ROBERT E. PAYNE, Senior District Judge.
This matter is before the Court on Defendant Zwede Smith's ("Defendant" or "Smith") MOTION TO SUPPRESS EVIDENCE. (Docket No. 15). For the reasons set forth below, the motion has been denied.
On April 8, 2013, at approximately 12 a.m., Richmond detectives Paul Jenkins and Elmer Fernendez were conducting an interdiction at the Apex bus station in the area of 910 North Boulevard. The interdiction operations conducted at Richmond's
Jenkins testified that his unit is assigned to discharge interdiction duties at the bus station approximately two times per week with a view to intercepting people bringing illegal items into and out of Richmond by way of interstate buses. According to Jenkins, it was "very common" for people to be transporting illegal items, such as guns and drugs, on this bus line.
While on this interdiction assignment, Jenkins spotted Zwede Smith inside the Apex bus station in Richmond.
Jenkins testified that Smith "kind of seemed anxious" because he was looking around and moving around inside the bus station while most of the other passengers were sitting down or leaning against the walls. Jenkins and Fernendez saw Smith exit the bus station and line up at the door of a waiting bus. The bus had not yet started to board, and Smith was first in line to board it.
At the rear of the bus, the three men stopped and stood in a triangular formation. Smith, whose back was toward the bus, was at the apex, and the detectives, who were facing Smith, were at each foot of the triangle. The officers were approximately an arm's length distant from Smith. Jenkins then asked Smith if he had "anything illegal on [him] or [his] person," to which Smith replied "no." Jenkins then asked if Fernendez could search Smith's bag. Smith replied "sure," but just as Smith began to remove the bag from his left shoulder, he ran away from the officers, taking the bag with him as he fled in a "full-on run." In his flight, Smith ran across all four lanes of North Boulevard, through oncoming automobile traffic, and around a pile of mulch. He then re-crossed the four lanes of traffic, returning to the same side of the street from whence his flight had begun. Both detectives pursued Smith on foot as he led them across the street and back. Jenkins lost sight of Fernendez and Smith for "[m]aybe a couple seconds," but regained sight of both as Fernendez was placing Smith in handcuffs.
Fernendez testified that he placed Smith in handcuffs for safety reasons because he did not know at that time what was in Smith's bag. When Jenkins approached the scene, Smith was lying face down on the sidewalk and his backpack lay "within a couple feet" from Smith.
As other officers arrived on the scene, Fernendez and Jenkins were speaking with the other officers. After some discussion about whether they could search Smith's bag, the officers concluded that they still had Smith's consent to search. Thus, the officers did not ask Smith again whether they could search his bag. The bag was searched within approximately three minutes of Smith's apprehension.
The Fourth Amendment to the United States Constitution guarantees that "people are to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. Amend. IV; see also Wolf v. Colorado, 338 U.S. 25, 27-28, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949) (holding that the Fourth Amendment is incorporated by the Fourteenth Amendment, and therefore applies to both state and federal government actors). Evidence that is collected by law enforcement in violation of the Fourth Amendment will be excluded from use at trial. See Mapp v. Ohio, 367 U.S. 643, 651-57, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); see also Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (noting that if evidence is obtained during a violation of the suspect's Fourth Amendment rights (i.e. an "exploitation of that illegality"), then that evidence is a "fruit of the poisonous tree" and may not be used against that defendant) (internal citations omitted).
The United States contends that the facts constitute a lawful investigative stop within the meaning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, a law enforcement officer who has a reasonable suspicion, based on articulable facts, that an individual is engaged in criminal activity, may detain that individual for investigatory purposes. Terry v. Ohio, 392 U.S. at 21-22, 88 S.Ct. 1868; see also Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). Of course, to justify a Terry stop, the government "`must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" United States v. McBride, 676 F.3d 385, 391 (4th Cir.2012) (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). This suspicion must be based on more than an officer's hunch, but reasonable suspicion is less than probable cause. United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Terry, 392 U.S. at 27, 88 S.Ct. 1868. And, because the intrusion created by an investigatory stop is minimal, the reasonable suspicion standard is set fairly low. See United States v. Glover, 662 F.3d 694, 698-700 (4th Cir.2011) (finding reasonable suspicion to justify a stop and frisk when police saw a man watching and then approaching a gas station employee at 4:40 a.m. in an area known for its high crime); United States v. McCoy, 513 F.3d 405, 412-13 (4th Cir.2008) (finding reasonable suspicion to stop a vehicle (Vehicle A) after police observed another vehicle (Vehicle B) parked in an area where officers knew drugs to be sold, and saw a man get out of Vehicle B and into Vehicle A, which sped away as officers approached).
