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United States v. Davis

United States District Court, S.D. West Virginia, Charleston Division

July 20, 2017

MARKUS DAVIS, Defendant.



         Pending before the Court is Defendant Markus Davis's (“Defendant”) Motion to Suppress (ECF No. 23). For the following reasons, the Court DENIES the motion.


         Defendant is charged in a single-count indictment with knowing possession of a firearm in and affecting interstate commerce by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (ECF No. 12.) On May 22, 2017, Defendant filed the pending motion to suppress any evidence seized during a search of Defendant's person that occurred during a traffic stop in the early morning hours of February 22, 2017, including the Taurus .45 caliber handgun identified in the indictment. On June 5, 2017, the Court conducted an evidentiary hearing on Defendant's Motion to Suppress.


         The following facts were derived from the testimony and exhibits adduced during the June 5, 2017 hearing.[1] The facts are not in dispute except where indicated.

         In the early morning hours of February 21, 2017, the Charleston Police Department received two 911 calls regarding a brandishing incident at 907 Barton Street. In the first, the caller told the dispatcher that a man and two women drove by his house in a maroon Chevrolet Caprice, pulling out firearms and talking about shooting people. (Def.'s Ex. 3.) In the second, the caller informed the dispatcher that the car had come back by the house after the police left the area. (Def.'s Ex. 3.) When asked if he would like to speak with an officer, the caller told the dispatcher they could send one if they wanted.[2] (Def.'s Ex. 3.) Officer Christian Harshbarger of the Charleston Police Department followed up on the calls, where he took a statement from the caller, who finally identified himself as Leandre London. (Def.'s Ex. 1.) Mr. London expanded on the information provided in the 911 calls, telling Officer Harshbarger that the car involved looked like an old cop car, that he spoke with the driver of the car, and that one of the female passengers threatened him with a .22 caliber handgun. (Def.'s Ex. 1.) Mr. London also provided Officer Harshbarger with a signed statement describing the incident. (Def.'s Ex. 2.)

         In the early hours of the following day, February 22, 2017, Sergeant S.M. Webb (“Sgt. Webb”) was patrolling downtown Charleston. While stopped at the traffic light on the corner of Capitol and Virginia Streets, Sgt. Webb saw a Maroon Chevrolet Caprice traveling east on Virginia Street. Recognizing the vehicle from the descriptions of the car in the brandishing incident the previous day, Sgt. Webb turned right onto Virginia Street to follow the vehicle. Sgt. Webb attempted to catch up with the vehicle, while he evaluated whether he had reasonable suspicion to stop the car. At some point after passing the intersection of Brooks and Virginia streets, Sgt. Webb saw that the driver of the vehicle was not wearing a seatbelt. Though it was dark, Sgt. Webb was able to observe this violation by looking at the driver's silhouette against street and traffic lights.[3]

         Sgt. Webb was also able to observe the license plate, and he called over his radio to the Metro Police Unit to check the license plate number for the registered owner of the vehicle. The officer who checked the number informed Sgt. Webb that the car was a 1994 Chevrolet Caprice and was registered to Markus Davis and Katrina Artis. Sgt. Webb then notified another officer over the radio that he planned to stop the car at Elizabeth Street, and requested that the officer come to assist him. Another officer, Sgt. Peoples, asked Sgt. Webb over the radio if he knew those individuals. Sgt. Webb did not directly respond, but noted that the vehicle was similar to the vehicle involved in the brandishing incident the previous day.[4] Sgt. Peoples then advised over the radio that both of the registered owners of the vehicle had been in federal prison on firearm charges. Before the Caprice reached Elizabeth Street, the driver parked his car on the 1500 block of Virginia Street. Sgt. Webb stopped in the middle of the street behind the vehicle and turned his police lights on, initiating the traffic stop.

