US v. Mitchell

• Decision Date: 23 August 1993
• Docket Number: No. 4:92CR140-D-O.,4:92CR140-D-O.
• Citation: 832 F. Supp. 1073
• Parties: UNITED STATES of America, Plaintiff, v. Oscar James MITCHELL, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

832 F. Supp. 1073

UNITED STATES of America, Plaintiff, v. Oscar James MITCHELL, Defendant.

No. 4:92CR140-D-O.

United States District Court, N.D. Mississippi.

August 23, 1993.

William C. Martin, Asst. U.S. Atty., Oxford, MS, for plaintiff.

William F. Travis, Southaven, MS, for defendant.

MEMORANDUM OPINION

DAVIDSON, District Judge.

This case is before the court on defendant's motion to suppress evidence of contraband which was recovered from the defendant pursuant to a warrantless Terry v. Ohio¹ stop and feel weapons search. On July 1, 1993, the undersigned district court judge conducted a hearing on defendant's motion at the United States Federal Court-house in Oxford, Mississippi. At the hearing, the court received the benefit of live testimony from the defendant and the participating law enforcement officers. Moreover, several items of physical evidence were received into evidence, and the court's own examination of these items has assisted the undersigned in the consideration of this motion. Furthermore, the court is assisted by the fact that defendant's motion to suppress is governed by the recent United States Supreme Court decision in Minnesota v. Dickerson, ___ U.S. ___, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

For the reasons explained in this memorandum opinion, the undersigned finds merit to defendant's motion to suppress evidence, and the same will be granted by separate order issued this day. The discussion of facts which follows is important in understanding the court's conclusion that Mr. Mitchell's Fourth Amendment rights were violated.

Facts

In September of 1992, the Greenville, Mississippi, Police Department received complaints of illegal gambling and drug trafficking occurring at the J & M Grocery on Theobald Street. Consequently, the Greenville Police Department decided to make an investigatory check-out of the premises.² The police had no warrant to execute on anyone, and the purpose of the stop was merely investigatory and to show a law enforcement presence in the community. On Wednesday, September 30, 1992, at approximately 8:00 p.m., four officers travelling in two separate vehicles pulled into the parking lot of the store. Two uniformed officers, Fulton and Monistere, were the first to arrive in a marked police car. Within seconds, Officers Kenny Trader and Jack Morgan, dressed in street clothes, pulled into the parking lot in an unmarked car and parked away from the marked police car. As the officers pulled into the parking lot, they observed a group of men huddled in front of the store. Some of the men in the group were standing while others were on their knees. However, upon seeing the police, the group disbanded. Oscar Mitchell, who had been in the group, walked away from the store at a hurried pace in the direction of the street. Mr. Mitchell was wearing a black leather jacket which was zipped to the neck, and his hands were in the front pockets of his pants.³ Officer Morgan, dressed in street clothes, hollered out, "police, stop," but Mitchell ignored the command and continued to walk away.⁴ Upon being ordered to stop a second time, Mitchell complied with the command.⁵ Then, Officer Morgan ordered Mitchell to remove his hands from his pockets, but Mitchell initially did not respond. After ordering Mitchell a second time to remove his hands from his pockets, Mitchell complied with the instruction. Immediately, Mitchell was ordered to drop to his knees. The defendant obeyed the order and dropped to his knees placing his hands, with fingers interlocked, behind his head. At this point, both officers began a pat down search for a weapon.⁶ Officer Trader felt a bulge in defendant's left jacket pocket, and he called out to Officer Morgan, "I got something." At the hearing conducted before the undersigned, Officer Trader testified that he knew right away that what he felt was not a weapon. Officer Trader asked Morgan to feel Mitchell's left jacket pocket, and Morgan patted down the outer clothing of the pocket. Officer Morgan then asked Mitchell what was in his pocket. Mitchell allegedly gave a deep sigh but refused to answer. Next, Officer Morgan asked Mitchell to remove the object from his pocket, but Mitchell refused to comply. Morgan asked Mitchell a second time what the object was inside his jacket pocket, and still Mitchell refused to answer or respond to his question. In fact, Officer Morgan testified that, "several times" he asked Mitchell what was in his pocket, but Mitchell never answered.⁷ By this time, the uniformed officers had approached the area. Officer Morgan instructed Officer Eric Fulton to remove the object from Mitchell's pocket. Fulton reached into Mitchell's pocket and retrieved a brown paper sack. The paper sack contained a white athletic sock. Inside the sock, the police found six small plastic bags each containing a yellow/white rock like substance, which was determined later to be crack cocaine.⁸ Officer Morgan then placed Mitchell under arrest for possession of cocaine with intent to distribute. Then, Mitchell was transported to the Greenville Police Station and processed at the Special Operations Office. At the station, the police removed a motel key, a bus ticket receipt, and approximately $692.00 in currency. The defendant refused a consent search of his motel room. Consequently, Officers Trader and Morgan submitted an affidavit for a search warrant and presented it to a Washington County Court Judge. The search warrant was executed by the judge later in the same evening. With the assistance of a drug sniffing dog, narcotics officers conducted a search of Mitchell's motel room. Underneath a night stand, the police recovered a plastic bag which held four smaller plastic bags containing crack cocaine.⁹

Additionally, the police found a Llama .357 Magnum wrapped in a towel and six rounds of ammunition which were found loose.

Discussion

With a few exceptions, searches and seizures which are carried out beyond judicial sanction (without a probable cause warrant issued by a judge or magistrate) are per se unreasonable and proscribed by the Fourth Amendment. Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S.Ct. 409, 410, 83 L.Ed.2d 246 (1984); United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978). One well known exception to the requirement of a prior determination of probable cause exists within the limited parameters of "reasonable articulable suspicion" as explained in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Known as the "stop-and-frisk" exception to the requirement of a warrant, the Fourth Amendment tolerates a warrantless stop (seizure) in order for an officer to make a reasonable inquiry to confirm or dispel his suspicions that criminal activity may be afoot.

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they are taken.

Terry, 392 U.S. at 30-31, 88 S.Ct. at 1884-85.

It bears emphasis that the scope of a Terry stop-and-frisk (feel) is strictly limited to that which is necessary to discover weapons which might be used to harm the officer or others. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). If the search extends beyond that which is necessary to determine if the subject is armed, then the search is no longer valid under Terry, and the fruits obtained will be suppressed. Minnesota v. Dickerson, ___ U.S. ___, ___, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993); Sibron v. New York, 392 U.S. 40, 65-66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968).

Another warrantless exception to the Fourth Amendment is found in the "plain view" doctrine. Simply stated, if the police are lawfully in a position (i.e., Terry stop) from which they view an object, and its incriminating character is immediately apparent, then the officers have a lawful right of access and may seize the object without a warrant. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990); Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983). By the same token, if the police lack probable cause to believe that an object in plain view is contraband without further search and inquiry, then the object's incriminating character is not immediately apparent and the plain view doctrine will not support the object's seizure. Minnesota v. Dickerson, ___ U.S. ___, ___, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993); Horton, 496 U.S. at 136, 110 S.Ct. at 2307; Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).

In Minnesota v. Dickerson, the Court considered whether the Fourth Amendment would support the warrantless seizure of contraband (crack cocaine) detected during a protective pat down search of the sort authorized by Terry. However, instead of the "plain view" exception to the requirement of a probable cause warrant, Dickerson asked whether an officer's "plain feel" (via sense of touch) would support a warrantless seizure. The Court's answer in a 9-0 decision...