United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
A. Faber, Senior United States District Judge.
D'Alfonza V. Mikell is charged in a three-count
indictment with possession with intent to distribute
methamphetamine and heroin, in violation of 21 U.S.C. §
841(a)(1), (Count One); carrying a firearm during a drug
trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A), (Count Two); and being a felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2), (Count Three).
before the court is defendant's motion to suppress
evidence. (ECF No. 31). Specifically, defendant moves to
“suppress all evidence that was seized incident to
[his] arrest” because his arrest “without a
warrant was not supported by probable cause.”
Id. at p. 7. On May 6, 2019, the court conducted an
evidentiary hearing on defendant's motion. Present at
that hearing were Louie Alexander Hamner, Assistant United
States Attorney, on behalf of the United States; and
defendant, who appeared in person and by his counsel, Roger
L. Lambert. Detectives Seth Johnson and Matthew Petty
testified at the hearing.
reasons expressed more fully below, the motion to suppress is
DENIED. In support of its ruling, the court
makes the following findings of fact and conclusions of law.
Findings of Fact
evening of January 8, 2019, Detective Eric Seth Johnson with
the Charleston Police Department (“CPD”) and
assigned to the Metro Drug Unit Network Team
(“MDENT”) received information from a confidential
source (“CS1") that two individuals
from Ohio were selling drugs in the Charleston area. CS1
described the two individuals as a smaller black male who
went by the name Diablo and a larger black male going by the
name of “B”. CS1 advised Detective Johnson that
he or she had seen both Diablo and B with large quantities of
methamphetamine and heroin in Charleston and that he believed
B was the “enforcer” and often carried a
firearm. CS1 also informed Detective Johnson that
he or she would let him know when Diablo and B were to return
to the area.
next evening, January 9, 2019, Detective Johnson received
information from another confidential source
(“CS2") regarding drug dealers from Ohio. Upon
being arrested, CS2 had asked to speak with MDENT in order to
provide information in an attempt to help his or her
significant other. CS2 informed Detective Johnson of two
black males, going by the names of Diablo and B, from
Columbus, Ohio who were providing drugs to his or her
significant other. CS2 told Detective Johnson that his or her
significant other, who was battling addiction, obtained drugs
from Diablo and B to sell in the Charleston area. According
to CS2, B was the larger of the two men and he often carried
a firearm. CS2 advised that he or she had been in the house
with Diablo and B when they were supplying his or her
significant other with drugs although CS2 was often told to
leave the room. CS2 stated that he or she had observed Diablo
and B with large quantities of methamphetamine.
Johnson testified that he did not inform CS1 and CS2 about
each other and that, to his knowledge, they were not aware
that the other had spoken to him or that they even knew each
morning of January 10, 2019, at approximately 10:45 a.m., CS1
contacted Detective Johnson to inform him of an upcoming drug
transaction between someone CS1 knew and Diablo and B.
According to CS1, the transaction was to occur at the
McDonald's located in the east end of Charleston.
Detective Johnson then received another call from CS1 at
approximately 11:51 a.m., informing him that the drug deal
was to happen in the next 15 minutes. Detective Johnson
advised other law enforcement officers, including Detective
Matthew Petty,  of the information he received from CS1.
Johnson proceeded to the McDonald's and Detective Petty
did the same. Detective Petty was in an unmarked MDENT van
with approximately five or six other MDENT officers and the
van was parked in a location where Detective Petty and the
other officers could conduct visual surveillance of the
McDonald's parking lot. Detective Johnson, who was in a
police cruiser, waited in a location not in direct view of
five minutes of receiving the second call from CS1, a white
rental truck with an Ohio license plate pulled into the
McDonald's parking lot. Detective Petty observed two
black males in the front of the truck matching the
description provided by CS1 and CS2. After parking, the
occupants in the truck did not get out. According to
Detectives Johnson and Petty, in their experience as law
enforcement officers, this is consistent with drug dealing
activity. Detective Petty testified that drug dealers often
choose to meet in public places so that they can blend in.
