United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on Defendant's Objections to
the United States Magistrate Judge's Memorandum and
Recommendations (“M&R”) (Doc. No. 25). The
M&R (Doc. No. 21) recommended that Defendant's Motion
to Suppress (Doc. No. 15) be DENIED. After reviewing the
briefs, testimony, and evidence presented before the
Magistrate Judge, for the reasons set forth, the Court
OVERRULES Defendant's Objections, ACCEPTS and ADOPTS the
M&R, and DENIES Defendant's Motion to Suppress.
STANDARD OF REVIEW
district court may refer a motion to suppress to a magistrate
judge for a recommendation pursuant to Federal Rule of
Criminal Procedure 59(b)(1). If a party timely files
“specific written objections” to the proposed
recommendations, the “district judge must consider de
novo any objection to the magistrate judge's
recommendation.” Fed. R. Crim. P. 59(b)(2)-(3); see
also 28 U.S.C. § 636. The court does not perform a
de novo review where a party makes only “general and
conclusory objections that do not direct the court to a
specific error in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). Upon careful review of the record,
“the court may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
Derrell Romario Black (“Defendant”) is charged in
a one count bill of indictment with being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g). (Doc. No. 10). Defendant, through counsel, filed a
“Motion To Suppress Evidence” on June 16, 2017.
(Doc. No. 15). Defendant contends that he was unlawfully
seized in violation of the Fourth Amendment, and that, as a
result, any evidence obtained as a result of the illegal
seizure should be suppressed. (Doc. No. 15). The United
States Government contends that the seizure was the result of
a legal Terry stop and frisk. (Doc. No. 16). The Magistrate
Judge conducted an evidentiary hearing on July 27, 2017, and
entered an M&R recommending that Defendant's Motion
to Suppress be denied. (Doc. No. 21). Defendant filed a
timely objection to the M&R on September 13, 2017. (Doc.
does not lodge any specific objections to the procedural
history or facts contained in the M&R. Therefore, the
Court hereby adopts and incorporates by reference the portion
of the M&R entitled “Procedural Background”
and “Factual Summary” and turns to
objects to the Magistrate Judge's findings that (1)
“the testimony clearly establishes a legal Terry stop
based on reasonable suspicion leading to the seizure of the
firearm” and (2) “the testimony of Officer Blue
was very credible and credits his version of the
events.” (Doc. No. 25). Defendant contends that Officer
Blue's belief that Defendant was armed does not provide
reasonable suspicion for a Terry stop and that Officer Blue
exceeded the scope of the Terry stop. (Doc. No. 15 at 5-6).
Defendant also argues that two prior events, which led to
disciplinary action by his employer, call into question
Officer Blue's credibility. The Court disagrees.
Fourth Amendment prohibits unreasonable searches and
seizures. U.S. Const. amend. IV. Under Terry v.
Ohio, “police can stop and briefly detain a person
for investigative purposes if the officer has a reasonable
suspicion supported by articulable facts that criminal
activity ‘may be afoot.'” United States
v. Sokolow, 490 U.S. 1, 7 (1989) (citing Terry,
392 U.S. 1, 30 (1968)). The reasonable suspicion standard is
not particularly onerous, but requires “more than an
inchoate and unparticularized suspicion or
‘hunch[.]'” Id. (quoting
Terry, 392 U.S. at 27).
Court determines the existence of reasonable suspicion by
examining the “totality of the circumstances, ”
considering “all information available to an officer
and any reasonable inferences to be drawn at the time of the
decision to stop a suspect.” United States v.
Crittendon, 883 F.2d 326, 328 (4th Cir. 1989); see
also United States v. McCoy, 513 F.3d 405, 411 (4th Cir.
2008) (“[T]he Supreme Court has often counseled lower
courts to give ‘due weight' to the factual
inferences drawn by police officers as they investigate
crime, for the reasonable suspicion analysis is by its nature
‘officer-centered.'” (internal citations
omitted)). In making this determination, the Fourth Circuit
has held that “[c]ourts are not remiss in crediting the
practical experience of officers who observe on a daily basis
what transpires on the street.” United States v.
Lender, 985 F.2d 151, 154 (4th Cir. 1993).
“Judicial review of the evidence offered to demonstrate
reasonable suspicion must be commonsensical, focused on the
evidence as a whole, and cognizant of both context and the
particular experience of officers charged with the ongoing
tasks of law enforcement.” United States v.
Branch, 537 F.3d 328, 337 (4th Cir. 2008).
a Terry stop, police have authority to conduct a
frisk of a suspect's outer clothing for weapons
“where [the officer] has reason to believe that he is
dealing with an armed and dangerous individual.”
Terry, 392 U.S. at 27. “The officer need not
be absolutely certain that the individual is armed; the issue
is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of
others was in danger.” Id.
the totality of the circumstances here, the Court finds that
Officer Blue's testimony was credible and that Officer
Blue had reasonable suspicion to seize Defendant and conduct
a frisk. Officer Blue has been a patrol officer for nine
years, and his two infractions in those nine years did not
involve the truthfulness and reliability of Officer
Blue's testimony. (Tr. 7-8). Officer Blue's
credibility is also bolstered by the fact that the testimony
of Defendant's girlfriend, Ms. Crystal Johnson
(“Johnson”), corroborated many of the material
facts, to which he testified. Officer Blue testified that
face-to-face with him, informants at the Midnight Diner
identified Defendant and informed Officer Blue that Defendant
drew a firearm, cocked it, and pointed it at them. (Tr. 15,
17, 19-20). Therefore, Officer Blue had a reasonable
suspicion that Defendant was in possession of a firearm
and that Defendant had committed the crime of
assault by pointing a gun, N.C. Gen. Stat. § 14-34.
Because the totality of the circumstances amply support a
finding of reasonable suspicion that criminal activity was
afoot, and because Officer Blue had a reasonable belief that
his safety or that of others was in danger, Officer
Blue's actions were proper under the Fourth Amendment.
Court also concludes that Officer Blue's conduct did not
exceed the scope of a Terry stop and frisk. Officer Blue
testified that he ordered Defendant to stop several times as
Defendant left the Midnight Diner, but Defendant disobeyed
and continued walking. (Tr. 18). Eventually, Defendant
stopped, and Officer Blue frisked Defendant after informing
him that he needed to frisk him for his and his partner's
safety. (Tr. 18). The testimony of Johnson corroborates that
Officer Blue told Defendant to stop but that Defendant
ignored the order. (Tr. 49, 51-52). However, she testified
that Officer Blue tackled Defendant, but then later testified
that Officer Blue grabbed Defendant by the arm and threw him
against the car to conduct a search when Defendant did not
stop. (Tr. 50; 52). The Court finds Officer ...