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United States v. Curry

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

March 19, 2018

BILLY CURRY, JR., Defendant.


          M. Hannah Lauck, United States District Judge.

         This matter comes before the Court on Defendant Billy Curry, Jr.'s Motion to Suppress. (ECF No. 14.) In the Motion to Suppress, Curry seeks to suppress evidence the police seized and statements he made after he was stopped and searched by Richmond Police officers. For the reasons that follow, the Court will grant the Motion to Suppress.

         I. Procedural History and Findings of Fact

         A. Procedural History

         On October 3, 2017, a grand jury indicted Curry on one count of 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.) Curry was arrested and had his initial appearance on October 12, 2017. (ECF Nos. 6, 7.) On November 21, 2017, Curry filed the Motion to Suppress. (ECF No. 14.) The United States responded to the Motion to Suppress, and Curry replied. (ECF Nos. 20, 24.) The Court held an evidentiary hearing on January 23, 2017, and ordered supplemental briefing, which the parties timely filed. (ECF Nos. 28, 30, 31, 32, 33.)

         Curry's Motion to Suppress is based on an interaction between him and Officer Stephen Gaines and Officer O'Brien of the Richmond Police Department ("RPD"). Curry alleges that Officer Gaines detained him, in violation of the Fourth Amendment, [1] without reasonable articulable suspicion that Curry was engaged in criminal activity. The issue before the Court centers on whether Officer Gaines had reasonable suspicion particularized to Curry that justified the Terry stop conducted.

         B. Findings of Fact

         On September 8, 2017, four uniformed officers-Officers Gaines, Fitzpatrick, Janowski, and O'Brien-were on patrol duty in their capacity as members of the Focus Mission Team ("FMT"), a division of the RPD that concentrates on violent crime suppression and drug enforcement. The officers-all in the same marked car-were patrolling Creighton Court, a housing project located in the East End of Richmond, Virginia, where hundreds of families live. Officer Gaines testified that they had been assigned to patrol Creighton Court because "[t]here had been a rash of shootings and homicides." (Hr'g Tr. 7, ECF No. 29.) In the three months before September 8, 2017, there had been six shootings and two homicides in that area. The most recent homicide had occurred on August 28, 2017, ten days before Curry's interaction with the RPD.

         At approximately 9:00 p.m., while patrolling in a grass field near the 2100 block of Creighton Court, the officers heard five or six gunshots. All four officers heard the gunshots, and all thought they came from the north, in the direction of Walcott Place. The officers then "initiated a U-turn in the field and started traveling in th[e] direction" of Walcott Place, driving through the grass. (Id. at 10-11.) The officers drove from their location near Creighton Court and parked near a sidewalk behind Walcott Place. The patrol car travelled two to three blocks, taking only about thirty-five seconds to arrive behind Walcott Place. The officers stopped the car in the grass behind the complex.

         All four officers immediately exited the car when it stopped.[2] The grass behind the complex in which the officers stopped the car was an open field flanked on two sides by apartment buildings. The area was dark and illuminated mainly by lights attached to the surrounding buildings and the patrol car's headlights. Approximately five to eight men were walking in and around the field, and several people were standing near the apartment buildings. As the officers stepped out of the car, they were simultaneously receiving information from dispatch that at least two calls "had come in for random gunfire, one of which was on Walcott Place."[3] (Id. at 17.) The officers did not, at the time they got out of their car, have any suspect description.

         Officer Gaines testified that, as the patrol car came to a stop, the officers saw "about five to eight males ... walking from Walcott Place, the actual street, onto the field" where the officers' car was parked. (Id. at 12.) They also saw a man in a red shirt walking towards the rear of the officers' car. Officer Gaines stated that the man "appeared to be maybe favoring one of his arms, " and that the officers were therefore "uncertain if he had been shot or not."[4] (Id. at 13.)