Determining whether there was reasonable suspicion to detain a suspect must be made by considering "the totality of the circumstances." Arvizu, 534 U.S. at 273, 122 S.Ct. 744. The determination requires a flexibility that "allows officers 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.'" Id. (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). We "consider [these inferences] in their totality, not piecemeal and in isolation." United
Courts have considered the following circumstances relevant to determining whether officers had a reasonable suspicion to detain a suspect: (1) presence in a high crime area; (2) evasive conduct; (3) furtive behavior; and (4) observation by law enforcement of what appears to be criminal activity. See Carl Horn Fourth Circuit Criminal Handbook, § 11 (2013). A suspect's known criminal history may also be a relevant factor. See, e.g., United States v. Sprinkle, 106 F.3d 613 (1997) (holding that an officer could couple knowledge of a suspect's criminal history with more concrete factors to reach a reasonable suspicion of current criminal activity).
Presence in a high crime area alone is not sufficient to find reasonable suspicion. Wardlow, 528 U.S. at 124, 120 S.Ct. 673; United States v. Massenburg, 654 F.3d 480, 486-88 (4th Cir.2011). Unprovoked flight upon seeing a police officer, standing alone, is not sufficient to find reasonable suspicion. Wardlow, 528 U.S. at 124, 120 S.Ct. 673. However, a combination of these two factors can be a basis for reasonable suspicion that would justify detaining an individual. Id.
Although Smith argues that he was formally arrested when the officers tackled and handcuffed him, the relevant decisional law makes clear that he was not then under arrest. In determining whether a suspect has been formally arrested or merely detained, the standard is an objective one. A suspect is arrested when his "`freedom of action is curtailed to a degree associated with formal arrest.'" Park v. Shiflett, 250 F.3d 843, 850 (4th Cir.2001) (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). Removing a suspect from a vehicle at gun point and handcuffing him was not an arrest, but was an investigative detention. United States v. Elston, 479 F.3d 314, 319-20 (4th Cir.2007). When a suspect was placed in a patrol car and handcuffed after police drew their weapons, he was not under arrest. United States v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir.1995). Using or threatening to use force does not turn a detention into an arrest. Id. An officer's determination or statement that a suspect was or was not under arrest "has no bearing" on the inquiry. Elston, 479 F.3d at 319.
The factor that pushes a detention over the line to an arrest is one of time and duration, not the use of force or handcuffs. United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). Elston and Leshuk confirm that Smith was not under arrest, notwithstanding that the fact that officers used force to apprehend him and placed him in handcuffs. The entire encounter between Smith and the detectives spanned less than ten minutes, and Smith was only held for approximately three minutes after the chase and while the officers discussed how to deal with the situation and whether to search his bag. This minimal amount of time does not push Smith's detention across the line into a formal arrest. At this point, Smith was detained.
The officers' detention of Smith at this point was based on a reasonable suspicion that he was engaged in criminal activity: the possession of a concealed firearm. The totality of the circumstances known to the officers at the time they detained Smith included that Smith had a criminal record; was in a high crime area; was
Smith claims that his flight was merely a revocation of his consent to search. Whether that is true or not, Smith's flight and evasive behavior can be considered as factors in their reasonable suspicion analysis. See United States v. Darden, 149 F.3d 1171, 1998 WL 340400, at *5, 1998 U.S. Dist. LEXIS 12728, at *16 (4th Cir. June 16, 1998)(unpublished opinion) (holding that "the officers were entitled to treat [the defendant's] grabbing of his bag from [the officer] and hasty departure as a final straw in a culminating course of conduct"). Smith's "hasty departure," much like the defendant's in Darden, "bespoke a particular concern about revelation of the bag's contents that reasonably could have been seen to provide the final confirmation." Id.
Further, Smith's actions are also much like those of the defendant's in Wardlow wherein the Supreme Court found reasonable suspicion to stop and frisk a suspect who, while in a high crime area, fled upon seeing the police. In Wardlow, police pursued the fleeing suspect, apprehended him, and frisked him and the bag he was carrying. The officer felt what he thought was a gun in the bag, and opened the bag to recover a firearm.
When considered within the totality of the circumstances, Smith's flight was the final factor that gave officers a reasonable and articulable suspicion that criminal activity was afoot. That reasonable suspicion created the need and authority to detain Smith and further investigate the situation.
