United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
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
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.
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
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.
Capt. Richardson's and Defendant's Initial Encounter
Does Not Implicate the Fourth Amendment.
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).
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.
Capt. Richardson Developed Reasonable Suspicion to Frisk
Defendant for Weapons.
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).
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.
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 ...