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United States v. Jones

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

February 16, 2018




         This 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.

         I. Procedural History and Findings of Fact

         A. Procedural History

         On June 6, 2017, a grand jury indicted Jones on two counts: (1) Possession with Intent to Distribute Cocaine Base in violation of 21 U.S.C. § 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.)

         B. Findings of Fact

         In May 2016, the Richmond Police Department received an anonymous complaint through the Department's "Gun 250 Program"[1] 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.

         On the 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.[2] 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.

         The 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.[3] 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."[4] (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.

         After 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.[5]

         Officer 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 something?
OFFICER MYERS: We have a complaint. A drug complaint.

(Id. at 2.)

         Officer Myers then conducted the search, which lasted about two minutes. Officer Myers testified that he cleared the residence

[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.}

         During 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, 78-79.)

         After 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.

         Officer 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.

         Detective 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[6] 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.

         About 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.[7]

         While they were on the porch together, Officer Hogan remarked to Officer Pritchard:

[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.)

         The 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.)

         When 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?
A: Yes.
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.)

         When 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 later 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.)

         Three-and-a-half 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 AWAD: 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 situation.

(Hr'g Tr. 87-88.)

         The conversation continued:

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 of it.
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.)

         After 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.

(Hr'g Tr. 91-92.)

         A few minutes later, after more questioning, Detective Awad seemed to return to the issue of Jones waiving his Miranda rights:

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, brother.

(Body Camera Tr. Clip 6 at 5-6.)

         During 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.)

         Officer 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 Gun250 complaint on 5-6-16. Gun250 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 5.)

         The 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 narcotics;"
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 illegal narcotics;"
E) "[A]ny firearms and ammunition;"
F) "[A]ny financial records and any written records identifying any person(s) involved in the illegal drug use and/or indicating ...

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