         Defendant opened the door of his vehicle as if to exit, but Sgt. Webb immediately shouted at him that he should remain in the vehicle, and Defendant complied. Sgt. Webb remained in his cruiser until the officer he had been communicating with, Officer McMaster, came into view driving the opposite direction on Virginia Street, and then he approached the driver's side of Defendant's vehicle.[5] Officer McMaster parked his cruiser in the middle of the street in front of Defendant's car, effectively blocking him in. Officer McMaster then exited his vehicle and joined Sgt. Webb by the driver's side window of Defendant's vehicle. Defendant offered his license and registration, but Sgt. Webb did not take them, but instead asked Defendant to exit his vehicle. Defendant refused to exit his vehicle, repeatedly questioning Sgt. Webb on why he had to, and expressing his belief that a seatbelt violation was not a sufficient reason. During the exchange, Defendant was moving his hands around inside the vehicle, including in the passenger's side area where Sgt. Webb could not easily see them. Sgt. Webb explained that he intended to pat Defendant down for weapons, noting that he knew from prior experience that Defendant carried weapons. Defendant insisted he did not have any weapons, and continued to protest the need to exit his vehicle and be searched as a violation of his rights. After about two and a half minutes of this exchange, Defendant finally got out of his vehicle, but as he was turning around toward his car, Sgt. Webb perceived that he was reaching down in his waist area.[6] Sgt. Webb, Officer McMaster, and one other officer on the scene pushed Defendant against his vehicle and though Defendant struggled against them, they eventually took him to the ground. After bringing him to the ground, the officers put Defendant in handcuffs, and Sgt. Webb reported over his radio that they had made an arrest. The officers ultimately stood Defendant back up, and proceeded to perform a search while he continued to protest that he was not carrying a weapon. This search revealed the .45 caliber Taurus handgun listed in the indictment.


         “The burden of proof is on the party who seeks to suppress the evidence.” United States v. Hunter, 63 F.Supp.3d 614, 619 (E.D. Va. 2014) (citing United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981)). However, given the well-established principle that a search conducted without a warrant is “per se unreasonable under the Fourth Amendment, ” Katz v. United States, 389 U.S. 347, 357 (1967), the United States bears the burden at a suppression hearing of proving by a preponderance of the evidence that a warrantless search or seizure did not violate the Fourth Amendment. See United States v. Matlock, 415 U.S. 164, 177 n. 14 (1974) (noting that “the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence”); United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977) (“[I]f a defendant produces evidence that he was arrested or subjected to a search without a warrant, the burden shifts to the government to justify the warrantless arrest or search.”); Hunter, 63 F.Supp.3d at 619 (“Once the defendant establishes a basis for his motion to suppress, the burden shifts to the government to prove the admissibility of the challenged evidence by a preponderance of the evidence.”).

         During a pretrial hearing on a motion to suppress, “the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge.” Id. (quoting United States v. McKneely, 6 F.3d 1447, 1452-53 (10th Cir. 1993)) (internal citation omitted). See also Columbus-Am. Disc. Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995) (“[I]n the usual case, the factfinder is in a better position to make judgments about the reliability of some forms of evidence than a reviewing body acting solely on the basis of a written record of that evidence. Evaluation of the credibility of a live witness is the most obvious example.” (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 623 (1993))).


         Defendant argues that both the stop of his vehicle and the subsequent search of his person on February 22, 2017, were unreasonable in violation of his Fourth Amendment rights. “The basic purpose of [the Fourth] Amendment . . . is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” Camara v. Mun. Ct. of San Francisco, 387 U.S. 523, 528 (1967). “The Fourth Amendment does not prohibit all searches [and seizures], only those that are unreasonable.” United States v. Davis, 690 F.3d 226, 241 (4th Cir. 2012). “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” New Jersey v. T.L.O., 469 U.S. 325, 337 (1985).

         Defendant's motion challenges the legality of the search and seizure in the following ways: (1) Sgt. Webb lacked probable cause to initiate the traffic stop; (2) even if the traffic stop was legitimate, Sgt. Webb unduly prolonged it; (3) Sgt. Webb lacked reasonable suspicion that Defendant was involved in crime as required for an investigatory stop; (4) Sgt. Webb lacked reasonable suspicion that Defendant may have been armed and dangerous as required for a Te ...

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