United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM AND RECOMMENDATION
Carleton Metcalf United States Magistrate Judge
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.
Relevant Procedural Background
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).
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.
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).
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
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).
Summary of the Evidence
The Government's Evidence
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.
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.)
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,
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.)
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.”
Traffic Stop and Arrest of Defendant
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.)
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.)
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,
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.)
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.
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.)
Search of the Car
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 ...