United States v. Davis, Criminal Action No. 2:12–cr–00120.

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
Writing for the CourtTHOMAS E. JOHNSTON
Citation906 F.Supp.2d 545
PartiesUNITED STATES of America, Plaintiff, v. Mark DAVIS, Defendant.
Docket NumberCriminal Action No. 2:12–cr–00120.
Decision Date29 November 2012

906 F.Supp.2d 545

UNITED STATES of America, Plaintiff,
Mark DAVIS, Defendant.

Criminal Action No. 2:12–cr–00120.

United States District Court, S.D. West Virginia.

Nov. 29, 2012.

[906 F.Supp.2d 547]

William B. King, II, U.S. Attorney's Office, Charleston, WV, for Plaintiff.

Lex A. Coleman, Federal Public Defender's Office, Charleston, WV, for Defendant.


THOMAS E. JOHNSTON, District Judge.

Pending is Defendant's motion to suppress and to dismiss portions of his indictment [Docket 19]. The United States filed its response on September 18, 2012 (Docket 32). On September 24, 2012, the Court heard evidence and argument on Defendant's motion. Thereafter, the parties filed supplemental briefing (Docket 49, 50). On November 28, 2012, Defendant filed a motion to continue the December 4, 2012, trial of this case [Docket 56]. For the reasons that follow, the Court DENIES both motions.


On April 30, 2012, at about 10:00 a.m., a three-man United States Marshal Service fugitive task force arrested Defendant in his Rand, West Virginia home pursuant to a misdemeanor arrest warrant issued from the District of South Carolina.1 The basis for the arrest was Defendant's failure to pay fines and fees assessed in connection with Defendant's misdemeanor convictions for trespassing on and theft of artifacts from a national wildlife refuge.

Prior to making the arrest, United States Deputy Marshal William Seckman received background information concerning Defendant. This information included a photograph of Defendant, a description

[906 F.Supp.2d 548]

of his physical characteristics and his car, and possible home addresses associated with Defendant. Seckman also learned that Defendant had a prior criminal history involving acts of violence and drugs, that is, a felonious assault conviction and domestic violence, drug, and weapons arrests. The lead report from South Carolina warned arresting officers that Defendant was “confrontational” and that he had surveillance cameras posted in the driveway of his South Carolina home. (Docket 11–1 at 1.)

With this background information, Deputy Marshal Seckman went to an address in Rand, West Virginia, where Defendant was believed to be residing. Seckman was accompanied by United States Deputy Marshal Matthew Ingram and Kanawha County Sheriff's Office Deputy J.M. Launi, a member of the United States Marshals Service fugitive task force. Upon their arrival, the officers observed a vehicle in the driveway matching the description they had been given of Defendant's car. Seckman and Ingram then went to the front door of the small, single-story house while Deputy Launi posted around the rear to guard the back door. As they approached the door, Seckman noticed a surveillance camera mounted in the window to the right of the front door. The front door had a window in the upper half of the door equipped with a set of metal venetian blinds on the inside. The blinds were closed, obscuring the Marshals' view into the interior of the house. The frame of the doorway was fitted with a screen door that was locked. Deputy Marshal Seckman blocked the lens of the surveillance camera while Ingram knocked on the door. Defendant came to the door and peeked through the blinds. Ingram and Seckman, recognizing Defendant from the photograph supplied by the South Carolina authorities, identified themselves, told Defendant they had a warrant for his arrest, and ordered him to open the door. Defendant said he could not open the door. Ingram and Seckman once again instructed Defendant to open the door, and Defendant again stated he could not. Deputy Marshal Seckman testified that he observed Defendant backing away from the door, so he left Ingram, jumped off the porch, and ran around to the rear of the house where Launi was waiting. Ingram then—for the third time—yelled for Defendant to open the door. This time Defendant explained he needed to get a key to open the deadbolt lock and disappeared into the interior of the house.2

Ingram yelled out to warn Seckman and Launi that he could no longer see Defendant. Ingram then heard the back door being kicked in and then heard Seckman twice announce “Marshals. Put your hands up and get down on the ground.” (Docket 51 at 69.) Contemporaneously, Ingram forced entry through the front door and entered into a small living room, just as Launi was handcuffing Defendant, who was at that point lying on the floor. The arrest took place about five or six feet from the front door and in an area that was in or adjacent to the central interior hallway of the house. Seckman was standing near Defendant's head with his weapon drawn.

The interior of Defendant's house was very small and consisted of a four-square floor plan with a small, central interior hallway. The front two rooms were the living room, on the right, and a small

[906 F.Supp.2d 549]

bedroom, on the left. Defendant's bedroom and the kitchen comprised the back quadrants of the house. The interior hallway, which was at or immediately adjacent to the place where Defendant was arrested, opened into four of the five rooms in the house, that is, the front bedroom, the living room, the bathroom, and Defendant's bedroom in the left rear of the house. As Launi and Seckman were securing Defendant, Ingram looked down the hallway and spotted a rifle prominently propped up on a heater in the rear bedroom.3 The rear bedroom was approximately seven feet away from where Defendant lay handcuffed.

