United States District Court, E.D. Virginia, Richmond Division
HANNAH LAUCK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Melvin Jones's
Motion to Suppress Statements and Evidence (the "Motion
to Suppress"). (ECF No. 14.) In the Motion to Suppress.
Jones seeks to suppress both physical evidence and statements
arising from an encounter with Richmond Police officers at a
residence on August 24, 2016. For the reasons that follow,
the Court will deny the Motion to Suppress.
Procedural History and Findines of Fact
6, 2017, a grand jury indicted Jones on two counts: (1)
Possession with Intent to Distribute Cocaine Base in
violation of 21 U, SC § 841(a)(1); and, (2) Possession
of a Firearm by a Convicted Felon in
violation of 18 U.S.C. § 922(g)(1). (ECF No. 1.) An
arrest warrant issued the next day. (ECF No. 4.) On October
10, 2017, Jones was arrested and released on personal
recognizance to a third party custodian. (ECF No. 10.) On
November 13, 2017, Jones filed the Motion to Suppress, (ECF
No. 14), and the United States responded, (ECF No. 17). On
December 7, 2017, the Court held an evidentiary hearing on
the Motion to Suppress (the "Hearing"). (ECF No.
19.) The Court then ordered supplemental briefing which the
parties timely filed, (ECF Nos. 26, 27), and heard oral
argument on January 24, 2018. At oral argument, the Court
ordered further supplemental briefing, which the parties
ultimately filed timely. (ECF Nos. 29, 32.)
Findings of Fact
2016, the Richmond Police Department received an anonymous
complaint through the Department's "Gun 250
Program" naming Melvin Jones as a person selling
marijuana and crack cocaine out of a residence located at
3008 Berwyn Street (the "Berwyn Street residence").
The complainant claimed that he or she had seen Jones selling
narcotics as well as cooking them, that Jones kept cooking
utensils in a safe in a closet of the residence, and that he
stored drugs throughout the house. The complainant also
reported that Jones kept a handgun either on his person, in
his dresser, or under his mattress, and that he hid a camera
on the porch in order to see who approaches the home.
afternoon of August 24, 2016, after confirming that Jones had
ties to the Berwyn Street residence, three Richmond Police
officers, all in uniform-Officer Jonathan Myers, Officer
Jason Pritchard, and Officer Hogan-went to the Berwyn Street
residence to investigate the complaint." Officer Myers was
familiar with Jones from prior interactions and "knew
his face." (Hr'g Tr, 57.) Officer Pritchard wore a
body camera, which was running and recording throughout the
entire encounter with Jones.
three officers approached the front door of the residence,
climbing up a short flight of stairs to a covered porch. The
front door of the house was made of solid wood and had an
external screen door. Officer Pritchard, standing to the left
of the door, held the screen door open while Officer Myers,
standing directly in front of the doorway, knocked on the
solid wood front door. Officer Myers did not say anything when he
knocked on the door. Within ten seconds, Jones opened the
door and stood in the threshold. Officer Myers testified
that, upon the door opening, he "immediately smelled
marijuana coming from the residence." (Hr'g Tr.
63.) After opening the door, Jones spoke first, asking
Officer Myers, "How you doing, man?" (Body Camera
Tr. Clip 7 at 1, ECF No. 21-1.) Officer Myers responded,
"Are you good? ... Are you smoking up in there?"
(Id., ) Before Jones responded, Officer Myers
reached for Jones and grabbed him by the left arm. With
Officer Pritehard's assistance, Officer Myers handcuffed
Jones's hands behind his back, and sat him on a chair on
the porch. At the moment Officer Myers grabbed Jones's
arm, Jones was standing on the metal door jamb of the front
door, and Officer Myers had one fool on the metal door jamb
and the other foot on the porch.
Officer Myers had detained Jones on the porch, Jones said,
"my niece and my nephew are back there, "
indicating toward the house. (Id.) Officer Myers
asked if they were young, and Jones said that they were.
Officer Myers then asked Jones two times if any adults were
in the house, and Jones responded twice that there were not.
Jones called to the two children to come to the front door,
which they did, and Officer Pritchard directed the children
to sit on the porch.
Myers then indicated that he was going to "clear"
the house. The following exchange occurred:
OFFICER MYERS: I'm going to take a look. Yo, we've
gotta clear it.
MR. JONES: You got a warrant or something?
OFFICER MYERS: It smells like weed.
OFFICER PRITCHARD: We don't need to get a search warrant.
MR. JONES: I don't get a search? Did you get a call or
OFFICER MYERS: We have a complaint. A drug complaint.
(Id. at 2.)
Myers then conducted the search, which lasted about two
minutes. Officer Myers testified that he cleared the
[f]or safety reasons. The second 1 smelled marijuana based on
the complaint leading up to the knock-and-talk. and then the
smell of marijuana coming from the house, my intention at
that point was to, one, obtain consent from the resident of
the house or obtain a search warrant. So if that's what
we were going to do, we were going to clear the house and
just make sure there was nobody in there just for safety
reasons while we waited to obtain the warrant.
