United States District Court, E.D. North Carolina, Northern Division
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, Jr., Magistrate Judge.
This matter comes before the court on the motion by Defendant Jarvis Devail Sessoms ("Defendant") to suppress evidence seized by law enforcement officers and statements made by Defendant following a traffic stop on February 23, 2013. [DE-19]. The government filed a response in opposition to the motion [DE-20], and the undersigned held an evidentiary hearing on September 4, 2014, to further develop the record. Accordingly, this matter is ripe for review. For the reasons stated below, it is recommended that Defendant's motion to suppress be denied.
I. PROCEDURAL BACKGROUND
On February 18, 2014, the Grand Jury charged Defendant by Indictment with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924. [DE-1]. At the suppression hearing, Defendant presented the testimony of Karen Houston Umstead ("Umstead"), an investigator for the Federal Public Defender's Office. Defendant also submitted four exhibits: a map of the location of the traffic stop (Def. Ex. 6), photographs of the location of the traffic stop (Def. Exs. 9, 10), and the narrative portion of the police incident report (Def. Ex. 13). The government presented the testimony of Special Agent Steven Norman ("Agent Norman") who conducted the traffic stop and seized evidence at the scene on February 23, 2013, including the firearm Defendant is charged with possessing. The government also submitted three exhibits: photographs of the intersection where Defendant made the left-hand tum preceding the traffic stop (Gov't Exs. 1, 2), and a Department of Corrections Offender Printout for Defendant (Gov't Ex. 3).
II. STATEMENT OF THE FACTS
A. Testimony of Agent Norman
Agent Norman was employed as a deputy of the Chowan County Sheriff's Department from 2009 to 2013, when he began working for the North Carolina State Bureau of Investigation. While with the Sheriff's Department, Agent Norman estimates that he performed over 1, 000 traffic stops. Agent Norman testified about the gang presence in Chowan County and about his experience with gang activity, especially involving drugs and firearms. Agent Norman's experience with gang activity has been mostly practical-through debriefing and speaking with witnesses, for example. His familiarity with gang activity involving drugs and firearms comes through in-service training.
On the afternoon of February 23, 2013, Agent Norman was parked in a marked, unobscured patrol car in the median of Highway 17, four to five miles outside of Edenton. Agent Norman was observing traffic and looking for violations. The weather was clear, and it was not raining that afternoon. Between 2:30 and 2:45p.m., Agent Norman noticed a gold Chevrolet Trailblazer pass his patrol car. The driver did not make eye contact with Agent Norman or acknowledge the presence of the patrol car, which Agent Norman testified is unusual in his experience. Agent Norman noticed that the driver had a rigid, stem posture and had his hat pulled low over his face. At that point, Agent Norman pulled out of the median and began following the Trailblazer. He also called in the Trailblazer's registration. Agent Norman followed the Trailblazer for about a mile, following the driver as he took the first marked exit off of Highway 17 (the North Broad Street Extended Exit). At the end of the exit ramp, the driver came to a complete stop at a stop sign. Agent Norman indicated that the driver made a full stop, remaining at the stop sign for a few seconds longer than normal. The driver then made a left tum on North Broad Street, heading into Edenton. As the Trailblazer was making the left-hand tum, the passenger side of the vehicle crossed the white fog line which separates the lane from the shoulder of the road. Agent Norman's patrol car was stationary at the stop sign, and he had an unobstructed view of the Trailblazer making the left-hand tum and crossing the fog line. Agent Norman testified that the crossing of the fog line was a violation of North Carolina General Statute§ 20-146(d)(1) for failing to maintain one's lane and that he had previously made traffic stops based on this violation.
Around the time of the Trailblazer making the left-hand tum, Agent Norman received a call about the car's registration. The Trailblazer was registered to Peggy Colson. Agent Norman recognized the last name Colson, having received reports from confidential informants on prior occasions about Peggy's son Lance. Lance was a white male, was 18 or 19 years old, and confidential informants had indicated that he was a street-level drug seller at the local high school. Agent Norman continued to follow the Trailblazer for one-eighth (1/8) to one-fourth (1/4) of a mile on North Broad Street before turning his blue lights on to pull over the vehicle.