         Body camera footage ("BodyCam") shows that, before stepping out of the car, Officer Gaines yelled, "Get down!" (O'Brien BodyCam at 0:32; Hr'g Tr. 40.) It is unclear to whom he directed that command. Officer Gaines testified, and the video confirms, that when the car stopped he "immediately exited the vehicle and began illuminating [with his flashlight] the individuals [he had] seen, their waistbands and hands, looking for any handguns or firearms." (Hr'g Tr. 15.) The officers "all fanned out and began approaching different individuals." (Id.) Officer Gaines said his "attention was directed toward" Curry, who Officer Gaines estimated was "[m]aybe 25 yards" from where the shots originated. (Id. at 15-16.) Curry and another man, who was wearing a bluejacket, were both walking away from the officers, but were not doing so together.[5] Other people, likely residents or visitors stood in the background, closer to the apartments.

         While walking toward Curry and the man in the bluejacket, Officer Gaines stated in an authoritative tone, "Let me see your hands. Both of you. Let me see your hands."[6] (O'Brien BodyCam at 0:51.) Officer Gaines testified that he "just walked in both of their direction and began illuminating them with my flashlight. It wasn't just [Curry] I was looking for. I was looking at everyone's hands." (Hr'g Tr. 42.) Officer Gaines said he told Curry to show the officers his hands "[g]iven the ... calls that were coming in, what [he] had just heard to be gunshots, and the propensity for violence that had been occurring on the property in the last several months, and also for [his] safety and the safety of [his] partners." (Id.) After Officer Gaines commanded, "Let me see your hands" the first time, Curry and the man in the bluejacket, both of whom were separately walking away from Officer Gaines, stopped and began turning around and raising their hands. (O'Brien BodyCam at 0:52.) By the time Officer Gaines finished saying "Both of you, " Curry and the man in the bluejacket had both turned completely around to face Officer Gaines, stopped moving, and raised their hands in the air. (O'Brien BodyCam at 0:53.) While people watched from near the buildings, the officers spoke with each man walking in the field and stopped and searched at least two of them.[7]

         Officer Gaines testified that when he first saw Curry, Curry "had a cell phone in his left hand, " and was walking without putting his hands in his pockets or in his waistband. (Hr'g Tr. 39.) Curry made no furtive gestures, and did not walk at an accelerated pace indicative of flight. Officer Gaines testified that, upon his order, Curry "and the other male stopped, raised both hands up quickly, and then brought them right back down" when ordered to show their hands. (Id. at 44.) Officer Gaines recounted that Curry "pointed back towards where I had seen him walking, which is on Walcott Place, " and stated that the gunshots had come from that direction. (Id. at 16-17.)

         The video confirms that Curry stood completely still facing Officer Gaines for approximately four seconds after being ordered to do so before lowering his hands or moving at all. Curry then started walking toward Officer Gaines with his right hand still raised, his right finger pointing to his right, and his left hand crossing in front of his body but still fully visible to Officer Gaines and also pointing to the right. At that point, Officer Gaines's audio activated, and he said in a commanding voice, "Stay where you are!" (Gaines BodyCam at 0:30.) Curry stopped, keeping his right hand in the air, and responded, "Relax." (Id.) Officer Gaines demanded, "What came from what?" (Id. at 0:32.) Curry then put both of his hands down near his sides, and, still pointing to his right, said, "The gunshots come from this way. I'm looking for my nephew." (Id. at 0:33-0:36.) Gaines interrupted Curry as Curry said he was looking for his nephew, and said, "Pick your-pick your shirt up."[8] (Id. at 0:35.) Given how close the two men were, the video shows only the two men's shoulders and heads, but Curry reached down, quickly lifted his shirt, then looked back at Officer Gaines. (Id. at 0:35.) Officer Gaines characterized Curry as complying with this command in a "lackadaisica[l]" manner, "nonchalantly pick[ing up] the left side [of his shirt] where I could not get a full view of his was waistband." (Hr'g Tr. 17.) Officer Gaines then ordered, "Pick your shirt wp, " and Curry responded, "I'm liftin' it up." (Gaines BodyCam at 0:36-0:37.)

