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United States v. Griffey

United States District Court, N.D. West Virginia

February 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BRIAN GRIFFEY, Defendant.

          KLEEH Judge

          REPORT AND RECOMMENDATION RECOMMENDING THE MOTION TO SUPPRESS BE DENIED

          MICHAEL JOHN ALOL UNITED STATES MAGISTRATE JUDGE.

         This matter is before the undersigned pursuant to a Referral Order entered by United States District Judge Thomas S. Kleeh entered on February 5, 2019. (ECF No. 28). This matter is now ripe for the undersigned to issue a Report and Recommendation to the District Judge. Accordingly, the undersigned hereby RECOMMENDS that the Defendant's Motion to Suppress be DENIED.

         I. BACKGROUND

         On November 6, 2018, Defendant Griffey was charged in a one count indictment for the Unlawful Possession of a Firearm and Ammunition in violation of 922(g)(1). The indictment alleges that on June 5, 2018, Defendant knowingly possessed a Remington Arms Company, INC., Pump-Action shotgun, model 870 Express, 12-gauge, and ammunition and was not permitted to possess said firearm due to having at least one previous felony conviction. (ECF No. 1).

         a. Motion to Suppress

         On February 1, 2019, Defendant, by and through counsel, Scott Radman, filed a Motion to Suppress (ECF No. 26) arguing that the “mundane activity of an individual removing a generator from the trunk of an automobile does not begin to rise to the ‘objective standard' that must be applied by an officer when determining whether or not ‘reasonable suspicion.'” exists. Defs. Mot. at 2.

         b. Government's Response

         On February 8, 2019, the Government filed its Response arguing that the encounter was consensual because there was no show of authority nor any submission to said authority in the events leading up to the June 5, 2018 traffic stop. Gov't Resp. at 2-3. Furthermore, the Government argued that if the initial encounter, and subsequent encounters, constituted an investigatory stop, there was reasonable suspicion to conduct the stop of Mr. Griffey's vehicle. Id.

         c. Testimony

         Sargent Chris Shingleton testified during the motion hearing regarding the incident that occurred on June 5, 2018. (Motion Hearing Recording, 2:33 p.m.[1]). Sgt. Shingleton testified that he is a Sargent with the Nutter Fort Police Department and has worked for Nutter Fort[2] Police Department for approximately nine years. (2:34). Officer testified that part of his duties was to patrol the area during his shift, but the number of times that an officer patrols the area varies depending on the shift. (2:36). Sgt. Shingleton testified that on June 5, 2018, towards the end of his shift, he began patrolling the area at approximately 11:15 p.m. (2:44). Sgt. Shingleton testified that he drove down Illinois Avenue and would have continued down the road except having seen a white vehicle.[3] (2:46).

         Sgt. Shingleton testified that, at approximately the 600 block of Illinois avenue, [4] he noticed a white vehicle parked in a drive way and a black man standing at the rear of the car with his trunk open. (2:46). Sgt. Shingleton testified that after seeing this man with the trunk open, he continued driving, turned left on to Bryan Street, turned left on to Indiana, turned left on to Jacob Street, and ended up back around at 600 Illinois Avenue. (2:49). Sgt. Shingleton testified that he noticed that the male was still at the rear of the white car at 600 Illinois Avenue. (2:49). Sgt. Shingleton testified that he made a left turn and traveled down Illinois Avenue. (2:51). He testified that he “made the same loop” as he did before (left on Bryan Street, left on to Indiana Street, left on Jacob Street, and back around to Illinois Avenue). (2:52).

         Upon returning to 600 Illinois Avenue, the white car and the male were gone. (2:54). Sgt. Shingleton testified that from there he continued patrolling. (2:54). He testified that he turned right and traveled down Illinois Avenue, turned right on to White Street, turned right on to Indiana Avenue and drove back up towards the residential neighborhood. Sgt. Shingleton testified that he turned left on to Washington Street and then turned right onto Ohio Avenue. Sgt. Shingleton testified that he noticed the white car was traveling away from the 600 Illinois residence and down Jacob Street. While Sgt. Shingleton was stopped at the stop sign on Ohio Avenue at the cross-street of Jacob Street, he saw the white car driving towards him on Jacob Street, abruptly stop, put its turn signal on, and pulled into a parking lot/driveway that was located before the Jacob Street-Ohio Avenue four way stop, pictured in Government's exhibit 3. Sgt. Shingleton turned right on Jacob Street and drove past the vehicle that had pulled off of Jacob Street. (2:57). Sgt. Shingleton stated that as he drove past the white vehicle, he saw the man get out of the vehicle with a blanket or rag and open the back of the car, but that was all Sgt. Shingleton was able to see. (2:57).

         Sgt. Shingleton stated that he turned on to Indiana Avenue and at this point decided to turn around because 1) he had never seen the vehicle before, 2) the vehicle parked at another house that he did not recognize it to be a car that belonged there, 3) the car was parked at the 600 Illinois Avenue, 4) the Sargent did not recognize the car to belong at that residence, and 5) the car abruptly turned its turn signal on and parked. Sgt. Shingleton stated that he began backing up and noticed the vehicle was no longer on Jacobs Street where it had previously been. (3:00). Sgt. Shingleton then traveled down Indiana Avenue, turned right on Ohio Avenue, and returned back to the intersection that Sgt. Shingleton had previously seen the white ...


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