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United States v. Garcia

United States District Court, W.D. North Carolina, Asheville Division

July 5, 2019

UNITED STATES OF AMERICA
v.
DAVID JOE GARCIA, Defendant.

          MEMORANDUM AND RECOMMENDATION

          W. Carleton Metcalf United States Magistrate Judge

         This matter is before the Court on Defendant's Motion to Suppress (Doc. 8), which has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B). Having carefully reviewed the evidence, the parties' arguments, and applicable authorities, the undersigned respectfully recommends that the Motion be denied.

         I. Relevant Procedural Background

         On December 4, 2018, Defendant was charged in a single-count indictment with the possession of firearms and ammunition by a person who had previously been convicted of a crime punishable for a term exceeding one year. (Doc. 1).

         On December 12, 2018, Defendant made an initial appearance during which counsel was appointed for him. An arraignment was also conducted, and Defendant entered a plea of not guilty. The Government moved for pretrial detention, and Defendant waived a hearing on that motion.

         On January 9, 2019, Defendant filed the instant Motion to Suppress (Doc. 8) and a supporting brief (Doc. 9). The Government filed a response in opposition (Doc. 11).

         On February 14, 2019, the undersigned conducted an evidentiary hearing on the Motion. Assistant United States Attorney John Pritchard appeared for the Government. Fredilyn Sison and Melissa Baldwin of the Federal Defender's Office appeared with Defendant.

         Post-hearing submissions included a Supplemental Brief from Defendant (Doc. 15) and a response from the Government (Doc. 17). A motion by Defendant for leave to file a reply was denied. (Docs. 18, 19).

         II. Summary of the Evidence

         A. The Government's Evidence

         The Government called four witnesses: Jordan Warren, Trenton Turpin, Greg Connor, and Mark Gage. The Government also presented maps of the subject area, an order for Defendant's arrest for failure to appear, a motor vehicle inventory form, a waiver of rights form, and a video from the dashboard camera of Sgt. Warren's patrol car.

         1. Surveillance

         In the early morning hours of July 23, 2018, Jordan Warren, a patrol sergeant with the Henderson County Sheriff's Office, was watching the area around Asheville Highway and Wickins Drive due to a history of narcotics activity. (6-7, 10-11, 58.) There was little traffic. (61-62.)

         Sgt. Warren's marked patrol car was parked, with its lights on, in the parking lot of a fire department adjacent to Asheville Highway. (7, 11.) At approximately 2:30 a.m., he observed a 2012 Nissan Sentra approach a stop sign at the intersection of two secondary roads approximately one block away. (7, 11, 12, 58, 71.) The vehicle remained at the stop sign for three to five seconds, which seemed unusual to Sgt. Warren as there was no cross traffic or obstruction. (13, 58.)

         Then, instead of proceeding straight through the intersection, and toward Sgt. Warren's location, the vehicle turned right onto another secondary road. (13.) Sgt. Warren thought the driver might be attempting to avoid him and planning to enter Asheville Highway (the main road) at a different location. (13-14.) Sgt. Warren drove to intercept the vehicle and located it as it was heading toward Asheville Highway. (14.) He turned around and began following the vehicle. (17-18.)

         Sgt. Warren ran the vehicle's license tag and was informed that Defendant's mother was the registered owner. (17, 61.) The computer program Sgt. Warren was using also returned indicators for “narcotics, felon, and drugs.” (18.)

         2. Traffic Stop and Arrest of Defendant

         Sgt. Warren continued following the vehicle, which ultimately turned on to Brookside Camp Road, a two-lane road. (19 - 20, 62.) At one point, the vehicle swerved out of its lane, crossing the double yellow line, and then returned immediately to its original lane of travel. (27, 62.)

         Sgt. Warren activated the lights on his patrol car and initiated a traffic stop. (27-28.) He approached the vehicle and observed that Defendant was the lone occupant. (28.) Sgt. Warren advised Defendant of the basis for the stop, and Defendant responded that he left his lane of travel because he was concerned about damaging new, low-profile suspensions or rims on the vehicle. (28, 64.) Defendant also stated he was going to a friend's place because he had received a call that her ex-boyfriend was there harassing her and damaging property. (36.) Defendant produced an identification card but did not have a driver's license. (28 - 29.)

         Sgt. Warren returned to his patrol car to confirm Defendant's driving status. (29.) He learned that Defendant's North Carolina driver's license had been revoked and that Defendant was on federal supervised release. (29-31, 67.) He called for a back-up officer, and Deputy Trenton Turpin responded, parking behind Sgt. Warren's patrol car. (125, 128.)

         Sgt. Warren directed Defendant to exit the vehicle and advised Defendant that he did not have a valid driver's license and that a warrant was outstanding for Defendant's failure to appear for a prior “driving while license revoked” charge. (34, 47.) Defendant stated that his supervised release was based on firearms convictions. (Gov's Ex. 8.) Sgt. Warren asked Defendant if he would consent to a search of the car, and Defendant refused. (75.)

         Sgt. Warren directed Defendant to place his hands behind his back and felt what appeared to be a ballistic vest under Defendant's jacket. (34-35.) He asked Defendant about the vest, and Defendant stated that it was a paintball vest. (35.) Sgt. Warren, however, testified that the vest was a tactical vest of the type used by law enforcement or special response teams and was capable of carrying a ballistic plate. (35.) Although Defendant's vest did not have a ballistic plate, it could still provide some degree of protection. (35.)

         A Bowie style knife was located on Defendant's right side and two sets of brass knuckles were found in his pants pockets. (35-36, 126.) Defendant was told he was under arrest for the outstanding warrant, was handcuffed, and was placed in the back seat of Sgt. Warren's patrol car. (37.)

         3. Search of the Car

         Sgt. Warren asked Defendant if there was anything in the vehicle, and advised him that he was carrying two concealed weapons and that there would be a search of the vehicle. (36.) Sgt. Warren testified that he had initially intended to perform an inventory search of the car, but once the brass knuckles ...


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