United States v. Hill
| Decision Date | 19 April 2012 |
| Docket Number | No. 10-4889,10-4889 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCUS HILL, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:09-cr-00446-WDQ-1)
Before DAVIS and DIAZ, Circuit Judges, and Jackson L. KISER, Senior United States District Judge for the Western District of Virginia, sitting by designation.
ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Tonya Nicole Kelly, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Christopher M. Mason, Special Assistant United States Attorney, Alee Pagnotti, Second
Year Law Student, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.DAVIS, Circuit Judge:
Appellant Marcus Hill was charged in a single count indictment with possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Hill filed a motion to suppress the firearm (and other evidence) based on the Fourth Amendment. After a hearing, the district court denied the motion to suppress. Hill proceeded to trial, at the conclusion of which the district court denied his Rule 29 motion for judgment of acquittal, which was based on his contention that the government adduced insufficient evidence of his knowing possession of the firearm. The jury returned a guilty verdict on the single charge. At sentencing, over Hill's objection, the district court applied the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA), and imposed a mandatory minimum sentence of 180 months of imprisonment. Hill filed this timely appeal.
Before us, Hill contends the district court erred in (1) denying the motion to suppress; (2) denying the motion for judgment of acquittal; and (3) applying the ACCA. For the following reasons, we affirm.
On January 13, 2009, around 3:00 a.m., Hill drove in his silver Buick Park Avenue, which he had owned for two to threemonths, to pick up his girlfriend, Nekia Bennett, who had ended her shift as an employee of a contract firm that transported detainees and inmates for the Baltimore County Police Department.1 As required by her job, Bennett carried a handgun, which that morning was holstered on her left side.
When Hill arrived to pick up Bennett, she was in a transport vehicle with a male co-worker with whom Hill had previously argued. When Bennett entered Hill's car, she noticed he was upset. He told her that the disagreement with her male co-worker was getting out of control and that the co-worker had been threatening him. The argument escalated. Hill yelled, punched the steering wheel, and pushed Bennett's shoulder to get her to look at him. At one point Hill put Bennett's hand on the pocket of his sweatpants and she felt a hard object. Hill stated, "You see how they got me out here?" J.A. 97. Based on this statement, Bennett believed the object in Hill's pocket was a gun.
Bennett was exhausted, having just finished her night shift, and had had only six hours of sleep in the precedingthirty hours. Hill had never been violent, had never hit her, and had never been abusive in any way; still, Bennett wanted to avoid arguing with him, and so she asked him to stop at a 7-Eleven, apparently intending to make small purchases.
As the Buick pulled up to the 7-Eleven, Hill and Bennett observed a marked police car in the parking lot. As Bennett turned to get out of the car, Hill grabbed her wrist and said, "Don't play with me." J.A. 102. Once inside the 7-Eleven, Bennett walked past two police officers, Sergeant Byron Conaway and Sergeant Amado Alvarez, standing at the cashier's counter. Conaway and Alvarez were twelve-year veterans of the Baltimore Police Department ("BPD"). They had finished their shift for the night and had stopped at the 7-Eleven for refreshments. As Bennett walked past the officers, Conaway noticed that Bennett had a handgun holstered on her left hip and alerted Alvarez. The officers concluded (erroneously) that Bennett was a state correctional officer based on the uniform pants she was wearing, and paid no further attention to her at that time.
Bennett picked up an item and, just two minutes after entering the store, took the item to the cashier, near where the officers were standing, to Bennett's left. While paying for her item, Bennett asked the cashier for a pen. She took a receipt, turned it over, and wrote the word "Help" on the back. She slid the receipt down the counter to Conaway and then, without sayinga word to the officers, exited the store. The officers did not stop her or ask her any questions. Bennett later testified that she passed the note to the officers "because of the situation [she] was in . . . with Mr. Hill," J.A. 105, explaining, "I just wanted the situation that we was going through to be resolved." J.A. 106.
Conaway showed the note to Alvarez. Believing Bennett was in "distress" and possibly in a situation "a little bit more than what she could handle," J.A. 163, 213, they followed Bennett out to the parking lot, where she had already reentered Hill's car on the front passenger side. Conaway drew his weapon as he exited the store, even before seeing anyone in the vehicle with Bennett. Knowing that Bennett was armed and that the gun she was carrying was on her left side - which would be the side closer to the driver, Hill - the officers approached the front of the car. With guns drawn, and standing just a few feet from the sides of the car, they ordered Hill and Bennett to show their hands and exit the vehicle. Conaway testified that he took these actions immediately without first investigating in some other manner because he did not understand why Bennett needed help. "I couldn't understand why she would need help, being as though she was an armed person, so that kind of sparked my interest a bit." J.A. 212.
Hill did not immediately comply with the order to show his hands. Conaway testified that he saw Hill reach to his right side, next to the center console and near where Bennett's gun was holstered; Alvarez testified that he saw Hill reach toward his waist. Neither officer saw Hill with a weapon. Conaway and Alvarez continued to order Bennett and Hill to show their hands. Bennett complied and exited the vehicle, but Hill did not. Conaway then fired his weapon twice; one shot missed and the other hit Hill in the abdomen. Hill collapsed over the passenger seat. Conaway testified that less than twenty seconds elapsed between when he exited the 7-Eleven and when he fired his weapon.
Having just been shot, Hill showed his hands. Alvarez pulled Hill from the car, laid him on the ground, handcuffed him, and patted him down. He found no weapon, only Hill's paycheck stub. Alvarez also did a preliminary search of the interior of the car, including the floor and the seats (although without a flashlight), and found nothing. Alvarez and Conaway called for back-up and for medics. Hill was transported by ambulance to the hospital, under police guard.
Detectives assigned to the BPD Homicide Unit arrived and took control of the scene, as is standard procedure in all shootings involving police. The detectives began investigating the circumstances that led Conaway to shoot Hill; at that point,they had no information suggesting or indicating that Hill had committed any crime or possessed any weapons or contraband.
Bennett was transported to BPD headquarters. She was ordered to surrender her purse, her keys, her work-issued firearm, and other personal effects to the police. She was frazzled, crying, and traumatized by what had happened to Hill. After waiting some time, she was interviewed by two BPD detectives: Juan Diaz and Michael Moran. They asked her many questions about firearms, but she had never seen Hill with a gun, neither that night nor on any other occasion. After questioning her for about an hour, the detectives turned on a tape recorder and took a recorded statement. In that statement, she told them about the argument she and Hill had had in the car, and why she wanted to get out of the car. She said that Hill J.A. 547. Although by that point the police knew Hill was unarmed when he was removed from the car, Bennett explained that when Hill had had her pat his pocket, she felt an object she thought might have been a gun.
By that point Hill's car had been towed to the BPD crime lab evidence bay. Diaz prepared an application for a warrant authorizing a search of Hill's vehicle. In four separate places the application and warrant stated that the purpose of thewarrant was to seek evidence of a suspected murder. The application stated that the police "have reason to believe" that "there are now being concealed certain property, namely, weapons, ammunitions, papers, or any item pertaining to the crime of murder." J.A. 28. The application states in a separate place that the crime under investigation is "first degree murder" and cites the Maryland Annotated Code section for first-degree murder. Id. The warrant itself, which Diaz also filled out, stated that the police were authorized to search for evidence relating to the crime of first-degree murder. Diaz later conceded that the police never believed they were investigating a murder. He testified the references to homicide were the result of an "honest mistake." J.A. 315.
Notwithstanding the erroneous mentions of murder, the body of the affidavit attached to...
To continue reading
Request your trial