United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANT'S MOTION
TO SUPPRESS (DKT. 16)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
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.
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,  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.
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.
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.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.
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.
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.
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.” 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.
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.
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.
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).
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