United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
JAMES A. BEATY, Jr., District Judge.
This matter is before the Court on a Motion to Suppress [Doc. # 15] filed by Defendant James Lewis Bryant, Jr. ("Defendant"). Defendant is under indictment for one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On April 24, 2015, Defendant moved to suppress any and all evidence obtained as a result of the search of the Defendant's bag, on September 4, 2014. The Court held a hearing on the Motion to Suppress on May 4, 2015. At the conclusion of the hearing, the Court informed the parties that an Order would be forthcoming concerning its decision as to Defendant's Motion to Suppress. For the reasons discussed herein, the Court will deny Defendant's Motion to Suppress.
On March 30, 2015, a grand jury returned the one-count Indictment against Defendant, charging him with possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant seeks to suppress the firearm at issue in the Indictment, that being a Smith & Wesson.357 Magnum caliber handgun. This gun was recovered by the Winston-Salem, North Carolina Police Department on September 4, 2014, from a bag Defendant was carrying.
On September 4, 2014, Officers D.W. Walsh and G.P. Martin of the Winston-Salem Police Department responded to Wings and Spirits Sports bar based on an anonymous tip. The caller who provided the tip had stated that a man wearing black clothes and carrying a brown bag was in possession of a concealed handgun and that the man was a convicted felon. The caller identified the man, later confirmed to be Defendant, by name and date of birth. Prior to responding, Officer Walsh conducted research on the man identified using his office's computer system. By conducting such research, Officer Walsh was able to locate a prior mug shot of the suspect, and was able to confirm that the suspect was a convicted felon. Upon arriving at the bar, Officer Walsh identified the man described by the caller on the sidewalk outside of the bar. At that time, Officer Walsh made casual conversation with those around Defendant while waiting for backup and observing Defendant's demeanor. Officer Walsh stated that he felt Defendant was acting nervous during this time. At all times during Officer Walsh's encounter with Defendant, the Officer's body camera was recording. Upon viewing the footage, it is apparent that Defendant was acting nervous, and attempting to avoid interaction and eye contact with Officer Walsh.
Once Officer Walsh's backup arrived, Officer Walsh told Defendant that the Police Department had received a call accusing Defendant of carrying a concealed firearm. Defendant acknowledged that, as a convicted felon, he was not to be in possession of a firearm and denied having a firearm in his possession. Officer Walsh then asked Defendant to open his bag to show the Officers that he, in fact, did not have a firearm. In response, Defendant took the bag off his back and placed it next to him, which caused his back to be turned to Officer Walsh. Defendant started to open the bag, and his hands appear to have been slightly inside the bag when Officer Walsh ordered the Defendant to take his hands out of the bag. Officer Walsh told Defendant that he would open the bag for him. In response to the order, Defendant took his hands from the bag and slightly raised them in compliance. Officer Walsh then opened the bag and shined a flashlight inside the bag revealing a black object. Defendant stated that there were only papers and a black notebook inside the bag. Officer Walsh then picked up the bag and felt that there was a heavy object in the bag. At that time, Officer Walsh removed the black object from the bag. The black object was a soft zippered case with handles. The object inside the case was heavy and was not flat. Officer Walsh opened the zippered case and located the gun at issue.
Defendant has now filed a Motion to Suppress, seeking the suppression of all evidence obtained from the search of the bag. In support of his Motion, Defendant makes two arguments. First, Defendant argues that the search was not supported by reasonable suspicion, because the anonymous call without more was not sufficient to establish reasonable suspicion. Second, Defendant argues that if the Government is asserting that Defendant consented to the search, Defendant did not consent, but instead only surrendered to Officer Walsh's command. The Government asserts that not only did Officer Walsh obtain consent to search Defendant's bag, but Officer Walsh also had the requisite reasonable suspicion to conduct the initial frisk of the bag, which provided the probable cause for the eventual search of the zippered case inside of the bag.
The Defendant argues that the search conducted on September 4, 2014, violated his rights under two alternative theories. First, he states that the search was not supported by reasonable suspicion. Second, Defendant argues that he did not consent to the search, and any actions that could be conceived of as consent were only taken in relation to Officer Walsh's command. In the Response, the Government argues that Officer Walsh both obtained consent for the search and had reasonable suspicion to conduct the initial frisk, which developed into probable cause to conduct the ultimate search. Accordingly, both arguments will be discussed in turn.
The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is per se unreasonable... subject only to a few specifically established and well-delineated exceptions." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (internal quotation and citation omitted). A search conducted pursuant to valid consent is one such well-recognized exception to the Fourth Amendment's general warrant requirement. Id .; United States v. Boone, 245 F.3d 352, 361 (4th Cir. 2001). If consent is challenged, the district court must determine, based upon the "totality of the circumstances, " whether consent was knowing and voluntary, which the government must prove by a preponderance of the evidence. See United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); United States v. Buckner, 473 F.3d 551, 554 (4th Cir. 2007).
"[W]hether a consent to a search was in fact voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth, 412 U.S. at 227. In this regard, to determine whether consent was voluntary or the product of police coercion, a district court should determine whether, based on the totality of the circumstances, a person's will was overborne by the actions of law enforcement. Id. at 226-27. Factors that can be taken into account include the accused's characteristics, "such as such as age, maturity, education, intelligence, and experience[.]" United States v. Boone, 245 F.3d 352, 361-62 (4th Cir. 2001). Even if consent was given in relation to an illegal Terry stop, such consent is not automatically considered involuntary, so long as "the totality of the circumstances confirms that the consent was not coerced." Id. at 363.
Consent, however, cannot be based on mere acquiescence to apparent lawful authority. See Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (holding that an individual did not consent to search of house where "consent" had been given only after official had asserted that he possessed a search warrant); see also United States v. Robertson, 736 F.3d 677, 680-81 (4th Cir. 2013) (finding that while an officer asked for consent, the officer's actions were more akin to an order when taking the circumstances into account and, thus, the defendant's consent was not voluntary); see also, United States v. Smith, 30 F.3d 568, 571 (4th Cir. 1994) (rejecting defendant's argument that consent was motivated by fear of police where suspect was not under arrest, no officer drew his weapon, and no officer threatened or touched the suspect). Consent can, however, be "inferred from actions as well as words." United States v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003) (citations omitted). For example, the Fourth Circuit has found valid consent in a situation wherein a defendant raised his arms in response to an officer asking for permission to pat down the defendant. United States v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990).
Defendant argues that this situation was not like that of Wilson, but instead, was more comparable to that which occurred in Robertson. In Robertson, police responded to a call that three black males in white t-shirts were chasing an individual carrying a firearm. 736 F.3d at 679. When the officer at issue responded to the call, he noticed a group of individuals at a nearby bus stop who matched the description of the suspects. Id . When the officer approached the defendant, the defendant was sitting in the bus stop, with his back to the wall. Id . Other officers were engaging with the other suspects at that time. Id . After approaching the defendant, the officer asked the defendant if he had anything illegal on him, to which the defendant did not respond. Id . The officer then waved the defendant to come forward and asked the defendant to consent to a search. Id . In response, the defendant stood up, walked toward the officer, turned around, and raised his hands. Id . During the search the officer recovered the firearm at issue. Id . The Fourth Circuit found that the defendant's behavior in walking towards the officer, turning around, and raising his hands, was not a "voluntary invitation to be searched." Id. at 681. Instead, "it was a begrudging surrender to [the officer's] order." Id ...