(Hr'g Tr. 64.) On cross examination, Officer Myers
further testified that he swept the house even after Jones
had told him there were no other adults in the home
[b]ecause we're going to be there for a while getting
this search warrant. For safety reasons, I'm not taking
his word. We have enough to clear the house and make sure
nobody else is in there as a threat... . Based on the smell
coming from the house, the door already being opened by a
resident inside, we have enough to detain all occupants
inside and make sure that the house is secured before I go
and obtain the search warrant.
(Id. at 82.)
his sweep of the house, Officer Myers did not find any
people, but he did see a "very small portion" of a
smoldering cigarette on top of a trash can in the kitchen
that, "based on [his] training and experience, "
Officer Myers recognized as marijuana. (Hr'g Tr. 66,
he completed the sweep, Officer Myers officer came to the
door of the house and asked Jones to "step inside."
(Body Camera Video Clip 7 at 4:35, ECF No. 21.) Jones then
stood up and walked into the house unassisted. Officer Myers
followed him inside.
Myers testified that he attempted to get Jones's consent
to search the house but that Jones refused to give consent.
Even though he did not give consent to search, the parties
agree-and the body camera footage shows-that Jones was calm
and cooperative during the entirety of his detention. Officer
Myers then left to get a warrant.
Awad, dressed in street clothes, arrived at the scene shortly
after Officer Myers departed, and entered the house to speak
with Jones. At this time. Officer Hogan was the only other
officer in the house. About a minute later, Detective Awad
left the house and went to his car, which was parked on the
street in front of the residence. Approaching the house
again, Officer Awad asked Officer Pritchard for a
Miranda card. Officer Pritchard handed a card to
Detective Awad. Detective Awad then entered the house again.
Approximately fifteen seconds later. Officer Hogan walked out
of the house. Detective Awad remained in the house with Jones
alone for approximately three-and-a-half
minutes while Officer Pritchard and Officer Hogan
stood on the porch. During this time, the wooden door to the
house was open, but the screen door was closed.
one minute after Detective Awad entered the house the second
time, Officer Hogan, who was standing on the porch, made a
hand gesture seemingly at Detective Awad through the screen
door. It is difficult to make out from the video, but it
appears that Officer Hogan motioned his thumb toward Officer
Pritchard, who was standing to the right of the door out of
sight of Detective Awad. Officer Hogan then pointed at
Detective Awad with his index finger, then put up his fingers
and walked away.
they were on the porch together, Officer Hogan remarked to
[Jones is] being extremely cooperative other than that.
Everything he's saying is right there. You know, pretty
much owned up to everything. He said, "Can I change my
clothes?" I was like, "You don't know if
you're going to jail or not." He was like,
"I'm going to jail." He knows that there's
something in there.
(Body Camera Tr. Clip 7 at 17.)
United States questioned Detective Awad about his
conversation with Jones while the two were alone in the
house. When asked if Jones made any statements in response to
questioning prior to being read his Miranda rights,
Detective Awad stated that, "[a]s far as any
questioning, ... the only questioning that I did was to see
if he wanted to cooperate. There wasn't a time where I
recall making any specific questions pertaining to the
situation until after I introduced the body camera and read
Miranda to him." (Hr'g Tr, 88.) Detective Awad
testified that once Jones "said that he wanted to talk,
" Detective Award "went and grabbed Officer
Pritchard and Mirandized [Jones]." (Id., at 89,
asked on direct examination if Jones made any incriminating
statements prior to being read his Miranda warnings,
Detective Awad testified:
A: I think the biggest thing for me was that he looked
remorseful .... He was making statements indicative to the
fact that he wanted to cooperate with us to avoid bringing
anyone else that lived in that house into the same trouble
that he was in, I don't recall him making any statements
to me where he was like, yeah, I'm a drug dealer, I got
these drugs before Miranda or anything,
Q: So the statements he was making were more leading [i]nto
him possibly talking?
Q: Versus not actually making admissions?
A: Exactly. And that's why 1 went and got the body camera
because to me, as a detective, 1 was like, [t]his is great.
He's getting ready to tell us. Like, I felt like he was
at the point where he was going to explain the whole
situation. That's it.
(Id. at 89-90.)
asked if Jones made any statements indicating that there was
evidence of illegal activity in the house prior to being
given Miranda warnings, Detective Awad testified:
[Jones] didn't make any more mention that he would have
had any other type of drug that eventually would be iater
recovered other than the marijuana. I know that there was a
firearm present, but I honestly don't remember if he had
mentioned to me that he had a gun in his room before we found
it or not. I just don't remember that. But I know that-I
remember that day there being a firearm involved somehow.
(Id. at 91.)
minutes after entering the house for the second time,
Detective Awad opened the door and signaled for Officer
Pritchard to come into the front room where Jones was
sitting. As recorded on Officer Pritchard's body camera,
the following exchange occurred:
DETECTIVE AWAD: Mr. Jones, you have the right to remain
silent. Anything you say can and will be used against you in
a court of law. You have the right to consult with an
attorney, and have an attorney present during questioning. If
you cannot afford an attorney, one can be provided for you
before questioning at no cost. Do you understand these
rights? With these rights in mind, do you wish to speak to me
now? You have to answer yes or no.
