Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Beverly

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

August 29, 2019

UNITED STATES OF AMERICA
v.
BRASHAN BEVERLY

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE

         Pending is Defendant Brashan Beverly's Motion to Suppress Evidence Seized on December 23, 2018. ECF No. 25. The Government filed a response opposing the motion. ECF No. 26. Defendant did not file a reply. The Court heard oral argument on August 23, 2019. One witness, arresting officer Captain D.K. Richardson III, testified. Finding no Fourth Amendment violation, the Court DENIES Defendant's motion.

         I. BACKGROUND

         On December 23, 2018, Capt. Richardson of the Nitro Police Department responded to a possible overdose at Tudor's Biscuit World in Nitro, Putnam County, West Virginia. Capt. Richardson and the other officer present encountered a woman on the restaurant's steps exhibiting signs of an overdose. Before Capt. Richardson arrived, restaurant employees informed the police that two people previously accompanied the woman inside the restaurant but left the restaurant once employees called the police. Those two individuals were now sitting in a vehicle in the parking lot.

         To gather information about the incident, Capt. Richardson approached the vehicle on foot and observed an uncapped hypodermic needle lying on the vehicle's back seat. Capt. Richardson began speaking with Defendant, who was sitting in the driver's seat, and Defendant informed Capt. Richardson that the overdosing woman was Defendant's girlfriend. Defendant then identified himself by name, and Capt. Richardson recognized his name from a shooting approximately ten years prior in St. Albans, West Virginia. Capt. Richardson asked Defendant if he had ever been arrested, and Defendant stated he previously was arrested in connection with a shooting. As the conversation continued, Capt. Richardson observed Defendant breathing heavily with his carotid artery visibly pulsating on his neck, indicating Defendant was nervous. Capt. Richardson then asked Defendant if he had any weapons. After a distinct pause, Defendant responded no.

         Capt. Richardson then asked Defendant to get out of the vehicle, and he frisked Defendant for weapons. While frisking him, Capt. Richardson touched a hard, round object near Defendant's crotch for a quarter of a second. Defendant stepped away to interrupt the frisk. Capt. Richardson reinitiated the frisk, touched the hard object again for approximately two seconds, and determined the object was heroin or crack cocaine. Capt. Richardson then placed Defendant in hand restraints and removed the object from Defendant's underwear. The object was a brown rock-like substance resembling heroin in a plastic bag. After discovering the substance, Capt. Richardson searched Defendant's vehicle and found digital scales, plastic sandwich bags, and a firearm stuffed between the driver's seat and center console. After searching the vehicle, Capt. Richardson field tested the substance found on Defendant, and the substance tested positive for heroin.

         II. DISCUSSION

         a. Capt. Richardson's and Defendant's Initial Encounter Does Not Implicate the Fourth Amendment.

         The Fourth Amendment is not implicated in a police-citizen encounter where police officers approach someone in public to speak with or ask questions of him or her. Florida v. Bostick, 501 U.S. 429, 439-40 (1991). Only when an individual is no longer free to leave is the individual seized and the Fourth Amendment implicated. Michigan v. Chesternut, 486 U.S. 567, 573 (1988).

         Here, Capt. Richardson acted within the lawful bounds of a police-citizen encounter when he first approached Defendant's vehicle. Restaurant employees informed the police that Defendant previously was inside the restaurant with the overdosing woman, indicating to Capt. Richardson that Defendant had relevant information. Defendant's explanation that the woman was his girlfriend gave Capt. Richardson more reason to continue asking Defendant questions to learn the circumstances of the woman's overdose. At this point, Capt. Richardson had not restrained Defendant's ability to leave the encounter, rendering the Fourth Amendment inapplicable.

         b. Capt. Richardson Developed Reasonable Suspicion to Frisk Defendant for Weapons.

         A police officer may frisk a suspect for weapons without a warrant if the officer has an articulable, reasonable suspicion that the suspect is armed and dangerous. U.S. v. Hensley, 469 U.S. 221, 226-28 (1985). The Court determines reasonable suspicion objectively based on the totality of circumstances, including information known to the officer and reasonable inferences the officer can draw at the time of the stop. U.S. v. Arvizu, 534 U.S. 266, 273 (2002). Unusually nervous behavior, such as shaking hands, heavy breathing, and inconsistent answers, are supportive of finding reasonable suspicion. U.S. v. Mayo, 361 F.3d 802, 806 (4th Cir. 2004).

         The Court finds Capt. Richardson had reasonable suspicion at the time he frisked Defendant for weapons. First, Defendant went to his vehicle instead of staying with and assisting his overdosing girlfriend, suggesting to Capt. Richardson an intentional evasion of the police to conceal criminal activity. Second, Capt. Richardson observed an uncapped hypodermic needle in the vehicle, for which possession without a valid prescription is an arrestable offense in Nitro. Third, Defendant appeared unusually nervous in response to Capt. Richardson's questioning because of his heavy breathing and visible pulse. And fourth, Capt. Richardson recalled, and Defendant admitted, that he previously was arrested in connection with a shooting.

         At the hearing, Defendant's counsel prodded which of these facts specifically formed the basis for Capt. Richardson's decision to frisk Defendant for weapons. However, Capt. Richardson's subjective evaluation of these facts is irrelevant under the objective reasonable suspicion standard. Capt. Richardson knew all four of these facts at the time of the frisk, and the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.