United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Jabrell Craig Smith filed a Motion to Suppress, (Doc. 11),
and the Government responded to the motion, (Doc. 17);
Defendant filed a reply, (Doc. 21). On November 7, 2019, this
court held a hearing on the motion to suppress. (See
Minute Entry 11/07/2019 (“Min. Entry
11/07/2019”).) The Government presented the testimony
of Corporal James Buchanan, Detective Robert Mayo, and ATF
Task Force Officer Terry Bryson. (Id.) The Defendant
testified. (Id.) Following the hearing, this court
issued findings of fact and requested additional briefing on
a several issues. (See Doc. 31.) The Government and
Defendant responded with supplemental briefs. (Docs. 33, 34.)
For ease of reference, this court makes its final findings of
fact here and includes those explained in the November 15,
2019 Order, (Doc. 31), as well as additional findings as
explained herein. This court concludes that Defendant's
motion to suppress should be granted as to the marijuana
found in Defendant's pocket. The motion to suppress will
be denied as to the firearms and heroin found in the vehicle
and the statements Defendant made at the time of his arrest.
FINDINGS OF FACT
Then-Detectives Buchanan and Mayo were on duty as part of the
Greensboro Police Department's Street Crimes Unit
(“SCU”) on the night of May 29, 2017. They were
in an unmarked silver Chevy Silverado police vehicle.
Detective Mayo was driving, and Detective Buchanan was
sitting in the passenger seat.
detectives were in plain clothes, but Detective Mayo was
wearing a ballistics vest with “POLICE” written
across the front.
SCU officers patrol in unmarked police vehicles and in plain
night, the detectives were surveilling Lucky 7's Sports
Bar but were not in the Lucky 7's parking lot.
around 2 a.m., an off-duty officer working at Lucky 7's
alerted the SCUs that Vincent Legrande was at Lucky 7's.
Vincent Legrande was known to the SCUs. High Point SCU had
alerted the Greensboro SCU that he was a person of interest
to them due to his gang involvement and history of violence.
The Greensboro SCUs knew he was a convicted felon. There were
no warrants out for Legrande at that time.
Legrande, Defendant Smith, and Ja'kirus Staton left Lucky
7's and got into a dark colored Chevy Malibu. Sergeant
Flowers radioed the license plate number of the Chevy Malibu
correctly as ELL7755.
Greensboro SCUs were looking for any reason to pull over the
Chevy Malibu, in order to make contact with Legrande.
Detectives Buchanan and Mayo did not observe Legrande,
Defendant Smith, and Ja'kirus Staton leaving Lucky
7's but did observe the Chevy Malibu leave the Lucky
7's parking lot onto West Gate City Boulevard and head
towards South Holden Road.
Ja'kirus Staton was driving the Chevy Malibu and
Defendant Smith was in the front right passenger seat.
Legrande was sitting behind Defendant in the rear passenger
Detectives Buchanan and Mayo ended up directly behind the
Chevy Malibu at a red light at the intersection of West Gate
City Boulevard and South Holden Road. The Silverado was six
to eight feet behind the Chevy Malibu. Although both
detectives were in plain clothes, Detective Mayo recalls that
he did have his ballistic vest on which has
“POLICE” in large print on front of the vest.
There are two left-turn lanes on West Gate City Boulevard.
Both the detectives and the Chevy Malibu were in the turn
lane closest to the straight traffic lanes. There was a
vehicle in front of the Chevy Malibu and a vehicle in the
leftmost left-turn lane next to the Chevy Malibu.
this point, Staton said to Defendant and Legrande that the
police were behind them at the intersection.
detectives sat behind the Chevy Malibu for almost a minute.
Both detectives could see the Chevy Malibu's license
When the light turned green, and the Silverado moved into the
space the Chevy Malibu had been, the detectives detected a
medium to strong odor of burnt marijuana, presumably from the
air vents. Both detectives had their windows rolled up.
Both detectives acknowledge that the odor could have come
from either of the other two vehicles that had been in the
vicinity. This court finds the officers were not able to
identify the odor of marijuana as coming from the Chevy
Malibu sufficiently to provide probable cause or reasonable
suspicion of criminal activity in the Chevy Malibu.
this point, Detective Buchanan incorrectly radioed the rest
of the SCUs the license plate of the Chevy Malibu as
“Eagle Eagle Lincoln 7755, ” meaning the license
plate number was EEL7755. In reality, the Chevy Malibu's
license plate number was ELL7755. Detective Mayo was focused
on driving and surveilling and did not realize Detective
Buchanan's mistake. None of the other units who had heard
the incorrect plate number corrected Detective Buchanan.