Detective Johnson also noted that these deals frequently are
carried out in cars because the persons involved feel it is
safer. The fact the suspects did not exit the vehicle was
further indicative of drug dealing activity according to
Detective Petty because it suggests they were not there for a
lawful purpose. Detective Petty then saw CS1, whom he
recognized, walk up to the truck on the passenger side and
reach inside the window. CS1 then walked away as the truck
remained parked with the two black males inside.
that a drug transaction had just occurred, Detective Petty
made the decision to approach the truck and, according to
Detective Johnson, advised the other officers to “pull
in” or “move in” or words to that effect.
Detective Petty and the other five or six officers in the
MDENT van approached the truck with their weapons drawn and
wearing their police vests. Announcing themselves as law
enforcement, the occupants of the truck were advised to
“show their hands” or “put their hands
up” or words to that effect. Detective Johnson arrived at
the scene as Detective Petty and the other officers were
approaching the white truck.
Petty approached the driver's side of the truck and
removed the driver. Defendant was sitting in the front seat
on the passenger side of the truck. As defendant was being
removed from the truck and secured by Detective Aldridge,
Detective Petty noticed a firearm on the passenger's seat
under defendant's leg and alerted the other officers of
the existence of the firearm. Detective Dennison secured the
women were in the back of the truck. All four occupants of
the truck were placed in handcuffs for officer safety.
Detective Aldridge searched defendant and discovered a bag of
suspected methamphetamine, a bag of suspected heroin, and a
large sum of United States currency. At this point, defendant
was placed under arrest.
to defendant's arrest, officers searched the vehicle.
Large quantities of suspected methamphetamine and heroin were
recovered from the truck's center console as well as a
scale of the type often used in narcotics trafficking. All
narcotics recovered were field tested and the results of
those tests were positive. The officers later learned that no
drug transaction had occurred between CS1 and defendant.
court found the testimony of both witnesses testifying at the
hearing to be entirely credible. Furthermore, their testimony
was consistent with Detective Johnson's Case Report
prepared on January 10, 2019. See ECF No. 33-1.
Conclusions of Law and Analysis
Fourth Amendment provides “[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
violated.” U.S. Const. amend. IV. The defendant bears
the burden of demonstrating a Fourth Amendment violation,
Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978),
and, on appeal, the court reviews the evidence in the light
most favorable to the party prevailing below. See United
States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).
The factual findings underlying a motion to suppress,
including credibility determinations, are reviewed for clear
error, while the legal determinations are reviewed de
novo. See Ornelas v. United States, 517 U.S.
690, 699 (1996); United States v. Murray, 65 F.3d
1161, 1169 (4th Cir. 1995); United States v. Rusher,
966 F.2d 868, 873 (4th Cir.), cert. denied, 506 U.S.
every encounter between a private citizen and law enforcement
implicates the Fourth Amendment. See United States v.
Stover, 808 F.3d 991, 995 (4th Cir. 2015) (“[The
Fourth Amendment], however, does not extend to all
police-citizen encounters.”); see also United
States v. McCoy, 513 F.3d 405, 411 (4th Cir. 2008)
(“Of course, the protections of the Fourth Amendment do
not bear on every encounter between a police officer and a
member of the public; it is only when a `search' or
`seizure' has occurred that the Fourth Amendment comes
The Supreme Court has recognized three distinct types of
police-citizen interactions: (1) arrest, which must be
supported by probable cause; (2) brief investigatory stops,
which must be supported by reasonable suspicion; and (3)
brief encounters between police and citizens, which require
no objective justification.
United States v. Weaver, 282 F.3d 302, 309 (4th Cir.
2002) (internal citations omitted).
probable cause standard governing arrests is “an
objective one; it exists when, `at the time the arrest
occurs, the facts and circumstances within the officer's
knowledge would warrant the belief of a prudent person that
the arrestee had committed or was committing an
offense.'” United States v. Johnson, 599
F.3d 339, 346 (4th Cir. 2010) (quoting United Statesv. Manbeck, 744 F.2d 360, 376 (4th Cir. 1984));
see also Smith v. Munday, 848 F.3d 248, 253 (4th
Cir. 2017) (“Probable cause is determined by a
totality-of-the circumstances approach. . . . It is an
objective standard of probability that reasonable and prudent
persons apply in everyday life.”) (internal citations
and quotations omitted). “The probable-cause inquiry
turns on two factors: `the suspect's conduct as known to