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United States v. Mollohan

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

October 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFFERY EARNEST MOLLOHAN, Defendant.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGEK UNITED STATES DISTRICT JUDGE

         The 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On May 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.[1] (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.[2] 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.”

         As 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.[3] 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.

         As 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.[4]

         On May 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.

         DISCUSSION

         A. Fourth Amendment Seizure

         The 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 434.

         A 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)).

         As an 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).[5] 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 ...


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