         Officer Gaines, "not satisfied that [Curry] did not have any weapons[ J given that he did not show full compliance ... began circling to his right side, the side that he had not picked up and asked him to lift his shirt up again." (Hr'g Tr. 18.) According to Officer Gaines, Curry did not lift up his shirt again, but instead "circled away from" Officer Gaines. (Id.) Officer Gaines stated that Curry "was turning away from me and kind of blading[9] his body. And at one point he actually reaches towards his right side." (Id.) The video shows the two moving in a circle at very close range.

         Officer Gaines, unable to visually check for a bulge because of what he deemed noncompliance, [10] called to Officer O'Brien, and instructed Officer O'Brien to help him "pat [Curry] down for weapons. At that point, Officer O'Brien took control of [Curry's] left arm, and I took control of his right arm, and we positioned him for a pat down for weapons." (Id. at 19.) Officer Gaines stated that, as Officer O'Brien approached, Curry "was still being evasive in his posture, " and "not allowing [us] to, I guess, get to his right side..... He just kept turning away from us where we could not see his right side. He was circling away." (Id. at 19-20.) The video corresponds with Officer Gaines's testimony.[11]

         Officers Gaines and O'Brien then began to pat Curry down. Officer Gaines testified that he patted Curry's right side down on top of his clothes and "felt a hard object consistent with like the butt of a handgun." (Mat 20.) Officer Gaines said to Officer O'Brien: "It's on him, " meaning "a handgun or a firearm." (Id. at 21.) Officer Gaines testified that Curry then "began struggling with us. I was never able to fully retrieve the object that I felt. We struggled. We did like one big circle before [Curry] was able to be taken to the ground and placed into custody." (Id.) Here, the video also largely matches Officer Gaines's testimony about what happened.[12]

         The darkened video footage showed Officer O'Brien handcuffing Curry, while Curry lay on his stomach on the ground. The officers helped Curry stand up. After Curry was taken into custody, Officer Gaines testified that he found the flashlight he had dropped during the struggle on the ground approximately one to one-and-a-half feet from the location where Curry had been taken to the ground. "[R]ight next to" Officer Gaines's flashlight was a silver revolver. (Id. at 23.)

         II. Analysis: Whether and When a Seizure Occurred

         Curry's Motion to Suppress alleges one Fourth Amendment violation. Curry contends that, at the time Officer Gaines stopped him in the field near Walcott Place, Officer Gaines lacked reasonable articulable suspicion that Curry was engaged in criminal activity. Given this lack of particularized suspicion, Curry argues that Officer Gaines violated the Fourth Amendment by stopping him.

         No case from the United States Court of Appeals for the Fourth Circuit, nor from any other court, falls on all fours with the circumstances before this Court. Based on arguments advanced by the parties, the Court must decide whether these officers, given the circumstances of having heard shots fired moments before, had reasonable articulable suspicion to stop each of the men they saw walking on the grass field moments after shots were fired that night. The commanding conduct of the police and existing law constrain this Court to conclude that the officers exceeded constitutional bounds. Even taking into account their training and experience, the officers lacked reasonable articulable suspicion for stopping these pedestrians rather than others. Moreover, even if the Court were to credit Officer Gaines' perception that Curry did not submit to his show of authority, binding law would not allow Officer Gaines's subjective interpretation of Curry's actions to inform whether, under the law, Curry's conduct thereafter allowed Officer Gaines to proceed with a search. In short, the Court must grant the motion to suppress.

         A. Legal Standard: Whether a Seizure Occurred

         The Fourth Amendment protects "[t]he right of all people to be secure in their persons ... against unreasonable searches and seizures." U.S. Const, amend. IV. Not all police encounters with citizens, however, implicate the Fourth Amendment. "As a general matter, law enforcement officers do not seize individuals 'merely by approaching [them] on the street or in other public places and putting questions to them.'" United States v. Stover, 808 F.3d 991, 995 (4th Cir. 2015) (quoting United States v. Drayton, 536 U.S. 194, 200 (2002)). Rather, a Fourth Amendment seizure occurs "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry, 392 U.S. 1, 19 n.6 (1968). In circumstances in which "physical force is absent, a seizure requires both a 'show of authority' from law enforcement officers and 'submission to the assertion of authority' by the defendant." Stover, 808 F.3d at 995 (quoting California v. Hodari D., 499 U.S. 621, 626 (1991)).

