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United States v. Smith

United States District Court, M.D. North Carolina

December 12, 2019



          OSTEEN, JR., District Judge

         Defendant 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.[1] 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.


         1. 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.

         2. Both detectives were in plain clothes, but Detective Mayo was wearing a ballistics vest with “POLICE” written across the front.

         3. All SCU officers patrol in unmarked police vehicles and in plain clothes.

         4. That night, the detectives were surveilling Lucky 7's Sports Bar but were not in the Lucky 7's parking lot.

         5. At around 2 a.m., an off-duty officer working at Lucky 7's alerted the SCUs that Vincent Legrande was at Lucky 7's.

         6. 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.

         7. 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.

         8. The Greensboro SCUs were looking for any reason to pull over the Chevy Malibu, in order to make contact with Legrande.

         9. 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.

         10. 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 seat.

         11. 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.

         12. 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.

         13. At this point, Staton said to Defendant and Legrande that the police were behind them at the intersection.

         14. The detectives sat behind the Chevy Malibu for almost a minute. Both detectives could see the Chevy Malibu's license plate clearly.

         15. 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.

         16. 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.

         17. At 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.

         18. 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 tag.

         19. The 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.

         20. The 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.

         21. 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.

         22. Six or seven other units came to serve as back-up and to provide assistance.

         23. 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.

         24. 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.

         25. As 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 inside.

         26. 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.

         27. 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 located.

         28. At 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.

         29. 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 detained Legrande.

         30. At 06:05:05[2], 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.

         31. Detective Buchanan continued to check the Chevy Malibu by shining his flashlight in the vehicle.

         32. At 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.

         33. At 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.

         34. 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 Chevy Malibu.

         35. 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.

         36. 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.”[3] 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 handcuffs.

         37. 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.[4]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.

         38. At 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, ...

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