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United States v. Roberts

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

April 5, 2019



          Louise W. Flanagan United States District Judge.

         This 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.


         On 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 924.

         On 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)).

         In 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.


         Upon de 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.

         On 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).[1] 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).

         Applewhite 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.).

         During 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 agreeable.

         Applewhite 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 21:53).

         The 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[2] 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).

         Applewhite 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).

         After 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.)

         Applewhite 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).

         Additional facts pertinent to the motion will be discussed herein.

         COURT'S ...

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