United States District Court, E.D. Michigan, Southern Division
UNITED STATES OF AMERICA, Plaintiff, JESSE MONTGOMERY, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS
FIREARM AND STATEMENTS
D. BORMAN UNITED STATES DISTRICT JUDGE
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).
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.
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.
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.
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.
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
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.
Testimony at the Evidentiary Hearing
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.
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.
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. Officer Anderson
testified that the crew went out that day knowing that their
"actions" would not be recorded. Tr. at 50.
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.
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.
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
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.
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.
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.
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 ...