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United States v. Mitchell

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

December 1, 2017

UNITED STATES OF AMERICA
v.
JAMES ANTHONY MITCHELL

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS, UNITED STATES DISTRICT JUDGE.

         On 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.

         I.

         FACTUAL BACKGROUND

         In the 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”[1] 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 GROUND[.]” Id.

         Huntington Police Officer Robert Black testified he was dispatched to the scene at 3:13.[2] 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.

         Corporal 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.

         Corporal 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.

         II.

         DISCUSSION

         The 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 123.

         In 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.

         When 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.

         In this 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. ...


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