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United States v. Adkinson

United States District Court, E.D. Virginia, Newport News Division

June 9, 2016



          Raymond A. Jackson United Sates District Judge

         Before the Court is Defendant Rishad Adkinsoivs Motion to Suppress. ECF No. 22. The Court held a hearing on this matter on May 31, 2016. This Memorandum Opinion and Order expiates the Courts' ruling from the bench. Defendant contends that the officers conducted an unlawful search of his person during a traffic stop, while the Government asserts that the search was lawful because they had a reasonable suspicion Defendant was armed. I laving reviewed the pleadings and held a hearing on the Motion to Suppress, this matter is now ripe for judicial determination. For the reasons stated on the record and discussed below, Defendant's Motion to Suppress is GRANTED.


         On February 8, 2016, a Grand Jury returned a two count Indictment charging Defendant with Possession of a Firearm by a Convicted Felon {Count 2) in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The Indictment alleges that on or about November 26, 2015, Defendant, a convicted felon, knowingly and unlawfully possessed a Taurus .40 caliber semiautomatic pistol and ten rounds of Tulammo .40 caliber ammunition, The Indictment also includes an allegation of asset forfeiture, 18 U.S.C. §§ 924(d)(l) and 2461(c). On April 4, 2016, Defendant waived arraignment and entered a plea of not guilty. A jury trial for this matter is scheduled for June 7, 2016 at 10:00 a.m.

         The instant Motion to Suppress stems from a police search of Defendant's person during a traffic stop on November 26, 2015 in Newport News, VA. Co-Defendant Nathanial McElrath, III was driving the vehicle at approximately 8:40 p.m. when officers stopped the vehicle for driving with the headlights off while it was dark outside. The officers obtained both Defendants' identification and after running their information, learned that McElrath had an outstanding warrant.

         A brief struggle ensued between the arresting officers and McElrath, and he was ultimately arrested. Defendant was instructed to remain in the car while McElrath was arrested and the officers called for backup. Officer Angsten alleges while he was arresting McElrath he turned and saw Defendant move his hands towards his waistband, so he instructed Defendant to place his hands on the dashboard. Officer Amarillo then began watching Defendant. Defendant contends he never moved his hands towards his waistband. Defendant admits that at one point he moved his hands towards the ceiling because his arms were tired, but he placed them back on the dashboard in compliance with officer Amarillo's instruction to keep his hands on the dashboard where he could see them.

         After McElrath was arrested, officers Amarillo and LaRoche instructed Defendant to exit the vehicle. Officer LaRoche attempted to conduct a pat down of Defendant. A struggle ensued between Defendant and the officers and officer Walzak deployed his Taser, causing Defendant to fall to the ground. At this time the officers discovered a firearm and ammunition on Defendant's waist. They seized the firearm and arrested Defendant after determining he had a prior felony conviction. Due to the angles and struggle that ensued, the officers' body cameras did not capture the entire incident.

         Defendant now moves pursuant to Rule 12(b)(3)(c) of the Federal Rules of Criminal Procedure and the Fourth Amendment of the United States Constitution to suppress at trial "all evidence obtained as a result of an unlawful search and seizure of Mr. Adkinson in Newport News, VA on or about November 26, 2015." Defendant's Motion, along with a Memorandum of Law, was filed on April 25, 2016. On April 30, 2016, Defendant filed a letter indicating that a rehearing en banc was granted on April 25, 2016, thereby vacating the panel opinion in United States v. Robinson, 814 F.3d 201 (4th Cir. 2016), cited in the Motion to Suppress. However, defense counsel indicates the arguments in the motion are still supported. The Government filed a response on May 6, 2016. Defendant filed a reply on May 9, 2016.


         In deciding a motion to suppress, the district court is empowered to make findings of fact, and conclusions of law. United States v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005) (citations omitted). "At a hearing on a motion to suppress, the credibility of the witness and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge." United States v. McKneely, 6 F.3d 1447, 1452-53 (10th Cir. 1993); see also United States v. Massey, 257 F.App'x 662, 664 (4th Cir. 2007); Columbus-Am. Discovery Group v. All. Mut. Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995). As a general rule, the burden of proof is on the defendant who seeks to suppress the evidence. United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981). Once the defendant establishes a basis for his suppression motion, the burden shifts to the government. United States v. Ma(lock, 4l5 U.S. 164, 177-78 n.14 (1974).


         Defendant seeks to suppress all evidence obtained from the November 26, 2015 warrantless search because he contends there was no reasonable articulable suspicion that he was armed and dangerous to permit a pat down pursuant to Terry. Defendant argues that he should not have been detained after his co-Defendant was arrested because the traffic stop ended at that point. He asserts that even if the seizure during the traffic stop was lawful, the pat down was not because officers must have a particularized and objective basis for a reasonable articulable suspicion that a suspect is armed and dangerous to conduct a pat down. Defendant argues that there was no basis for the officers' suspicion because he never reached towards his waistband, and nevertheless, a reasonable suspicion that he was armed does not mean he is dangerous.

         Defendant asserts that the officers' body cameras depict his hands on the dashboard at all times except when he moved his hands once towards the ceiling, and no evidence depicts him moving towards his waistline. Defendant notes that the police reports do not mention that the co-Defendants were "wide eyed" prior to being pulled over, and this fact is minimally probative to support a reasonable suspicion. Defendant also argues that the neighborhood characteristics did not contribute to a reasonable suspicion because he was not engaging in suspicious behavior. Defendant points out that the officer looks away from him several times after allegedly seeing him reach towards his waistband, and the officers had no reason to know Defendant had a prior felony conviction because the felony check was performed after he was arrested. Further, Defendant argues even if he did not have a valid license, he could have walked away from the scene, so there was no reason to detain him after McElrath's arrest. Defendant also notes that the officers recovered a firearm from Mr. McElrath's coat after Defendant was arrested, so this fact did not contribute to the officers' alleged reasonable suspicion.

         The Government responds that the search was proper because the officers lawfully detained Defendant pursuant to a lawful traffic stop and had a reasonable suspicion to conduct an investigative Terry pat down. The Government argues that the traffic stop did not end with McElrath's arrest because Defendant did not have a valid license and no one was present to operate the car. Further, the Government asserts that the officers had a reasonable suspicion that the Defendant was armed and dangerous based on the totality of the circumstances that the occupants of car looked "wide eyed" at police before being stopped, neither had a valid license, McElrath had an open warrant, a struggle ensued between the officers and McElrath, and an officer allegedly saw Defendant move his hands near his waistband. Furthermore, the Government asserts that the officers are also allowed to consider their experience that suspects normally carry weapons in their waistband and that the traffic stop was conducted in a high crime area known to the officers for ...

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