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United States v. Kelley

United States District Court, W.D. Virginia, Roanoke Division

August 11, 2016



          Elizabeth K. Dillon United States District Judge.

         Pending before the court is defendant Allah Truth Kelley’s motion to suppress. (Dkt. No. 52.) The motion has been fully briefed, and the court heard evidence and argument at a July 27, 2016 hearing. In his motion, Kelley moves to suppress physical evidence seized from Kelley and from the vehicle he was driving on January 28, 2016, on the basis that the police did not have reasonable suspicion to stop and seize him at that time. He also moves to suppress both statements he made during the course of the January 28 stop and statements he made on March 18, 2016, when he was arrested at his home. As to both sets of statements, he argues that they were obtained in violation of his constitutional rights and prior to his being given Miranda[1]warnings.

         At the hearing, the court ruled that the stop on January 28, 2016, was a legal stop under Terry v. Ohio, 392 U.S. 1, 19-20 (1968), and thus that the two guns and a small amount of marijuana seized at that time would not be suppressed. The court noted that it would issue a written opinion setting forth the reasons for its ruling. The court took the portion of the motion regarding Kelley’s statements under advisement. Following the hearing, the court was advised that Kelley intends to plead guilty to the pending charge. The motion to suppress with regard to the statements will be moot if Kelley enters a plea of guilty, so this opinion sets forth only the reasons for the court’s denial of the motion as to the January 28 stop and the physical evidence seized from Kelley and from the vehicle he was driving.

         I. BACKGROUND

         A. Events of January 28, 2016

         At approximately 8:43 p.m. on January 28, 2016, the 911 call center for Roanoke City received a call from Anastasia Green of 2090 Indian Village Lane, SE, who reported that Allah Kelley was refusing to leave.[2] (Mot. to Suppress, Ex. A, Incident Recall Report, Dkt. No. 52-1.) The call center dispatched police units from the Roanoke City police to the address, noting noted that Ms. Green kept “yelling out get [someone] on the way.” (Id. at 1.) The initial call was disconnected. (Id.) The call center called back once, but received no answer, and then called again, at which point Ms. Green “made statements about [Kelley] tearing up her house, ” said “that they coming to get you don’t leave now, ” and “said something about a gun and hung up.” (Id.) Dispatch called back again. This time, Ms. Green made statements that dispatch relayed as, “suspect is leaving in a white Chrysler 300 [and] he has 2 guns on him.” (Id.) Ms. Green described what Kelley was wearing and the direction he was heading, and also told dispatch that he was driving the car and that he had a restricted license. She refused rescue, but said that “he took her TV down” and that Kelley was her child’s father. (Id.; see also Mot. to Suppress, Ex. B, audio recording of 911 calls, Dkt. No. 52-2.)

         All of this information was conveyed to Officer M.N. Getz and Officer B.C. Adams (who was a field training officer for Getz), through their in-car computer, before they stopped Kelley. (Incident Recall Report; Suppression Hr’g Tr. (“Tr.”) 10-15, 49-53.[3]) Officer Getz, who was driving, proceeded to a nearby intersection to see if a white Chrysler was heading from the direction of Indian Village Lane toward them. They observed a white, newer-model Chrysler, and Officer Getz was able to catch up quickly and turned on the patrol car’s emergency lights to initiate a traffic stop. As noted, the initial 911 call was received at 8:43 p.m., and the traffic stop was made approximately five minutes later, at 8:48 p.m. (Id. at 45.)

         Officer Getz testified that she and Officer Adams stopped Kelley in order to further investigate the incident they learned about from dispatch and also for the safety of the public. (Id. at 56.) Similarly, Officer Adams testified that they executed the stop to further investigate what was being dispatched to them, which, based on all of Ms. Green’s comments, indicated a “domestic disorder that had escalated.”[4] (Id. at 19.)

         Kelley, who was the driver and only occupant of the car, pulled over almost immediately. (Mot. to Dismiss Mot. to Suppress, Ex. 3, Dash Cam Video Recording, Dkt. No. 57-3.) Before Officer Getz parked her car, Kelley exited the car and walked toward the patrol car. Id. Officer Getz yelled to Kelley to get in the car at least two times. Id. When Officer Getz observed him attempt to place his right hand in his pocket, she ordered him to get his hands out of his pockets. (Def.’s Hr’g Ex. 1, Incident Report 4.) He took his hands out of his pockets, but did not return to his car. (Dash Cam Video Recording.) Instead, he placed his hands in the air, walked to the side of his car, and placed his hands on the outside of the car. (Id.)

         According to Officer Adams, Kelley’s immediate exit his car was unusual, and both officers also noticed that he was sweating an excessive amount, which was particularly strange since it was a cold night in late January. (Tr. 19, 22, 55-56.) As Officer Adams walked to the front of the car, he detected the smell of burnt marijuana from the opened driver’s window. (Id. at 21.) At about the same time, Officer Getz approached Kelley and asked him what had happened between his child’s mother and him. (Id. at 55-56; see also Dash Cam Video.)

         Kelley stated that he had gone to their residence at Indian Lane to get his stuff because he was moving out. Officer Getz asked if Kelley had anything on him that she needed to know about, and Kelley pulled out a small bag of green leafy substance from his left front pants pocket, saying, “[a]ll I have on me is this little bit of weed.” (Tr. 56-57; Incident Report 4.)

         Getz then proceeded to search Kelley and his articles of clothing. She found $1, 308 in U.S. currency, but did not find any additional drugs or any firearms. (Incident Report 4.) During the search of his person, she asked if there were any firearms in the car, and Kelley stated: “I don’t know, it’s not my car. My friend let me drive it.” He also offered: “I don’t search cars before I get in them and drive them, so if you find something in that car, I didn’t know about it.” (Id.) After she finished searching him, Officer Getz told Kelley he was in investigative detention, and she handcuffed him, with assistance from other officers. (Id.; see also Tr. 73-75; Dash Cam Video.)

         Because of the marijuana Kelley had handed over and the smell of burnt marijuana from the car, the officers searched the Chrysler, recovering two loaded, semi-automatic firearms from the glove compartment. (Dash Cam Video; Incident Report 4.) As the guns were being removed from the vehicle, and without any question directed at him, Kelley stated that the firearms were not his. (Incident Report 4.) He later volunteered: “I know I am going to jail because I am a felon.” (Id.; Tr. 75-76.) After learning that ...

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