The Fourth Amendment requires that searches be "reasonable." See United
Smith takes the view that the search violates what he calls the "frisk first" rule that, according to him, controls searches of the effects belonging to a person detained under Terry. It is true that a number of decisions have upheld the search of a detained defendant's effects because the search was preceded by the "frisk" or "pat down" of the detainee's bag or purse. From those cases, Smith argues that all searches during a Terry stop must be preceded by a "frisk" or a "pat down" of the detainee's property. But, even the decisions on which Smith relies do not establish such a rule.
Moreover, when "frisking first" would be unreasonable under the circumstances of a particular case (as it would have been here), the law does not require officers to act in a way that would endanger their safety and the safety of the general public. Other circuits have held as much in finding that there is no per se rule requiring officers first to frisk an item before searching it for a weapon.
Terry lays out the general rule for the type of search that can be undertaken pursuant to a valid Terry stop:
Id. at 27, 88 S.Ct. 1868 (internal citations omitted). The decision's phrasing is significant; even though the Supreme Court was familiar with the phrase "stop and frisk" and understood the basic components of a frisk, see id. at 12, 88 S.Ct. 1868, the Court declined to impose an inflexible "frisk first" rule and instead spoke of a "reasonable search for weapons for the protection of the police officer."
In Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court held that such, a "reasonable search" was not limited to a frisk of the person. In Long, the Supreme Court approved "the search of the passenger compartment of an automobile, limited to those;areas in which a weapon may be placed or hidden" when the objective facts provide reasonable suspicion "that the suspect is dangerous and the suspect may gain immediate control of weapons.". This
In so doing, the Court explained "that suspects may injure police officers or others by virtue of their access to weapons, even though they may not themselves be armed." Id. at 1048, 103 S.Ct. 3469. The Court went on to state that: "[o]ur past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger . . . and that danger may arise from the possible presence of weapons in the area surrounding a suspect." Id. at 1048, 103 S.Ct. 3469. Although Long involved the search of an automobile driven by a Terry stop suspect, the same principles apply with equal force to other items in the area surrounding a suspect in which a weapon might reasonably be expected to be found.
In United States v. Rhind, 289 F.3d 690 (11th Cir.2002), police officers were informed that the defendants (a group of men suspected in a counterfeiting operation and vehicle theft) were located in a particular hotel room. The officers called the room and told the occupants to leave. When leaving the hotel room, one of the men carried a black, soft-sided, zippered bag. Although the officers did not know the identities of all of the men, they knew that one of them had 15 outstanding warrants and that the group had been riding in a stolen vehicle with stolen license plates. The officers decided to search the black bag carried by one of the men. Finding that the officers had a reasonable suspicion that the defendant was involved in criminal activity and could have been armed, the court of appeals upheld the officers' search of the bag. See also United States v. Thomson, 354 F.3d 1197 (10th Cir.2003) (upholding a search of a suspect's bag after patting down the suspect for weapons and obtaining a verbal admission from the suspect that he had a weapon in his bag).
In United States v. Landry, 903 F.2d 334 (5th Cir.1990), the Fifth Circuit upheld the search of a bag for weapons without a frisk. During a stop of a suspiciously parked vehicle, police spoke to a minor occupant of the vehicle. The minor was asked to exit the vehicle, and the officer saw a large amount of money in the seat. Id. at 337. When the minor was asked about the money, she attempted to re-enter the vehicle and reached for a bag sitting on the seat. Id. The officer feared the bag might contain a weapon, reached for the bag, and saw that it was partially opened. The officer then looked inside the bag and found drugs, Id. The defendant's motion to suppress was denied, and the denial was upheld on appeal. The officer was not required to frisk the bag to determine whether there was a weapon inside. Id. at 338. See also United States v. Brown, 133 F.3d 993 (7th Cir.1998) (upholding a search of a suspect's bag during a vehicle stop after an officer saw something shiny protruding from the bag).
In United States v. Shranklen, 315 F.3d 959 (8th Cir.2003), the Eighth Circuit reversed a district court's decision to grant a motion to suppress. Id. at 960. The evidence to be suppressed included the contents of a black pouch found under the passenger seat of a car stopped in a valid traffic stop. Id. The driver of the vehicle had been issued a citation for driving with a suspended license, and was being detained in the backseat of a police car. Id. The passenger was then ordered out of the car as well, and he asked to retrieve the black pouch from under the passenger seat where he had been sitting. Id. The officer would not let the passenger retrieve the pouch himself., but told the passenger that the officer would get the pouch, search it for weapons, and give it to the passenger.
The best factual analogue for this case, however, is United States v. Walker, 615 F.3d 728 (6th Cir.2010), a decision which clearly explains why a "frisk first" rule is untenable. In Walker, a police officer encountered a man, Walker, who matched the description of a thief who had robbed a bank less than thirty minutes earlier. When approached, the man confirmed that he was the driver of a nearby van which matched the description of the getaway vehicle.