MR. JONES: No. (Inaudible).
DETECTIVE A WAD: Well, that's-that's why I read you
your rights. Because what you were saying, you know, I want
to be able to help you but I can't help you without
telling you your rights. There's no federal court and
there's no lower court, there's no court in this
country that will let me talk to you and help you without
giving you your rights. Anything you said up until then,
I'm not going to use because I can't.
(Body Camera Tr. Clip 6 at 1-2, ECF No. 21-2.) Detective Awad
testified that he made this statement because
it's important that [Jones] knows that I wasn't going
to try to backdoor anything and use any statements that he
made prior to Miranda against him in the court. And I wanted
him to understand that. And in my mind, bringing the body
camera in would help him feel more comfortable that I was
being straight and honest with him because I had no
intentions of using any statements that were made prior to
Miranda against him or anyone that pertained to the
MR. JONES: Sure. Your body camera was out there.
DETECTIVE AWAD: No, he was silting outside. Anything you said
up until that point, that's not on the body camera.
That's why he came in just now. But it's entirely up
to you. If you want to talk about it again-
MR. JONES: Hey, I mean, I've been in possession of it.
DETECTIVE AWAD: You've been in possession of the gun?
It's your- is it your gun, yes or no? You don't have
to-it's not a trick question. It's not a loaded
question. Is the gun yours?
MR. JONES: I said I've been-I've been in possession
DETECTIVE AWAD: How much did you pay for it?
MR. JONES: I don't know, man. There was an issue I had
going on and I was upset.
(Body Camera Tr. Clip 6 at 2.)
watching a clip of the body camera video in which Detective
Awad asked Jones, post-Miranda warnings, if he was
in possession if "it, " Detective Awad explained:
So like I just said that I couldn't remember, he must
have said something lo me to trigger that to that point ....
I know myself and I know how I handle investigations. If he
would have even started mentioning about the firearm, I would
have shut him down, gotten the body camera or at least the
Miranda card . . . and read him his rights in front of at
least one other officer before the questioning went on.
minutes later, after more questioning, Detective Awad seemed
to return to the issue of Jones waiving his Miranda
DETECTIVE AWAD: But you understand that (inaudible), yes or
no? We need to hear you say it if it goes to court and
(inaudible). Oh, yeah, he should be (inaudible). You have to
say yes or no. All right, man. Well, good luck to you,
(Body Camera Tr. Clip 6 at 5-6.)
the questioning, the following exchange took place:
DETECTIVE AWAD: Man, to alleviate-and I'm cool with it
either way. I said, "You've got a brick?" You
said, "No." And then said, "Half a
powder." You don't mean half a brick? You mean half
an ounce, right?
MR. JONES: Yeah.
DETECTIVE A WAD: Okay. All right. T was just checking with
you because I can't help you then in no way, shape or
form. Fin going to do everything I can to help you today.
(Id. at 6-7.)
Myers then returned with the search warrant, which the
magistrate had signed at 3:16 p, m, The affidavit in support
of the warrant stated, in full:
I Ofc. Myers, was informed of a Gun25O complaint on 5-6-16.
Gun25O is a program created by the Richmond Police Dept, in
an effort to give citizens an avenue to anonymously report
illegal guns within their community.
This complaint stated that an individual named Melvin Jones
(aka: Mello) was selling marijuana and crack cocaine out of
3008 Berwyn St. They stated that they have seen him sell
these narcotics as well as cook them. They stated that he
keeps cooking utensils in a safe in his closet. They stated
that he keeps a handgun either on his person, in his dresser,
or under his mattress. The complainant indicated that he has
a camera hidden on his porch so he can see who is approaching
his home. They stated that the drugs are typically stored in
different places throughout the house.
Based on this complaint, myself, along with 2nd Precincts FMT
Tac Unit, conducted a knock and talk at 3008 Berwyn St.
I Ofc. Myers, approached the front door of the residence and
knocked. Melvin Jones answered the door. As soon as the door
was opened, I could smell a strong odor coming from inside
the home. Based on my training and experience, this odor was
believed to be marijuana. Based on the odor, Melvin Jones was
detained. A check was done of the residence in an effort to
make sure there were no other people located in the
residence. Two children were removed from the home. While the
search was being conducted, I witnessed what was believed to
be a marijuana cigarette in the kitchen trash can, sitting on
the top of the trash, still burning. The smell coming from
this item was also consistent with marijuana.
warrant listed "Simple Possession of Marijuana[, a]
violation of VA Code 18.2- 250.1" as the offense for
which the warrant was requested. (Id. at I.) It
authorized the officers to search for the following:
A) "Any controlled substances (marijuana);"
B) "[A]ny paraphernalia used in the use of illegal
C) "Any instruments used in the illegal drug usage of
marijuana or any other illegal substance;"
D) "Any electronic devices used to aid in the usage of