United States v. Devaugh, Criminal Action No.: 19-31 (RC)
| Decision Date | 12 November 2019 |
| Docket Number | Criminal Action No.: 19-31 (RC) |
| Citation | 422 F.Supp.3d 104 |
| Parties | UNITED STATES of America v. Richard S. DEVAUGH, Defendant. |
| Court | U.S. District Court — District of Columbia |
Jillian Donison Willis, U.S. Department of Justice Fraud Section, Nihar Ranjan Mohanty, U.S. Attorney's Office for the District of Columbia Violent Crime and Narcotics Trafficking Section, Washington, DC, for United States of America.
Alex Young K. Oh, Ravi Romel Sharma, Tihitina Mekete Dagnew, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Mary Manning Petras, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant.
GRANTING DEFENDANT'S SUPPLEMENTAL MOTION TO SUPPRESS EVIDENCE
Before the Court is Defendant Richard Devaugh's supplemental motion to suppress evidence, ECF No. 25. The relevant events occurred on January 14, 2019, when Mr. Devaugh was being surveilled by an undercover officer outside Strand Liquors in Northeast Washington, D.C. Based on the undercover officer's observations, a team of responding officers approached Mr. Devaugh, ordered him out of his vehicle, and detained him. Mr. Devaugh moves here to suppress drugs, a weapon, and other evidence obtained during the encounter. For the reasons explained below, the Court will grant the motion to suppress.
An initial motion to suppress evidence was filed on April 5, 2019. After Mr. Devaugh was appointed new counsel, the Court allowed a round of supplemental briefing and held a suppression hearing on November 4, 2019. At the hearing, the undercover officer (Officer Turner) and one of the responding officers (Officer Love) both testified; the Court found both officers credible and gives their testimony substantial weight.1 Additionally, body-worn cameras footage from four of the responding officers—Officers Gabster, Gordon, Love, and Lyon—was admitted into evidence.2 At the close of the hearing, the Court gave the parties the opportunity to provide additional briefing, which they did. As indicated by the citations, the facts below are based on both the officers' testimony at the suppression hearing and the body-worn camera footage.
Testifying first was Officer Turner, an undercover officer currently assigned to the Narcotics Enforcement Unit of the Metropolitan Police Department (MPD). Suppression Hr'g Tr. ("Tr.") at 7, ECF No. 36. On January 14, 2019, he was conducting undercover observations from an unmarked vehicle parked on Division Avenue near the intersection with Foote Street, directly across the street from Strand Liquors. Id. at 9–10, 12. He was alone in his vehicle, but a group of other officers, including a so-called "arrest team," was working in coordination with him nearby. Id. at 12, 17. According to Officer Turner, this area—near Marvin Gaye Park—was well-known for high levels of drug activity. See id. at 8 (). Officer Turner had previously been called for "hundreds" of assignments there and had conducted "numerous" controlled purchases in the area. Id.
While seated in his vehicle around 3:00 p.m., Officer Turner saw someone—later identified as Mr. Devaugh—engage in a hand-to-hand transaction with an alleged buyer while the two were standing near a grey SUV parked nearby on Foote Street. Specifically, the buyer approached Mr. Devaugh, spoke with him briefly, handed him some money, and received in return "some small object or objects," which Officer Turner admitted he was unable to identify. Id. at 13–15. The buyer put the object(s) in a napkin, walked down Division Avenue, and entered Strand Liquors. Id. at 15–16. Mr. Devaugh also walked in that same direction, but remained outside the store. Id. at 16.
After observing the transaction, Officer Turner used his cell phone to call his superior officer, Sergeant Cardinal. Id. at 17. Officer Turner "was giving him updates, lookouts," which Sergeant Cardinal was in turn "transmitting to the arrest team" via radio. Id. Officer Turner announced: Id. He gave descriptions of both individuals and relayed that the buyer had entered the store while the dealer was standing out front. Id.
At that point, a car travelling down Division Avenue pulled alongside Officer Turner's vehicle and came to a stop. Id. at 17–18. The driver rolled down his window, looked at Mr. Devaugh, and said "[t]he Feds are up the street." Id. at 18. Mr. Devaugh then walked back to the SUV, a fact which Officer Turner in turn relayed to Sergeant Cardinal. Id. at 19. As Mr. Devaugh was walking to the vehicle, Officer Turner noticed him "adjust[ing] his waistband area several times," which suggested to Officer Turner that he was "carrying a weapon or illegal firearm." Id. Mr. Devaugh entered the driver's side of the vehicle and remained behind the wheel until the arrest team arrived. Id. at 20.
