United States v. Smith

994 F. Supp. 2d 758, 2013 U.S. Dist. LEXIS 181394, 2013 WL 6913244
CourtDistrict Court, E.D. Virginia
DecidedDecember 30, 2013
DocketCriminal Action No. 3:13cr134
StatusPublished
Cited by2 cases

This text of 994 F. Supp. 2d 758 (United States v. Smith) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Smith, 994 F. Supp. 2d 758, 2013 U.S. Dist. LEXIS 181394, 2013 WL 6913244 (E.D. Va. 2013).

Opinion

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on Defendant Zwede Smith’s (“Defendant” or “Smith”) MOTION TO SUPPRESS EVIDENCE. (Docket No. 15). For the reasons set forth below, the motion has been denied.1

FACTUAL BACKGROUND

On April 8, 2013, at approximately 12 a.m., Richmond detectives Paul Jenkins and Elmer Fernendez were conducting an interdiction at the Apex bus station in the area of 910 North Boulevard. The interdiction operations conducted at Rich[759]*759mond’s bus and train stations and the role that those activities play in efforts to control trafficking in drugs and guns are the subject of many decisions issued by this Court. See, e.g., United States v. Jackson, 1998 WL 386119, 1998 U.S.App. LEXIS 13189 (4th Cir. Va. June 19, 1998) (upholding this Court’s denial of a motion to suppress triggered by Richmond’s drug interdiction activities at Richmond’s train station); United States v. Howie, 1999 WL 25563, 1999 U.S.App. LEXIS 858 (4th Cir.Va. Jan. 22, 1999) (upholding a conviction for drug possession based on a Richmond interdiction team’s activities at the Richmond Greyhound Station); United States v. Salas, 1998 WL 911731, 1998 U.S.App. LEXIS 32633 (4th Cir.Va. Dec. 31, 1998) (affirming a conviction for drug possession and distribution resulting from the Richmond interdiction team’s search at a Richmond bus station). Richmond’s transit centers, while certainly serving a legitimate and useful purpose, have been frequently abused by criminals who wish to transport contraband and avoid interdiction targets in other major cities. See, e.g., United States v. Zenon, 2012 WL 5404203, *1, 2012 U.S. Dist. LEXIS 158507, *1 (E.D.Va. Nov. 2, 2012) (mentioning a defendant who told police that it was necessary to travel by air from Texas to Maryland via Richmond’s airport, stopping in Richmond to rent a car for the remainder of the trip in order to avoid law enforcement interdiction efforts in Washington, D.C. and Baltimore, Maryland). The purpose of these interdiction operations is to deter those who use public conveyances as a means to traffic in guns and drugs.

Jenkins testified that his unit is assigned to discharge interdiction duties at the bus station approximately two times per week with a view to intercepting people bringing illegal items into and out of Richmond by way of interstate buses. According to Jenkins, it was “very common” for people to be transporting illegal items, such as guns and drugs, on this bus line.

While on this interdiction assignment, Jenkins spotted Zwede Smith inside the Apex bus station in Richmond.2 Jenkins recognized Smith from a gang investigation that was conducted in 2007. During that investigation, Jenkins had recovered information from another individual’s computer pursuant to a search warrant. The seized computer data included a video file which showed Smith passing a handgun to a small child. Additionally, Jenkins recalled having been recently informed by another detective that Smith was a suspect in two homicides, both of which had involved firearms. At the time Jenkins spotted Smith in the bus station, he knew that Smith had been convicted of an “eluding charge,” but stated that he did not think that Smith had incurred any firearms convictions, gang-related convictions, or any convictions for violent offenses.

Jenkins testified that Smith “kind of. seemed anxious” because he was looking around and moving around inside the bus station while most of the other passengers were sitting down or leaning against the walls. Jenkins and Fernendez saw Smith exit the bus station and line up at the door of a waiting bus. The bus had not yet started to board, and Smith was first in line to board it.

[760]*760Upon approaching Smith, Jenkins showed Smith his police badge. Both detectives were in plainclothes. Jenkins introduced himself as “Detective Jenkins” and asked Smith his name. Smith stated “Zwede Smith, do you want my ID?” As Smith was reaching to pull out his ID, Jenkins said “No, sir, I already know who you are.” Jenkins then asked if he could speak with Smith, a request to which Smith consented. Next, Jenkins asked Smith if they could “walk a little bit so that, you know, we’re not around this whole crowd” to which Smith replied “okay.” The detectives and Smith then walked toward the rear of the bus. The detectives never touched Smith during this time.

At the rear of the bus, the three men stopped and stood in a triangular formation. Smith, whose back was toward the bus, was at the apex, and the detectives, who were facing Smith, were at each foot of the triangle. The officers were approximately an arm’s length distant from Smith. Jenkins then asked Smith if he had “anything illegal on [him] or [his] person,” to which Smith replied “no.” Jenkins then asked if Fernendez could search Smith’s bag. Smith replied “sure,” but just as Smith began to remove the bag from his left shoulder, he ran away from the officers, taking the bag with him as he fled in a “full-on run.” In his flight, Smith ran across all four lanes of North Boulevard, through oncoming automobile traffic, and around a pile of mulch. He then recrossed the four lanes of traffic, returning to the same side of the street from whence his flight had begun. Both detectives pursued Smith on foot as he led them across the street and back. Jenkins lost sight of Fernendez and Smith for “[mjaybe a couple seconds,” but regained sight of both as Fernendez was placing Smith in handcuffs.

Fernendez testified that he placed Smith in handcuffs for safety reasons because he did not know at that time what was in Smith’s bag. When Jenkins approached the scene, Smith was lying face down on the sidewalk and his backpack lay “within a couple feet” from Smith.

As other officers arrived on the scene, Fernendez and Jenkins were speaking with the other officers. After some discussion about whether they could search Smith’s bag, the officers concluded that they still had Smith’s consent to search. Thus, the officers did not ask Smith again whether they could search his bag. The bag was searched within approximately three minutes of Smith’s apprehension.3 Inside the bag, officers found a black ski mask, a .38 revolver, and some ammunition. Smith did not make any statements about the bag, and did not answer Fernendez’s questions about whether the bag belonged to him. However, did say: “my life is over,” “why are you doing this to me,” and “I can’t believe Detective Jenkins recognized me.” Smith was arrested4 and [761]*761charged with being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

LEGAL STANDARDS

The Fourth Amendment to the United States Constitution guarantees that “people are to be secure in their persons ... against unreasonable searches and seizures.” U.S. Const. Amend. IV; see also Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (holding that the Fourth Amendment is incorporated by the Fourteenth Amendment, and therefore applies to both state and federal government actors). Evidence that is collected by law enforcement in violation of the Fourth Amendment will be excluded from use at trial. See Mapp v. Ohio,

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Related

United States v. Avagyan
164 F. Supp. 3d 864 (E.D. Virginia, 2016)
United States v. Zwede Smith
583 F. App'x 196 (Fourth Circuit, 2014)

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Bluebook (online)
994 F. Supp. 2d 758, 2013 U.S. Dist. LEXIS 181394, 2013 WL 6913244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smith-vaed-2013.