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United States v. Cross

United States District Court, E.D. Virginia, Richmond Division

October 14, 2014

MICHAEL W. CROSS, Defendant.


DAVID J. NOVAK, Magistrate Judge.

Defendant Michael Cross seeks suppression of evidence obtained by police as a result of Defendant's interaction with a Department of the Army security guard at the entrance to the Fort Lee military installation. Specifically, Defendant seeks to suppress identity-related statements that he made during the interaction with the security guard, including his name and date of birth, as well as information obtained as a result of those statements regarding the suspension of Defendant's driving privileges. Defendant also seeks to suppress the security guard's observations during and after the interaction. For the reasons that follow, the Court DENIES Defendant's Motion to Suppress (ECF No. 6), because Defendant's encounter with the security guard failed to offend the Fourth Amendment.


On September 12, 2014, the Court conducted an evidentiary hearing on Defendant's motion. During the hearing, Department of the Army Security Guard Anthony Spokas ("DASG Spokas") testified regarding the events that preceded Defendant's arrest for driving with a suspended license. Defendant called no witnesses and relied solely on his counsel's cross-examination of DASG Spokas. After viewing DASG Spokas's testimony and considering the evidence admitted during the hearing, the Court found DASG Spokas credible.[1] DASG Spokas's testimony established the following facts.

On the afternoon of June 30, 2014, DASG Spokas was on duty and assigned to the Temple Avenue Gate ("Temple Gate") entrance to Fort Lee. (Suppression Hr'g Tr. ("Tr.") at 5-6.) Fort Lee serves as a United States Army post administered by the Department of Defense and falls within the special territorial jurisdiction of the United States and this Court. (Tr. at 4.) Temple Gate stands on Edgewood Road, near the intersection of Edgewood Road and Temple Avenue. (Tr. at 21-22.) Edgewood Road falls within the jurisdictional parameters of Fort Lee. (Tr. at 22.) Between 4:10 a.m. and 2:00 p.m. each day, the metal gate fence on Edgewood Road remains open to allow access to Fort Lee via the Temple Gate. (Tr. at 39.) A metal fence and a series of pylons separate the two lanes of traffic on Edgewood Road, while two larger brick structures - one on each side of Edgewood Road that say "Fort Lee" on them - anchor a metal gate that spans the road when closed. (Tr. at 38.)[2] A sign at the Temple Avenue-Edgewood Road intersection states that persons seeking entry to Fort Lee must present identification, but no sign on Edgewood Road indicates that parking is prohibited. (Tr. at 14, 37.)

DASG Spokas serves as a civilian security guard employed by the Department of the Army. (Tr. at 4.) While on duty, DASG Spokas wears a uniform beneath a yellow reflective vest that covers his torso. (Tr. at 23, 39.) He carries a service weapon that he wears outside of his clothing. (Tr. at 23.) DASG Spokas's duties include "enforcing the security regulations of the installation[, ] allow[ing] access to pedestrians and vehicles through the use of identification cards, vehicle decals, and verbal questioning." (Tr. at 4.) DASG Spokas lacks the authority to issue citations for traffic violations, but under DASG standard operating procedures, he does possess the authority to direct traffic. (Tr. at 13, 18.)

While standing guard at the security guard hut located just inside the Temple Gate on June 30, 2014, DASG Spokas saw Defendant's car, a gold-colored Ford Taurus, "pull up right outside of [Temple] Gate" at approximately 1:00 p.m. (Tr. at 8-9, 30.) Defendant's car stopped as though it was parked "[flight outside of the fence line" on Edgewood Road, approximately 100 feet away from where DASG Spokas stood. (Tr. at 9, 11.) The car "wasn't far from the road, maybe a foot or two off the asphalt in either direction." (Tr. at 20.) From where he stood, DASG Spokas could not see cars beyond the brick structures very well. (Tr. at 14.) He could see the front of Defendant's car and observed Defendant inside, but he could not see what Defendant was doing or whether any passengers were in the car. (Tr. at 11, 30.) The car remained there on the grass shoulder, motionless, facing the hut at an angle. (Tr. at 11.)

Before reaching the Gate fence, drivers pass a sign visible from Temple Avenue informing them of the Fort Lee entry requirements, which include presenting identification. (Tr. at 37.) People who lack identification or who do not wish to enter Fort Lee rarely idle at the fence line. (Tr. at 37.) Though there are no signs on Edgewood Road prohibiting parking, DASG Spokas explained that people normally did not stop or park their cars there, because it was so close to the "busy intersection" with Temple Avenue. (Tr. at 13-14, 37.) As a result of where Defendant parked his vehicle, Defendant had no choice but to pull forward towards the guard hut checkpoint, because "in that section of the roadway where the traffic light is, there's like a ravine in the road. There's no way to back up into it without disabling the vehicle, basically." (Tr. at 20.) DASG Spokas testified that although Defendant's car was on the shoulder, the car nevertheless obstructed traffic by blocking the line of sight of drivers turning from Temple Avenue onto Edgewood Road and forcing other drivers "to take extra precaution[s] to get around the vehicle to see where they were headed." (Tr. at 14.)

