United States v. Parker, Criminal Action No. ELH-19-0483

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen L. Hollander United States District Judge
PartiesUNITED STATES OF AMERICA, Plaintiff, v. ELIJAH PARKER, Defendant.
Docket NumberCriminal Action No. ELH-19-0483
Decision Date21 January 2021

UNITED STATES OF AMERICA, Plaintiff,
v.
ELIJAH PARKER, Defendant.

Criminal Action No. ELH-19-0483

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

January 21, 2021


MEMORANDUM OPINION

Defendant Elijah Parker was indicted on the charge of unlawful possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). See ECF 1. This Memorandum Opinion resolves his motion to suppress evidence. ECF 16 ("Motion"). The government opposes the Motion. ECF 30.

The Motion is rooted in events that occurred at the 4th Street Laundromat (the "Laundromat") in Frederick, Maryland during the early morning hours of March 20, 2019. At the time, the Laundromat was open for business 24 hours a day, and the defendant was the only person inside the facility. A police officer on rounds entered the Laundromat and saw the defendant, who was charging his cell phone. He detained the defendant on suspicion of trespassing and because he detected the odor of marijuana emanating from the defendant. After other officers arrived, a scuffle occurred and the defendant was subjected to pepper spray, for which he was later taken to the hospital. The gun was recovered during a search of the defendant.

The Court held an evidentiary Motion hearing on September 22, 2020.1 The government

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presented the testimony of Frederick City Police Officer Patrick Wharton; a video excerpt from the body camera worn by Officer Wharton, beginning at approximately 2:30 a.m. on March 20, 2019 (Government Exhibit 1); and a photograph of the interior of the Laundromat (Government Exhibit 2). In addition, the defendant provided a transcription of the first few minutes of the audio from the body camera. See ECF 16-1.2

Based on issues that surfaced at the Motion hearing, the parties submitted post-hearing briefing. The government's supplemental brief is docketed at ECF 41, and the defendant's supplemental memorandum is found at ECF 42. The government's reply is docketed at ECF 52. In addition, the transcript of the Motion hearing is docketed at ECF 40. The Court held a second Motion hearing on January 12, 2021, at which oral argument was presented.3

As I untangle the issues, I am mindful of a fundamental precept in our system of justice: "The end does not justify the means." Therefore, the detention of the defendant cannot be deemed lawful merely because the police recovered the gun. I am also aware that, given the defendant's seemingly benign conduct in charging his cell phone, some might question why the officer pursued the defendant, instead of merely instructing him to vacate the premises. Others might conclude that the officer engaged in solid police work. But, the Court is not tasked with deciding that matter. The only question that I must resolve is this: Did Officer Wharton act lawfully? Regardless of one's view as to the officer's conduct, Mr. Parker surely experienced the quintessential "Terrible, Horrible, No Good, Very Bad Day."4

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I. Factual Summary

In March 2019, Officer Wharton was a Frederick City patrol officer assigned to the midnight shift. ECF 40 at 7. As of September 2020, he had been a Frederick City police officer for about seven years. Id. at 6. Also as of September 2020, Wharton had arrested about ten people for trespassing, all at the Laundromat. Id. at 8, 11-12.5 And, he had arrested about 30 people after smelling marijuana on them. Id. at 8.

At the relevant time, the Laundromat was open to the public "24/7." Id.; see id. at 17. There are about 25 washing machines and 8 to 10 dryers at the facility. Id. at 12. Wharton testified, id. at 9: "The doors are unlocked. People can do laundry whenever." Notably, there are no employees on duty during the late night/early morning hours. But, the facility has "a camera system." Id.

Wharton explained that the owner of the Laundromat had asked the police department to assist with trespassers. Id. at 8-9. To the extent the police received complaints about trespassers, the complaints concerned the period from midnight to 5:00 a.m., when Wharton was generally on duty. Id. at 17.

On the date in question, at approximately 2:30 a.m., Officer Wharton was in the vicinity of the Laundromat, and decided to do "a patrol check." ECF 40 at 16. He was in uniform. Id. at 17-18. Wharton did not know that anyone was inside the Laundromat when he entered the facility. Id. at 16-17. Rather, the officer first saw the defendant only after the officer entered the facility.

There is no sign posted on the entrance to the Laundromat that warns against trespassing. Id. at 10, 16. But, the front of the facility has "multiple windows," and the officer claimed:

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"You can clearly see in it." Id. at 16. And, there is a sign inside, advising that trespassing is not permitted. Id.at 10. It is located in a fairly prominent place, in the center of the facility, next to a flat screen television hanging on a wall. Id.; see Government Ex. 2.

