United States v. McMillion

• Court: U.S. District Court — Southern District of Iowa
• Writing for the Court: STEPHEN H. LOCHER, UNITED STATES DISTRICT JUDGE
• Citation: 680 F.Supp.3d 1071
• Docket Number: 4:22-cr-00174-SHL-HCA
• Decision Date: 30 June 2023
• Parties: UNITED STATES of America, Plaintiff, v. Mykel Lee MCMILLION, Defendant.

680 F.Supp.3d 1071

UNITED STATES of America, Plaintiff, v. Mykel Lee MCMILLION, Defendant.

4:22-cr-00174-SHL-HCA

United States District Court, S.D. Iowa

Signed June 30, 2023

Jonathan Louis Holscher, United States Attorney's Office, Des Moines, IA, for Plaintiff.

Andrew James Graeve, Public Defender, Federal Public Defenders Office, Des Moines, IA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

STEPHEN H. LOCHER, UNITED STATES DISTRICT JUDGE

As a result of new legislation enacted effective July 1, 2021, the open carry of firearms is allowed in Iowa in public places without a permit. On September 25, 2022, law enforcement officers received a report that someone (later identified as Defendant Mykel McMillion) was openly carrying a firearm in a public place. One of the officers responded by stopping McMillion and others to investigate. The Court concludes, in light of the recent change to Iowa gun laws, that the officer did not have reasonable suspicion for the stop and thus violated McMillion's Fourth Amendment rights. The Court therefore GRANTS McMillion's Motion to Suppress.

I. PROCEDURAL HISTORY.

On November 15, 2022, the grand jury returned a one-count Indictment charging McMillion with felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8). (ECF 2.) On May 17, 2023, McMillion filed a Motion to Suppress. (ECF 26.) The Government resists. (ECF 31.) The Court held a hearing on June 6, 2023, during which three witnesses testified and seven exhibits were admitted, including police videos of the circumstances giving rise to McMillion's arrest. (ECF 33.)

II. FINDINGS OF FACT.

In the early morning hours of September 25, 2022, a security officer at Oakridge Apartments in Des Moines, Iowa, called police to make the following report: "My name is [inaudible], I'm with Oakridge Public Safety. An individual is in a white Buick by our maintenance shop. He had a gun on him, a handgun. And the car's still [inaudible] if you can get here, like, really quick." (Def. Ex. A, 00:00-00:26.) The dispatch operator asked, "is he, like, threatening to use it, or . . . ? People are allowed to have guns." (Id., 00:26-00:32.) The caller said she was not sure. (Id., 00:32-00:34.) In response to follow-up questions, the caller said the person with the gun was still in the vehicle, described his appearance and clothing, and explained the area of the apartment complex where he could be found. (Id., 00:42-2:36.) The dispatch operator said she would send someone. (Id., 2:36-2:40.)

The Oakridge Apartments had recurring issues with violence in the months leading up to September 25, 2022, prompting the complex to restrict access to certain parking lots and increase their security presence. (Tr. 5-8.) Mason Bantz was one of the security guards on duty during the early morning hours of September 25, 2022, although he was not the person who called police. (Tr. 8.) According to Bantz, the white Buick was in a parking lot near the complex's maintenance building. (Tr. 9.) It was not necessary to go through a barricade to reach that lot. (Tr. 13.) There are signs posted in or near the maintenance building stating that parking is for maintenance vehicles only and non-permitted vehicles will be towed at the owner's expense. (Tr. 10.) However, there is no evidence that the Oakridge security guards (or anyone else) expressed concerns to police that the Buick was illegally parked. Moreover, the Buick moved to a different parking space before police arrived. (Tr. 11.)

