United States District Court, E.D. North Carolina, Western Division
W.FLANAGAN United States District Judge.
matter is before the court on defendant's motion to
suppress certain evidence allegedly obtained in violation of
the Fourth Amendment to the United States Constitution. (DE
51). Pursuant to 28 U.S.C. § 636(b)(1), United States
Magistrate Judge Robert T. Numbers, II, issued memorandum and
recommendation ("M&R"), wherein it is
recommended that the court deny defendant's motion. (DE
69). Defendant timely filed objections to the M&R. (DE
76). The government responded on February 27, 2018. (DE 77).
For the reasons that follow, the court adopts the
recommendation of the magistrate judge as its own, and denies
OF THE CASE
December 21, 2016, the grand jury returned a one count
indictment, charging defendant with intent to distribute 500
grams or more of cocaine and 28 grams or more of cocaine base
("crack"), on or about November 24, 2016. On July
21, 2017, defendant filed the instant motion to suppress
evidence seized in the course of his arrest on November 24,
2016, which incident began when officers Brandon Ochoa
("Ochoa") and Jesse Emory ("Emory"),
along with Emory's dog Jaxx, responded to a 911 call
reporting the break-in of a vehicle located in Wilson, North
hearings were held before the magistrate judge on September
26, 2017, and October 2, 2017, at which hearing the court
received testimony from Ochoa and Emory, the officers who
found, detained, and arrested defendant in the vicinity of
objections to the M&R, defendant maintains that officers
did not have reasonable suspicion to detain him nor probable
cause to arrest him in violation of his Fourth Amendment
rights and, more specifically, that the magistrate judge
incorrectly found 1) reasonable for officers to handcuff
defendant during a consensual encounter and 2)
defendant's arrest lawful because he was trespassing.
OF THE FACTS
court incorporates herein statement of facts in section I of
the M&R, as relevant to the instant motion, where such
statement accurately reflects the evidence of record:
On November 24, 2016, at l: 02 a.m, Officer Brandon Ochoa
responded to a 911call reporting a vehicle break-in in
Wilson, North Carolina. See Tr. of Sept. 26, 2017 Suppression
Hr'g Vol. 1 at4:16-22; 5:10-16, 20-23, D.E. After
arriving, Ochoa learned from the victim that her cell phone
was missing and several items from inside her vehicle were
now in the grass on the side of her apartment. Id.
Shortly thereafter, Officer Jesse Emory also arrived at the
scene with his dog Jaxx. Id. at 6:7-10; 60:24-61:1.
Emory and Jaxx are certified to perform a number of law
enforcement functions, including tracking suspects or missing
items. Id. at 60:1-61:12. Emory placed Jaxx in a
tracking harness and allowed the dog to begin searching.
Id. at 65:11-18. As this was going on, other
officers set up a perimeter around the area. Id. at
6:18-23; 51:7-13. Jaxx led Ochoa and Emory behind the
victim's apartment, through the woods, and into the open
backyard in an adjacent residential neighborhood.
Id. at 7:8-12, 24-8:1-3; 25:1-4. There, at around
1:42 a.m., Ochoa saw a person who he later learned to be
Bondurant Ruffin stooped down under a porch. Id. at
8:9-12; 51:23-52:1. Ruffin put his hands into the pockets of
his hooded sweatshirt as he stood up. Id., at 8:11-12;
who was about twenty feet away, noticed some items located
"directly in front of [Ruffin]" underneath the
porch. Id. at 8:12-14; 9:11-13;
10:13-19. Emory, who was standing several feet to the left of
Ochoa, also saw a white bag under the porch. Id., at
68:22-24; 83:2-l 1; 84:25-85:3. Both officers believed that
it contained the stolen cell phone from the vehicle breakin.
Id. at 30:13-21; 68:20-24; 70:4-9. They shined their
flashlights on Ruffin and approached him. Id. at
l0:5-6, 13-17, 22. Emory told Ruffin to remove his hands from
his pockets and Ruffin complied. Id. at 10:22-24;
69:10-12. The interaction with Ruffin excited Emory's dog
which began barking. Id. at 71:6-10; 84:11-15.
Although Jaxx did not alert on Ruffin, Id. at
82:7-9, he was the only person the officers encountered
during their search. Id. at 52:16-18.
Emory controlled Jaxx, Ochoa questioned Ruffin. Id.
at 10:22-25; 73:7-15. Throughout the encounter, Ruffin
appeared nervous and evasive. Id. at 74:18. He
avoided eye contact with the officers, continually looked
towards the woods, and kept moving away from the items under
the porch. Id. at 12:2-10; 31:3-4; 73:15; 74:18.
Ochoa asked Ruffin why he was at that residence, and
requested his name multiple times. Id. at 10:24-25.
Ruffin failed to provide his name at first, instead saying
repeatedly" that his child was using the bathroom in the
woods. Id. at 10:25-11:4. No child was ever located
in the woods. Id. at 11:19-21.
placed his hands back into his pocket two more times, and
both times Ochoa told him to remove them. Id. at
11:4-6. Ochoa then asked Ruffin if he could check him for
weapons, and Ruffin7agreed. Id. at 11:6-8. Officer
Ochoa found no weapons. Id. at 11:8-9. ""
After Ochoa checked Ruffin for weapons, Ruffin began taking
steps away from the officers and continued looking into the
woods behind him and to his left. Id. at 12:13-16.
Worried that Ruffin was planning to flee and still believing
him to be the vehicle break-in suspect, Emory urged Ochoa to
"grab [Ruffin] before he takes off
...."Id. at 73:17-24.
then told Ruffin that he was not free to leave and that he
was being detained. Id. at 13:5-6. He grabbed
Ruffin's arm to put him in handcuffs, but Ruffin
lightened his arm and began pulling away and dragging Ochoa
along with him. Id. at 13:5-9; 14:8-9, 14-16. In the
five minute struggle that followed-during which Emory called
other officers to respond-Ochoa continually ordered Ruffin to
stop resisting, to no avail. Id. at 14:23-15:6;
38:8-14. He ended up restraining Ruffin against a nearby air
conditioning unit and, eventually, pinned Ruffin to the
ground. Id. at 14:24-15:8. A nearby officer helped
handcuff Ruffin. Id. at 15:13-16. The o7ficers then