According to Wharton, the sign is visible as you enter the facility. ECF 40 at 10. The sign says: "No trespassing. If you're not doing laundry, you're Trespassing." Id. at 11; Government Ex. 2. The words "No Trespassing" are in red block letters against a black background. The rest of the message appears to be handwritten. Government Ex. 2.

When Officer Wharton entered the facility, he saw the defendant, standing at a counter, charging his cell phone. Id. at 13, 18-21. The defendant was the only person inside the Laundromat at the time. Id. at 18-19. He had on what looked like a book bag or backpack, not particularly large. Government Exhibit 1; ECF 40 at 22; see also id. at 33.

Wharton suspected that the defendant was trespassing. Id. at 22, 23, 33. He explained that, to determine if someone is trespassing while in the Laundromat, he looks to see if "any laundry is actually being done." Id. at 12. He also listens to see if he "can hear" a laundry machine. Id. Wharton described the equipment as "loud." Id. at 18. The officer testified: "If someone is doing laundry, you'd be able to hear it." Id. At the time, he "didn't see anything spinning . . . ." Id. at 17. Wharton was also "listening to see if [he could] hear any laundry." Id. at 18. He reiterated, id.: "I did not see or hear any laundry being done at all . . . ." Nor did he see any laundry "piled up" around the defendant at the counter. Id. at 17; see also id. at 19.

Officer Wharton could not have known, merely from seeing the defendant standing at the counter, charging his phone, whether or not he had recently finished his laundry. But, he asked Parker if he was doing laundry. Id. at 22. Parker responded: "I was. Something in the dryer." ECF 16-1 at 2; see ECF 40 at 23, 30. The officer asked: "Is it in there now?" ECF 16-1 at 2;

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see ECF 40 at 22. The defendant responded: "No, it's done. Finishing charging my phone." ECF 16-1 at 2. The officer then said, ECF 16-1 at 2: "You got any I.D. on you?" Defendant responded, "No, I don't." Id., ECF 40 at 242. At about the same time, at about one minute 19 seconds into the video, Wharton contacted dispatch, asking for assistance from another unit. ECF 40 at 23; ECF 16-1 at 2.

The video indicates that the defendant was attempting to leave the Laundromat. ECF 40 at 23-24. Wharton testified that, as the defendant tried to exit, he told the defendant "he was not free to go . . . ." ECF 40 at 24. According to the transcription, Wharton said: "Hey, man, you can't go right now. I'm going to need an I.D. You are not allowed to be in here. You are actually trespassing right now." ECF 16-1 at 2. The defendant responded that he "was doing laundry." Id. Wharton answered: "You're not doing laundry right now . . . . This is your word against . . . ." Parker interjected: "I was done. I'm just done." Id. The officer then said: "And I smell weed emanating from you right now, as well." Id.; see also ECF 40 at 24. Notably, the officer testified that he smelled the marijuana "as [he] was talking to" Parker, but "before" Wharton told Parker to stop. ECF 40 at 24. Wharton added: "I could smell it before." Id. Later, Wharton claimed he smelled the marijuana when he entered the Laundromat. Id. at 35.

In my view, the interaction between Parker and Wharton demonstrates that Parker was not intimidated by Wharton. After Wharton told the defendant that he smelled marijuana, Parker disputed the assertion, stating: "You don't." ECF 16-1 at 2. However, Parker admitted that he had smoked weed "yesterday," but he again challenged Wharton's claim that Wharton could smell it. Id. at 2-3.

Parker also maintained that he had no weed on him. Id. at 3. Wharton answered: "It doesn't matter. I can still smell it on you." Id. Further, the officer said, id.: "Well, I do smell it

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from you so I'm going to need to see some I.D. on you. You have nothing."

At that point, Wharton asked the defendant for his full name and date of birth. Id. Parker identified himself as Gary Charles Dorsey, and he provided a date of birth. Id.; see ECF 40 at 25. The defendant again said he was "just charging [his] phone." ECF 16-1 at 4. The officer responded, id.: "I come in here, you are not doing laundry." Parker persisted, stating, id.: "I'm done." The officer answered: "All I see is you charging your phone. And you smell like weed." Id. at 4. The defendant responded, "Anybody can say that." Id. Parker reiterated: "I smoked weed yesterday." Id.

Wharton also asked Parker if he had provided "a fake name." ECF 16-1 at 4. Parker denied that he had done so. Id. But, he indicated that he had no address, however. Id. at 5. Wharton again asked if the defendant had anything with his name on it, and defendant said: "No. Can't help it. I just want to get out now." Id.

Wharton told Parker he could take a seat. Id. Then, he checked with dispatch on the status of another unit. Id. Wharton also instructed Parker to remove his backpack and place it on the table. Id. at 6. Parker asked, "What have I done wrong[?]" Id. Wharton said, id.:...

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