United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
this court is Defendant's motion to suppress all evidence
seized as a result of a traffic stop on June 3, 2018, in
Durham, North Carolina. (Doc. 14.) The Government filed a
response. (Doc. 18.) On November 5, 2019, this court held a
hearing on the motion to suppress. (See Minute Entry
11/05/2019.) The Government called as a witness Durham Police
Officer J.C. Kellar (“Kellar”). At the conclusion
of the hearing, this court made preliminary findings of fact.
This court also requested additional briefing based upon
those findings of fact. Both the Government and Defendant
filed supplemental briefs. (Docs. 23, 24.) A second round of
supplemental briefing was requested by the court, (Text Order
11/18/2019), and filed by the parties. (Docs. 26, 27.) A
second, final hearing was held on December 2, 2019, where the
parties addressed several of the court's lingering
questions of law. (Minute Entry 12/02/2019.) The matter is
now ripe for ruling. For the reasons stated below, the court
will grant Defendant's motion to suppress.
summary, the Government contends Kellar had a reasonable,
articulable suspicion of criminal activity based upon the
following factors: time of the occurrence, the high crime
nature of the area, the observation of individuals around a
vehicle stopped in the roadway, Kellar's recognition of
the individuals standing beside the car as having some
history of drug-related criminal activity, and the fact the
stopped vehicle pulled away as Kellar subsequently approached
the area where the vehicle was stopped.
court finds Kellar had an inchoate suspicion of criminal
activity, later proved correct, to some degree,
following his stop of Defendant. However,
this court is of the opinion that Kellar's suspicion did
not provide an objective, reasonable suspicion of criminal
activity sufficient to stop and detain Defendant. This court
made its findings of fact on the record. They will be
supplemented and further addressed as necessary here. This
court will correct one finding made in open court.
is no dispute that Defendant was seized when Kellar turned on
his blue lights and pulled over Defendant in the Five Star
Tobacco parking lot off of Holloway Street. The issue in this
case is whether Kellar's earlier observation of Defendant
when he was stopped on North Briggs Avenue provided a
reasonable suspicion of criminal activity sufficient to
support the subsequent traffic stop.
To be lawful, a Terry stop “must be supported
at least by a reasonable and articulable suspicion that the
person seized is engaged in criminal activity.” The
level of suspicion must be a “particularized and
objective basis for suspecting the particular person stopped
of criminal activity.” As such, “the officer must
be able to point to specific and articulable facts which,
taken together with rational inferences from those facts,
reasonably warrant that intrusion.” There is no
reasonable suspicion merely by association.
United States v. Black, 707 F.3d 531, 539 (4th Cir.
2013) (quoting Reid v. Georgia, 448 U.S. 438, 440
(1980); United States v. Griffin, 589 F.3d
148, 152 (4th Cir. 2009); Terry v. Ohio, 392 U.S. 1,
21 (1968)).In conducting a reasonable suspicion analysis, a
court “must look at the ‘totality of the
circumstances' of each case to see whether the detaining
officer has a ‘particularized and objective basis'
for suspecting legal wrongdoing.” United States v.
Arvizu, 534 U.S. 266, 273 (2002) (quoting United
States v. Cortez, 449 U.S. 411, 417-18 (1981)). “A
determination that reasonable suspicion exists . . . need not
rule out the possibility of innocent conduct.”
Id. at 277. A court is required to give due weight
to factual inferences drawn by law enforcement officers.
Ornelas v. United States, 517 U.S. 690, 699 (1996).
A court must examine the totality of the circumstances by
considering “all information available to an officer
and any reasonable inferences to be drawn at the time of the
decision to stop a suspect.” United States v.
Crittendon, 883 F.2d 326, 328 (4th Cir. 1989). Courts
must also “evaluate the ‘cumulative information
available' to the detaining officer, rather than engaging
in ‘piecemeal refutation' of the individual facts
upon which the officer relied during the Terry
stop.” United States v. McBride, 676 F.3d 385,
392 (4th Cir. 2012) (quoting United States v.
Branch, 537 F.3d 328, 336 (4th Cir. 2008)); United
States v. Whitehead, 849 F.2d 849, 858 (4th Cir. 1988)).
review of the evidence offered to demonstrate reasonable
suspicion must be commonsensical, focused on the evidence as
a whole, and cognizant of both context and the particular
experience of officers charged with the ongoing tasks of law
enforcement.” Branch, 537 F.3d at 337.
Reasonable suspicion is a burden “less demanding than
that for probable cause” and “considerably less
than proof of wrongdoing by a preponderance of the
evidence.” United States v. Sokolow, 490 U.S.
1, 7 (1989). However, an officer “must be able to
articulate something more than an ‘inchoate and
unparticularized suspicion or hunch.'” Id.
