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United States v. Brown

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

March 31, 2016




On February 3, 2016, the Court granted Defendant Dexter Lamont Brown leave to file a motion to suppress. (ECF No. 15.) On that same date, Brown filed his Motion to Suppress. (ECF No. 16.) The United States filed a response in opposition. (ECF No. 17.) Brown filed a reply in support of his Motion. (ECF No. 18.) On February 24, 2016, the Court held a hearing on the pending motion. Following the hearing, the Court allowed submission of additional briefing. On March 10, 2016, Brown filed his supplemental memorandum. (ECF No. 21.) On March 15, 2016, the United States filed its supplemental response memorandum. (ECF No. 22.) Brown did not file a supplemental reply memorandum, and the time to do so has expired. For the following reasons, the Court will deny the Motion to Suppress. (ECF No. 16.)

I. Procedural Background and Findings of Fact

A. Procedural History

On December 15, 2015, the grand jury returned a two-count indictment against Brown. Brown was charged with possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841, [1]and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).[2] (ECF No. 1.) On February 2, 2016, the grand jury returned a superseding three-count indictment against Brown, repeating the same two counts as the original indictment and adding an additional count for possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).[3] (ECF No. 13.)

Brown filed a Motion to Suppress, arguing this Court must suppress the evidence against him because it was obtained pursuant to an unlawful stop and arrest in violation of his Fourth Amendment[4] rights. On February 24, 2016, the Court held a hearing on the Joint Motion to Suppress. Richmond Police Officer Benjamin Neifeld[5] ("Officer Neifeld" or "Neifeld") and Richmond Police Officer and Canine Handler Robin Robinson[6] ("Officer Robinson" or "Robinson") testified for the United States. The United States introduced into evidence: (1) an August 25, 2015 email; (2) a photograph of a red lunchbox, firearm, and small bag with a white substance; (3) Officer Robinson's resume; and, (4) the results of five certification tests completed by Officer Robinson's police canine, Sara. (Feb. 24, 2016 Hr'g U.S. Exs. 1-4). Brown introduced into evidence four photographs, one of an aerial view of the relevant addresses and three street view pictures of the 1600 block of Hickory Street. (Feb. 24, 2016 Hr'g Def. Exs. A1-A4.) Finally, the parties submitted supplemental memoranda based on the February 24, 2016 hearing. Based on the evidence and briefing presented by the parties, the Court makes the following factual findings.

B. Findings of Fact

1. Background and Initial Stop

On August 25, 2015, Officer Neifeld received an email from Detective Sergeant Claude Picard regarding Sergeant Picard's investigation into a shooting in Richmond, Virginia. (Hr'g U.S. Ex. 1 ("Aug. 25, 2015 Email").) The email forwarded another message from August 20, 2015, in which Sergeant Picard told another detective that Picard had received information from an informant ("Informant #1") who knew of "[significant drug activity" happening at five apartments in Richmond, Virginia: 1603 Hickory Street, Apartment B; 1605 Hickory Street, Apartment A; 1601 Tyler Street; 502 Fritz Street; and, 1602 Fendall Avenue, Apartment C.[7](Hr'g U.S. Ex. 1 ("Aug. 25, 2015 Email").) Informant #1 specifically identified a "[l]ight skinned male with a boil on the left side of his cheek" who acted as a lookout for the sales at 1602 Fendall Avenue. (Id.; Hr'g Tr. 10.) Although the email entered into evidence at the February 24, 2016 hearing redacted Informant #l's name, Officer Neifeld stated that he had the original, unredacted email. The email revealed that Informant #1 was a male. (See Aug. 25, 2015 Email 1 (referring to Informant #1 multiple times as "he").)

Not long after this report, on Sunday, September 13, 2015, Officer Neifeld arrested a woman for suspected prostitution ("Informant #2"). The woman admitted to prostituting to pay for her drug addiction and provided Neifeld with detailed information surrounding drug traffickers near the 1600 block of Hickory Street in Richmond, Virginia, where she had recently purchased cocaine. Informant #2 gave specific descriptions of three drug traffickers, whom she knew as "Solo, " "DJ, " and "Big Man." (Hr'g Tr. 42.) Informant #2 told Neifeld that DJ and Big Man, who the police would later identify as Brown, worked together to sell cocaine base. In so doing, they carried the narcotic in their pockets, and when approached for a sale, they would go into the stairwells between the apartments or into an apartment itself and make the sale.

Officer Darnell, Neifeld's partner, had been investigating DJ for other narcotics violations and presented a photograph of him to Informant #2. Another of Officer Neifeld's partners had previously arrested Solo and found a picture of him to show Informant #2. Informant #2 confirmed that the pictures identified Solo and DJ. None of the officers knew Big Man, so Informant #2 gave them a physical description of "a black male about 25 years old with a boil on his face." (Hr'g Tr. 11-12.) Informant #2 also told Officer Neifeld that Big Man carried a gun in a red lunchbox and "always" carried cocaine base in his pocket. (Hr'g Tr. 12.)

On Tuesday, September 15, 2015, Neifeld drove by the Apartment on a "spot check" and saw Brown, a young man with a boil on his left cheek, sitting in the stairwell of 1603 Hickory Street. (Hr'g Tr. 15, 27.) A red lunchbox rested at his feet. Later that day, Informant #2 called Officer Neifeld again, notifying him that she had seen Big Man in the 1600 block of Hickory Street with the red lunchbox. Informant #2 also called the day after Brown's arrest, on September 17, to confirm the arrest.

In the morning of Wednesday, September 16, 2015, Neifeld again drove by the 1600 block of Hickory Street, observing Brown sitting in the same manner as the day before. After lunch that day, Officer Neifeld, together with three other officers, returned to the area for surveillance purposes. Neifeld and another officer sat in an unmarked surveillance vehicle a block south, on the 1500 block of Hickory Street. Using binoculars on the clear day, Officer Neifeld could see Brown with other men, including DJ, near the stairwells at 1603 and 1605 Hickory Street. Again, the red lunchbox lay near Brown. Officers Lee and McWhirter sat in a marked car a half-block north of the 1600 block on Hickory Street, at the corner of Fells Street and Hickory Street.

Over the course of the next 30 minutes, Officer Neifeld watched as three gaunt, older males with generally unkempt appearances wearing dirty clothing separately approached Brown. The men would walk into one of the buildings[8] on the 1600 block of Hickory Street with Brown and emerge between one and three minutes later. Officer Neifeld noticed that when the men arrived, their hands were free, but after their encounters with Brown and DJ, two of the three men each left with a hand in his pocket. Brown carried the red lunchbox with him each of these three times. Officer Neifeld believed, based on his training and experience, as well as the consistent communications shared by the informants, that the interactions with the three visitors involved drug activity. ...

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