United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DEFENDANT'S MOTION TO
SUPPRESS EVIDENCE AND STATEMENTS)
E. HUDSON SENIOR UNITED STATES DISTRICT JUDGE.
result of a stop and frisk conducted by officers of the
Richmond City Police Department on February 3, 2019, on the
grounds of Creighton Court Apartments, the Defendant, Anthony
Eugene Peters ("Defendant") was charged with
possession of a firearm by a convicted felon. Claiming that
the arresting officers acted without articulable and
particularized suspicion that criminal activity was afoot,
Defendant moves the Court to suppress the firearm seized,
along with any accompanying remarks made by him to the
officers. Both the Defendant and the United States have filed
memoranda supporting their respective positions. On July 29,
2019, following the testimony of the arresting officers, the
Court heard oral argument.
Creighton Court Apartment complex ("Creighton
Court") is managed and operated by the Richmond
Redevelopment and Housing Authority ("RRHA"). RRHA
has authorized officers of the Richmond City Police
Department to enforce the trespass laws of the Commonwealth
of Virginia (Va. Code Ann. § 18.2-119) upon all
RRHA-owned real property within the City of Richmond.
(Gov't's Ex. I.)
the early evening hours of February 3, 2019, Officers Stephen
Butler and Mitchell Cooper, of the Richmond City Police
Department, were patrolling Creighton Court. While Officer
Cooper was still in training, Officer Butler had been a
Richmond City Police Officer for eight years. Officer Butler
was familiar with the Creighton Court complex having made a
number of prior arrests in the area for drug possession and
trafficking, as well as firearm offenses. At approximately
5:30 p.m., in the 2000 block of Creighton Road, the officers
observed the Defendant walking along the sidewalk accompanied
by Gary Garrison ("Garrison"). Officer Butler
recognized the Defendant as someone with whom he had had
prior contact. He knew from a prior review of police records
that the Defendant was not a resident of Creighton Court. The
officer further believed from those records that the
Defendant had been previously convicted of trespassing on
Creighton Court property and had been barred from the area.
The records, which were several years old, revealed that the
Defendant was believed to be a gang member and that he should
be considered "probably armed." (Gov't's
Butler also testified that he had received information from a
confidential informant, who he believed at the time was
reliable,  that the Defendant was selling crack
cocaine in the area in which the officers encountered him.
The officer was also aware that Garrison had been prohibited
from being in Creighton Court. Consequently, the officers, in
uniform and driving a marked police unit, exited and
approached the Defendant and Garrison. As they did, the
officers activated their body cameras. Officer Butler walked
directly toward both individuals and asked them what they
were doing on Creighton Court property since they were not
supposed to be there. According to Officer Cooper, they were
approximately three to five feet from the Defendant. He
described their voice tone as stern but respectful. When
asked, the Defendant indicated he had no identification.
Officer Butler then inquired if either had weapons and asked
if they could lift their shirts up. The Defendant, who
Officer Butler addressed by his nickname, turned and faced
the officer. The Defendant, in an emotive voice, disputed
that he was trespassing, claiming that his prior charge had
been dismissed and accused the officers of harassing him.
While Garrison readily raised his shirt upon the officers
asking the men if they were armed, the Defendant only
partially lifted his shirt but hesitated to expose his
waistline. When Officer Butler persisted asking
"What's in your pockets?" the Defendant finally
lifted his shirt over the belt buckle area. When the
Defendant did so, Officer Butler testified that he observed a
cylindrical bulge suggestive of the configuration of the
muzzle of a firearm. Meanwhile, Garrison continued walking
unimpeded in the direction of an apartment building. Officer
Cooper testified that neither he nor Officer Butler ever
directed the Defendant or Garrison to stop walking.
Butler testified that he had learned from a confidential
informant that men wearing skinny jeans, of the same type
Defendant was wearing, often secure a firearm by wedging it
into the front of their pants. Officer Butler placed his hand
in that area and detected the grip of a firearm, which he
then seized. The officers then attempted to restrain the
Defendant. He resisted their commands and was forcibly placed
on the ground and secured.