With his weapon drawn, Ingram entered the rear bedroom. After ensuring that no one else was in the room, Ingram examined the rifle. It was an AR–15, fully loaded assault rifle fitted with a large, unsheathed knife bayonet. Ingram unloaded the rifle and set it back down. He then turned to do a protective sweep of the rest of the house to “clear it of any other persons.” ( Id. at 70.) As he turned to leave the room, however, he noticed a handgun nestled on a shelf in the headboard of Defendant's bed next to a pillow. That gun, too, was loaded. Ingram unloaded it, left the back bedroom, “cleared” the bathroom, and, along with Deputy Launi, who also had his weapon drawn, entered the front bedroom. Finding nobody, Ingram and Launi opened the closet, saw a locked gun safe and a bulletproof vest or so-called “body armor,” and they yelled out to Seckman what they had found. With all rooms cleared, Seckman advised the officers that they would obtain a search warrant. From the time the officers first knocked on the front door to the point they decided to obtain the search warrant was five minutes. The protective “sweep” was completed in “a couple of minutes.” ( Id. at 61.)

Upon receipt of the search warrant, the officers opened the safe and found four more rifles, a shotgun, and another pistol. On May 22, 2012, a federal grand jury returned a two count indictment charging Defendant with violations of 18 U.S.C. §§ 922(g) and 924(a)(2), felon-in-possession (Count One); and 18 U.S.C. §§ 931 and 924(a)(7), felon-in-possession of body armor (Count Two).


Defendant moves to suppress the firearms and body armor ( i.e. the bulletproof vest) seized from his house on the grounds that the evidence was seized in violation of his Fourth Amendment rights. He argues that, in the event this evidence is suppressed, the indictment against him must be dismissed because the United States will not be able to prove the crimes charged. (Docket 19.) In the same motion, he also seeks dismissal of Count Two, arguing that the body armor statute infringes “upon his fundamental right to self-defense in his own home” under the Second Amendment, is unconstitutionally vague in violation of his Fifth Amendment due process rights, and violates the Commerce Clause. ( Id. at 1–2.)

[906 F.Supp.2d 550]

For the reasons that follow, the Court rejects each of these contentions.

A. Motion to Suppress Evidence of Firearms and Body Armor

Defendant contends that evidence of the firearms and the body armor seized from his house should be suppressed because the law enforcement officers “performed an untimely ‘protective sweep.’ ” ( Id. at 4.) He reasons that, because he was handcuffed and subdued at the time of the sweep, he posed no risk to the officers' safety and, thus, there was no need for a protective search of the premises. ( Id.) He contends that United States v. Laudermilt, 677 F.3d 605, 610 (4th Cir.2012) stands for the proposition that “a protective sweep may last no longer than is needed to arrest the suspect and leave the premises.” (Docket 19 at 3.) (emphasis added by Defendant). He further argues that, because the officers “obtained a search warrant based on matters observed through the protective sweep,” all evidence seized pursuant to the search warrant should be suppressed. ( Id. at 4.) He contends that without evidence of the firearms and the bulletproof vest, the United States cannot prove the crimes charged and Counts One and Two necessarily must be dismissed. ( Id. at 4.)

The United States responds that, because the officers were lawfully present at the time they arrested Defendant and because the assault rifle was in plain view at the time of the arrest, the officers had probable cause to obtain a search warrant for the remainder of the house. (Docket 32 at 5.) Additionally, the United States argues that incident to Defendant's arrest, the officers were entitled to look in all areas immediately adjoining the place of arrest from which an attack could be mounted and could lawfully make such a protective sweep without probable cause or reasonable suspicion that their safety was in jeopardy. ( Id. at 6.) As a fallback position, the United States contends that even if the protective sweep were improper, the officers would have inevitably discovered the firearms in the safe and the bulletproof vest because they had probable cause to obtain a search warrant based on the assault rifle being in plain view. ( Id. at 9.)

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4 cases
  • Fouts v. Bonta, Case No.: 19-cv-1662-BEN (JLB)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 22 Septiembre 2021
    ...252, 254, 6 S.Ct. 580, 29 L.Ed. 615 (1886) (implicitly assuming Presser's cavalry sword was an "arm."); cf. United States v. Davis , 906 F. Supp. 2d 545, 557 (S.D.W. Va. 2012) (bulletproof vest is not an "arm").8 There is a lack of evidence from either party. Had the Heller analysis here no......
  • Fouts v. Bonta, 19-cv-1662-BEN (JLB)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 22 Septiembre 2021
    ...of State of Ill., 116 U.S. 252, 254 (1886) (implicitly assuming Presser's cavalry sword was an “arm.”); cf. United States v. Davis, 906 F.Supp.2d 545, 557 (S.D. W.Va. 2012) (bulletproof vest is not an “arm”). [8] There is a lack of evidence from either party. Had the Heller analysis here no......
  • Bell v. United States, CIVIL ACTION No. 13-5533
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 24 Octubre 2013
    ...Second Amendment. Compare id. (citing historical sources defining arms as including "armour of defence"), with United States v. Davis, 906 F. Supp. 2d 545, 557 n.6 (S.D. W. Va. 2012) (holding that, despite the definitions cited in Heller, "the assertion that [the Second Amendment] right ext......
  • United States v. Barker, CRIMINAL NO. 1:13CR18
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 26 Junio 2013
    ...is small, an immediately adjoining room is searchable under the 'protectivePage 17sweep' exception."); United States v. Davis, 906 F. Supp. 2d 545 (S.D. W. Va. 2012) (holding that where a defendant was arrested at the center point of a "very small [home], consisting of a single-story four-s......

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