United States District Court, E.D. North Carolina, Southern 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
17). 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.
(M&R (DE 25)). Defendant timely filed objections to the
M&R, (DE 28), to which the government responded in
opposition, (DE 29). For the reasons that follow, the court
adopts the recommendation of the magistrate judge as its own
and denies defendant's motion.
OF THE CASE
September 6, 2018, the grand jury returned indictment,
charging defendant with one count possession of a firearm by
a felon in violation of 18 U.S.C. §§ 922(g)(1) and
October 15, 2018, defendant filed the instant motion to
suppress evidence seized from his vehicle on January 27,
2018. Evidentiary hearing was held before the magistrate
judge on December 17, 2018, at which hearing the court
received testimony from Stephen Applewhite
(“Applewhite”), who pulled over defendant's
vehicle on January 27, 2018. (See Tr. (DE 23)). The
magistrate judge issued M&R on January 25, 2019.
(See M&R (DE 25)).
objections to the M&R, defendant makes factual and legal
arguments. Regarding the latter, defendant argues the
magistrate judge erred in determining Applewhite had
reasonable suspicion to determine defendant was armed and
dangerous sufficient to justify the frisk that occurred.
OF THE FACTS
novo review of the evidence, the court adopts the factual
findings of the M&R. T h e court summarizes herein the
facts most pertinent to addressing the objections to the
M&R raised by defendant.
January 27, 2018, around 9:00 p.m., Applewhite, who is with
the Wilmington police department, pulled over a vehicle with
expired tags. (Tr. (DE 23) at 5:1-5; body-camera footage at
21:51). As Applewhite approached the vehicle, he
noticed defendant reaching into his pocket, which aroused
Applewhite's suspicions, but when Applewhite reached the
driver's side window, he realized defendant was only
reaching for his license. (Tr. (DE 23) at 6:20-7:10).
asked for defendant's license and registration, and
defendant turned over his license to Applewhite, but informed
Applewhite that he did not know where the registration was
because he had borrowed the car. (Body-camera footage at
21:51). Applewhite asked defendant to check the car's
glove box for the registration paperwork, and defendant
complied, also checking the storage space next to the
steering wheel. (Id.).
this time, Applewhite and defendant chatted about
defendant's plans to celebrate a friend's birthday
party, and Applewhite confirmed from defendant that the
vehicle belonged to defendant's daughters' mom.
(Id. at 21:51-52). Applewhite told defendant to
inform the owner of the vehicle about the expired tags, and
Applewhite and defendant discuss how defendant and friends
need to use another vehicle for their plans for the evening.
(Id. at 21:52). Defendant is calm, helpful, and
returned to his patrol car with defendant's license, and
officer Centola (“Centola”) arrived on the scene
and joins Applewhite in his vehicle. (Id. at 21:53).
Applewhite ran defendant's license through a program in
his patrol vehicle to determine the license is valid and that
defendant has no outstanding warrants. (Tr. (DE 23) at
7:23-8:2). Applewhite begins to explain to Centola about his
initial concern that he thought defendant was reaching for a
weapon and not his wallet when Applewhite initially
approached defendant's car. (Body-camera footage at
police department's file on defendant appeared on
Applewhite's computer screen, and Applewhite stated to
Centola that “he's flagged for gangs” and
“we're going to do a weapons frisk on him.”
(Id. at 21:53). The North Carolina Department of
Public Safety had validated defendant as a gang member.
(Tr. (DE 23) at 11:8-10). Several other “flags”
also appeared alongside defendant's gang flag, including
an “approach with caution” warning, and flags
showing he was a felon and had previous weapons and assault
charges. (Id. at 10:10-11:23). During this time,
Applewhite noted to Centola how defendant was “looking
nervous as hell.” (Body-camera footage at 21:54).
returned to defendant's car, told defendant he would give
him a warning for driving with an expired tag, and that he
would need to tell the car owner to update the registration.
(Id. at 21:55). Applewhite then asked defendant if
he had any weapons on him or in the car, which defendant
denied, but Applewhite asked if he could do a weapons frisk
anyway. (Id. at 21:55-56).
Applewhite said he “wasn't going to do a search or
anything, ” defendant voluntarily got out of the car.
(Id. At 21:56). As he was getting out of the car,
defendant indicated concern why he was being frisked, and
Applewhite stated he was going to frisk defendant because he
was flagged as a gang member and was looking nervous, to
which defendant responded that he was nervous because he was
being pulled over. (Id.). Applewhite found nothing
while frisking defendant, and after, asked defendant to step
to the side. (Id.)
then shined his flashlight on the storage compartment on the
inside of the driver's side door, and then on the left
and then right side of the driver's seat. (Id.
at 21:56). Applewhite noticed “the black strip of a gun
. . . tucked in between the driver's seat and the center
console.” (Tr. (DE 23) at 23:5-7). He immediately
walked over to defendant, who was standing between his car
and the patrol car, and handcuffed him. (Body-camera footage
at 21:57). Applewhite walked back to the car, removed the
gun, and searched the entire car with another officer. (Tr.
(DE 23) at 23:14-24:3).
facts pertinent to the motion will be discussed herein.