After Agent Norman activated his blue lights, the Trailblazer turned right off of North Broad Street onto Davenport and then left into a driveway. Agent Norman exited his vehicle and approached the Trailblazer on the passenger side, seeing three men in the car. Agent Norman noted that the car was registered to Peggy Colson, but there was not a female in the car at that time. Lance Colson was in the back seat, and two black males were in the front seats. Agent Norman testified that he was familiar with the two men in the front and believed that they were involved in gang activities, but that he did not know their names at the time of the stop. Defendant was driving the car, and it was later determined that the front-seat passenger was Courtley Blount.
Specifically, Agent Norman was familiar with Defendant having seen him on Oakland Street in Edenton (known as "the Block"), a location known for gang activity. While on his regular patrols, Agent Norman had seen Defendant on the Block wearing gang colors, exhibiting gang behavior, and socializing with known gang members. As part of his job with the Chowan County Sheriffs Department, Agent Norman transported defendants from the jail to Chowan County District Court for hearings and other court appearances. Agent Norman also recognized Defendant as someone he had previously transported from jail to court, so he knew that Defendant had some kind of criminal record-although he did not know the details of that record at the time of the traffic stop. Agent Norman noted that he had not seen Defendant in the community for three to four months leading up to February 23, 2013. He did not know why Defendant had been absent from the community, but assumed that either Defendant had moved from the area or had been incarcerated. As for Courtley Blount, Agent Norman testified to seeing him on the Block. Agent Norman believed Blount to be a member of the Crips, as he had seen Blount wearing blue clothing and hanging around others wearing Crip colors.
After Agent Norman approached the Trailblazer, he informed Defendant that he had stopped the car for crossing the fog line during the left tum. Agent Norman then asked Defendant for his driver's license. Defendant responded that he did not have his license, which was another violation of North Carolina law, specifically North Carolina General Statute§ 20-7(a). While speaking with Agent Norman, Defendant laughed nervously when told why he was stopped, and exhibited rapid, shallow breathing. Agent Norman asked Defendant to get out of the car so that he could identify Defendant. Defendant agreed and met Agent Norman at the rear of the vehicle. Defendant told Agent Norman that he was driving because the owner of the car (Lance Colson) was intoxicated. Agent Norman testified that he made the decision to ask Defendant to get out of the car because he suspected further criminal activity beyond the traffic violation. Based on Agent Norman's training and experience, he frequently separates multiple occupants of a car in such situations. This helps prevent the occupants from concealing contraband or fleeing. Agent Norman had personally experienced someone fleeing a traffic stop on foot before the date in question.
Agent Norman asked Defendant to sit in the front passenger seat of his patrol car while Agent Norman verified his identification. Agent Norman testified that he does this so that he can control the situation. The close proximity makes it easier to observe the person's demeanor, and decreases both the likelihood that the person will lie directly to the officer or that the person will flee. When Agent Norman has someone sit in his patrol car, the person is not in handcuffs and his or her movement is not restrained. Agent Norman informed Defendant he was going to pat Defendant down for weapons before Defendant got into the patrol car. Agent Norman does not always pat down people he takes into his patrol car, but he testified that his knowledge of Defendant's involvement with the criminal justice system and Defendant's gang affiliation factored into his decision to pat Defendant down before taking him into the car.
After being told that Agent Norman was going to pat him down for weapons, Defendant produced a scalpel from his pants pocket, where it had been fully concealed. At this point, Agent Norman and Defendant were about a foot apart and facing one another. When Defendant produced the scalpel, Agent Norman became suspicious that there was more contraband to be found. From his training and experience, Agent Norman knew that before being searched, people will give an officer something to try and deter him from searching further. Because the scalpel was such a sharp weapon and because they were in close proximity (within lunging distance), Agent Norman also felt heightened concern for his safety. Agent Norman secured the scalpel in his pocket and then frisked Defendant for weapons, starting at the collarbone and moving downwards. When Agent Norman reached Defendant's waistband, he felt something that he immediately recognized as the grip of a pistol at the midline of Defendant's stomach, tucked into the front waistband of Defendant's pants. Agent Norman grabbed the gun and told Defendant not to move, securing the gun in his back pocket. The gun was a nine-shot revolver and was loaded. There was one spent casing in the chamber and the other eight chambers were full. At that point, Defendant told Agent Norman that he had found the gun in Hertford and asked ifhe was going to jail. Agent Norman responded that he did not know whether Defendant was going to jail, in an attempt to diffuse the situation until police backup arrived. Three backup units arrived, ...