United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE.
December 17, 2013, Defendant James Anthony Mitchell was
indicted for being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The firearm was discovered after the police conducted a
pat-down search of Defendant. Defendant argues the search
violated his Fourth Amendment rights. As a result, Defendant
filed the pending Motion to Suppress. ECF No. 21. The Court
held a hearing on the motion on October 16 and October 23,
2017, and heard testimony from three police officers.
Thereafter, the Court directed the parties to submit
additional briefing on the motion. Upon consideration of the
parties' arguments and in light of the evidence
presented, the Court DENIES the motion for
the following reasons.
very early morning of April 7, 2013, the Huntington Police
Department received a phone call from Jim Smith. Mr. Smith
reported there was a large fight involving about thirty
people in the parking lot behind the Rehab bar, located at
the corner of 12th Street and 4th Avenue in Huntington, West
Virginia. The officers each recounted that this bar and
similar bars in the vicinity were often the scene of fights
and disturbances at closing time, resulting in the emergency
dispatch of any and all available officers. This call was
logged by dispatch on a “CAD sheet” at 3:11:29. The
narrative section of the CAD sheet logged at 3:11:57 and
3:12:06 further provided, in part: “ADV[ISED] HEARD
SOMEONE SAY THEY HAD A GUN[.]” CAD at 1, ECF
No. 38-1. At 3:12:06, the narrative upgraded the fight to
there being an assault victim. At 3:13:00, the narrative
provides: “ADV[ISED] ONE SUSP KNOCKED OUT LAYING ON THE
Police Officer Robert Black testified he was dispatched to
the scene at 3:13. Officer Black explained that, although it
may not be the exact words, what is written in the narrative
section of the CAD sheet is what is being relayed from
dispatch over the radio to the officers. While Officer Black
was in route, Corporal Benjamin Howard of the Huntington
Police Department arrived at the bar and, over the radio,
“advised that a bystander had told him that a male with
red pants, black shirt, a black male had a firearm on him and
was walking eastbound on 4th Avenue.” Tr. at
10, ECF No. 39. Officer Black testified that, at the time he
heard this information from Corporal Howard, he believed
Corporal Howard was with the crowd at the bar because he had
marked he was on the scene. Within one minute of hearing this
report, Officer Black said he saw Defendant, who matched the
description, walking eastbound in front of the Greyhound bus
station. The Greyhound bus station is located on the corner
of 13th Street and 4th Avenue, which is on the same block and
eastbound of the Rehab bar. As soon as he saw Defendant,
Officer Black said he immediately stopped his police cruiser,
pulled his service weapon, and ordered Defendant to put his
hands on head.
Jacob Felix of the Huntington Police Department also
testified he was dispatched to the scene. Corporal Felix
stated that, at almost the same time he heard the description
of the suspect, he saw Officer Black stop his cruiser and
heard him announce over the radio that he sees the suspect.
Corporal Felix said he accelerated to Officer Black's
location and saw a person matching the suspect's
description walking eastbound in front of the Greyhound
station. Corporal Felix said there was no one near the
suspect, and he did not see anyone else with red pants. When
he stopped and got out of his vehicle, Corporal Felix said
that Officer Black was giving Defendant verbal commands.
Corporal Felix testified he drew his weapon to cover Officer
Black so Officer Black could reholster his weapon and could
approach Defendant to pat him down. When Officer Black
conducted the pat-down, he found a firearm in Defendant's
waistband. Defendant was arrested and taken into custody.
Benjamin Howard testified that he had no doubt that he was at
the scene of the incident, but he admitted he had no specific
recollection of the incident because the police routinely
responded to similar disturbance calls at the bar and this
incident happened nearly four and one-half years ago.
Although he could not remember this specific incident, when
asked about the information on the CAD sheet, Corporal Howard
said he knew the original caller, Jim Smith. He said Mr.
Smith was a regular at the bar and may have been an employee
at one time. However, Corporal Howard could not recall with
whom he spoke at the scene who gave him the information he
put out over the radio. He explained that, “generally
the situation is very dynamic, lots of people yelling and
screaming, running up and getting in cars.”
Tr. at 50.
Fourth Amendment of the Constitution protects the rights of
citizens “to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures.” U.S. Const. Amend. IV. For an officer to
make a brief, investigatory stop, there must be “a
reasonable, articulable suspicion that criminal activity is
afoot[.]” Illinois v. Wardlow, 528 U.S. 119,
123 (2000) (citation omitted). Whether reasonable suspicion
exists depends upon the totality of the circumstances,
United States v. Sokolow, 490 U.S. 1, 8 (1989), that
existed “at the time of the seizure.” United
States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982)
(citation omitted). Reasonable suspicion “is something
more than an ‘inchoate and unparticularized suspicion
or ‘hunch.'” United States v.
Burton, 228 F.3d 524, 527 (4th Cir. 2000), quoting
Terry v. Ohio, 392 U.S. 1, 27 (1968). However, the
reasonable suspicion standard is less demanding than the
probable cause and requires a showing appreciably less than a
preponderance of the evidence. Wardlow, 528 U.S. at
determining whether reasonable suspicion exists, a court must
apply an objective test of what information was known by the
officer and any reasonable inferences that can be drawn by
the officer at the time of the stop. United States v.
Crittendon, 883 F.2d 326, 328 (4th Cir. 1989); see
also United States v. Arvizu, 534 U.S. 266, 273 (2002)
(“When discussing how reviewing courts should make
reasonable-suspicion determinations, we have said repeatedly
that they must look at the ‘totality of the
circumstances' of each case to see whether the detaining
officer has a ‘particularized and objective basis'
for suspecting legal wrongdoing.” (citation omitted)).
In other words, “judged against an objective standard:
would the facts available to the officer at the moment of . .
. the search ‘warrant a man of reasonable caution in
the belief' that the action taken was appropriate?”
Terry, 392 U.S. at 21-22 (citations and footnote
omitted). In making inferences, officers may rely upon their
own experiences and specialized training. Arvizu,
534 U.S. at 273.
information an officer uses to determine if reasonable
suspicion exists to make a Terry stop comes from a
third-party, it must be evaluated in terms of whether it has
“sufficient indicia of reliability to provide
reasonable suspicion to make the investigatory stop.”
Alabama v. White, 496 U.S. 325, 326-27 (1990). When
information comes from a known source, officers may judge its
credibility based upon their own experiences. However, an
anonymous tip “seldom demonstrates the informant's
basis of knowledge or veracity.” Id. at 329.
case, although Officer Howard does not remember who at the
scene told him about the gun and described the suspect, it
was relayed through a face-to-face encounter within minutes
of the first call being logged by dispatch. With purely
anonymous tips, there is no way to judge the reliability,
knowledge, or veracity of the informant without additional
information or facts. Florida v. J.L., 529 U.S. 266,
270-74 (2000) (finding an anonymous telephone tip that an
individual had a gun was insufficient to support a stop and
frisk where there were no additional corroboration to
substantiate the tip). By contrast, the Fourth Circuit in
United States v. ...