United States v. Steen

• Decision Date: 27 October 2021
• Docket Number: 21-20012
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MARKALOWE STEEN, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

UNITED STATES OF AMERICA, Plaintiff, v. MARKALOWE STEEN, Defendant.

No. 21-20012

United States District Court, E.D. Michigan, Southern Division

October 27, 2021

OPINION AND ORDER DENYING MOTION TO SUPPRESS [24]

LAURIE J. MICHELSON UNITED STATES DISTRICT JUDGE

Local law enforcement officers approached Markalowe Steen near a Detroit-area liquor store after observing a handgun tucked in his waistband. Steen took off running. During the ensuing chase, Steen had the firearm in his hand. Steen was ultimately apprehended and arrested for carrying a concealed weapon. Officers found another firearm in Steen's fanny pack. Eventually, Steen was charged in this court with being a felon in possession of a firearm. He now seeks to suppress the firearms and ammunition that were recovered during this incident. (ECF No. 24.) Steen contends that the officers had neither reasonable suspicion to stop nor probable cause to arrest him, especially where it is lawful in Michigan to carry a firearm. The government opposes the motion (ECF No 28), and the Court held an evidentiary hearing on October 12 and 21, 2021.

Because the police had probable cause to arrest Steen, the motion will be DENIED.

I.

The testimony of the officers at the evidentiary hearing was consistent with their police reports (ECF No. 24-1) and body camera footage (Hrg. Exs. A and B). It supports the following narrative.

During the early evening of August 15, 2020, three Detroit police officers were on proactive patrol in a marked squad car. (ECF No. 24-1, PageID.71.) Proactive patrol means they were looking for unlawful activity. Officer Ian McBee was driving the squad car, Officer Michael Scott was the front passenger and Officer Malik Alyacoub was the rear passenger. At approximately 6:55 pm, while it was still light out, the officers were driving through the parking lot of the Grand Cru liquor store on Warren road in Detroit. (ECF No. 24-1 PageID.72.) This is a location known for drug trafficking and illegal gun possession. (ECF No. 28-3, PageID.112.)

McBee and Scott observed an individual, later identified as Steen, on the sidewalk near the south end of the parking lot with a handgun tucked into the right side of his waistband. (ECF No. 24-1, PageID.68, 72; Hrg. Ex. B, Scott Video 1:22-1:32 and 2:07-2:09 (Scott tells other officers that Steen was outside the liquor store with the gun tucked in his waistband).) McBee testified that he saw the handle of a gun protruding in the waistband. (See also Hrg. Ex. A, 3:19-3:25 (McBee tells other officers “we see it in his waist.”).) Steen looked in the direction of the police car, turned his body away from the officers, and walked behind a parked car. (ECF No. 24-1, PageID.68, 72.) McBee exited the car in an attempt to make contact with Steen and begin a concealed weapon investigation. (Id.) But Steen took off running across Warren road. (Id.) Officer Alyacoub pursued Steen on foot while Scott and McBee gave chase in the squad car. (ECF No. 24-1, PageID.68, 71, 72; Hrg. Ex. B.) Steen ran through a field and then to an alley behind a building on Warren. When Steen emerged from the alley, he was holding a black handgun. (Id. at PageID.68, 72.) McBee and Scott had traveled to that area and testified that the gun was pointed in their direction. McBee and Scott exited the patrol car. McBee ordered Steen to drop the weapon and get on the ground. (Id. at PageID.72.) Steen threw the handgun on the sidewalk and slid onto his stomach. (Id. at PageID.68, 72.) The officers then handcuffed and arrested Steen for carrying a concealed weapon. McBee said to Steen, “Are you serious dude? Do you know how dangerous that is, man? You got a pistol in your hand, we could have shot you.” (Hrg. Ex. A, McBee 0:58-1:14.)

At the same time, Scott retrieved the discarded weapon, a loaded .40 caliber Smith and Wesson. (ECF No. 24-1, PageID.68.) McBee searched Steen and recovered an additional loaded Smith and Wesson handgun from a fanny pack Steen was wearing around his body. (Id. at PageID.68, 72.)

The officers then put Steen in the back of the patrol car to investigate whether he was eligible to carry a concealed weapon. Steen was not in possession of a Michigan concealed pistol license and the officers say their check in the Law Enforcement Investigation Network (LEIN) revealed that Steen did not have a valid concealed pistol license. (ECF No. 24-1, PageID.73; ECF No. 28-3, PageID.112.) (Steen questions the officers' findings, but the Court need not resolve this issue.)