The Sixth Circuit noted that "the concern for officer safety extends not only to the suspect himself but to `the area surrounding the suspect' where he might `gain immediate control of weapons.'" Id. at 732 (quoting Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). Therefore, "[u]nzipping the bag more than it was already unzipped was `an efficient and expedient way' to determine whether a gun lay on the top of the bag, ready for use." Id. (quoting City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 2631, 177 L.Ed.2d 216 (2010)). The panel went on to highlight the specific undesirability of a hypothetical "frisk first" rule:
Id. at 732-33 (some internal citations omitted).
Finally, the Walker court described the choice the officers on the scene would have faced if, as in this case, they lacked probable cause to arrest the suspect:
Id. at 734. The logic of Walker has equal force when applied to the similar facts in this case.
Smith relies on the decision in United States v. Hernandez-Mendez, 626 F.3d 203 (4th Cir.2010), wherein the Fourth Circuit held that, "[i]f a Terry frisk exceeds the bounds of a protective pat down for weapons, it is no longer permissible, and its fruits should be suppressed." Although the cited text seems, at first glance, to govern the analysis here, it does not. First, Hernandez-Mendez did not create a rule that frisking first was always required before a search of a suspect's bag for weapons. Second, the conclusion that fruits of a frisk that exceeded the bounds of a protective pat down was given in the context of distinguishing a protective search for weapons from a search for evidence. In Hernandez-Mendez, the officer was reaching for the suspect's purse with the intent to look inside for identification. The Court of Appeals noted that this search would have been impermissible. Id. at 212. However, in reaching for the bag, the officer felt the hard outline of a firearm inside the bag, and then opened the bag to find a concealed gun. The inadvertent "frisk" and the subsequent search were objectively justifiable, given the officer's apprehension of impending violent gang retaliation. Id. This was so because the "`purpose of this limited [Terry] search is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence.'" Id. at 211-12 (quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)). In short, Hernandez-Mendez holds that a frisk must be motivated by a reasonable suspicion that weapons are present. It does not hold that the only appropriate response to that reasonable suspicion is a frisk, regardless of the circumstances.
Smith and his bag were detained on a reasonable suspicion that Smith possessed a weapon. This reasonable suspicion authorized the officers to further investigate Smith's person and effects in order to protect their own safety and the safety of the public if Smith was to be released. Smith's unlawful conduct (i.e. running through oncoming traffic) would not have allowed the officers to arrest him. Even if he had been cited for his traffic violations, the officers would have been required to let him go free after issuing a summons.
In Smith's case, as in Hernandez-Mendez, and the other cases cited above, the officers' search of Smith's bag was reasonable under Terry and its progeny because the purpose of the search was to ensure the safety of the officers, the safety of the public, and to "`allow the officer to pursue his investigation without fear of violence.'" Hernandez-Mendez, 626 F.3d at 212 (internal quotations omitted).
The denial of Smith's motion to suppress falls within the bounds of Terry, Long, Wardlow, Walker, and Hernandez-Mendez. Although the officers in Wardlow and Hernandez-Mendez did "frisk first," those decisions do not establish a requirement that they must always do so. That the officers in Smith's case did not "frisk first" does not make their search unreasonable. In a high crime area that serves as a transit node for weapons and drugs, officers confronted a man who was a suspect in two firearms-related homicides and known to have a history of involvement with firearms. When the officers confronted him in a consensual encounter and asked to search his bag, he first agreed and then suddenly fled. The Court's obligation in deciding this motion to suppress is to determine whether, under the circumstances that faced the officers at the time they acted, the search of Smith's bag for weapons was reasonable to ensure the safety of the officers and the public. It was.
Even if Terry did establish a de facto "frisk first" rule for searches of a person and immediate clothing (which it did not), the circuit cases discussed above all involved searches of bags or pouches. This distinction is significant, because while a protective pat down of. a person is almost sure to detect any solid object which might be a weapon, a bag or pouch can conceal a weapon from a cursory external search. Cf. Walker, 615 F.3d at 732-33. The analysis of whether a given Terry search was reasonable requires a different balancing of factors when a closed container is within the possession or control of the suspect. "The court's job is to ask what was reasonable under the circumstances, not to poke and prod for lesser-included options that might not occur to even the most reasonable and seasoned officer in the immediacy of a dangerous encounter." Walker, 615 F.3d at 732.
For the foregoing reasons, the defendant's MOTION TO SUPPRESS EVIDENCE (Docket No. 15) will be denied.
It is so ORDERED.
