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United States v. Alexander

United States District Court, S.D. Georgia, Savannah Division

November 30, 2017

UNITED STATES OF AMERICA
v.
JIMMIE ALEXANDER, Defendant.

          REPORT AND RECOMMENDATION

         Defendant Jimmie Alexander, indicted for possession of a firearm as a felon, seeks to suppress evidence seized during a warrantless search of his person. Doc. 14. The Court directed him to clarify the factual basis of his motion or withdraw it, and he complied. Docs. 23 (Order) & 25 (Amended Motion). The Government declined the opportunity to amend its opposition. Doc. 27. On November 1, 2017, the Court held a hearing on Alexander's motion.

         I. Background

         Both parties rely on the facts reflected in Savannah-Chatham Metropolitan Police Department (SCMPD) reports and body camera footage. See doc. 25 at 1-4 (factual summary citing attached reports and body camera footage), 12 (stating that Alexander supplies the required factual support by reference to reports and body camera footage); doc. 17 at 1 n. 1 (stating Government's expectation that evidence will show facts as reflected in attached police reports). At the hearing, the Government offered into evidence an additional body camera video recorded by Officer Justin Miller as well as Miller's testimony.[1] Alexander did not testify or offer any other evidence.

         The encounter that ended with Alexander's arrest began innocuously. At approximately 2:00 a.m. on December 2, 2016, SCMPD officer Erik Kolwicz noticed a car sitting at an intersection in an area of Savannah where violent crime was prevalent.[2] Doc. 25-1 at 1, 4. It was in the right travel lane, but had its parking lights on. Id. at 4. Officer Kolwicz circled the block several times, but the parked car remained. Id. He stopped his own vehicle behind the car and sat for 3 to 4 minutes, while running the registration. Id. The occupants, a black female in the driver's seat and Alexander in the passenger's seat, appeared not to notice him until he activated his “take-down lights” and spotlight. Id. (Miller testified that “take-down lights” refer to white lights mounted on a police vehicle's roof, used to provide general illumination and protect officers' safety by obscuring their approach.)

         A second SCMPD officer, Justin Miller, arrived and approached the passenger side of the car as Officer Kolwicz approached the driver's side. See doc. 25-1 at 4; doc. 25-2 at 2. During a brief, polite conversation with the female in the driver's seat, Kolwicz indicated that he had noticed the driver and passenger “sitting . . . at this stop sign for a long period” and wondered whether they were “doing alright.” Id.; doc. 25 at 2. He then asked if the vehicle occupants had any “ID.” Id. As Alexander leaned toward the center of the car, Officer Miller observed the handle of a semi-automatic pistol tucked into Alexander's waistband. Doc. 25-2 at 3. Kolwicz's body camera records a glimpse of a signal from Miller, to which Kolwicz responds by first directing Alexander to step out of the car, and then, almost in the same breath, by commanding him to place his hands on the dashboard. Alexander put his hands on the dash as directed. Officer Miller then opened the car door and asked Alexander whether he had a weapon on him. Alexander said “No.”[3] Id.; see also doc. 25 at 3 (noting that when asked “to confirm that he's in possession of a firearm, ” Alexander denied it). Miller repeated the question two more times, receiving the same response from Alexander. Id. Miller drew his own weapon (but did not point it at Alexander) and asked whether Alexander had anything on him that looked like his own semi-automatic pistol. Id. Alexander shook his head. Id. After that denial, Miller retrieved the pistol from Alexander's waistband and placed it on the roof of the car. After disarming Alexander, Miller handcuffed him and placed him in the back of his vehicle. Id. He questioned Alexander about the gun and whether he had a permit to carry it. Id. Alexander replied that he “was on the first offender list and did not have a permit.” Id.

