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United States v. Montgomery

United States District Court, E.D. Michigan, Southern Division

February 14, 2017

UNITED STATES OF AMERICA, Plaintiff, JESSE MONTGOMERY, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS FIREARM AND STATEMENTS

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

         Defendant Jesse Montgomery is charged with being a felon in possession of a firearm. On July 19, 2016, Defendant filed a Motion to Suppress the firearm seized from him, and certain statements made by him to the arresting officers. (ECF No. 25, Mot. to Suppress). On August 23, 2016, the Government filed its Response. (ECF No. 28, Resp. to Mot. to Suppress). The Court held an extensive evidentiary hearing on November 30, 2016, after which the Court ordered supplemental briefing. Supplemental briefs were filed on January 3, 2017 (after the parties received the requested transcript) (ECF Nos. 34, 35).

         Overview

         Defendant Jesse Montgomery was the rear seat passenger in a van driven by Fred Archie on March 20, 2016. Four Detroit Police Department (DPD) Special Operations Officers riding in a marked vehicle, conducted a traffic stop of the van for allegedly changing lanes without signaling.

         The officers testified that upon approaching the stopped van they smelled burnt marijuana. They ordered the three occupants out of the van, frisked them, handcuffed the driver, and took all three individuals to the back of the van/front of the police car. Two officers held the occupants; two officers searched the van for contraband.

         While holding the occupants, Officer Kijuan Anderson told the occupants that he knew they had a gun, that they weren't going to leave until someone gave up a gun, and that if they gave up a gun, no one would be prosecuted.

         Defendant Montgomery, who had previously been patted down, after being assured by Officer Anderson, again and again that they wouldn't be allowed to leave if they didn't give up a gun, and that if they gave up a gun no one would be prosecuted, told Officer Anderson that he had a gun in his waist area. Anderson searched Defendant Montgomery and secured a gun that had been missed in the earlier initial frisking process that occurred when the occupants were initially ordered out of the van, Among the legal issues discussed in the briefings, and at the evidentiary hearing:

(1) Whether the initial police stop of the van for allegedly changing lanes without signaling was proper.
(2) Whether the initial pat-down search of the Defendant and the other two occupants, and the search of the van for marijuana that the police smelled upon approaching the van, was proper. (No contraband was found; no drugs or guns).
(3) Whether ordering the three occupants out, handcuffing the driver, taking all three to the rear of the van/front of the police car, and continuing to hold them, question them and threaten them while the other officers searched the van for marijuana, was proper.
(4) Whether the continued detention of the occupants to question them about having a weapon, during which the police told them that they would not be permitted to leave unless someone gave up a gun, and the police promise that no one would be prosecuted if a gun was turned over, was proper under the Fourth and Fifth Amendments.
(5) Whether the detained Defendant's ultimate admission, after Officer Anderson's threats, that he had a gun was coerced under the Fifth Amendment.
(6) Whether the Defendant's gun and statements should be excluded as fruit of the poisonous tree (illegal stop) under the exclusionary rule.

         The Court concludes that the officers did not have a legal basis to stop the van, and the exclusionary rule applies to the conduct of the officers, requiring suppression of the fruits of the unlawful seizure and search: the firearm seized from Defendant, and his coerced inculpatory statements regarding the firearm.

         This Opinion will initially provide an overview of the relevant testimony from the November 30, 2016 evidentiary hearing, and then provide the Court's factual findings and the Court's legal analysis.[1]

         Relevant Testimony at the Evidentiary Hearing

         Detroit Police Officer Kijuan Anderson testified that he was one of four officers in a Special Operations patrol car on March 20, 2016. Anderson was the driver. The other occupants were Officers Christopher Rabior and Joseph Ceravolo, and a Sergeant who was subsequently tragically killed in the line of duty in another case, prior to the instant hearing.

         The police vehicle did not have a functioning audio/video recorder despite a departmental requirement that it be operational. The Sergeant, nevertheless, ordered them to use that car because it was the only patrol car available. (ECF No. 33, Transcript of Nov. 30, 2016 Evidentiary Hrg. 12-19). Anderson testified that he was driving around 5:00 p.m. on East Outer Drive, a two-way traffic street with three lanes on each side, and a grass median containing trees.

         Anderson testified that he observed a van across the median, traveling in the opposite direction that veered to the right without signaling. Tr. at 21. Anderson testified that while the Special Operations unit's general duties were "Guns, narcotics, fugitive, high crime shootings, homicides, " they were also responsible for pulling people over for civil infractions. Tr. at 43. Anderson testified that the March 20, 2016 daily activity log that he read and signed stated that the squad car's audio/visual equipment was operational. Tr. at 48. But, it wasn't. Tr. at 49.[2] Officer Anderson testified that the crew went out that day knowing that their "actions" would not be recorded. Tr. at 50.

         Officer Anderson testified that there were trees lining the wide Outer Drive grass median, separating the three lanes on each side. Tr. at 55. The median separated the police car's direction of travel from the van's opposite direction of travel. Tr. at 56.

         Officer Anderson testified that unlike general DPD patrol cars, the special operations unit does not radio to dispatch to report when they pull over a vehicle, "because they're [patrol cars] at service [answering runs] and we're not." Tr. at 61. Thus, in addition to the lack of an audio-video record of the crew's activity, there was no radio communication dispatch tape available to verify what time the stop occurred and when it concluded.

         The second Officer called to the stand, Christopher Rabior, who was in the front passenger seat, testified that there are trees in the Outer Drive median: "Periodically, I believe so." Tr. at 98. Officer Joseph Ceravolo, who sat in the back seat and testified third stated, in contradiction, that there were no trees in the grassy median. Tr. at 136. The Government introduced Exhibit 2, an aero photo which clearly evidences the Outer Drive grassy median and trees.

         Defendant's first witness Tommy Bell, Jr. testified that he rode in the van's passenger seat, that the van had been traveling only in the middle lane for a long period of time before they were stopped, and that the driver never swerved or switched into another lane during that period. Tr. at 143.

         Defendant's second witness, Freddie Archie, the driver of the van, testified that he was driving down the middle lane - going straight, when he was pulled over, Tr. at 189, and that he never changed lanes during the 5-10 minutes he was driving in the middle lane. Tr. at 194.

         Anderson testified that after seeing the van change lanes without signaling, he made a U-turn, activated the siren and lights, and after proceeding for a half a block or a full block the van pulled over. Tr. at 22. Anderson testified that during the "roiling" stop, despite the van having tinted rear windows, he saw a lot of movement by the back seat passenger. Tr. at 24. He was concerned that the backseat passenger might be concealing a weapon or narcotics. Tr. at 27. There were three people in the van; Archie the driver, Bell the front seat passenger, and Defendant Montgomery the rear passenger. Tr. at 25.

         After stopping the van, the four officers approached the van. Upon approaching the driver, Officer Anderson smelled a strong odor of fresh burnt marijuana and ordered all three occupants to show their hands. Anderson had his hand on his gun - not drawn. Anderson testified that this was "just a normal traffic stop." Tr. at 30. Anderson testified that he informed the driver that he smelled the odor of burnt marijuana, to which the driver responded, "we just got done smoking." Tr. at 30. Both defense witnesses Archie and Bell denied making any such statement. Anderson testified that he didn't remember if the driver appeared high. Tr. at 31. Anderson announced they were going to search the van for marijuana; removed the driver, handcuffed him, and removed the two passengers but did not handcuff them. Tr. at 31. All three occupants were brought to the back of the van/the front of the police car. Anderson ...


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