DASG Spokas received regular training for his job, including training in identifying and addressing suspicious vehicles on Fort Lee property. (Tr. at 11.) As part of this training, DASG Spokas learned that "[a]ny vehicle parked outside of the front of the Gate is considered suspicious, " because it could pose a security threat to the installation. (Tr. at 11-12.) The concern, DASG Spokas explained, is that "[a]nybody could sit there and watch the gates of a military installation.... People could spy on the gate to watch how the entry regulations go[, ] could find out how to enter the installation. Just anytime they watch us, security operations, it's considered unsafe." (Tr. at 12-13.) DASGs are trained to respond to a suspicious vehicle in one of two ways, depending on the DASG's proximity to the vehicle. (Tr. at 11-12.) When close enough to communicate with the vehicle without leaving his post, the DASG should attempt to resolve the situation himself. (Tr. at 11.) If, however, the vehicle is too far away for the DASG to address, or if the vehicle's driver does not acknowledge the DASG, then the DASG is trained to call the military police office to report the situation. (Tr. at 12.) Upon receiving such a call, the military police will respond to the scene and investigate. (Tr. at 12.)

Based on his training and the location of Defendant's car just outside of Temple Gate, DASG Spokas determined that Defendant's car was suspicious. (Tr. at 11-12.) DASG Spokas testified that he based his conclusion on the unusual positioning of Defendant's car, not on any observations about the behavior of its occupants or the car's physical condition or contents. (Tr. at 11, 33-36.) Because Defendant's car was only 100 feet away, DASG Spokas decided that Defendant's car was close enough that he could attempt to resolve the situation himself without contacting the military police. (Tr. at 12.) Unable to leave his post, DASG Spokas "waited a few moments, maybe 30 seconds, and... began to wave at [Defendant's] vehicle." (Tr. at 14-15.) Defendant did not acknowledge him, so DASG Spokas "waited a few more seconds, maybe 10 or 15 seconds, and waved again." (Tr. at 15.) Defendant did not make any gestures in response to DASG Spokas's waves. (Tr. at 16.) DASG Spokas "motioned for [Defendant] to come forward" with his right hand, which he did. (Tr. at 15, 35.) At no point did DASG Spokas show his badge or draw his service weapon to compel Defendant's compliance. (Tr. at 16.)

DASG Spokas explained his motivation for trying to get Defendant's attention, stating that "sometimes it's possible for an individual to have, like, a broken down car... or [to] be using their cell phone because cell phones are not authorized on post." (Tr. at 15.) "If it was something simple like that, " DASG Spokas elaborated, "I would wave them in to see what was going on, to see what they were doing out there, and that's why I tried to handle it myself. It is one of my duties to find out exactly what's going on. If I can resolve the situation myself, I do so." (Tr. at 15.)

When Defendant pulled forward to where DASG Spokas stood, DASG Spokas "asked him where he was headed that day." (Tr. at 16.) Defendant responded that he was picking up someone from work. (Tr. at 16.) At that point, pursuant to his duty to verify the identity of everyone who approaches the Temple Gate entrance to Fort Lee, DASG Spokas asked Defendant for his identification. (Tr. at 16-17.) DASG Spokas testified that this was standard operating procedure. (Tr. at 23.) Every time someone pulls up to the Gate, DASG Spokas asks them for identification and then scans the individual's identification card through "a handheld Rapid Gate System." (Tr. at 23.) In addition to the information displayed on the card itself, the scanner notifies the DASG whether the identification card is valid and whether the person has been barred from the installation. (Tr. at 24.) If the person does not have identification to present, however, DASG Spokas is required to "get their name and date of birth, and then call the [military] police office and give them the information." (Tr. at 17.) These mandatory procedures are required regardless of whether the person approaches the Gate intentionally or inadvertently, because even those who do not wish to enter the installation must go through the checkpoint to execute a legal U-turn and exit along Edgewood Road towards Temple Avenue. (Tr. at 19.)

Defendant responded to DASG Spokas's request for identification by telling him that he did not have proof of identity to provide. (Tr. at 17.) DASG Spokas then asked Defendant for his name and date of birth, and then radioed that information to the Fort Lee military police office. (Tr. at 17.) At no point during the encounter with DASG Spokas did Defendant inform DASG Spokas whether Defendant did, or did not, want to enter the installation, nor did Defendant indicate that he wanted to terminate the encounter and depart. (Tr. at 36, 19.) The military police determined that Defendant had a suspended license and dispatched an officer to the Gate to issue a traffic citation to Defendant.[3] (Tr. at 17.) Once the police officer arrived on scene, DASG Spokas had no further interaction with Defendant. (Tr. at 19.)

The military police officer cited Defendant for driving on a suspended license in violation of 18 U.S.C. § 13 (assimilating Va. Code § 46.2-301), his third such offense within 10 years. (Govt.'s Resp. to Mot. to Suppress Evidence (ECF No. 7) ("Govt.'s Resp.") at 2.) Defendant moves to suppress all evidence obtained both during and as a result of his interaction with DASG Spokas on the basis that DASG Spokas illegally seized Defendant in violation of the Fourth Amendment. Specifically, Defendant seeks to suppress his statements, including his name and date of birth, as well as records obtained as a result of those statements, including Defendant's driving record and VCIN information. Defendant further seeks ...

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