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United States v. Spencer

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

October 10, 2019

UNITED STATES OF AMERICA,
v.
STEPHEN LAMAR SPENCER, Defendant.

          REPORT AND RECOMMENDATION

          Christopher L. Ray, United States Magistrate Judge.

         Defendant Stephen Lamar Spencer is charged with one count of possession with intent to distribute a controlled substance (cocaine and crack cocaine), in violation of 21 U.S.C. § 841(a)(1). Doc. 1 (Indictment). He moves to suppress all evidence collected after his arrest. Doc. 25.[1] On September 11, 2019, the Court held a hearing on defendant's motion. For the reasons explained below, his motion should be denied.

         BACKGROUND

         Spencer was arrested after officers received an anonymous 911 call reporting drug sales at a location in Liberty County, Georgia. Doc. 25 at 1-2. The caller provided a general description of the individual and his car. Id. Officers, already nearby, went to the intersection identified in the call and observed a car matching the general description provided and two men walking away from the area. At the hearing, two Liberty County Sheriff's officers, Captains Bowman and Ashdown[2], testified that, as they approached the area, their suspicions were aroused, not only by the information provided by the call, but by the activity they observed. Both officers testified that they knew the area in question to be a high crime area, and particularly known for drug activity and break-ins of unoccupied structures to steal scrap metal (i.e., copper wiring). Given the vehicle's location near an apparently unoccupied structure, both officers testified they would have approached the individuals they observed regardless of the 911 phone call, if only to identify them.[3]

         As Captain Bowman approached the two individuals, Captain Ashdown approached the parked vehicle. He testified that he activated his “blue lights” and parked his unmarked vehicle, blocking the driveway where Spencer's vehicle was parked. As he exited his vehicle, Spencer exited and moved quickly-“charged, ” in Ashdown's words-toward Ashdown. Ashdown drew his weapon and directed Spencer to return to his vehicle. Spencer complied, sitting in the driver's seat with the door open and his feet resting on the ground. Ashdown testified that once Spencer returned to his car, he holstered his weapon.

         Ashdown approached Spencer sitting in the car and requested identification. While Spencer was looking for his identification, Ashdown observed a transparent “medicine bottle, ” full of what he immediately identified as crack cocaine. Subsequent testing of the material showed that it was indeed crack cocaine. To ensure that the situation did not escalate, Ashdown asked Spencer to accompany him back to his vehicle. He handcuffed Spencer and had him sit down on the ground. After Spencer was handcuffed and sitting on the ground, Ashdown informed him that he was under arrest. A subsequent search of his vehicle produced additional narcotics, currency, a scale, and plastic “baggies.”

         ANALYSIS

         As explained below, there is some uncertainty in the parties' submissions. Nevertheless, the Court is convinced that the Government has borne its burden of showing that the Fourth Amendment was not violated during the sequence of events that culminated in the discovery of the narcotics and Spencer's arrest. Spencer properly bears the burden of establishing that a Fourth Amendment implicating search or seizure took place. See, e.g., United States v. Bachner, 706 F.2d 1121, 1125 (11th Cir. 1983). As discussed more fully below, he can meet that burden based on the undisputed facts, which establish that he was seized almost immediately after officers arrived. There is also no dispute that no warrant was obtained in this case. Accordingly, “the burden of proof shifts to the state to establish that an exception to the search warrant requirement was applicable in the subject case and that the search and seizure was, in fact, a reasonable one.” Id. at 1126.

         The Government first argues that the property where these events occurred was an “open field, ” for Fourth Amendment purposes. Doc. 27 at 3-4. The Government is certainly correct in asserting that “an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” Oliver v. United States, 466 U.S. 170, 178 (1984). That contention is relevant to the extent that it establishes that the officer's initial observations were not a Fourth Amendment “search.” Whether Spencer was a trespasser on the property or had some right of access, [4] the fact that officers' initial observations were made from a public location indicates that those observations were not, themselves, a “search.” See Florida v. Riley, 488 U.S. 445, 450 (1989) (even the curtilage of a home is not protected police observation from “a public vantage point where they [i.e., the police] have a right to be.” (quotes, alterations, and cite omitted)); Oliver, 466 U.S. at 182 (“‘Even a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon.'” (quoting Rakas v. Illinois, 439 U.S. 128, 144, n. 12 (1978) (alterations omitted)); United States v. Contreras, 820 F.3d 255, (7th Cir. 2016) (arguments about defendant's expectation of privacy in his garage were “red herrings” where police observed the drug transaction from a public street).

