United States District Court, E.D. Virginia, Richmond Division
ROBERT E. PAYNE, Senior District Judge.
This matter is before the Court on the Defendant's MOTION TO SUPPRESS (Docket No. 15). For the reasons set forth herein, the MOTION TO SUPPRESS is denied.
The Defendant, Antonio Johnson ("Johnson") was indicted on June 17, 2014 on two counts. Count One charges Johnson with Possession with Intent to Distribute Cocaine Hydrochloride, in violation of 21 U.S.C. § 841; and Count Two charges Johnson with Possession of a Firearm and Ammunition by a Convicted Felon. (Docket No. 11.)
Johnson filed the MOTION TO SUPPRESS (Docket No. 15) seeking to suppress the items (a. 45 caliber handgun, a clip with approximately 13 bullets, and 43 grams of cocaine) retrieved by the police ensuing Johnson's arrest and statements that he made to the police. The Government filed its response and Johnson replied. On July 30 and 31, 2014, the Court heard evidence on the motion. Thereafter, supplemental briefing was ordered, and a transcript of the hearing was prepared and filed. See Orders of July 15 and July 29, 2014 (Docket Nos. 33 and 36). The parties have filed the supplemental briefs, and the motion is ripe.
FINDINGS OF FACT
At approximately 11:10 p.m. on February 19, 2014, Johnson was driving a blue Volvo east on Venable Street, in Richmond, Virginia, when he slowed at a stop sign at the intersection of Venable and Jessamine Streets. On one corner of that intersection was a house known for drug distribution. Hrg. Tr. 14-18; 71-72; Def. Ex. 7A-7C. At the same time, a marked police car was traveling west on Venable Street, also at the intersection of Venable and Jessamine. Four officers were in the police car. They were Officers Gilbert, Moore, Gaines, and Parker. Hrg. Tr. 126. All four were members of the so-called "Focus Mission Team, " a group of officers assigned to patrol a specified precinct and to respond to dangerous situations and problems that arise in that precinct. The officers wore standard uniforms which consisted of cargo pants, a tee shirt, and a ballistic vest with the word "police" on it. The officers also wore holstered handguns. Hrg. Tr. 13-18.
As the officers crossed the intersection, they passed Johnson in the Volvo, which was stopped at the intersection. Johnson did not look in their direction and was slouched down in his seat. Officer Gilbert had the impression that Johnson tried to hide by moving his head behind a pillar that separated the front and rear doors of the Volvo. However, evidence showed that there was no door pillar in that car. Def. Ex. 7B; Hrg. Tr. 18-19.
Unable to follow Johnson without making a U-turn, the officers squared the block, turning from Venable Street right onto North 22nd Street, then right onto Carrington Street, and then right on Jessamine Street, which runs into North 23rd Street at an angle in about three blocks. During that period, the officers could not see the Volvo. After squaring the block, the officers caught sight of the Volvo several minutes later when they saw it about a half a block in front of them at a stop sign on North 23rd Street and Jefferson Avenue. The officers did not activate the overhead or emergency lights on the police car as they followed about half a block behind Johnson on North 23rd Street. Hrg. Tr. 20-27; 102-05. Johnson turned left onto Clay Street, and then made an abrupt left turn into the rear parking lot of the Jefferson Mews townhomes located in the 500 block of North 23rd Street, cutting across the exit lane of the parking lot entrance. Hrg. Tr. 27-37. Although there were no markings on that entrance and the officers did not conduct a traffic stop on that basis, Officer Gilbert explained that Johnson's conduct was a traffic infraction within the meaning of Va. Code § 46.2-852. Hrg. Tr. 93-96.
The parking lot is located between two sets of townhomes, with an island or median in the center of the parking lot and parking spaces delineated on both sides of the median. There are two entrances into the parking lot; one from Clay Street and the other from Jefferson Avenue. The widest part of the entrance on Clay Street, where Johnson turned, is 35 feet, and the narrowest part is 19 feet wide. The parking spaces are grouped in pairs, with a grassy peninsula jutting out between every pair of parking spaces. The distance between the tip of the grassy peninsula and the median that is located in the center of the parking lot is approximately 19 feet, 9 inches. The distance between the rear of the vehicle pictured in Def. Ex. 4D,  parked in the parking space beside where the Volvo was parked, and the median is approximately 25 feet. The police vehicle was a Ford Crown Victoria, which measures approximately 73 inches wide. A 2001 Volvo such as the one that Johnson drove is 185.7 inches (15 feet and 5.7 inches) in length. There was some lighting near the far end of parking lot, but the lot was not well-lit. Hrg. Tr. 256-58; 263-64; 283-85; 294; 296-97; Govt. Exs. 4A-4B; Def. Exs. 4A-4E, 13A-13C.
