United States v. Evans

947 F. Supp. 2d 895, 2013 WL 2251577, 2013 U.S. Dist. LEXIS 72580
CourtDistrict Court, E.D. Tennessee
DecidedMay 22, 2013
DocketNo. 3:12-CR-156
StatusPublished
Cited by1 cases

This text of 947 F. Supp. 2d 895 (United States v. Evans) is published on Counsel Stack Legal Research, covering District Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Evans, 947 F. Supp. 2d 895, 2013 WL 2251577, 2013 U.S. Dist. LEXIS 72580 (E.D. Tenn. 2013).

Opinion

MEMORANDUM AND ORDER

THOMAS W. PHILLIPS, District Judge.

On April 4, 2013, the Honorable C. Clifford Shirley, Jr., United States Magistrate Judge, filed a 17-page Report and Recommendation (R & R) [Doc. 26] in which he recommended that defendant’s motion to suppress evidence obtained as a result of the seizure and search of the defendant on November 11, 2012 [Doc. 19] be granted. Thus, Magistrate Judge Shirley recommended that the firearm and ammunition seized on November 11, 2012 be suppressed.

This matter is presently before the court on the government’s timely objections to the R & R [Doe. 27], to which the defendant has responded [Doc. 31]. As required by 28 U.S.C. § 636(b)(1), the court has now undertaken a de novo review of those portions of the R & R to which the government objects. For the reasons that follow, the court finds itself in agreement with Judge Shirley’s thorough analysis of the legal issues arising from the evidentia-ry hearing conducted by him on February 28, 2013. Consequently, the government’s objections will be overruled, the R & R will be accepted in whole, and the underly[897]*897ing motion to suppress evidence will be granted.

Defendant has been charged in a one-count indictment with possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Defendant moves to suppress all evidence seized by police on November 11, 2012, including the firearm and ammunition which is the basis for the indictment, arguing that the officers violated his Fourth Amendment rights to be free of warrantless searches and seizures. He contends that the officers seized him and conducted a pat-down search without having reasonable suspicion that a crime had been committed.

The government, on the other hand, responds that the officers had reasonable suspicion to believe that criminal activity was afoot. The government also argues that the pat-down search of the defendant was necessary to ensure officer safety and that the firearm and ammunition obtained should, therefore, be admissible at trial.

At the hearing on the motion to suppress, the government presented the testimony of one witness, Knoxville Police Department Officer Jajuan Hamilton. Officer Hamilton testified that on November 11, 2012, he was dispatched to the Dollar General Store on the corner of Middle-brook Pike and University Avenue. The dispatcher told him that two people had contacted the police and reported a male with a gun in the store. The dispatcher gave the following description of the unidentified male: black, bald, wearing a black sweatshirt with white writing on it, black jeans, and smoking a cigarette. The person had just left the Dollar General Store and was heading towards Squire’s Liquor. Officer Hamilton asked the dispatcher what the male was doing with the gun, but the dispatcher stated that she was not sure and that the callers only reported that the male had a gun in his back pocket and was walking around. When Officer Hamilton arrived, he observed the defendant walking on the corner of University and Western Avenues. He testified that defendant was wearing a black hoodie and had a white towel around his neck. He could not see if defendant was bald because defendant had his hood on over his head. Officer Hamilton testified that he did not see a weapon on defendant.

Officer Hamilton approached defendant from behind and asked defendant what was going on and whether he was just at the Dollar General Store. Defendant responded that he was not. Officer Hamilton then told defendant he was going to pat him down. Officer Hamilton grabbed defendant’s arm and Hamilton’s partner, Officer Charlie Winstead, grabbed defendant’s other arm. Officer Hamilton said that defendant refused to allow the officers to pat him down and an altercation ensued. Officer Hamilton attempted to tase defendant, but defendant pulled both taser prongs out. The officers saw a gun in defendant’s back pocket, and Officer Win-stead was able to take it before the defendant fled on foot. Officer Hamilton ran after defendant, but lost sight of him.

Magistrate Judge Shirley found that the defendant was seized when the officers grabbed his arms and attempted to pat him down. Further, the magistrate found that the circumstances did not give the officers reasonable suspicion to detain defendant and to conduct a pat-down search. Thus, Magistrate Judge Shirley recommended the evidence produced from the illegal search and seizure be suppressed.

The government has filed objections to the Magistrate Judge’s (1) factual findings, (2) his legal conclusions, and (3) his recommendation that the firearm and ammuni[898]*898tion seized from defendant be suppressed in this case.

As noted by the Magistrate Judge, the Fourth Amendment protects “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures.” U.S. Const, amend. IV. An officer may stop a person only if he “has reasonable, articulable suspicion that the person has been, is or is about to be engaged in criminal activity.” United States v. Johnson, 620 F.3d 685, 690 (6th Cir.2010) (quoting United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983)). The officer’s reasonable suspicion permits the officer to detain the suspect while asking a moderate number of questions to identify the suspect and either confirm or dispel the officer’s suspicions. United States v. Martin, 289 F.3d 392, 396 (6th Cir.2002). If the suspect’s answers fail to supply the officer with probable cause to arrest the suspect, then the officer must release the suspect. Id. The court evaluates the reasonableness of the officer’s suspicion in light of the totality of the circumstances surrounding the stop. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Martin, 289 F.3d at 398.

Here, the defendant argues that at the time he was seized, the officers lacked reasonable suspicion to conduct an investigatory stop. The government argues that the officers did have a reasonable articulable suspicion that criminal activity was afoot based on information provided by the 911 callers; that the defendant reasonably met the description provided by the 911 callers; and that suppression of the evidence is not the proper remedy because the firearm was recovered after the defendant committed an intervening offense (resisting, fighting and fleeing from the officers). Magistrate Judge Shirley found that

[a]t the time Officer Hamilton seized the defendant, Officer Hamilton had only been told by the dispatcher that there was a suspicious male with a gun at the Dollar General Store, that the male was reportedly heading towards Squire’s Liquor, and a description was given of the unidentified male indicating he was a black male, bald, wearing a black sweatshirt with white lettering and smoking a cigarette.

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Cite This Page — Counsel Stack

Bluebook (online)
947 F. Supp. 2d 895, 2013 WL 2251577, 2013 U.S. Dist. LEXIS 72580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-evans-tned-2013.