United States v. Derryberry
| Decision Date | 10 February 2023 |
| Docket Number | CRIMINAL 3:22-CR-82-SA-RP |
| Parties | UNITED STATES OF AMERICA v. CHARLES DERRYBERRY DEFENDANT |
| Court | U.S. District Court — Northern District of Mississippi |
On January 20, 2023, the Defendant, Charles Derryberry, filed a Motion to Suppress [41]. The Government filed a Response [46] in opposition. The Court initially held a hearing on the Motion [41] on February 6, 2023. The following day Derryberry filed a Supplemental Brief [57]. In the supplemental filing, Derryberry raised the issue of “newly discovered evidence” and requested that the suppression hearing “be reopened in order to address [] credibility concerns.” [57] at p. 1-2. The Court agreed and held a second hearing on February 9, 2023. Having reviewed all pertinent evidence and considered the applicable authorities, the Court is now prepared to rule.
On July 20, 2022, Derryberry was charged in a one-count Indictment [1]. The single charge against him is for knowing possession of a firearm as a convicted felon. The charge stems from a vehicular stop that occurred around 8:45 PM on Sunday February 27, 2022.
On that night, Captain Jack Theobald of the Lafayette County Sheriff's Office initiated a stop of a white Chevrolet truck, allegedly based on a speeding violation. The vehicle was driven by Jane Smith. Jane's mother, Mary Smith, was in the passenger seat.[1] Derryberry, who was apparently in a romantic relationship with Jane (at least to some extent) was in the back seat.[2] Prior to the stop, Mary sent text messages and made phone calls to Lafayette County Chief Deputy Scott Mills and Criminal Investigator Brad McDonald regarding the presence of narcotics in the vehicle. Mills and Investigator McDonald both testified that Mary had provided information to their Office “off and on” for a period of approximately twenty years prior to the night in question. Neither Mills nor McDonald were on duty on the night in question, but they both relayed this information to Theobald, who was the Captain on duty for the night shift which ran from 6:00 PM to 6:00 AM.
Since some of the information was provided via phone call, there is no written documentation of precisely what Mary told Mills and/or McDonald. But the gist of that information was that there were drugs coming into the Harmontown area in a white Chevrolet truck.[3] The text messages refer only to “product,” but Mills, McDonald, and Mary all testified that Mary provided more specific details as to the type of drugs in their phone conversations. Mills testified that, after communicating with Mary, he told Theobald to attempt to locate the truck and “try to get a stop” on it.
Consistent with this instruction, Theobald, along with Deputies Trae Pruitt and Larry Wellman, attempted to locate the truck. All three were traveling in different vehicles. While traveling east on Highway 310, Theobald saw a truck matching the description. The truck was traveling westbound on Highway 310. Although Theobald was not equipped with a radar gun and was traveling in the opposite direction, he testified that the vehicle was traveling at least ten miles per hour in excess of the posted speed limit of 55 mph. He turned around, chased down the vehicle, and eventually initiated a stop. Pruitt and Wellman arrived at the scene of the stop at some point thereafter.
Although Theobald testified that a brief portion of the stop (at the beginning) was not recorded because he forgot to turn on his body camera, most of the stop was recorded. The footage from Theobald's body camera was admitted at the hearing, in addition to being attached to Derryberry's Motion [41].[4] Theobald testified that, at this time, he did not know which of the passengers was the confidential informant, but at some point during the stop he became aware that Mary was, in fact, the informant. When Theobald approached the truck, Derryberry was laying across the backseat of the truck with his head on the back seat on the passenger side.
Jane exited the truck, and Theobald began conversing with her. After some preliminary questions, Theobald asked her about the presence of narcotics in the truck. After further conversation, he obtained her consent to search the truck. The voluntariness of that consent (or lack thereof) was raised in Derryberry's Motion [41] and will be addressed more fully hereinafter. Nonetheless, Theobald, consistent with Jane's consent, searched the truck. During Theobald's search, Derryberry was standing behind the truck conversing with Pruitt. Eventually, Theobald located a firearm under the back seat on the passenger side-near the place where Derryberry's head had been located when he was laying across the backseat when the stop was initiated.
