United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS AND DISMISS INDICTMENT
ROBERT H. CLELAND, District Judge.
On May 13, 2014, a grand jury returned a one-count indictment charging Defendant Dwayne Lydell Williams with a violation of 18 U.S.C. § 922(g)(1), Felon in Possession of a Firearm. Pending before the court is Williams's Motion to Suppress Evidence and Dismiss Indictment (Dkt. # 21) filed on November 25, 2014. A hearing was held on April 24, 2015. For the reasons stated on the record and below, Williams's motion will be denied.
The Fourth Amendment guarantees that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend. IV. Under the Fourth Amendment, there are three types of permissible encounters between police and citizens: "(1) the consensual encounter, which may be initiated without any objective level of suspicion; (2) the investigative detention, which, if non-consensual, must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if supported by probable cause." United States v. Avery, 137 F.3d 343, 352 (6th Cir.1997) (citations omitted). At issue here are the first two types of encounters.
A. Consensual Encounter
Consensual encounters with citizens by police officers are permitted without being in violation of the Fourth Amendment prohibitions on searches and seizures. Florida v. Bostick, 501 U.S. 429 (1991). A consensual encounter "may be initiated without any objective level of suspicion." United States v. Waldon, 206 F.3d 597 (6th Cir. 2000). An encounter is not consensual, and thus a seizure, if "a reasonable person would have believed that he... was not free to walk away." United States v. Alston, 375 F.3d 408, 411 (6th Cir.2004). It is the government's burden to establish the interaction was consensual. Florida v. Royer, 460 U.S. 491, 497 (1983). Whether a reasonable person would have believe he was free to leave is an objective inquiry. United States v. Drayton, 536 U.S. 194, 202 (2002). "Voluntariness is determined by examining the totality of the circumstances." United States v. Beauchamp, 659 F.3d 560, 571-72 (6th Cir. 2011).
"[A] reasonable person may not feel free to leave in the face of coercive police behavior, including: the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.'" United States v. Preston, 579 F.Appx. 495, 499 (6th Cir. 2014) (quoting United States v. Jones, 562 F.3d 768, 772 (6th Cir.2009)).
When officers use their marked patrol vehicle to block a citizen's vehicle from exiting a parking space, the encounter is not consensual. United States v. Gross, 662 F.3d 393, 399 (6th Cir. 2011); see also United States v. See, 574 F.3d 309, 313 (6th Cir. 2009). On the other hand, when police officers block a citizen's vehicle in the driveway, but that citizen is not in the vehicle and able to walk away, the encounter may be consensual. O'Malley v. City of Flint, 652 F.3d 662, 669 (6th Cir. 2011).
B. Terry Stop
Officers may conduct a "reasonable search for weapons for the protection of the police officer" when they have reason to believe that they are "dealing with an armed and dangerous individual." United States v. Mays, 643 F.3d 537, 541 (6th Cir. 2011) quoting Terry v. Ohio, 392 U.S. 1, 27 (1968). Reasonable suspicion requires "more than a mere hunch, but is satisfied by a likelihood of criminal activity less than probable cause, and falls considerably short of satisfying a preponderance of the evidence standard." Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008). Reasonable suspicion must be considered under the totality of the circumstances, considering all of the information available to law enforcement officials at the time. Officers are entitled "to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." United States v. Arvizu, 534 U.S. 266, 273 (2002).
"Furtive movements made in response to a police presence may also properly contribute to an officer's suspicions." United States v. Caruthers, 458 F.3d 459, 466 (6th Cir. 2006); see also United States v. Graham, 483 F.3d 431, 439 (6th Cir. 2007) (holding that a furtive movement consistent with an attempt to conceal a firearm can support reasonable suspicion). However, the furtive conduct must be objective and particularized. Id. at 467.
The court held a hearing on Williams's Motion to Suppress on April 24, 2015, at which the court heard testimony from Officers Kline, Wilson, and Alam. The court also heard ...