United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge
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.
BACKGROUND & PROCEDURAL HISTORY
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
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
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.
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.
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).
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.
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)).
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.
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