United States District Court, E.D. Virginia, Newport News Division
Rebecca Beach Smith Senior United States District Judge.
matter comes before the court on the Defendant's Motion
to Suppress ("Motion"), filed on August 20, 2019.
ECF No. 14. The United States filed a Response in Opposition
to the Motion on September 3, 2019. ECF No. 16. The Defendant
filed a Reply in support of the Motion on September 9, 2019.
ECF No. 17.
court held a hearing on the Motion on October 2, 2019. The
court heard testimony from Officers Kevin Hall and Lonee
Fitzer of the Newport News Police Department. The court
reviewed several exhibits, including the video footage with
sound from Officer Hall's Axon body camera. The court
then heard further argument on the Defendant's Motion.
The court ruled from the bench and denied the Motion. For the
reasons below and stated from the bench, the court
DENIES the Defendant's
Based upon consideration of the video evidence and testimony
that the United States presented at the hearing, which the
court finds credible, the court makes the following findings
of fact. On November 11, 2018, at approximately 6:30 A.M.,
Officer Kevin Hall, who was on routine patrol towards the end
of his shift and was driving near Lee's Mill Road and
Charles Street in the city of Newport News, noticed a car
that appeared to be disabled on the opposite of the road. The
car was pulled into a mostly grassy area. Officer Hall
stopped to render aid to the vehicle. The Defendant was
standing outside the driver's side door of the vehicle,
but leaning into the vehicle through the window so that his
head and shoulders were inside the vehicle. A female
passenger was in the front seat of the car. As Officer Hall
approached the Defendant, he asked him "everything
alright" and "what's going on." The
Defendant was unable to respond coherently. The Defendant was
also acting nervously and evasively. He repeatedly put his
hands into his coat pockets, despite multiple requests not to
do so, and could not clearly answer the officer's basic
Hall started approaching the Defendant, who was outside on
the driver's side of the vehicle. As he approached,
Officer Hall saw a firearm in plain view near the
vehicle's center console. Because of the presence of the
firearm, the Defendant's evasive behavior, including
moving his hands in and out of his pockets, the
Defendant's position near the driver's side open
window, and the passenger remaining in the car, Officer Hall
directed the Defendant to place his hands on the back of the
car so that Officer Hall could safely retrieve the firearm.
As he retrieved the firearm, Officer Hall detected an
overwhelming odor of marijuana from inside the car. Shortly
after, Officer Hall could smell the odor of marijuana
emanating from the Defendant. When Officer Hall asked the
Defendant when the last time was that he smoked marijuana,
the Defendant replied, "a second ago." Officer Hall
subsequently conducted a search of the car and the Defendant.
Terry v. Ohio, an officer may perform an
investigatory stop if the officer "observes unusual
conduct which leads him reasonably to conclude in light of
his experience that criminal activity may be
afoot." 392 U.S. 1, 30 (1968) (emphasis added). The
central issues raised in the Motion are whether an
investigatory stop of the Defendant under Terry,
followed by the search of the Defendant and the search of the
Defendant's vehicle, violated the Fourth Amendment. The
Defendant argues that each did. The Defendant contends that
Officer Hall executed a Terry stop, without reasonable
suspicion to do so, when he directed the Defendant to move to
the back of the vehicle and place his hands on the vehicle.
Mot. to Suppress at 4-8; Reply at 2-5. The Defendant also
argues that the subsequent searches of his person and the
vehicle violated the Fourth Amendment because law enforcement
did not have probable cause to arrest him or search the
vehicle. Mot. to Suppress at 8-10; Reply at 6-8.
United States argues that the Terry stop of the
Defendant at the back of the vehicle and the subsequent
searches were lawful. The United States asserts that Officer
Hall had reasonable suspicion for the Terry stop of
the Defendant because, among other things, the Defendant was
evasive and nonresponsive, there was a firearm in plain view
inside the vehicle, and a passenger remained inside the
vehicle. Resp. at 6-9. The United States argues that the
subsequent searches of the Defendant and the vehicle were
supported by probable cause because Officer Hall could smell
marijuana emanating from the Defendant and the vehicle, and
the Defendant admitted to recently using marijuana.
Id. at 9-13.
Hall came to the scene to assist a disabled vehicle. At that
juncture there was no Terry stop involved, and the
Defendant does not so contend. Here, the Defendant was
stopped under Terry when Officer Hall directed him
to place his hands on the back of the vehicle, while Officer
Hall retrieved the firearm he had observed. The stop was
lawful under Terry. There were "specific and
articulable facts which, taken together with rational
inferences from those facts, reasonably warrant[ed] that
intrusion." Terry, 392 U.S. at 21. In
particular, the Defendant acted evasively and nervously, did
not clearly respond to basic questions and directions to keep
his hands out of his pockets, was already standing outside
the car with the car window open, and was in close proximity
to a firearm near the console between the front seats. Also,
a passenger remained in the front seat of the vehicle near
the firearm. In light of these facts, Officer Hall was
justified in directing the Defendant to move to the back of
the vehicle, away from the firearm, and to place his hands on
the back of the vehicle, so that Officer Hall could safely
retrieve the firearm. See, e.g., United States
v. Singleton, 360 Fed.Appx. 444, 445-46 (4th Cir. 2010)
(unpublished) (holding officers had reasonable suspicion, in
part, because defendant possessed an unconcealed firearm and
Hall's subsequent search of the Defendant and the vehicle
also did not violate Terry or the Fourth Amendment.
The Terry stop was appropriate under the
circumstances and facts set forth above. Then, given the
strong odor of marijuana in the vehicle and the
Defendant's admission of recent use, the subsequent
search of the vehicle and the Defendant, and the seizure of
the drugs and the additional gun on the Defendant's
person, were legal and constitutional.
marijuana is a crime in Virginia, Va. Code Ann. §
18.2-250.1 (2019), and the strong odor of marijuana can
support probable cause to search an individual or a vehicle.
See United States v. Humphries, 372 F.3d 653, 658-60
(4th Cir. 2004) (citing cases) . Officer Hall detected a
strong odor of marijuana in the car and emanating from the
Defendant. The Defendant also admitted to smoking marijuana
"a second ago." Officer Hall thus had probable
cause to search the car and the Defendant, and to place the
Defendant under arrest. See id.
Clerk is DIRECTED to forward a copy of this Opinion to
counsel for the Defendant and the United States Attorney.