Ultimately, Steen, who has several prior felony convictions (ECF No. 1), was indicted by a federal grand jury on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). (ECF No. 16.)

Steen now moves to suppress the firearms and ammunition that were seized by the Detroit police officers following his arrest. (ECF No. 24.) The essence of Steen's motion is that “[t]he officers effectuating this arrest thought . . . that Steen, as an unidentified Black man in Detroit, had a gun and ran from them. This is not enough for reasonable suspicion.” (ECF No. 24, PageID.63.) And if it is not enough for reasonable suspicion, it is not enough for probable cause. (Id.) Thus, says Steen, the seizure of the firearms and ammunition violated his Fourth Amendment rights.

II.

The Fourth Amendment protects against unreasonable searches and seizures and requires that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing . . . the persons or things to be seized.” U.S. Const. amend. IV. “The Supreme Court has identified three types of reasonable, and thus permissible, warrantless encounters between the police and citizens: (1) consensual encounters in which contact is initiated by a police officer without any articulable reason whatsoever and the citizen is briefly asked questions; (2) a temporary involuntary detention or Terry stop which must be predicated upon ‘reasonable suspicion;' and (3) arrests which must be based upon ‘probable cause'” that the arrestee has committed or is committing a crime. United States v. Pearce, 531 F.3d 374, 380 (6th Cir. 2008) (citations omitted).

A.

The Court determines the existence of reasonable suspicion at the point of seizure. United States v. McCauley, 548 F.3d 440, 443 (6th Cir. 2008); see also Robinson v. Howes, 663 F.3d 819, 827 (6th Cir. 2011) (“We look first to the moment Petitioner was actually ‘seized,' thereby implicating the Fourth Amendment, to determine if the seizure was justified by reasonable suspicion.”). “[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991). Instead, “A person is seized when an officer ‘by means of physical force or show of authority, has in some way restrained [his] liberty,' such that ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' In addition, an individual must actually yield to the show of authority to be seized within the meaning of the Fourth Amendment.” United States v. Johnson, 620 F.3d 685, 690 (6th Cir. 2010) (citations omitted). Thus, a suspect who flees from police is not “seized.” See California v. Hodari D., 499 U.S. 621, 626 (1991); see also United States v. Russ, 508 Fed.Appx. 377, 382 (6th Cir. 2012) (agreeing with district court that defendant “was not seized because he fled”). “Determining when a person has submitted to police authority is an objective inquiry that takes into account all the facts and circumstances of the stop.” United States v. Johnson, 631 Fed.Appx. 299, 302 (6th Cir. 2015).

When the officers first observed Steen with the handgun in his waistband and when McBee exited the car to attempt a consensual encounter, Steen was not seized.

When Steen took off running, he was not seized. It was not until Steen finally complied with McBee's command to get on the ground and he was handcuffed that the seizure occurred. At that time, Steen had submitted to the officer's show of authority and it was clear that Steen was not free to walk away. See United States v. McCauley, 548 F.3d 440 (6th Cir. 2008); see also United States v. Jones, 673 F.3d 497, 501-02 (6th Cir. 2012) (“Here, because Defendant did not comply with [the officer's] commands to stop, he was not seized until [the officer] physically restrained him by taking him down and handcuffing him.”). Steen appears to agree. (ECF No. 24, PageID.59 (“[I]t is clear Steen was ‘seized' within the meaning of Terry when Officer McBee ordered him to the ground”).)

In their briefs, the parties disputed whether this seizure was an investigative detention or an arrest. Following the evidentiary hearing, however, it is clear that the officers arrested Steen. McBee and Scott testified unequivocally that they placed Steen under arrest for carrying a concealed weapon. Thus, Steen's motion to suppress narrows to one issue: did the officers have probable cause to arrest him?

B.

The familiar test asks “whether, at the moment the arrest was made, . . . the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense.” United States v. Harness, 453 F.3d 752, 754 (6th Cir. 2006) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).

Carrying a concealed weapon. Michigan law makes it unlawful to “carry a pistol concealed on or about [one's] person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person . . . without a license to carry the pistol as provided by law.” Mich. Comp. Laws § 750.227(2)....