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United States v. Kerr

United States District Court, W.D. North Carolina, Charlotte Division

September 3, 2017

UNITED STATES OF AMERICA,
v.
DEVON OLIVER KERR, Defendant.

          ORDER

          MAX O. COGBURN JR UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the court on defendant's Motion to Suppress (#19). This Motion has been fully briefed and a hearing was held on August 16, 2017. At the hearing, the court heard testimony from multiple police officers, took into evidence authenticated exhibits, and instructed the government to provide additional recordings if any existed. The government's post-hearing response (#28) noted that no further recordings were available. Having considered the motion and reviewed the pleadings, the court enters the following Order.

         FINDINGS AND CONCLUSIONS

         I. Background

         This case involves a stop and search of a car at a Shell gas station located at 2624 Sam Wilson Road in Charlotte, North Carolina. Defendant contends that the stop was unlawful. (#19) at 1.

         On December 21, 2016, an undercover police officer observed a white van park at gas pumps in such a manner that its gas tank was on the opposite side of the pumps. The van was sitting in that location for ten minutes. Another car arrived and parked directly behind the white van. The officer then observed a man leave the van and enter the passenger side of the red car parked behind the van. These individuals were looking downward and made motions toward the center console. According to officer testimony, the area was considered a high crime area and a thoroughfare for drug trafficking given its proximity to the interstate. Further, the officer, based on his training and experience, suspected that the individuals' behavior was indicative of a drug transaction.

         The officer then radioed for a marked police car to respond. Two other officers arrived. As these officers approached the car, one officer observed quick motion from within the red car. When the officer asked the defendant to roll down the window, the officer smelled marijuana coming from inside the vehicle.

         Upon a brief search of the defendant, the passenger, and the red car, the officers found: a digital scale with marijuana residue, an orange pill bottle with Xanax and marijuana, a glass pipe containing marijuana residue, and a firearm. The officer then placed the defendant under arrest and provided a Miranda warning. Defendant then made incriminating statements.

         II. Defendant's Motion

         Defendant in his motion argues that there was insufficient probable cause to approach, detain, and search the defendant and his vehicle. See (#19) at 4. Defendant asserts that the results of the search as well as the statements and evidence attributable to the search should be suppressed. Id. The issues before the court include whether the police had reasonable suspicion to stop the vehicle and whether the defendant and his property were searched unreasonably.

         A. Discussion

         The Fourth Amendment protects individuals from unreasonable searches and seizures. One of the well-established exceptions to the Fourth Amendment's prohibition on warrantless stops and seizures is the so-called “automobile exception.” See, e.g. Pennsylvania v. Labron, 518 U.S. 938 940 (1996) (per curiam); United States v. Sokolow, 490 U.S. 1 (1989). Under this rule, police may stop a vehicle when law enforcement has a reasonable suspicion supported by articulable facts that criminal activity may be occurring. Sokolow, 490 U.S. at 8. In determining reasonable suspicion, the court uses a totality of circumstances approach to determine whether the officer had a “particularized and objective” basis for suspecting criminal activity. See United States v. Arvizu, 534 U.S. 266, 273 (2002).The standard for reasonable suspicion is less than probable cause and “considerably less than a preponderance of the evidence.” See United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008).

         An individual's mere presence in a high crime area is not enough by itself to support reasonable, particularized suspicion. See United States v. Bumpers, 705 F.3d 168, 171-72 (4th Cir. 2013). Instead, the court must look to the totality of circumstances, taking activities in context while also highlighting the importance of the training and experience of police officers in the field. Branch, 537 F.3d at 336.

         In this case, the defendant in his supporting written argument has given the ...


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