United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
before the court is the defendant’s Motion to Suppress
[ECF No. 26].
court held a hearing on this Motion on August 15, 2019 and
ordered additional briefing. The defendant and the government
have submitted additional briefs, and the matter is now ripe
for review. For the following reasons, the Motion is
defendant seeks to suppress several items of evidence that he
claims were unlawfully seized. At the suppression hearing,
the court heard testimony of Lieutenant Matthew Board. The
parties agree that on December 6, 2017, Lt. Board observed a
2005 white Dodge Caravan at the traffic light at the
intersection of East Street and Seventh Street at
approximately 3:00 am. Lt. Board followed the car for several
blocks. He observed the car travelling 5–8 mph under
the posted speed limit and make an abrupt turn without
utilizing its turn signal. Tr. Mot. Suppress 10:7– 25;
Police Report Ex. A [ECF No. 27-1]. Lt. Board subsequently
initiated a traffic stop. The car had three occupants: Erica
Blake (the driver), Defendant Mark Smith
(occupying the front passenger seat), and Aaron Dobson
(sitting in the rear passenger seat).
Board testified that the location of the traffic stop was in
an “extremely high crime area.” Tr. Mot. Suppress
11:22. He testified that before approaching the car he called
for backup but that they had not arrived at the time he
initiated contact with the car. Id. at
12:17–22. Lt. Board testified that as he approached the
car, Smith appeared nervous, was breathing rapidly, failed to
maintain eye contact, and displayed “overall
jitteriness.” Id. at 12:13–17. Lt. Board
immediately asked the car’s occupants “if there
were any weapons in the vehicle.” Id. at
12:19. Lt. Board testified that Smith responded stating that
there was a firearm in the car. Id. at 13:10. None
of the occupants provided a definitive answer as to where the
gun was located within the car. Police Report Ex. A [ECF No.
27-1]. Backup officers arrived shortly thereafter. The
occupants were ordered out of the car. Tr. Mot. Suppress
17:3–6. At that point, Lt. Board detected the smell of
marijuana emanating from the interior of the car.
Board testified that Sergeant Koher then searched the car for
contraband and the weapons. Id. at 17:12-16. The
search produced a .45 caliber handgun in the passenger side
floorboard. Lt. Board conducted a pat-down frisk for weapons
of Smith’s person, finding a “concealment
holster… that had Velcroed around his body, around the
upper torso.” Id. at 17:10–12. A
criminal background check demonstrated that Mr. Smith had a
felony conviction. The officers thus placed him under arrest
for the illegal possession of the firearm. Smith was
subsequently searched incident to arrest. That search located
4.5 grams of crack cocaine, 5.3 grams of methamphetamine, and
9 tablets of buprenorphine in Smith’s right front pants
pocket. Police Report Ex. A [ECF No. 27–1].
Smith’s wallet was searched at the police station and
was found to contain five counterfeit $100 bills.
Id. The police report does not specify exactly
where, but six Social Security cards belonging to various
people were also found in Smith’s possession.
Smith moved to suppress the contraband. He argues that the
question, “are there any weapons in the vehicle?”
was beyond the scope of the purpose of the stop and that by
asking it, the question unlawfully prolonged the stop.
Consequently, he argues that in order to ask the
“unrelated” question, Lt. Board needed reasonable
suspicion, which he did not have in this case. Defendant
Smith does not challenge the lawfulness of the traffic stop
for the purposes of this motion. The court is presented with
three questions: (1) whether the single question was related
to the mission of the stop, (2) if not, whether the single
question unlawfully prolonged the stop, and (3) if so,
whether Lt. Board had reasonable suspicion that the occupants
in the car were involved in criminal activity or possessed
deciding a motion to suppress, the district court may make
findings of fact and conclusions of law. United States v.
Stevenson, 396 F.3d 538, 541 (4th Cir. 2005). During the
hearing, “the credibility of the witness[es] and the
weight to be given the evidence, together with the
inferences, deductions and conclusions to be drawn from the
evidence, are all matters to be determined by the trial
judge.” United States v. McKneely, 6 F.3d
1447, 1452–53 (10th Cir. 1993) (quoting United
States v. Walker, 933 F.2d 812, 815 (10th Cir. 1991)).
See also Columbus–Am. Discovery Grp. v. Atl. Mut.
Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995) (“[i]n
the usual case, the factfinder is in a better position to
make judgments about the reliability of some forms of
evidence than a reviewing body acting solely on the basis of
a written record of that evidence. Evaluation of the
credibility of a live witness is the most obvious
example.”) (quoting Concrete Pipe & Prods. of
Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal.,
508 U.S. 602, 623 (1993)). The burden of proof is on the
party who seeks to suppress the evidence. United States
v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981). Once
the defendant establishes a basis for his motion to suppress,
the burden shifts to the government to prove the
admissibility of the challenged evidence by a preponderance
of the evidence. United States v. Matlock, 415 U.S.
164, 177 n.14 (1974).
determining whether a traffic stop is reasonable, [courts]
apply the standard articulated in Terry v. Ohio, 392
U.S. 1 (1968), wherein the court asks (1) if the stop was
‘legitimate at its inception, ’ United States
v. Hi l, 852 F.3d 377, 381 (4th Cir.
2017), and (2) if ‘the officer’s actions during
the seizure were reasonably related in scope to the basis for
the traffic stop, ’ Williams, 808 F.3d at
245.” United States v. Bowman, 884 F.3d 200,
209 (4th Cir. 2018).
these principles into account, in this case, the officer
asked a single question, whether there were any firearms in
the car. Id. at 12:19. The first question before the
court is whether this question was related to the mission of
the stop. The second question before the court is if the
question was not related to the mission of the stop, whether
the single question unlawfully prolonged the stop. The third
question before the court is if the question unlawfully
prolonged the stop, did the officer have reasonable
Whether the Question was Related to the Mission ...