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United States v. Herbert

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

July 16, 2019



          Raymond A. Jackson United States District Judge

         Before the Court is Defendant Ja'Quan Lamont Herbert's Motion to Suppress. Defendant has filed a memorandum in support of his motion, the Government has filed a response, and Defendant filed a reply. A hearing was held on June 14, 2019. For the reasons discussed below, Defendant's Motion to Suppress is GRANTED.


         Marshall Courts is a housing development of the Newport News Redevelopment Housing Association, in Newport News, Virginia that is known as a "high-crime area." Suppress Hr'g Tr. at 4:5-7. The Newport News Police Department ("NNPD") often patrols this "high-crime area" to enforce trespassing. Id. at 4:21-5:1. In fact, NNPD apparently has a policy of engaging in "consensual encounters" with individuals in order to see if they are indeed trespassing. See Id. at 4:14-5:1, 31:25-32:4.

         On the evening of October 12, 2018, Defendant was standing on a sidewalk among a group of individuals in Marshall Courts. Id. at 13:9-11, 15:13. Officer CD. Fundak, and at least three other NNPD officers were patrolling the area. See Id. at 11:5-10. According Officer Fundak's testimony, Officer Allen observed Defendant "break away from the group, and he asked [Officer Fundak] to make [an] approach." Id. at 15:13-14. Officer Fundak, on a bicycle, approached Defendant head-on. Id. at 6:12-14. Officer Fundak first saw Defendant from fifty feet away. Id. at 24:21-25. Defendant was walking on the sidewalk. Id. at 26:25-27:3. When he was about ten or fifteen feet away from Defendant, Officer Fundak "observed [Defendant] throw a bottle to the ground." Id. at 6:18-22. The bottle contained "Bug Juice," a fruit-flavored non-alcoholic children's drink. Id. at 7:1-4; ECF No. 17 at 5 n.1.

         When he finally initiated contact with Defendant, Officer Fundak was five to ten feet away from Defendant. Suppress Hr'g Tr. at 16:13-15. Officer Fundak left his bicycle on the ground behind him. Suppress Hr'g Tr. at 27:6-17. Therefore, Officer Fundak stood between Defendant and the bicycle. Id. During the entire encounter, Defendant cooperated and made no attempts to run, nor did he make any furtive movements. Id. at 7:9-10, 16:16-20. Officer Fundak asked Defendant if he lived in the area, and when Defendant replied in the affirmative, Officer Fundak asked for identification. Id. at 7:7-8, 22:24-23:1. As Defendant was handing him the I.D., Officer Fundak "could detect the odor of marijuana coming from [Defendant's] person." Id. at 7:17. Defendant then handed Officer Fundak "a clear plastic bag which [Officer Fundak] believed contained suspected marijuana at the time." Id. at 8:8-9. Mere moments later, the three other officers arrived at the scene on bicycles and a police car. Id. at 18:13-18. As one of the other officers was handcuffing Defendant, Officer Fundak noticed what appeared to be a semiautomatic weapon on Defendant's person and recovered it after Defendant was in handcuffs. Id. at 9:6-14.

         On April 9, 2019, Defendant was indicted on two drug charges and two gun charges. ECF No. 1. On May 13, 2019, Defendant filed his instant motion to suppress. ECF No. 15. The Government responded in opposition on May 28, 2019. ECF No. 16. Defendant filed a reply on June 3, 2019. ECF No. 17. The Court held a hearing on June 14, 2019. ECF No. 24.


         The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const, amend. IV. A stop constitutes a seizure under the Fourth Amendment. United States v. Arvizu, 534 U.S. 266, 273 (2002). A law enforcement officer can execute an investigatory stop if that officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." United States v. Slocumb, 804 F.3d 677, 681 (4th Cir. 2015) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)) (internal quotations omitted).

         In order to perform a Terry stop, the police office must have a reasonable articulable suspicion that a crime is about to be or has been committed. See United States v. Black, 707 F.3d 531, 537 (4th Cir. 2013) (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). This reasonable articulable suspicion "must [have a] particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Id. at 539 (quoting United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009)). The police officer "'must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" Id. (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). Additionally, the Court must "give due weight to common sense judgments reached by officers in light of their experience and training." United States v. Mason, 628 F.3d 123, 128 (4th Cir. 2010). The Court makes this determination based on the facts and the totality of the circumstances. Black, 707 F.3d at 537. What might be considered innocent conduct viewed in isolation may give rise to reasonable belief when viewed in totality. Id. at 539.

         However, the mere fact that an officer approaches an individual does not immediately implicate Terry. United States v. Brown, 401 F.3d 588, 593 (4th Cir. 2005) (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). A police officer engages in a consensual encounter if they simply ask a few questions and '"a reasonable person would feel free to disregard the police and go about his business.'" Id. (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)).


         During his testimony, Officer Fundak made it very clear that his sole reason for initiating contact with Defendant was because Officer Allen directed him to do so. Suppress Hr'g Tr. at 15:6-16:3, 17:7-11, 25:9-13. He also repeatedly emphasized that the contact began as a consensual encounter. Id. However, it is apparently NNPD policy to engage in such "consensual encounters" for the express purpose of investigating if an individual is trespassing. See Id. at 4:14- 5:1, 31:25-32:4.

         The Court finds such a policy constitutionally disturbing at best. While police officers are well within their authority to simply pose questions to individuals, Brown, 401 F.3d at 593, if these encounters are being conducted with investigative intent, it seems that such contact is more of a Terry stop. See Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981) (noting that the purpose underlying a Terry stop is "investigating possible ...

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