         Alexander and the Government agree that the officers' initial contact with the car's occupants did not implicate the Fourth Amendment. Doc. 17 at 2-3; doc. 25 at 8. Thus, the officers required no level of suspicion in order to approach the parked vehicle and ask its occupants some basic questions. See, e.g., Muhler v. Mena, 544 U.S. 93, 101 (2005) (quoting Florida v. Bostick, 501 U.S. 429, 434, 434-35 (1991)) (“We have ‘held repeatedly that mere police questioning does not constitute a seizure, '” and “‘[e]ven when officer have no basis for suspecting a particular individual, they may generally ask question of that individual; ask to examine the individual's identification; and request consent to search his or her'” belongings); Terry v. Ohio, 392 U.S. 1, 33 (1968) (White, J. concurring) (“There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.”); United States v. Espinosa-Guerra, 805 F.2d 1502, 1506 (11th Cir. 1986) (citing United States v. Berry, 670 F.2d 583 (5th Cir. 1982) (en banc)) (noting that “police-citizen communications involving no coercion or detention” do “not implicate fourth amendment scrutiny.”). Alexander does not contend that either occupant refused to answer the officers' questions or attempted to terminate the interaction and depart. See doc. 25 at 2-3.

         Within seconds of the initial contact, [4] Miller observed what he immediately identified as a pistol on Alexander's person. When he confronted Alexander with that information, Alexander repeatedly denied having a gun. Doc. 25-3 at 3. Both parties agree that from the point Alexander was told to place his hands on the dash the encounter escalated from a purely consensual one to a seizure that implicated Alexander's Fourth Amendment rights. The Court must decide whether, under the circumstances presented, the officers acted unreasonably in issuing that command or in taking the further step of seizing the pistol and subjecting Alexander to an investigatory detention. Alexander contends that his “open” possession of a firearm was not a sufficient basis for reasonable suspicion and that the officers had no other reason to suspect him of criminal activity. Id. at 10-11. Nor, he argues, did he pose any threat to officer safety that warranted his seizure. Id. at 8.

         II. Discussion

         Alexander points out that Georgia residents are authorized to carry concealed weapons if they obtain the necessary permit under O.C.G.A. § 16-11-126, and he references a recent Georgia statute (enacted in 2014) that prohibits law enforcement officers from detaining a person who elects to exercise his gun-toting rights “‘for the sole purpose of investigating whether such person has a weapons carry license.'” Doc. 25 at 4 (quoting O.C.G.A. § 16-11-137(b)). Because the officers in this case had no reasonable basis for suspecting that Alexander lacked such a permit, he argues that he presented no “particularized threat” to the officers (doc. 25 at 8) and, furthermore, that “officer safety even coupled with an encounter late at night in a high crime area (and more) is not a justification to detain a citizen not reasonably suspected of a crime.” Id. at 10. He supports this position by relying on a decision from the Fourth Circuit, which states that the exercise of a state-conferred right to openly carry firearms cannot, “without more, ” justify an investigatory detention. United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013).

         Alexander's argument is premised upon a mischaracterization of the facts of this case (for the initial seizure was not made “for the sole purpose” of determining whether he had a proper concealed weapons permit), a misreading of Fourth Circuit precedent (which has rejected, not adopted, the notion that the legality of a frisk for a concealed weapon depends upon the illegality of the firearm's possession), and a failure to recognize the difference between an investigatory stop (which requires a reasonable suspicion of criminality) and a protective frisk (which requires no suspicion of criminality at all, but only a reasonable fear that the person frisked poses a threat to officer safety). This amalgam of errors leads defendant inevitably to the wrong conclusion -- that because the officers were required by law to presume that the firearm stuffed in his waistband was being lawfully carried, they had no reasonable investigative or safety concern that justified even his temporary seizure. Doc. 25 at 10. As will be explained below, this argument is just plain wrong.

