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United States v. Allen

United States District Court, M.D. North Carolina

March 3, 2017

UNITED STATES OF AMERICA
v.
JOHN KERMIT ALLEN, JR.

          MEMORANDUM OPINION AND ORDER

          THOMAS D. SCHROEDER, District Judge.

         Before the court is the motion of Defendant John Kermit Allen, Jr., to suppress all evidence seized, including ammunition, and all incriminating statements made during his encounter with law enforcement on November 28, 2016. (Doc. 12.) The Government has filed a response (Doc. 14), and an evidentiary hearing was held on February 14, 2017. For the reasons set forth below, the motion will be granted.

         I. BACKGROUND

         The Government presented the testimony of Officer Corey Carter, a three-year veteran of the Jonesville (North Carolina) Police Department (“JPD”), and Michael Hutchins, a former corporal and eight-year veteran of the JPD. The court finds their testimony credible unless it differs in recollection from the body-camera audio-video of the encounter, which the Government introduced and the court has viewed in full. Based on the complete record, the court finds the following facts by a preponderance of the evidence.

         On November 28, 2016, at just after 3:00 p.m., Officer Carter and Corporal Hutchins responded to a report of a black male lying on the ground on a lot near Cedarbrook Road in Jonesville. Upon arriving, they found 58-year-old John Kermit Allen, Jr., lying on his back, responsive, and apparently inebriated; Allen had urinated on himself. While lying on the ground, Allen responded to the officers' questions, gave his name, date of birth, and address, and indicated that he was a veteran and married. He said he had sleep apnea and had passed out. He frequently told Officer Carter, “I'm all right” and denied he was diabetic. Nevertheless, Officer Carter called emergency medical services (“EMS”) to check on him.

         While they awaited the EMS unit, Allen and the officers engaged in friendly conversation. Allen frequently said that he was fine (“I'm all right, guys”) and could walk to his grandmother's house (“I'll walk”). Officer Carter said he would be happy to drive Allen to his grandmother's, expressing concern over the fact that Allen still appeared impaired from alcohol.

         The EMS technicians arrived and checked on Allen. Allen was able to state the date, identify the town where he lived, and name the current president. After finding Allen's blood pressure normal and completing their assessment, the technicians agreed that Allen did not require further medical treatment and obtained his release on a medical form. The technicians offered to take Allen wherever he needed to go, but Allen declined.

         Once EMS left, Allen told JPD officers that his grandmother lived only three houses down the street. Officer Carter helped Allen, who had a jacket and a Bible, stand up. Once up, Officer Carter told Allen he would drive him in his patrol car. Officer Carter took Allen's jacket and said he would put the jacket in the trunk asking, “Ok?” Allen responded, “I don't care.” Officer Carter then added, “You don't mind if I check these pockets to make sure there's nothing on here?” Allen shrugged his shoulders but did not respond. As Officer Carter began probing, Allen stated, “I ain't got no gun on me. I've got some bullets on me in my pockets right here.” Officer Carter said, “You got some bullets?” and cautioned, “Don't reach for them.” Officer Carter stood at the back of his patrol vehicle and proceeded to engage in an extensive search of Allen's jacket over the next several minutes, inspecting and laying items he found onto the trunk of his patrol car. Meanwhile, Allen stood near the passenger side of the patrol car with Hutchins, who engaged him in conversation as they both watched Officer Carter.

         As Officer Carter found a pipe, he asked, “What have you been smoking?” Allen responded, “cigars.” At one point, Allen asked, “what are you looking for, man?” Hutchins said they were making sure Allen did not have a gun, to which Allen responded, “Oh, I ain't got no gun, I'm a felon.” Allen also noted that he had a knife in his pocket. Officer Carter asked, “You have rounds on you, don't you?” Allen answers, “Yes, for home security. Nothing to fire it with.” Officer Carter shortly thereafter said, “You just said you have rounds and you said you're a felon?”

         While searching the jacket, Officer Carter found trace evidence of marijuana. Once he finished searching the jacket, Officer Carter moved toward Allen and told him he would search his pockets. The Government concedes that Officer Carter did not ask for consent before he began this search of Allen's person, digging into his pockets. On Allen, Officer Carter found several rounds of .40 caliber, .22 caliber, and 7 mm ammunition in Allen's front pocket. Officer Carter also asked Allen, “you smoke a little weed?” to which Allen responds, “yeah.”

         Officer Carter put Allen in the back seat of his patrol car. Allen asked several times whether he was under arrest, and Officer Carter assured him he was not, saying, “no sir, I'm giving you a ride back to your house, that's what we agreed to, remember?” Eventually, Officer Carter drove Allen to his grandmother's house about three houses away and issued him a citation for misdemeanors related to his marijuana possession.

         Allen is presently charged with being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). He now moves under the Fourth and Fifth Amendments to the United States Constitution to exclude any incriminating evidence seized from him on November 28, 2016, as well as any incriminating statements he made. Allen argues that the JPD lacked consent to search his jacket and lacked reasonable suspicion to search his person thereafter. Any incriminating statements, he claims, were the result of an unlawful search of his jacket and should be suppressed. The Government argues that Allen gave voluntary responses to JPD officers, who had probable cause to search Allen's pants pockets once they found marijuana residue and smoking pipes in Allen's jacket, and based on Allen's voluntary statements that he had ammunition and was a felon.

         II. ANALYSIS

         The Government initially contends that Allen consented to the search of his jacket and that once officers found evidence of marijuana in it, they had probable cause to search Allen's pockets. (Doc. 14 at 3-6.) The Government also contends that officers relied on Allen's voluntary statements made during the encounter that he was a felon, possessed ammunition in his pockets, and had a knife. (Id.) However, ...


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