Two Des Moines police officers, Grant Purcell and Ernesto Escobar, arrived on the scene in separate vehicles around 4:40 a.m. (Tr. 21; Def. Ex. B; Def. Ex. D.) Officer Escobar appears to have arrived first, pulling his police cruiser into the same section of the parking lot as the white Buick. (Tr. 21, 41; Def. Ex. B, 0:50-1:05.) Escobar was familiar with the Oakridge Apartments because he had been called to respond to problems there before, including shootings, disputes, and complaints about trespass. (Tr. 49-50.) This time, however, Escobar's dash camera video did not show any sort of commotion or disturbance when he arrived; in fact, other than the headlights of one vehicle, there was no movement in the area at all except an Oakridge security guard. (Def. Ex. B, 0:50-1:20.) As Escobar pulled into the parking lot, he encountered that security guard, who directed Escobar's attention to the white Buick in the corner of the parking lot and said, "one of the male individuals had a gun in his hand and was swinging it around; we saw him on camera." (Id., 1:21-1:26.) Just then, the Buick began backing out of its parking spot. (Id., 1:27-1:34.) Escobar responded by quickly driving his vehicle further into the lot to intercept the Buick before it could head for the exit. (Id., 1:34-1:45.) The Buick stopped in its tracks as Escobar's vehicle approached, undoubtedly in response to Escobar's presence. (Id.) As Escobar's vehicle came within approximately twenty feet of the Buick, he switched from his normal headlights to either his bright lights or "takedown" lights,¹ causing them to shine directly on the Buick. (Id., 1:46-1:48.) Escobar continued moving his vehicle closer to the Buick, finally stopping approximately ten feet away. (Id., 1:56; Gov't Ex. 1.) The Buick remained running but motionless. (Id.) Escobar stepped out of his vehicle and walked toward the Buick. (Def. Ex. B, 1:57-2:10.)

Officer Purcell arrived on foot approximately twenty-five seconds later, having parked his cruiser just outside the parking lot. (Id., 2:33.) Like Escobar, Purcell was familiar with the Oakridge Apartments. (Tr. 20.) He said police had been called to the complex more than 300 times in the six months preceding September 25, 2022, for reports of trespass, domestic disputes, shots fired, fights, public intoxication, robberies, and burglaries. (Id.) When Purcell arrived, he spoke "very briefly" with the complex's security guards to obtain a description of the person with the firearm and his vehicle and location. (Tr. 22.) He was told the person was an African American male wearing a white T-shirt and jeans. (Tr. 23.)

Purcell did not issue any verbal commands as he approached the Buick, nor did he have his weapon drawn. (Tr. 32-33.) As Purcell reached the Buick, he believed he recognized someone in the front passenger seat from police bulletins about possible unlawful activity. (Tr. 23-24.) In the backseat, Purcell saw McMillion, who fit the description provided by security officers of the person displaying the firearm—i.e., an African American male wearing a white T-shirt and jeans. (Tr. 24.) As Purcell looked through the rear window, he saw McMillion "quickly place his shirt over his waist" and engage in other furtive movements that appeared to be designed to conceal something from Purcell's view. (Tr. 24-25.) Purcell knocked on the window and told the passengers to quit moving and keep their hands where he could see them, but McMillion did not stop moving. (Id.) Purcell then directed the driver to roll down the window, which the driver did. (Tr. 25.) Upon Purcell's request, McMillion provided his name "kind of under his breath" but loud enough for Purcell to hear. (Id.) Purcell "immediately recognized" McMillion's name from police bulletins regarding gangrelated and firearm activity. (Tr. 25-26.) Purcell knew McMillion had been involved in "felony-related crimes" but did not know with certainty if McMillion was a convicted felon. (Tr. 26.) Purcell ultimately used force to remove McMillion from the vehicle and place him into handcuffs. (Def. Ex. B, 4:00-4:40.) At some point during or immediately after this interaction, officers located a firearm on McMillion's person. (ECF 26-1, p. 4; ECF 31, p. 4.)

At the suppression hearing, some of the testimony focused on whether Officers Purcell or Escobar believed the Buick was free to leave once Escobar drove up and turned on his bright lights. The subjective views of the police officers on this issue are not determinative, but the Court nonetheless will summarize their testimony for context. Purcell said the white Buick could have maneuvered around Escobar's vehicle if it wanted to do so. (Tr. 28.) However, when asked if he would have allowed the Buick to leave, Purcell said: "I can't answer that." (Id.) Escobar, for his part, said he did not consider the Buick free to leave once he approached because he "wanted to investigate what was going on." (Tr. 46.)

III. LEGAL ANALYSIS.

A. Legal Standards and Background.

The Fourth Amendment protects against unreasonable searches and seizures. "[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Lillich, 6 F.4th 869, 875 (8th Cir. 2021) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). "[A] seizure occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Id. (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)) (cleaned up). "A traffic stop constitutes a seizure under the Fourth Amendment." United States v. Peralez, 526 F.3d 1115, 1119 (8th Cir. 2008). "A traffic stop generally must be supported by at least a reasonable, articulable suspicion that criminal activity has occurred or is occurring . . . ." United States v. Forjan, 66 F.4th 739, 746 (8th Cir. 2023) (quoting United States v. Cox, 992 F.3d 706, 709 (8th Cir. 2021)) (cleaned up).

"To establish reasonable suspicion, 'the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' further investigation.' " United States v. Woods, 829 F.3d 675, 679 (8th Cir. 2016) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20...