Detective Buchanan was advised that plate number “EEL
7755” was not registered to a Chevy Malibu. Detective
Buchanan therefore suspected the Chevy Malibu was operated
with a fictitious license tag. Detective Buchanan testified,
and this court finds, based upon his experience, the use of a
fictitious license tag is relatively common. Based upon the
information provided, Detective Buchanan had a reasonable
suspicion the Chevy Malibu was operating with a fictitious
license tag in violation of North Carolina law.
Detective Buchanan's mistake in radioing the incorrect
license tag number was an honest, reasonable mistake of fact.
The correct tag number and the mistaken information as
conveyed by radio are sufficiently similar to suggest an
honest, reasonable mistake, even taking into account what the
other SCU officers may have heard the broadcast. This court
believes, after hearing the testimony and observing the
witness, that Detective Buchanan's testimony was credible
and sufficient to support this finding. Detective Buchanan
was not aware of any other instances in which an SCU officer
radioed an incorrect tag number; this does not appear to be a
common mistake by the SCU. This court therefore finds
Detective Buchanan held a mistaken, but reasonable, belief
the Chevy Malibu was in violation of North Carolina traffic
law by displaying what appeared to be a fictitious license
detectives followed the Chevy Malibu on Holden road for about
two miles, at which point the Chevy Malibu turned into the
Kangaroo gas station at the corner of Holden and Vandalia.
detectives continued on Holden and pulled onto a side street,
where they waited for several minutes until Sergeant Flowers
gave the SCUs the order to move in on Legrande. Sergeant
Flowers did not tell the SCUs why.
Detectives Buchanan and Mayo were the first to pull into the
parking lot of the Kangaroo gas station, followed shortly
thereafter by Sergeant Flowers in an unmarked police SUV.
or seven other units came to serve as back-up and to provide
Detectives Mayo and Buchanan both had body-worn cameras, but
Detective Mayo forgot to activate his that evening. Detective
Buchanan activated his, as did Sergeant Flowers. The
following time stamps come from videos and still shots
captured by the body-worn cameras.
This court has reviewed and considered both the testimony and
the video from the body-worn cameras. According to the
testimony, the video from the body-worn cameras fairly and
accurately depicts the events recorded at the gas station.
This court finds the officers' testimony credible. There
are places where, given the speed within which the action
took place as well as the different actions that were taking
place virtually simultaneously, this court has, where
necessary, made findings from the video, testimony, and still
shots as indicated. In addition, this court is not fully
persuaded the body-worn cameras were all perfectly
synchronized in time. As a result, this court has used both
the time stamps on the videos as well as the relative
locations of law enforcement and relevant parties to
determine these facts as further explained herein.
the detectives pulled the Silverado in behind the left half
of the Chevy Malibu, at 06:04:52 Zulu time according to
Detective Buchanan's video, they observed the back right
passenger door open and Legrande exit the Chevy Malibu.
Legrande walked over to a nearby vehicle with two women
Detective Buchanan and other officers pulled in to the
Kangaroo lot and exited their vehicles with an overwhelming
show of force. Detective Buchanan exited his vehicle with his
firearm drawn, ballistic vest on, and approached the Malibu
from the rear driver's side.
Sergeant Flowers, at 06:05:10 according to his body-camera
video, pulled up in his unmarked SUV next to the Silverado.
At this point, the Chevy Malibu was seized, because the Chevy
Malibu could not have realistically left its parking spot.
Although Detective Buchanan was not able to recall whether he
had activated his blue lights, video from the body-worn
cameras show that both vehicles had activated their blue
lights. The Chevy Malibu was clearly neither able to leave
nor free to move from the parking spot within which it was
this point, Defendant Smith and Staton were inside the gas
station. Defendant had grabbed a package of Starburst and a
package of chips. Staton and Defendant were in the register
area during their encounter with the officers.
Between 06:04:59 and 06:05:45, officers came out of various
vehicles, some of whom were running toward Legrande and
yelling, “HANDS UP HANDS UP HANDS UP, PUT'EM UP
PUT'EM UP PUT EM'UP, ” at Legrande. Officers
06:05:05, Detective Buchanan used a flashlight to
determine that there were no other passengers left in the
Chevy Malibu. At this same time, he detected a faint odor of
marijuana. Detective Buchanan instructed other officers,
including Detective Mayo, to watch the store. Detective
Buchanan then told other officers to get in the store, that
he would stay with the car.
