United States District Court, W.D. North Carolina, Charlotte Division
Cogburn United States District Judge
MATTER is before the Court on defendant's Motion
to Suppress. On June 11, 2017, defendant, a passenger in a
car that was parked in the middle of a public road with both
the driver and defendant passed out or asleep, was arrested
after a firearm was found in the front passenger area of the
car. In moving to suppress, defendant contends that the
seizure and search of his person violated the Fourth
Amendment because officers lacked an objectively reasonable
suspicion of criminal activity on his part, and because the
search of his pockets was not limited to a search for weapons
and took place before any formal arrest. In addition,
defendant moves to suppress statements attributed to him as
“fruit of the poisonous tree.” An evidentiary
hearing was conducted on April 30, 2018.
Paxton, an Officer with Charlotte Mecklenburg Police
Department, testified that at around 5:15 a.m. to 5:20 a.m.,
while in his patrol vehicle on the way to work, he saw a
silver Mercedes Benz stopped on a public road with two wheels
across the double yellow line, just before a train crossing
on Old Dowd Road. Officer Paxton approached the driver's
side of the vehicle. There he observed the driver and the
passenger, later identified as the defendant, either passed
out or asleep. Rather than wake the occupants at that time,
Officer Paxton called for backup for officer safety. Once
backup arrived, Officer Paxton and Officer Mintz approached
the vehicle and woke up the occupants.
Officer Paxton began making attempts to awaken the driver,
the driver, later identified as “R.W.” appeared
confused and had glassy, red eyes. Paxton observed that the
driver had the smell of alcohol about his person. While
Paxton did that, Officer Mintz scanned the passenger side of
the vehicle and observed a black semi-automatic pistol on the
seat next to the defendant. The pistol was under his right
thigh, pointed toward the front of the vehicle, with the grip
pointed towards the door. Mintz notified the other officers
of the presence of a gun in a loud voice. Defendant at this
point was beginning to wake up. The officers gave defendant
and R.W. commands to get their hands up and not to move. R.W.
complied, but defendant did not and appeared to be incoherent
but did not make any attempt to grab the firearm. Defendant
then passed out again.
driver was first removed from the vehicle and then the
defendant. Officer Paxton was able to get the driver, R.W.,
out of the car, and brought him to the back of the Mercedes.
Officers Mintz and Wassel at this point both had their
firearms drawn and pointed toward defendant, who was still
seated in the passenger seat. Officer Wassel then moved to
the driver's door and unsuccessfully tried to unlock all
of the car doors, but did manage to lower the front passenger
side window. Once Wassel had lowered the window, Officer
Mintz reached through the open window and grabbed the firearm
that was under defendant's right thigh. Mintz then took
the black pistol to the back of the Mercedes and turned it
over to Officer Paxton. Officer Wassel maintained cover on
defendant, who was still seated in the passenger seat.
Officer Wassel then had defendant get out of the Mercedes.
Wassel had defendant move to the rear of the Mercedes where
he put handcuffs on defendant.
body camera footage played, Officer Wassel can be heard
advising defendant that he was not under arrest but that he
was being detained. Officer Wassel conducted a pat down of
the outside of defendant's clothing and felt what
appeared to be a small packet of pills in the pocket on the
front right side of his pants. Wassel then reached into the
pocket and removed a small plastic baggie of oblong pills. As
also heard on the bodycam footage, Wassel stated after
retrieving the baggie and asking defendant what they were
that he believed the pills were a controlled substance,
possibly MDMA (“Ecstasy”), rather than vitamins
as defendant stated they were. The pills were later analyzed
by the CMPD Crime Lab and determined to be 1.89 grams of
Wassel then put defendant in the rear of his patrol vehicle.
Officer Wassel then ran an NCIC on defendant, which indicated
defendant had a prior felony conviction punishable by more
than a year imprisonment. When defendant's felon status
was confirmed by CMPD's DCI, Officer Wassel then informed
defendant he was under arrest for being a felon in
possession. Defendant was arrested on North Carolina State
charges for possession of firearm by a felon, possession of a
Schedule I controlled substance and possession of marijuana.
stops implicate the Fourth Amendment because they amount to
seizures of the subject vehicle's occupants. Whren v.
United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135
L.Ed.2d 89 (1996). Traffic stops are akin to investigatory
detentions; thus, the standard announced in Terry v.
Ohio, 392 U.S. 1 (1968) for determining the legality of
an investigatory detention also guides a court's
determination as to the legality of a traffic stop.
United States v. Digiovanni, 650 F.3d 498, 506 (4th
Cir. 2011). When presented with a motion to suppress in the
context of a traffic stop, a court must first determine
whether the stop was justified at its inception, which
requires that law enforcement officers possessed a reasonable
suspicion that crime was afoot before detaining the suspect.
Terry, 392 U.S. at 20. If so, a court next
determines whether the search and any resulting seizure was
reasonably related in scope to the circumstances justifying
it, Terry, 392 U.S. at 20, which means that it was
limited in scope and duration. Digiovanni, 650 F.3d at 507.
police officer may conduct a brief investigatory stop of a
vehicle, when the “officer has a reasonable,
articulable suspicion that criminal activity is afoot.”
Illinois v. Wardlow, 528 U.S. 119, 123 (2000)
(citing Terry v. Ohio, 392 U.S.1, 30 (1968)).
“[I]n connection with such a seizure or stop, if
presented with a reasonable belief that the person may be
armed and presently dangerous, an officer may conduct a
protective frisk.” United States v. Black, 525
F.3d 359, 364 (4th Cir. 2008). In assessing whether a
Terry stop was supported by reasonable, articulable
suspicion, a court must consider the “totality of the
circumstances . . . to see whether the detaining officer has
a particularized and objective basis for suspecting legal
wrongdoing.” United States v. Arvizu, 534 U.S.
266, 273 (2002) (internal quotation marks and citation
omitted). “Thus, factors which by themselves suggest
only innocent conduct may amount to reasonable suspicion when
taken together.” United States v. Perkins, 363
F.3d 317, 321 (4th Cir. 2004). While an officer's
“hunch” will not justify a stop, Terry,
392 U.S. at 27, courts “give due weight to common sense
judgments reached by officers in light of their experience
and training.” Perkins, 363 F.3d at 321.
reasonable and articulable suspicion that a traffic violation
has occurred is a valid basis to conduct a traffic stop under
the Fourth Amendment. United States v.
Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995).
“[A] traffic stop is valid under the Fourth Amendment
if the stop is based on an observed traffic violation or if
the police officer has reasonable articulable suspicion that
a traffic or equipment violation has occurred or is
occurring.” Id. Under North Carolina law, a
reasonable suspicion of impaired driving arises where an
officer observes a car parked on the road with its engine
running, but not moving. State v. Barnard, 362 N.C.