Butler testified on cross-examination that he had not
reviewed police records to confirm that the Defendant's
2011 arrest for trespassing on Creighton Court property
resulted in a conviction-which it did not. He also explained
that he did not use his radio to confirm the Defendant's
suspected prior trespass conviction, because he did not want
to divert his attention from the Defendant given the fact
that Officer Cooper was a trainee officer with only a few
days of on-the-street experience. Neither officer recalled
directing the Defendant to stop at the time of the initial
encounter. In fact, Garrison continued walking after raising
Judge Wilkinson prefaced his analysis of a similar
investigatory stop in United States v. Bumpers,
"[t]he touchstone of the Fourth Amendment inquiry is one
of simple reasonableness-----The term itself suggests a
balancethat balance lies 'between the public
interest' in basic community safety and 'the
individual's right to personal security free from
arbitrary interference by law officers.'" 705 F.3d
168, 171 (2013) (citing United States v.
Brignoni-Ponce, 422 U.S. 873, 878 (1975)).
officers' initial contact with the Defendant in this case
was what the U.S. Supreme Court has characterized as a
"police-citizen encounter," which falls short of
implicating the Fourth Amendment. See Fla. v.
Bostich, 501 U.S. 429, 439-40 (1991) and United
States v. Lewis, 606 F.3d 193, 197-98 (4th Cir. 2010).
The engagement began by asking the two men why they were in
Creighton Court. Suspecting that they were trespassing on
posted property and knowing that the area had a reputation of
harboring armed drug traffickers, Officer Butler asked the
Defendant and Garrison to lift their shirts. Officer Butler
testified that this was a common practice in that area to
ensure that the individual he was addressing was not armed.
Garrison immediately complied and continued walking. The
Defendant partially raised his shirt and declined to display
the front area of his trousers, where Officer Butler knew
firearms are commonly concealed.
point, there is a plausible argument that the encounter
escalated to an investigative stop, premised on reasonable
suspicion that the Defendant may be armed based on
articulable facts. See Illinois v. Wardlow, 528 U.S.
119, 124 (2000); Terry v. Ohio, 392 U.S. 1 (1968).
As the Fourth Circuit noted in United States v.
Branch, "in order to justify a Terry stop,
a police officer must simply point to 'specific and
articulable facts which, taken together with rational
inferences from the facts,' Terry, 392 U.S. at
21, evince 'more than an inchoate and unparticularized
suspicion or hunch' of criminal activity ...." 537
F.3d 328, 336 (4th Cir. 2008) (citing Wardlow, 528
U.S. at 124 (internal citations omitted)).
Court in Branch added that courts "must take a
commonsense and contextual approach to evaluating the
legality of a Terry stop." Branch, 537
F.3d at 336. The Fourth Circuit further noted that
"reasonable suspicion is a nontechnical conception
that deal[s] with the factual and practical considerations of
everyday life on which reasonable and prudent [people], not
legal technicians, act." Id. (citing
Ornelas v. United States, 517 U.S. 690, 695 (1996)
(internal quotation marks omitted)).
not the frequently litigated case of a random stop of a
seemingly suspicious person on a street corner. Officer
Butler clearly had articulable suspicion that the Defendant
may be engaged in criminal activity when he encountered him.
This suspicion escalated as he and Officer Cooper approached
the men. Aside from his interactions with the Defendant that
day, Officer Butler, who frequently patrolled that area, had
recently reviewed Richmond Police Department records
pertaining to the Defendant. While the records were
admittedly not current, they indicated that the Defendant was
not only "probably armed" but had also been
previously implicated in selling narcotics. (Gov't's
Ex. 3.) Officer Butler also testified that he was aware that
the Defendant had a prior arrest for trespassing on Creighton
Court property, a high crime area, but was unaware that the
case had been dismissed.
the circumstances at hand, coupled with the well-founded
probability that the Defendant was most likely a trespasser,
Officer Butler was justified in requesting that the Defendant
raise his shirt to show that he was not armed. The
Defendant's partial compliance elevated Officer
Butler's suspicion. When the Defendant finally lifted the
front portion of his garment, Officer Butler credibly
testified that the contour of a firearm ...