suspicious that the Defendant was trying to avoid him.5 In addition, the Officer could see a "visible sheen of sweat on [the Defendant's] brow," which was noticeable because light from the street lights was "glinting off his skin." The sweat drew Officer Dean's attention because he testified that "it was a cold night," and he estimated the temperature to be "between 30 and 40 degrees, if not lower." The Officer testified that the Defendant appeared to have "slightly elevated breathing," as if due to "physical exertion," or, as the Officer believed, "under the influence of adrenalin of some sort, fright, fear, fight or flight response." Finally, the Officer noticed that as the Defendant approached, his eyes "seemed overly large," and that his hands were in his pockets. When the Defendant walked around the patrol car, Officer Dean turned his flashlight on him and the following conversation transpired.
Officer: Come over here real quick man?
[Defendant walks up to the Officer]
Officer: Where you guys coming from?
Defendant: I'm coming from getting off the bus ... and I'm going home ... off of work.
Officer: Off the bus? Where you working at?
Defendant: UVA.
Defendant: Yeah.
Officer: Keep your hands out of your pockets for me alright? We had somebody get shot. So they have me out here looking at people.
Defendant: You know I'm trying to go home ... I'm tired.
Officer: I understand ... hang tight for me alright?
[Officer turns his attention back to the radio dispatcher]
After concluding his encounter with Mr. Dade and telling him to have a good night, Officer Dean began asking the Defendant for his name, date of birth, at which stop he got off the bus, and where he worked. The Defendant answered all of the aforementioned questions. Officer Dean made the following observations during this series of questions:
Defendant angled the right side of his body away from Dean, as if he were attempting to keep that part of his body out of the officer's line of sight. .... Dean observed Defendant's right arm and hand move down to the area of his right waist several times, as if checking to make sure something was still there. Based on his training and experience as a police officer, Dean believed Defendant's actions to be consistent with the behavior of an individual carrying a concealed firearm without the benefit of a holster. These observations caused Dean to be suspicious that Defendant was perhaps armed and may have been involved in the shooting that had just occurred.
Government's Memorandum in Reply, at 2-3. After this series of questions, the following conversation transpired:
Defendant: Can I go home, please ... man, I'm tired.
Officer: ... Yeah, just a second. I have to make sure you're not wanted.
Defendant: Oh yeah ... got a job ... no warrants ... graduated high school and everything.
Officer: We don't know who did the shooting. All we know is that it was done.
Officer Dean called in a warrant check to the dispatcher for the Defendant, which came up negative. The Officer then asked whether the Defendant had any weapons on him, which the Defendant denied several times, and objected that Mr. Dade had not been subject to a pat down. Officer Dean explained what the pat down entailed while conducting the brief pat down the outside of the Defendant's clothing. According to Officer Dean, he Government's Memorandum in Reply, at 3. When Officer Dean asked the Defendant what the object was, Defendant replied, "Nothing," and immediately fled.
Officer Dean pursued the Defendant and fired a taser, which missed. As the Defendant ran away, he tripped and fell on the sidewalk, and a black revolver fell from his waist to the ground. Officer Dean soon thereafter apprehended the Defendant and placed him in custody. In a search incident to the arrest, Officer Dean found a "small quantity" of marijuana on the Defendant's person.
On March 31, the Defendant was arrested by the Charlottesville Police Department and charged with four misdemeanors: (1) possession of a concealed weapon, in violation of Virginia Code § 18.2-308; (2) discharge of a firearm in a public place, in violation of Virginia Code § 18.2-280; (3) possession of a stolen firearm, in violation of Virginia Code § 18.2-108.1; and (4) simple possession of marijuana, in violation of Virginia Code § 18.2-250.1.
On June 10, 2009, the Defendant was indicted by the grand jury in the Western District of Virginia and charged in Count One with being an unlawful user of marijuana in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3), and in Count Two with simple possession of marijuana, in violation of 21 U.S.C. § 844, a misdemeanor.
On July 6, 2009, the state charges were dismissed, and the Defendant was arrested on the indictment. He had his initial appearance on July 7, 2009. On October 13, 2009 the Court held a suppression hearing. On October 16, the Defendant filed a Supplemental Memorandum in Support of Motion to Suppress Evidence that responded to an informal memorandum submitted by the Government at the suppression hearing, which had distinguished cases cited in Defendant's original Memorandum.
The Fourth Amendment is not implicated in all interactions between law enforcement officers and private individuals. See Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (). A law enforcement officer can approach someone on the street, "ask[ ] him if he is willing to answer some questions," and can then "put[ ] questions to him if the person is willing to listen." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion). See also United...
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