United States v. Hicks

190 F. Supp. 3d 733, 2016 U.S. Dist. LEXIS 72109, 2016 WL 3090699
CourtDistrict Court, S.D. Ohio
DecidedJune 2, 2016
DocketCase No. 1:15-cr-126
StatusPublished
Cited by1 cases

This text of 190 F. Supp. 3d 733 (United States v. Hicks) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hicks, 190 F. Supp. 3d 733, 2016 U.S. Dist. LEXIS 72109, 2016 WL 3090699 (S.D. Ohio 2016).

Opinion

ORDER DENYING DEFENDANT’S MOTION TO SUPPRESS (Doc. 15)

Timothy S. Black, United States District Judge

This criminal case is before the Court on Defendant’s motion to suppress (Dóc. 15) and the Government’s response in opposition (Doc. 16). The Court held an eviden-[738]*738tiary hearing on April 21, 2016. (Min. Entry, Apr. 21, 2016).1

I. BACKGROUND

On December 16, 2015, Defendant Dennis Hicks was charged in a one-count indictment with felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Doc. 1). The charge arises from evidence obtained by officers of the Harrison, Ohio Police Department (the “HPD”) during a traffic stop and subsequent search of Defendant’s vehicle. (Docs. 15, 16). On February 15, 2016, Defendant filed the instant motion. (Doc. 15). For purposes of this motion, the Court will rely upon the facts as set forth in the parties’ briefs (Docs. 15, 16), as well as the testimony and evidence proffered at the April 21, 2016 suppression hearing:

On September 13, 2015, at approximately 12:41 a.m., HPD Officer Christopher MacMurdo (“Officer MacMurdo”) initiated a traffic stop after observing a vehicle drive left of center over a double yellow line on multiple occasions (ie., swerving). (Doc. 16 at 1; Tr. 7:2-7; Ex. I).2 The driver complied by pulling into the parking lot of a local business, followed by Officer Mac-Murdo, who stopped approximately six to ten feet behind him. (Tr. 15:1-18). Before exiting his police cruiser, Officer MacMur-do ran a registration check on the vehicle and “called out the stop” (meaning, he communicated the details of the traffic stop to dispatch). (Id. at 7:15-19). Officer MacMurdo testified that it was at this time when he observed the driver of the vehicle appear to lean back in the seat, then make movements toward his waistband, and then immediately reach for the glove box.3 (Id. at 7:15-23,17:16-20:4).

The registration check identified the vehicle owner to be Defendant Dennis Hicks. (Tr. 16:16-24). Officer MacMurdo testified that he recognized Defendant’s name, though he was unsure whether Defendant was driving the vehicle at that time. (Id.) According to Officer MacMurdo, based on his knowledge and prior contact, he was aware that Defendant had previously been found in possession of prescription and ‘street’ drugs and a firearm. (Id. at 6:16-17, 9:9-16). Officer MacMurdo also suspected that the driver of the vehicle may be intoxicated and therefore would need to submit to a field sobriety test, which test Officer MacMurdo had not administered recently, as he had just returned from an assignment with the drug task force.4 (Id. at 20:7-18). Accordingly, Officer MacMurdo called for HPD Officer Michael Rhoads (“Officer Rhoads”) as backup. (Id. at 8:13).

While waiting for Officer Rhoads, Officer MacMurdo approached the stopped vehicle and made contact with the driver— [739]*739whom he then recognized as Defendant— to ask for his driver’s license, vehicle registration, and proof of insurance. (Tr. 8:13-16, 20:28-21:1). Defendant provided his driver’s license, but informed Officer Mac-Murdo that he did not have the other requested documentation. (Id. at 8:17-20). Officer MacMurdo asked Defendant if he ■wished to check the glove box, but Defendant declined, stating that the documents were not there. (Id.) Officer MacMurdo then returned to his police cruiser to check Defendant’s driving status and wait for Officer Rhoads. (Id. at 8:21-22).

Within a few minutes, Officer Rhoads arrived at the scene, at which point both officers approached the stopped vehicle. (Tr. 8:23-9:4-8). Officer MacMurdo asked Defendant to step out of the car and took him toward the rear of the vehicle where Officer Rhoads was waiting to administer the field sobriety test. (Id. at 9:6-8, 22:11-20). While Officer Rhoads administered the test, Officer MacMurdo went to the passenger-side window and made contact with the female passenger of the vehicle. (Id. at 9:21-24, 22:19-23). Officer MacMur-do stated that his earlier check of Defendant’s driving status revealed that Defendant was subject to a protection order, prohibiting his contact with a named female whom Officer MacMurdo was concerned might be the female passenger in the vehicle. (Id. at 9:17-24, 23:15-24). After making contact and identifying the passenger, Officer MacMurdo was able to confirm that the passenger was not the same female named in the protection order.5 (Id. at 9:25-10:1, 23:25-24:5).

However, according to Officer MacMur-do, it was at this time — specifically, as he was approaching the passenger’s side of the vehicle — that he observed in plain view an open box of sandwich bags on the floorboard behind the passenger’s seat. (Tr. 10:1-3). Further, Officer MacMurdo’testi-fied that while speaking with the passenger he also saw a digital scale placed on top of the elevated section of the floorboard between the driver’s and passenger’s seats. (Id. at 10:3-6, 24:8-12). Finally, he observed an ■ open container of beer near the passenger’s feet. (Id. at 10:6-7). Officer MacMurdo specified that, based on his training and experience, the sandwich bags and scale are indicative of narcotics trafficking. (Id. at 10:8-24). At Officer Mac-Murdo’s request, the passenger handed him the digital scale, at which time , he noticed that it was covered in a white residue. (Id. at 11:2-5). Officer MacMurdo then had the passenger step out of the vehicle as well. (Id.)

Officer MacMurdo then approached Defendant who was still at the rear of the vehicle with Officer Rhoads.6 (Tr. 11:6-17). He advised Defendant of what he had found and asked whether there was any other contraband in the vehicle, which Defendant denied.7 (Id. at 11:6-9). Officer [740]*740MaeMurdo informed Defendant that, based on what he had seen, he was going to conduct a search of the vehicle. (Id. at 11:9-10). He then proceeded to search the vehicle, starting first with the glove box. (Id. at 11:11-12). Upon opening the glove box, Officer MaeMurdo found a loaded Kel-Tec 9mm handgun, a second loaded magazine, and a box of ammunition. (Id. at 11:12-14). Officer MaeMurdo showed Officer Rhoads the items he had found and Defendant was placed under arrest and secured in Officer MacMurdo’s cruiser. (Id. at 11:18-12:11). No other items were found during the search of the vehicle or on Defendant’s person. (Id. at 11:12-19).

As Defendant was being arrested and taken to the cruiser, Officer MaeMurdo observed Officer Rhoads administer Defendant’s Miranda warning and ask about the firearm, to which Defendant responded, “Just take me to jail.” (Id. at 11:20-12:1, 33:7-20). Later, after Defendant was taken to the HPD and while he was being processed, Officer MaeMurdo made one final inquiry regarding the firearm, in response to which Defendant indicated that he had ‘found the gun.’ (Id. at 33:21-34:23). In total, the incident, beginning with the initial stop until Defendant’s arrival at the station, lasted approximately one to two hours, (Id.

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Cite This Page — Counsel Stack

Bluebook (online)
190 F. Supp. 3d 733, 2016 U.S. Dist. LEXIS 72109, 2016 WL 3090699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hicks-ohsd-2016.