After locating the firearm, Theobald approached Derryberry (behind the truck) and questioned him about the firearm. During that conversation, Derryberry admitted that he was a convicted felon but adamantly denied owning the gun or even having any knowledge of its presence in the vehicle. Theobald nevertheless placed handcuffs on Derryberry and advised that he would try to get it “straightened out.” Derryberry was not Mirandized at this time. While handcuffed, Derryberry continued to stand beside Pruitt behind the truck. Derryberry then began conversing (loudly) with Jane and Mary, who were located in front of the truck. During this conversation, Derryberry continued to deny ownership of the firearm. However, after some reference was made to all three of them going to jail if nobody took responsibility for the firearm, Derryberry called Theobald back over and advised Theobald that he was going to “hold up” for the firearm. After briefly speaking with Jane and Mary, Derryberry was eventually placed in a police car at the scene-still not having been Mirandized.
Thereafter, a female deputy, Deputy Amanda Drew, arrived on scene. Throughout the stop, Jane consistently requested to be permitted to use the restroom. When Drew arrived, she walked Jane to a nearby place so that Jane could do so. At this time-when Jane was using the restroom and Derryberry was in the police car-Mary told Theobald that she does not know where the drugs are but that her sister told her that they had a % ounce of fentanyl and 1/2 ounce of Ice (methamphetamine). It is undisputed that the deputies never located fentanyl or methamphetamine inside the truck or on the person of Derryberry or Jane.
However, while Jane was using the restroom, Drew did locate a pipe hidden in Jane's pants. Jane then told Theobald that the pipe belonged to Derryberry. Theobald walked to the police car and asked Derryberry about the pipe. During that conversation, Derryberry agreed to also “hold up” for the pipe. He further admitted to having previously used methamphetamine earlier that afternoon but stated that the rest of the drugs had been left behind at a residence in Byhalia, Mississippi. Again, no Miranda warnings were issued to him.
Theobald eventually allowed Jane and Mary to leave the scene in the truck with Mary driving-because Jane did not have a valid driver's license with her. No traffic citations were issued.
In his Motion [41], Derryberry raises multiple arguments in favor of suppression: that the deputies lacked reasonable suspicion to stop the vehicle; that the confidential informant's information was unreliable and incredible; that the stop was pretextual; that Jane's consent to search the vehicle was involuntary and coerced; and that Derryberry was never Mirandized.
“In general, ‘on a motion to suppress, the defendant has the burden of proving, by a preponderance of the evidence, that the material in question was seized in violation of his constitutional rights.'” United States v. Portillo-Saravia, 379 F.Supp.3d 600, 612 (quoting United States v. Roch, 5 F.3d 894, 897 (5th Cir. 1993)). However, “[t]his burden . . . shifts to the Government if the search or seizure in question was performed without a warrant.” Id. (citing United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001)); see also United States v. Martinez, 486 F.3d 855, 859-60 (quoting Roch, 5 F.3d at 897) (“Where the facts are undisputed that the arrest and seizures were made without benefit of warrants of any kind, the government bears the burden of proving it had reasonable suspicion to seize the defendant.”). A preponderance of the evidence standard is applicable. See United States v. Matlock, 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).
Although Derryberry's Motion [41] raises five distinct bases for suppression, the contested matter before the Court at this time is more narrow. The Court will address and clarify the uncontested issues first.
As to the statements Derryberry made at the scene of the arrest the Fifth Amendment protects an individual's right to not be a witness against himself in a criminal case. U.S. Const. amend. V. Miranda requires an officer to advise a suspect of various rights before engaging in a custodial interrogation. See Edwards v. Arizona, 451 U.S. 477, 481-82, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). “A suspect is in custodial interrogation for purposes of Miranda ‘when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.'” United States v. Melancon, 662 F.3d 708, 711 (5th Cir. 2011) (quoting United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988)). The inquiry requires an objective consideration of whether “a reasonable person [would] have felt he or she was at liberty to...
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