United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
C. BERGEK UNITED STATES DISTRICT JUDGE
Court has reviewed the Defendant's Motion to Suppress
Evidence Seized on May 17, 2018 (Document 28), the
Defendant's Memorandum in Support of Motion to
Suppress Evidence Seized on May 17, 2018 (Document 32),
and the Response of the United States to Defendant's
Motion to Suppress Evidence (Document 33). On October 8,
2019, the Court held a hearing on the motion to suppress.
Based on the above-mentioned documents and the evidence
presented during the hearing, the Court finds that the
evidence seized on May 17, 2018, should be suppressed.
AND PROCEDURAL BACKGROUND
17, 2018, Officer Cooper responded to a call about a vehicle
at the Charleston Arbors apartment complex, located at 100
Washington Street East in Charleston, West Virginia. The
caller reported that a black car pulled into the parking lot,
and the driver had been sitting in the car for about ten
minutes after pulling in. (Document 48-1.) Officer Cooper
testified that he had responded to a lot of calls in this
area. When Officer Cooper arrived at the scene, he noticed a
vehicle sitting in the back part of the parking lot that
matched the description from the dispatch call. The lights of
the vehicle were off, and it was parked next to another car.
Officer Cooper testified that he pulled ten to fifteen yards
in front of the vehicle, “cater-cornered” to it,
and put his spotlight on the vehicle. He did not wait for back up
before approaching the vehicle, because he “wanted to
speak with them before they had more time to think about
whether they would run or drive away.”
Officer Cooper approached the car, he saw people moving
around inside the vehicle. The two front windows were rolled
down, the two rear windows were rolled up and the motor was
running. Officer Cooper testified that upon arriving at the
front window, he saw cash in the hands of all three
individuals inside the car. Officer Cooper then asked the
Defendant, “What are you doing?” The Defendant
replied that he was picking up a friend from the apartment
complex. Officer Cooper testified that when he asked the
Defendant who his friend was, the Defendant hesitated for
about five to ten seconds before providing a name. Officer
Cooper also testified that the Defendant appeared nervous-he
was shaky, breathing heavily, and avoided eye contact. Then
Officer Cooper asked the Defendant if there were any guns in
the car. The Defendant looked around the car to the other
passengers before answering no. After the Defendant said
there were no guns in the car, Officer Cooper testified that
he didn't think the Defendant was “being
straight” with him, so he asked him to step out of the
car for officer safety.
Officer Cooper was removing the Defendant from the car,
Corporal Welsh arrived on the scene. Corporal Welsh
approached the vehicle and saw what appeared to be the handle
of a gun sticking out of a pile of clothes in the back seat.
Corporal Welsh advised Officer Cooper that there was a gun on
the back seat and ordered the passenger in the back seat not
to reach for the weapon. At that point, the other passengers
were removed from the car and detained. A 25-caliber firearm
was removed from the back seat. Officer Cooper then asked the
Defendant if he could search the vehicle. The Defendant
agreed. The search revealed a rifle in the trunk of the car.
Officer Cooper ran a criminal history report and discovered
that the Defendant had a prior felony. Officer Cooper
testified that the Defendant told him that he was a convicted
felon and was not allowed to possess a firearm.
29, 2019, an Indictment was filed against the Defendant,
charging him with Possession of a Firearm by a Felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
On May 23, 2019, the Defendant filed a motion to suppress the
evidence seized on or about May 17, 2018. A memorandum in
support of the motion to suppress was filed on September 30,
2019, and the United States filed its response in opposition
to the motion to suppress on October 4, 2019.
Fourth Amendment Seizure
Fourth Amendment to the Constitution prohibits unreasonable
searches and seizures. U.S. Const. amend. IV. Under the
Fourth Amendment, police officers are allowed to approach
individuals in public places and ask them questions,
“so long as a reasonable person would understand that
he or she could refuse to cooperate.” Florida v.
Bostick, 501 U.S. 429, 431 (1991). Under those
circumstances, the police encounter is “consensual and
no reasonable suspicion is required.” Id. at
seizure occurs, however, once a reasonable person would no
longer believe he or she is free “to disregard the
police and go about their business.” Id. at
433 (quoting California v. Hodari D., 499
U.S. 621, 269 (1991)). The test is whether “in view of
all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave.” United States v. Mendenhall, 446 U.S.
544, 554 (1980) (plurality op.).
A court considers a number of factors in determining whether
an officer's conduct would convey to a reasonable person
that he is not free to leave. These include, but are not
limited to, the number of police officers present during the
encounter, whether they were in uniform or displayed their
weapons, whether they touched the defendant, whether they
attempted to block his departure or retrain his movement,
whether the officers' questioning was non-threatening,
and whether they treated the defendant as though they
suspected him of illegal activity rather than treating the
encounter as routine in nature.
United States v. Jones, 678 F.3d 293, 299 (4th Cir.
2012) (quoting United States v. Gray, 883 F.2s 320,
322-23 (4th Cir. 1989)).
initial matter, Officer Cooper parked his patrol car
cater-cornered to the Defendant's car, in a manner
suggesting that the Defendant was not free to drive off. The
Fourth Circuit has held that blocking a defendant's car
in order to effectuate an encounter constitutes a Fourth
Amendment seizure. United States v. Jones, 678 F.3d
293, 301 (4th Cir. 2012). Officer Cooper testified that he parked
approximately ten to fifteen yards away from the vehicle,
cater-cornered to the front of the Defendant's car and
that there would have been “plenty of room for Mollohan
to go around if he had wanted to.” However, the
Court's review of the parking lot layout reveals that
there would have been very little room for the Defendant to
navigate around a police cruiser parked cater-cornered to the
Defendant's car. (Gov.'s Ex. 1.) The officer pulled
up to the Defendant's car in a marked ...