Detective Buchanan continued to check the Chevy Malibu by
shining his flashlight in the vehicle.
06:05:34, Detective Buchanan observed the tip of the barrel
of a handgun sticking out from under the back of the front
passenger's seat. Almost simultaneously, he announced
“32 32.” “32” is a shortened version
of the 10 code, “1032, ” which is the code for
firearm or weapon. It is not clear which officers, outside
the Kangaroo, may have heard his announcement of
“32.” The Government has requested that this
court make an additional finding that when Detective Buchanan
saw the handgun toward the right rear seat footwell while he
was standing outside the Malibu in the Kangaroo parking lot.
(Doc. 33 at 1.) This court agrees with that fact and finds
that Detective Buchanan, at the time he observed the handgun,
was standing outside the Malibu in the Kangaroo parking lot.
the moment he announced “32, ” this court finds
Detective Buchanan was aware of the following facts: A
firearm was under the front passenger seat, toward the right
rear seat footwell, with the barrel pointed to the back of
the car. The firearm was accessible to the rear seat, and
specifically the passenger in the rear seat. Vincent Legrande
had been sitting in that seat moments before and the firearm
would have been located at his feet when the SCUs entered the
parking lot. Detective Buchanan also knew Vincent Legrande
was a convicted felon.
This court finds Detective Buchanan had probable cause to
believe Vincent Legrande, a convicted felon, had committed a
criminal offense by unlawfully possessing a firearm in the
Detective Mayo and Sergeant Flowers had already entered the
gas station to approach Defendant and Staton at the time
Detective Buchanan announced “32” in the parking
lot. Shortly after Detective Buchanan announced
“32” in the parking lot, officers can be seen
walking Vincent Legrande across the parking lot in handcuffs.
Sergeant Flowers did not testify at the suppression hearing.
However, the video from his body camera was introduced as
Government Exhibit 3. The video shows, and this court finds,
that Detective Mayo and Sergeant Flowers entered the Kangaroo
before Detective Buchanan announced
“32.” Other than the fact Vincent Legrande was a
known convicted felon and believed to be involved in violent
crime, no facts were presented to suggest Detective Mayo and
Sergeant Flowers were aware of anything other than a possible
fictitious tag violation. Sergeant Flowers advised Defendant
he was being detained because of a fictitious tag. Neither
officer was aware of the identities of Staton and Defendant
at that time. Detective Mayo and Sergeant Flowers were both
wearing ballistic vests. Sergeant Flowers walked immediately
to Defendant and announced that he was being detained. The
sound on the video suggests Sergeant Flowers had pulled out
his handcuffs; the video appears to corroborate this fact.
This court finds Sergeant Flowers approached Defendant,
announced to Defendant that he was being detained, and
virtually simultaneously attempted to place Defendant in
When Sergeant Flowers and Detective Mayo initially approached
Defendant and Staton, Defendant was standing in front of the
cashier as if to pay for merchandise, ignoring the activity
in the parking lot. Staton was standing behind Defendant in
line. This court finds Defendant's conduct does not
suggest Defendant was detained at the time law enforcement
officers pulled in the parking lot and detained Legrande.
Instead, this court finds Defendant was attempting to
deceptively ignore the activity in the parking lot as if he
had nothing to do with that vehicle and was simply a patron
unaware of and unconcerned by the activity outside the
store.Defendant's testimony as to his
subjective belief he was detained when officers entered the
parking lot is not credible. He continued to move around in
the store and approach the cashier.
06:05:49, Sergeant Flowers told Defendant he was being
detained and attempted to place Defendant in handcuffs by
initially grabbing Defendant by the right arm. When Sergeant
Flowers initially approached Defendant, the video shows
Sergeant Flowers was standing to Defendant's right as
Defendant partially faced the counter and the cashier. As
Sergeant Flowers and Defendant argued after Sergeant Flowers
said he was being detained, their bodies turned, with
Defendant turned around from the counter and standing more to
Sergeant Flowers' right, or roughly straight on. Sergeant
Flowers continued to try to talk to Defendant and place
Defendant in handcuffs. At 06:06:10, ...