         The Government's offers several arguments that would preclude suppression. First, it argues that, even if the dilapidated structure distinguished the property from an open field, Spencer still lacks “standing” to challenge a search of the property.[5] Further, the Government argues that, even if the property were not an open field, and defendant had some expectation of privacy, detectives made a reasonable mistake of fact that the property was abandoned. Doc. 27 at 3-7. Those arguments miss the mark.[6] Spencer's most plausible argument for suppression does not depend upon his reasonable expectation of privacy in the property at issue. It depends upon whether the officers' actions amounted to a “seizure” of his person, or some other Fourth-Amendment-implicating intrusion of his liberty, and, if they did, whether officers had the requisite indicia of criminality to justify that intrusion. See doc. 25 at 3 (identifying the only issue presented as whether the “seizure” violated Spencer's Fourth Amendment rights).

         “It is quite plain that the Fourth Amendment governs ‘seizures' of the person [even those which] do not eventuate in a trip to the station house and prosecution for crime-‘arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized' that person.” Terry v. Ohio, 392 U.S. 1, 16 (1968) (emphasis added). Similarly, “the usual traffic stop is more analogous to a so-called ‘Terry stop,' [cit.], than to a formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 439 (1984). Longstanding Fourth Amendment jurisprudence, therefore, establishes cause of the subsequent search. Spencer's framing of the issue, see doc. 25 at 3, then, is correct; if the seizure violated the Fourth Amendment, then the subsequent search and discovery of the evidence would seem to be “fruit of the poisonous tree.” Cf. 6 Wayne R. LaFave Search & Seizure § 11.4(d) (5th ed. 2019) (identifying “the typical case in which an illegal arrest [or seizure short of a full arrest] is followed by a search” as presenting “no ‘fruits' problem of any magnitude”). incontrovertibly that when Ashdown prevented Spencer from leaving the scene, either in his car or on foot, he was ‘seized,' in the Terry sense.

         Terry recognized, “an entire rubric of police conduct-necessarily swift action predicated upon on-the-spot observations of the officer on the beat-which historically has not been, and as a practical matter could not be subject” to the full protection afforded by requiring police to obtain a warrant. 392 U.S. at 20. As the Government points out, “an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000); see also doc. 27 at 7. That is how the sequence of events leading to Spencer's arrest started, or, at least, the portion of those events that implicates the Fourth Amendment.

         The “brief investigatory stop” contemplated in Terry does not require probable cause, but only “a reasonable articulable suspicion based on objective facts that the person has engaged in criminal activity.” United States v. Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995). “The officer, of course, must be able to articulate something more than an inchoate and unparticularized suspicion or ‘hunch.'” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quotes and cite omitted). “Reasonable suspicion” requires evaluation of the “totality of the circumstances-the whole picture.” Id. at 8. Further, conduct that is, in itself, completely innocent may provide the basis for an officer's reasonable suspicion. See Id. at 9-10 (“We noted in [Illinois v.] Gates, 462 U.S. [213] . . . 243-244, n. 13, . . ., that ‘innocent behavior will frequently provide the basis for a showing of probable cause,' and that ‘in making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent' or ‘guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts.' That principle applies equally well to the reasonable suspicion inquiry.” (alterations omitted)). Captains Ashdown and Bowman clearly articulated their reasonable suspicion for a brief investigatory stop.

         Both officers testified that when they arrived location, they observed defendant's car parked at what appeared to him to be a derelict structure.[7] Both further testified that, in their experience, such structures in the area were frequently the targets of thieves. Given that experience, they agreed that any car parked near such a structure would arouse suspicion and they would, at least, seek to ascertain the driver's identity. Courts have frequently recognized that loitering near abandoned buildings is a basis for reasonable suspicion of criminal activity. See, e.g., Clark v. City of Atlanta, 544 Fed.Appx. 848, 854 (11th Cir. 2013) (concluding officers had reasonable suspicion for a seizure where, “[t]he undisputed evidence shows that, at the moment of the seizure, the officers were aware that there had been a rash of burglaries in the area, that vacant properties were often targeted for burglaries, and that the property where the [defendants] were standing appeared to be vacant.”); United States v. Tucker, 184 Fed.Appx. 549, 553 (7th Cir. 2006) (officer investigating otherwise unsubstantiated anonymous tip nevertheless had reasonable suspicion based on defendant “loitering” near an abandoned house in a high-crime area, where officer knew vacant houses were often used for criminal purposes); United States v. Clay, 181 Fed.Appx. 542, 544 (6th Cir. 2006) (concluding officers had reasonable suspicion to stop a vehicle based upon, among other factors, defendants' presence at an abandoned house in a high crime area); Butler v. City of Douglas, 2016 WL 5661203, at *9 (S.D. Ga. Sept. 29, 2016) (finding officers had reasonable suspicion to conduct traffic stop based upon “recent criminal activity in the area, ” and activity at “a presumptively abandoned house”); see also, e.g., United States v. Anderson, 273 F.Supp.2d 921, 928 (E.D. ...


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