After executing the abrupt turn into the Jefferson Mews parking lot, Johnson drove the Volvo into the first space of the second pair of parking spots (immediately next to the grassy peninsula and the trash can pictured in Govt. Exs. 5B-5C and Def. Exs. 4C-4E). He then exited the Volvo, and walked away from it with no indication that he had seen the police car that had entered the lot behind him. Gilbert, but none of the other officers, recalled that Johnson appeared to be talking with someone on his cell phone as he walked. All four officers testified that Johnson exited the Volvo quickly and immediately thereafter started walking away from the Volvo and toward the townhomes. Hrg. Tr. 37-40; 129; 151; 177.
Gilbert parked the police car adjacent to the curb at the end of the grassy peninsula that was beside the parking spot where Johnson parked. The police car was not immediately behind the Volvo and was not blocking it. The front of the police car was three to five feet distant from the back of the Volvo. See Govt. Ex. 5B; Hrg. Tr. 128. The police car's headlights remained on but no other lights on the police car were activated. Hrg. Tr. 39, 89, 129.
The defense sought to show that the Volvo's route of egress was blocked by offering the testimony of Ms. Johnita Abrams, who lived in the townhome to which Johnson was headed. Abrams testified that, when she looked out her back door through partially opened blinds, the police car was parked directly behind the vehicle that turned out to be the Volvo. Hrg. Tr. 211-13. But Abrams' angle for viewing the parking lot was not conducive to a valid observation. Moreover, the evidence about subsequent parts of the encounter make it likely that Abrams' observation did not take place during the initial encounter with Johnson but, instead, later when the police returned to the parking lot to search the Volvo. For these reasons, the Court does not credit her testimony. Hrg. Tr. 226-30; 345-49.
Initially, all of the officers remained in the car, and no weapons were drawn. Gilbert rolled down his window and began a conversation with Johnson by asking him if he was "okay, " to which Johnson replied "yes." Gilbert then inquired whether his driver's license was "okay." Johnson replied "yes, " but said that he did not have it with him, thus admitting to committing the traffic offense of driving without a license. Hrg. Tr. 37-40; 129-30; 151-53; 178. See Va. Code Ann. § 46.2-104. As was shown shortly thereafter, Johnson's statement was untrue. In fact, his license was suspended so he did not have a valid license, but the officers did not yet know that fact. Johnson also stated that his license was in one of the apartments, pointing to an apartment nearby; but, when asked the number of the apartment, he replied that he did not know the number of the apartment. Hrg. Tr. 40-41; 130; 178.
In response to Johnson's statement that he did not have his license with him, Officer Gilbert, who was still in the police car talking to Johnson through the rolled-down window, told Johnson that he could just "run his numbers on the computer" (referring to a driver's license number or a social security number), so Johnson gave Gilbert a social security number, which was entered in the computer system by Officer Parker who was in the front seat with Gilbert. Johnson also told Gilbert that his name was "Ronald Bullock." Hrg. Tr. 41-42; 130; 178.
The computer check on the name and social security number given by Johnson disclosed that neither was valid. So, Officer Gilbert asked Johnson again for his social security number, and Johnson provided a different number, thereupon creating probable cause to believe that Johnson originally had given false information to the officers. That too is an offense under Va. Code Ann. § 18.2-186.3, which states in pertinent part that "[i]t shall be unlawful for any person to use identification documents or identifying information of another person, whether that person is dead or alive, or of a false or fictitious person, to void summons, arrest, prosecution, or to impede a criminal investigation."
About this time, Officer Gaines exited the back seat of the car, followed by Officer Moore. There is a dispute of sorts about when Gaines and Moore exited the police cruiser. Gaines's Report, Def. Ex. 3 and Govt. Ex. 17, written immediately after the arrest of Johnson, states that Gaines and Moore left the police car "as Officer Gilbert continued to have a conversation from within the vehicle with the male [Johnson]" and then describes Johnson providing the first social security number and the name of Ronald Bullock. Gaines's testimony was consistent with the report. Gilbert could not recall precisely when they exited the vehicle, but he testified that Gaines and Moore were still in the vehicle when Johnson admitted that he did not have a driver's ...