         "To determine whether police have displayed a show of authority sufficient to implicate the Fourth Amendment, a court applies the objective test set forth in United States v. Mendenhall, 446 U.S. 544 (1980) (plurality opinion)." Stover, 808 F.3d at 995 (citation modified). Under Mendenhall, a show of authority implicates the Fourth Amendment "only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave." Mendenhall, 446 U.S. at 554. The totality-of- the-circumstances test involves the consideration of numerous non-exclusive factors.[13] If, in view of all the relevant circumstances, a reasonable person would not feel free to terminate the encounter, the encounter is not consensual, and the Fourth Amendment might be implicated. Stover, 808 F.3d at 995

         This court must undertake one more inquiry, however, because Mendenhall "states a necessary, but not a sufficient condition for ... seizure effected through a 'show of authority.'" Hodari D., 499 U.S. at 628. When the parties dispute whether an individual in fact submitted to a police show of authority, the Court must determine whether and when submission occurred. See Id. at 628-29; Brendlin, 551 U.S. at 254; Stover, 808 F.3d at 995. "[W]ithout actual submission" to police show of authority, "there is at most an attempted seizure, " which is outside Fourth Amendment protection.[14] Brendlin, 551 U.S. at 254.

         The determination of when a defendant sufficiently submits to police authority to effectuate a seizure is often layered. Clearly, "[a] defendant does not have to remain frozen in order to submit" to police authority and thereby be seized. Stover, 808 F.3d at 998. "Physical movement alone does not negate the possibility that a seizure may nevertheless have occurred." United States v. Wilson, 953 F.2d 116, 123 (4th Cir. 1991). Equally clear, a defendant need not "bolt from the scene to signal non-submission." Id. Conduct that falls between these two bright lines, however, can involve "a difficult, fact-intensive inquiry." Stover, 808 F.3d at 996.

         B. Curry Was Stopped When He Responded to Officer Gaines's Command

         Despite inaccurately downplaying Officer Gaines's commanding conduct that night, the United States does not contend that the police show of authority did not, at some point, implicate the Fourth Amendment. Nor does Curry. Rather, the parties dispute the moment at which Curry became seized for Fourth Amendment purposes.

         In its supplemental brief, the United States argues that Curry "was not seized until, at the earliest, ... police grabbed him and attempted to subdue him." (U.S. Suppl. Br. 26.) According to the United States, because Curry "did not comply with [the officers' requests to show his hands and lift his shirt], he could not be deemed seized" because '"there is no seizure without actual submission.'" (Id. (quoting Brendlin v. California, 551 U.S. 249, 254 (2007).) Further, when arguing against a finding that Curry passively acquiesced, the United States contends that "every one of [Curry's] acts once he began interacting with police was designed to conceal from the officers the firearm that he had on his person and prevent them from learning the very fact that their requests ... were designed to uncover." (Id.)

         Curry counters that "a suspect who stops in response to police commands needs to do nothing more to be considered stopped." (Def.'s Suppl. Br. 3, ECF No. 30 (citing United States v. Johnson, 620 F.3d 685, 691 (6th Cir. 2010).) Curry avers that, because he halted and raised his hands when Officer Gaines told him to do so, he submitted "to police authority, sufficient to establish a Fourth Amendment seizure." (Id. at 4 (citing Hodari D., 499 U.S. at 628-29.)

         Because a reasonable person in Curry's position would not have felt free to disregard Officer Gaines's command to stop and raise his hands, the encounter was not consensual, and Officer Gaines's show of authority implicated the Fourth Amendment. Because Curry submitted to that show of authority when he stopped and raised his hands, he was seized for Fourth Amendment purposes at that time. As explained below, under Fourth Circuit law, Curry's subsequent actions do not alter this conclusion.

         1. A Reasonable Person in Curry's Position Would Not Have Felt Free to Leave When Officer ...

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