(quoting Terry, 392 U.S. at 27). The factors
articulated “together must serve to eliminate a
substantial portion of innocent [persons] before the
requirement of reasonable suspicion will be satisfied.”
United States v. Brugal, 209 F.3d 353, 359 (4th Cir.
2000) (en banc).
the reasonable suspicion analysis “must account for the
‘totality of the circumstances,' rather than employ
a ‘divide-and-conquer analysis, '” United
States v. Williams, 808 F.3d 238, 247 (4th Cir. 2015)
(citing Arvizu, 534 U.S. at 274), “this court
‘will separately address each of the factors before
evaluating them together with the other circumstances of the
traffic stop, '” United States v. Bowman,
884 F.3d 200, 214 (4th Cir. 2018) (quoting United States
v. Powell, 666 F.3d 180, 187- 88 (4th Cir. 2011)).
Individual Analysis of Articulated Factors
the facts articulated by Kellar reasonably and objectively
contribute to the reasonable suspicion analysis in this case
and are not disputed: (1) the lateness of the hour, and (2)
the high crime nature of the neighborhood. Neither of these
facts, however, independently support a finding of reasonable
Kellar initially observed Defendant's vehicle at
approximately 11:40 p.m. The time of day is not disputed.
Kellar did not testify that the lateness of the hour
contributed significantly to his assessment of the situation.
He did not describe, in his experience, that any particular
times of day were more indicative of criminal conduct than
any other times of day. Nevertheless, the hour was late,
although not unreasonably so. See, e.g., United
States v. Glover, 662 F.3d 694, 698 (4th Cir. 2011)
(noting that a time of 4:40 a.m. was a relevant factor);
United States v. Slocumb, 804 F.3d 677, 679 (4th
Cir. 2011) (noting that the fact activity took place at
midnight was a factor that contributed to reasonable
suspicion). The lateness of the hour in this case, 11:40
p.m., is an objective, articulated fact that will be
considered in the analysis below. However, while the late
hour is a factor, it is not independently sufficient to
support a finding of reasonable suspicion.
the fact that North Briggs Avenue was a high crime area is
relatively undisputed. This court credits Kellar's
testimony that this was in fact a high crime area and subject
to heightened enforcement by Durham police. “[A]n
area's disposition toward criminal activity is an
articulable fact.” United States v. Moore, 817
F.2d 1105, 1107 (4th Cir. 1987). However, while the nature of
the area around North Briggs Avenue is relevant,
“presence in an area of expected criminal activity,
standing alone, is not enough to support a reasonable,
particularized suspicion that the person is committing a
crime.” Illinois v. Wardlow, 528 U.S. 119, 124
(2000). “[A]lthough the high-crime nature of the area
in which a stop is performed is plainly not alone enough to
support a reasonable suspicion of criminal activity, it is
one of ‘the relevant contextual considerations'
that a court may credit in the Terry
analysis.” United States v. Bumpers, 705 F.3d
168, 175 (4th Cir. 2013) (quoting Wardlow, 528 U.S.
at 124). The court will, therefore, consider the high crime
nature of the neighborhood in its analysis.
than these two facts, about which there is not any real
dispute, there are several other factual contentions that are
less clear and require a more thorough discussion.
while Kellar had no information as to the identity of the
occupant of the car, Kellar testified the three individuals
standing outside the car were known to him. Kellar testified
he knew those three individuals were “consumers, drug
addicts.” (Transcript of Motion to Suppress Hearing
(“Hr'g Tr.”) (Doc. 25) at 13.) His previous
interactions with them “had consisted of drug activity,
misdemeanor breaking and entering.” (Id.)
Kellar clarified that he recognized those three people as
individuals who participate in drug activity. (Id.
at 21.) Though Kellar's initial testimony seemed to
support an objectively reasonable belief that he was familiar
with the individuals near Defendant's car, on
cross-examination, Kellar further explained his knowledge, or
lack thereof, of those individuals:
Q: And do you have any idea -- forgive me if you've
answered this question. Do you have any idea when you
interacted with these three people in terms of what year that
A: Oh, what year? 2018.
Q: And can you give -- you mentioned a misdemeanor breaking
and entering. Where did that misdemeanor breaking and
A: I'm not sure, sir. I just -- it's -- again, the
best way I can describe it is these are folks that I
interacted with through my job responding to 911 calls,
trying to be proactive, and they were associated with drug
activity, breaking and entering. It's not something that
I can -- I can't list their names for you. I can't
give you a specific date. Those are just folks that I've
interacted with through my job.
Q: Can you give any description of these three individuals?
A: Black males. Are you looking for clothing? I'm - I
don't mean to be --
Q: I'm asking for as specific a description as you can
A: Tall -- one of them is tall, skinny. He's about
6-foot-2, 6-foot-3, 40 to 50 years old. Again, always in that
same area. You just ...