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United States v. Roberts

United States District Court, E.D. North Carolina, Southern Division

January 25, 2019

United States of America,
v.
Jenouri Roberts, Defendant.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge

         A federal grand jury indicted Defendant Jenouri Roberts for being a felon in possession of a firearm after an officer found a gun in his car during a traffic stop. Indictment at 1, D.E. 1. Roberts now seeks suppression of statements he made to law enforcement and physical evidence gathered from the car. He argues that the officer who frisked him for weapons and searched his car lacked reasonable suspicion to do so. The Government claims that the officer had reasonable suspicion to believe Roberts was dangerous because of his nervous behavior and information the officer learned about Roberts from law enforcement databases. After reviewing all of the evidence and the testimony offered at the evidentiary hearing, the undersigned recommends that the district court deny Roberts's motion because the totality of the circumstances at the time of the search would have caused a reasonable person to believe that Roberts was dangerous.

         I. Background

         On an evening in January 2018, when Officer Stephen Applewhite of the Wilmington Police Department pulled over a car with expired tags. Tr. of Dec. 3, 2018 Evidentiary Hearing at 5:2-5, D.E. 23. The car, which Roberts was driving, came to a stop on a nearby side street. Id. at 5:17-6:11. As Applewhite approached the vehicle, he noticed Roberts reaching into his right pocket, which aroused the officer's suspicions. But when Applewhite reached the driver's side window, he realized that Roberts was merely reaching for his driver's license. Id. at 6:20-7:10.

         Once at the driver's window, Applewhite asked Roberts for his license and registration. Applewhite's Body Camera Footage from January 27, 2018 at 1:26, Gov't Ex. 1. Roberts turned over his license and told Applewhite that he did not know where the registration was because he was borrowing the car. Id. at 1:30. Applewhite asked Roberts to check the car's glove box for the registration paperwork. Id. at 1:45. Roberts then checked the glove box in front of the passenger's seat and the storage space next to the steering wheel. Id. at 1:45-2:17. Meanwhile, Applewhite and Roberts casually chatted about Roberts's plans to celebrate a friend's birthday that evening. Id. After Roberts could not find the car's registration, Applewhite told him to let the owner know about the expired tags. Id. at 2:30-2:50. The two men kept chatting about how Roberts's group of friends would need to use another vehicle for their plans that evening. Id. During this entire initial interaction with Applewhite, Roberts was calm and agreeable.

         As Applewhite returned to his patrol car with Roberts's license, Officer Centola, arrived on the scene and joined Applewhite in his patrol car. Id. at 2:55; Tr. at 18:16-20. Applewhite ran Roberts's license through a program in his car's computer to make sure that the license was valid, and that Roberts had no outstanding warrants. Tr. at 19:1-3. He started telling Centola about his initial concern that Roberts might be reaching for a weapon and not his wallet when he was approaching Roberts's car. Body Camera Footage at 3:29-3:53.

         The police department's file on Roberts appeared on Applewhite's computer screen, and Applewhite noted to Centola that “he's flagged for gangs.” Id. at 3:55. The North Carolina Department of Public Safety[1] had validated Roberts as a gang member. Tr. at 11:8-10. Several other “flags” appeared alongside Roberts's gang flag, including an “approach with caution” warning, and flags showing he was a felon, and had previous weapons and assault charges. Tr. at 10:19-11:23. At that point, Applewhite told Centola, “we're going to do a weapons frisk on him.” Body Camera Footage at 4:02-4:05. Applewhite pulled up Roberts's criminal history and then his driving history from the police database. Id. at 4:20-4:28. He discussed with Centola how Roberts was “looking nervous as hell, ” id. at 4:31-4:40, based on his observation that Roberts appeared to be turning around and checking his car mirrors to look at the officers in the patrol car behind him. Tr. at 21:10-13.

         Applewhite returned to Roberts's car. He told Roberts that he would give him a warning for driving with an expired tag, and that he would need to tell the car's owner to update its registration. Id. at 5:53-5:59. Then, Applewhite asked Roberts if he had any weapons on him or in the car, which Roberts denied. Id. at 6:01. But he asked Roberts if he could do a weapons frisk anyway. Id. at 6:04-6:07. After Applewhite said he “wasn't going to do a search or anything, ” Roberts voluntarily got out of the car. Id. at 6:04-6:12.

         As Roberts got out of the car, he seemed to question why he was being frisked, and Applewhite said he was going to frisk Roberts because he was flagged as a gang member and was looking nervous. Id. at 6:15-6:30. Roberts responded that he was nervous because he was being pulled over. Id. at 6:31.

         Applewhite then frisked Roberts, and when he did not find anything, he asked Roberts to stand to the side. Id. at 6:32-6:53. The officer then shined his flashlight on the storage compartment on the inside of the driver's side door, and then on the left, then right side of the driver's seat. Id. at 7:01-7:08. Applewhite noticed “the black strip of a gun tucked between the driver's seat and the center console.” Tr. at 23:5-7. He immediately walked over to Roberts, who was standing idly between his car and the patrol car and handcuffed him. Id. at 23:10-11; Body Camera Footage at 7:11-7:38. Applewhite walked back to the car, removed the gun, and searched the entire car with another officer. Tr. at 23:14-24:3.

         II. Discussion

         The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Supreme Court has explained that if law enforcement officers engage in a search without first obtaining a warrant, courts should consider the search to be “per se unreasonable” unless the search falls within “a few specifically established and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

         One exception, justified by the need to protect officer safety, is the protective search of a lawfully stopped vehicle where the “officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer believing that the suspect is dangerous and the suspect may gain immediate control of weapons” within the vehicle. Michigan v. Long, 463 U.S. 1032, 1049-50 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). Thus, an officer may conduct a protective search of a stopped vehicle if that officer “possesses a reasonable belief of both (1) the suspect's dangerousness and (2) the possibility that the suspect might gain immediate control of any weapons inside the vehicle. United States v. Griffin, 589 F.3d 148, 153 (4th Cir. 2009) (citing United States v. Holmes, 376 F.3d 270, 276 (4th Cir.2004)). The court must evaluate the reasonableness of the search based on what the officer knew “at the point the search . . . [is] completed.” Holmes, 376 F.3d at 278.

         The protective search during a traffic stop may involve frisking the suspect's person and searching the areas of the vehicle to which the suspect may gain immediate control and “in which a weapon may be placed or hidden” Long, 463 U.S. at 1049-50. And even if a suspect cannot immediately access any weapons during the frisk, the officer may still conduct the protective search “because the suspect may be able to escape restraint, or ...


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