Officer Love was a member of that arrest team. Id. at 91. As he testified, the team received a radio call from Sergeant Cardinal describing "two individuals that were believed to be involved in a drug transaction." Id. They responded to the intersection of Foote and Division, where they found Mr. Devaugh seated behind the wheel of the SUV. Id. at 92.
The actual encounter between Mr. Devaugh and the arrest team was recorded by multiple officers' body cameras. Officer Love's vehicle—an unmarked cruiser also carrying Officers Gabster, Lyon, and Banks—pulled in front of Mr. Devaugh's parked SUV. Id. at 91–93; Love BWC at 2:02-2:08. The officers turned on the unmarked cruiser's lights, exited the vehicle, and approached the SUV together. Tr. at 93. Officer Gabster, out in front of the group, held out his hand as he neared the driver's side of Mr. Devaugh's SUV; as he did so, a marked police SUV containing two additional officers (including Officer Gordon) drove up on his right side, stopping slightly behind Mr. Devaugh's vehicle. Love BWC at 2:08-2:15. Upon reaching Mr. Devaugh's car door, Officer Gabster issued a series of commands while making a variety of gestures, with Officer Banks occasionally interjecting as well: Id. at 2:16-2:28. As this was unfolding, Office Lyon had made his way to the passenger's side of Mr. Devaugh's SUV. Lyon BWC 1 at 2:03-2:18. Immediately upon exiting his vehicle, he had told Mr. Devaugh "[l]et me see your hands," holding his arms above his head to illustrate. Id. at 2:03-2:06. As Officer Lyon reached the front passenger's window, he drew his firearm and displayed it against the glass. Id. at 2:18-2:25. And in the midst of Officer Banks's and Officer Gabster's commands, he chimed in: "Open the window." Id. at 2:20-2:22.
At this point (approximately ten seconds after Officer Gabster first expressly ordered him to open the door), Mr. Devaugh complied and exited the vehicle. Love BWC at 2:28-2:31. Officer Gabster appears to begin placing Mr. Devaugh in handcuffs, taking hold of Mr. Devaugh's left arm and telling him twice to "[p]ut your hands behind your back"; at the same time, Office Banks grabbed Mr. Devaugh's right arm or jacket sleeve. Id. at 2:31-2:33; Gabster BWC at 2:25-2:26. As he was being restrained by the two officers, Mr. Devaugh tossed away a black plastic bag, which flew some distance over the parked police SUV. Love BWC at 2:31-2:33; Gordon BWC at 2:08-2:10. The officers then finished placing Mr. Devaugh in handcuffs—though with some difficulty, as Mr. Devaugh seemed to offer some resistance. Love BWC at 2:33-3:19. As Officer Love testified, a subsequent search of Mr. Devaugh's grey SUV revealed a firearm (a .44 Magnum), a digital scale, and some quantity of crack cocaine and opiates. Tr. at 98. The discarded black plastic bag was also recovered and found to contain marijuana. Id. at 96–97.
Two things are not meaningfully contested by the parties. First, Mr. Devaugh was undoubtedly "seized" within the meaning of the Fourth Amendment when he was surrounded by the arrest team and complied with their order to open his door. See California v. Hodari D. , 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (). Second, the police did not have probable cause to arrest Mr. Devaugh until he tossed away the plastic bag.3 As a result, Mr. Devaugh can prevail here on either of two theories: (1) if the initial stop was not based on reasonable suspicion, or (2) if the initial stop ripened into a full-blown arrest before he tossed away the bag. The Court will address each issue in turn.
In Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court "held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow , 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). For such a stop to be reasonable, "[t]he officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or "hunch’ " of criminal activity." Id. at 123–24, 120 S.Ct. 673 (quoting Terry , 392 U.S. at 27, 88 S.Ct. 1868 ).
In reviewing whether a stop was justified, courts are "not limited to what the stopping officer says or to evidence of his subjective rationale; rather [courts] look to the record as a whole to determine what facts were known to the officer and then consider whether a reasonable officer in those circumstances would have been...
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