United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, UNITED STATES DISTRICT JUDGE
before the Court is Defendant Markus Davis's
(“Defendant”) Motion to Suppress (ECF No. 23).
For the following reasons, the Court DENIES the motion.
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.
following facts were derived from the testimony and exhibits
adduced during the June 5, 2017 hearing. The facts are not
in dispute except where indicated.
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. (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.)
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.
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. 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.
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. 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. 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.
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.”).
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
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).
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 ...