         It bears repeating that it is only the legality of the police conduct that ensued once Officer Miller spotted the firearm hidden in Alexander's waistband that is at issue here. Up to that point, as Alexander concedes, this was an ordinary police-citizen encounter not subject to the strictures of the Fourth Amendment. Doc. 25 at 8 (it was from the point that Alexander was ordered to place his hands on the dash that he would have recognized that he was not free to leave); id. at 11 (all evidence must be suppressed “from the moment when Mr. Alexander was ordered to place his hands on the dash”). Thus, the validity of the officers' initial approach of the parked car or their posing some friendly questions to its occupants is unchallenged.[5]

         In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that, even in the absence of probable cause, police may briefly detain an individual whom they reasonably suspect to be engaged in criminal activity and then frisk that person for weapons upon a reasonable suspicion that he is armed and dangerous. As in Terry itself, most such protective frisks grow out of an initial investigatory stop. It is well settled, however, that in some circumstances the police are authorized to conduct a Terry frisk of a person they encounter even where the officers have no investigatory interest in the person they frisk. As the Eleventh Circuit held in United States v. Bonds, 829 F.2d 1072 (11th Cir. 1987), Terry stops and Terry frisks are “separate activities which serve distinct purposes and require distinct justifications.” Id. at 1074. Whereas “[a] stop is the result of an officer's focused investigation into a potential crime, ” “[a] frisk . . . does not always result from, nor is it necessarily a part of, any focused investigation of the individual.” Id. “Rather, when an officer legitimately encounters an individual, whether he is investigating that individual or not, the officer may reasonably believe himself to be in danger and may wish to determine quickly whether that person is armed.” Id. (emphasis added). “Thus, even when an officer encounters an individual that he does not suspect of any criminal activity whatsoever, the officer is entitled to frisk that individual for weapons if the officer reasonably believes the individual is armed and presently dangerous.” United States v. Williams, 2011 WL 765728 at * 3 (S.D. Ga. Jan. 12, 2011) report and recommendation adopted, 2011 WL 892367 (S.D. Ga. Mar. 11, 2011), aff'd, 457 F. App'x 847 (11th Cir. 2012).

         Here, the officers lawfully approached two individuals seated in a car that was parked on the street in an area of the city known for its high level of violent crime. It was late at night, and the officers knew that the vehicle had been stationary at an intersection for several minutes. After one of the officers (in a courteous manner) inquired whether the occupants were okay and asked to see some identification, the other officer spotted a gun tucked in the passenger's waistband. Almost immediately, the passenger was ordered to place his hands on the vehicle's dash.[6]

         Did the spotting of the concealed pistol justify the officers' command under the circumstances? Clearly it did. Again and again, the Supreme Court has emphasized that even routine traffic stops “are especially fraught with danger to police officers, ” Michigan v. Long, 463 U.S. 1032, 1047 (1983), and that given the frequency with which officers are killed during such encounters, the public has a “legitimate and weighty” interest in officer safety in those circumstances. Pennsylvaniav. Mimms, 434 U.S. 106, 110 (1977) (per curiam). “[T]he same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or a passenger.” Maryland v. Wilson, 519 U.S. 408, 413 (1997). The substantial threat to officer safety, and the safety of all occupants of the vehicle, is minimized “‘if the officers routinely exercise unquestioned command of the situation.'” Id. at 414 (citation omitted). Thus, officers may, without violating the Fourth Amendment, order both the driver and all passengers to get out of their vehicle, Mimms, 434 U.S. at 111 n. 6; Wilson, 519 U.S. at 410, or remain in the vehicle and keep their hands visible. See United States v. Clark, 337 F.3d 1282, 1288 (11th Cir. 2003); see also United States v. Moorefield, 111 F.3d 10, 13 (3d Cir. 1997) (during a routine traffic stop, officers did not offend the Fourth Amendment by ordering vehicle passenger to remain in his vehicle and keep his hands raised, for the safety benefits of this “minor intrusion” outweighed the passenger's right to personal security free from arbitrary police intrusion). While the foregoing principles ...


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