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United States v. Smith

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

April 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JAQUANE SMITH, Defendant.

          OPINION & ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS (DKT. 16)

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE.

         Defendant Jaquane Smith is charged with felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). This matter is before the Court on Smith's motion to suppress tangible evidence and statements. An evidentiary hearing on the motion was held on February 1, 2018, and completed February 5, 2018; supplemental briefing followed. For the reasons that follow, the Court grants the motion.

         I. BACKGROUND

         Around 10:45 p.m. on August 20, 2017, Detroit Police Department (“DPD”) Officers Quinton Jackson, Xiong Vang, and Matthew Morrison were on patrol on the east side of Detroit. 2/1/2018 Tr. at 11 (Dkt. 20); 2/5/2018 Tr. at 33 (Dkt. 21). The officers were part of DPD's Tactical Response Unit (“TRU”), a “proactive” unit whose primary duty, according to Jackson, was to “try and prevent crimes from happening rather than just responding to them.” 2/1/2018 Tr. at 55. While traveling west on Brentwood Street during their routine patrol that night, the officers encountered a pickup truck parked on the northern curb of the one-way street - to the right of the police cruiser. Id. at 78. Standing on the driver's side of the pickup were two men, [1] one of whom was Smith. Id. at 11; 2/5/2018 Tr. at 34. A third man was seated in the driver's seat of the pickup truck. 2/1/2018 Tr. at 17.

         At this point, the stories of the officers and Smith diverge. Vang, who was seated in the rear passenger seat of the police cruiser, testified that the officers, while in their cruiser, approached the pickup truck to inform the individuals in and around the truck that they were impeding traffic and “to tell them just to keep it moving.” 2/1/2018 Tr. at 13. As they approached in their cruiser, Vang claims that Smith began to “blade” the right side of his body, or “turn his right side away from me concealing it” so that Vang would not be able to see it. Id. at 17-18. As Smith was blading his right side, Vang supposedly saw a heavy object swing in Smith's cargo pants pocket. Id. at 18. He testified that he saw an L-shaped bulge in that pocket, which he believed to be a handgun, based on his experience as an officer. Id. at 19. Vang did not alert his fellow officers of this suspicion, id. at 42-43, supposedly because he did not want to alert Smith that he was going to further investigate, id. at 50. However, Jackson later acknowledged that he and his fellow officers had coded language (“he's ripped”) which they could use to communicate to each other that an individual was armed, without detection by the suspect or other non-police personnel present. Id. at 70.

         According to Vang, Jackson asked the men if they had any firearms, and all three responded no. Id. at 20. Jackson next asked if it was okay to check for firearms, and all three men supposedly consented. Id. at 21. Vang also testified that Smith appeared nervous and uncomfortable. Id. at 20. However, Vang's report makes no reference to asking for, or obtaining, consent to search.[2]Id. at 49. Nor does it mention Vang's impression that Smith seemed uncomfortable. Id. After supposedly obtaining consent to search, Vang and Jackson exited the vehicle. Id. at 23. Jackson directed Smith to walk towards Vang, who proceeded to frisk Smith and located the handgun in his pocket. Id. at 23-24.

         Jackson's testimony provided a largely similar story, including his observation that Smith bladed his body away from the officers, and that he saw an L-shaped bulge in Smith's pocket. Id. at 67-68. But certain key facts were missing from his report. Jackson testified that the men gave consent to search them, id. at 67, though this detail is not referenced in his police report, id. at 86. He also testified that, towards the beginning of the encounter, the man sitting in the driver's seat of the car, Ricardo Young, would not keep his hands visible, despite being asked to do so multiple times. Id. at 65-66. That fact also did not make its way into his report. Id. at 86.

         Jackson also testified that, after being granted consent to search, he shined his flashlight on Smith “just to reassure that there was a weapon in his pocket.” Id. at 69. Then, upon exiting the vehicle, he physically touched Smith to slide him over to Vang to be searched, though he did not pat Smith down before or during this touch. Id. at 83. Jackson also testified that Vang, after finding the weapon in Smith's pocket, alerted his fellow officers by saying “he's ripped.” Id. at 70.

         Smith had a different recollection of the encounter. He testified that the officers approached the pickup truck and asked if anybody had called in a disturbance; they said that they had not. 2/5/2018 Tr. at 34-35. Then, Smith testified, Jackson asked if any of them had weapons; when they did not respond, Jackson indicated that the officers' “wand or meter is going off so somebody has to have a weapon.”[3] Id. at 35. According to Smith, none of the men responded to the question, and the officers proceeded to exit the car. Id. at 35. Jackson went directly to Young, and then directed Smith to go towards Vang. Id. at 36. Vang ordered him to put his hands on the bed of the truck, which he did, and then searched him from the top down. Id.

         Young also testified at the hearing. He stated that the officers initially asked if anybody called in a disturbance, and that all three men said no. Id. at 9. After the answer, the officers asked them if they had any weapons, because their wand was going off. Id. Young testified that after all three men denied having weapons, the officers asked if they could search them, but that none of the men responded. Id. at 10.

         Smith was arrested and eventually charged federally with felon in possession of a firearm. He brought this motion seeking to suppress the gun as the fruits of an illegal stop and frisk in violation of the Fourth Amendment and Terry v. Ohio, 392 U.S. 1 (1968). Smith argues that he was stopped and frisked without reasonable suspicion that he was engaged in criminal activity and dangerous.

         II. ANALYSIS

         The Fourth Amendment “is designed to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” I.N.S. v. Delgado, 466 U.S. 210, 215 (1984) (internal quotation marks omitted). Warrantless searches “are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967) (footnotes omitted). “One of those well-delineated exceptions is the consent of the person searched.” United States v. Purcell, 526 F.3d 953, 960 (6th Cir. 2008) (internal quotation marks omitted).

         Another permitted form of warrantless government action is the Terry stop and frisk, which allows “a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Terry, 392 U.S. at 27. For an “on-the-street encounter” between civilians and a police officer, such as the one we have in our case, a “stop” is reasonable if the officer “reasonably suspects” the person stopped “is committing or has committed a criminal offense;” a frisk for weapons is then permitted if the officer “reasonably suspect[s] that the person stopped is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 326 (2009). An officer must “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that ...


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