United States v. Dillard

1

UNITED STATES OF AMERICA v. TRE'QUAN C. DILLARD, Defendant.

CRIMINAL No. 3:24CR50 (RCY)

United States District Court, E.D. Virginia, Richmond Division

July 17, 2024

MEMORANDUM OPINION

Roderick C. Young United States District Judge

This matter is before the Court on Defendant Tre'quan C Dillard's (“Mr. Dillard”) Motion to Suppress Physical Evidence (“Motion to Suppress” or “Motion”), ECF No. 20. On March 19, 2024, Mr Dillard was charged in a one-count Indictment with Possession of a Firearm by a Convicted Felon, in violation of 18 U.S.C § 922(g)(1). Sealed Indictment, ECF No. 3. On April 29, 2024, Mr. Dillard filed the instant Motion, seeking to suppress all evidence related to the recovery of a firearm on Mr. Dillard's person following a traffic stop. The Motion has been fully briefed, see ECF Nos. 20, 22, 24, and on June 24, 2024, the Court conducted a hearing on the Motion to Suppress. At the conclusion of the hearing, the Court denied the Motion from the bench. This Memorandum Opinion sets forth the Court's reasoning.

I. LEGAL STANDARD

On a motion to suppress, “the burden of proof is on the defendant who seeks to suppress the evidence.” United States v. Seerden, 264 F.Supp.3d 703, 708 (E.D. Va. 2017) (citing United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981)). Once the defendant establishes a basis for his motion to suppress, the burden shifts to the government to prove, by a preponderance of the evidence, that the challenged evidence is admissible. Id.; United States v. Bello-Murillo, 62 F. Supp. 3d 488, 492 (E.D. Va. 2014) (citing United States v. Matlock, 415 U.S. 164, 177 n.14 (1974)).

In ruling on a motion to suppress, a district court “may make findings of fact, as well as rulings of law.” Seerden, 264 F.Supp.3d at 708 (citing United States v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005)). “At a hearing on a motion to suppress, the credibility of the witness and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge.” Id. (quoting United States v. McKneely, 6 F.3d 1447, 1452-53 (10th Cir. 1993)). Excepting rules on privileges, the Federal Rules of Evidence do not apply at suppression hearings. United States v. Smart, 91 F.4th 214, 224 n.7 (4th Cir. 2024), cert. denied, No. 23-7492, 2024 WL 3014590 (U.S. June 17, 2024).

II. FACTUAL BACKGROUND

The facts are based on testimony given at the suppression hearing. They are augmented by video and audio of the traffic stop recorded by the arresting officer's body worn camera.

On January 16, 2024, Richmond Police Department (“RPD”) Officers Barnes and Gibson were on patrol together in a marked police vehicle in Sector 113 of the RPD's First Precinct, near the Church Hill North neighborhood, which the officers testified is a high-crime area. Both officers were in uniform with their badges displayed. The officers were in their vehicle on Venable Street, near where Venable Street intersects with North 25th Street.

Shortly before 9:30 p.m., the officers observed a black Ford sedan traveling southbound on North 25th Street. The black Ford had driven down Venable Street, stopped at the intersection, and then turned right onto North 25th Street. As the Ford traveled down North 25th Street, Officer Barnes observed that the Ford had no front license plate displayed. The officers turned onto North 25th Street behind the Ford. As they made their turn, the officers activated their emergency lights and siren to initiate a traffic stop. The Ford pulled over to the curb on North 25th Street. Prior to approaching the driver of the vehicle, the officers observed that the Ford's temporary tag was expired.

Driving the Ford was Mr. Dillard, a 22 year-old Black male. In the passenger's seat was a woman, C.W., who is around Mr. Dillard's age and also Black.

At 9:30 p.m., the officers parked their police vehicle behind the Ford, then got out and approached on foot. Officer Barnes approached on the driver side, where Mr. Dillard was seated. Officer Gibson approached on the passenger side, where C.W. was seated.

At 9:30:35 a.m., Officer Barnes greeted Mr. Dillard and C.W. and introduced himself as a police officer with the RPD. Officer Barnes explained to Mr. Dillard and C.W.: “I pulled you -your tags are expired.” Officer Barnes did not mention the missing front plate; he testified that there are often multiple reasons to pull a car over, though he may only state just one reason when explaining the stop. Officer Barnes asked Mr. Dillard for his Id. When he learned the Ford was C.W.'s car, Officer Barnes asked C.W. to provide her ID to Officer Gibson. Mr. Dillard stated that he did not have his ID on him. Officer Barnes then asked: “Any weapons in the car? Not illegal, we just need to know whether you got a gun.” Mr. Dillard shook his head, indicating, “No.” As Mr. Dillard shook his head, he moved his eyes away from Officer Barnes and looked forward. Officer Barnes then began gathering Mr. Dillard's personal information. Mr. Dillard, now looking back at Officer Barnes, provided his name. When asked for his date of birth, Mr. Dillard responded, “8-0, 16, 2001. Oh, sorry, 0-8, 16, 2001. August 16, 2001.” Officer Barnes then asked Mr. Dillard for his social security number, which Mr. Dillard provided without issue. Officer Barnes confirmed Mr. Dillard's information and then said, “So no guns in the car or anything like that?” Mr. Dillard responded, “No.” Officer Barnes then asked Mr. Dillard where Mr. Dillard and C.W. stayed, and Mr. Dillard responded. Both Officer Barnes and Mr. Dillard were calm and polite. Officer Barnes testified that Mr. Dillard was hunched over in his seat and appeared to be nervous during this initial interaction.

Officer Barnes left the driver side window at 9:31:56 p.m. He walked around the back of the Ford, grabbed a notepad containing information about C.W. from Officer Gibson, and returned to the police cruiser. Officer Gibson remained by the Ford, on the passenger side. Officer Barnes sat down in his police cruiser and shut the door at 9:32:14 p.m.

Officer Barnes ran Mr. Dillard's name through at least one law enforcement database. Officer Barnes's database query returned a response that Mr. Dillard had multiple weapons-related arrests within the previous two years. Specifically, Officer Barnes discovered that Mr. Dillard had recent arrests for misdemeanor carrying a loaded firearm in a public area and for felony robbery with a firearm.

Officer Barnes exited the cruiser and began re-approaching the Ford at 9:34:01 p.m. Officer Barnes stopped by the passenger side and told Officer Gibson, “He's probably got a gun.” Officer Gibson responded, “You think so?” Officer Barnes responded in the affirmative. Officer Gibson said, “Wanna get him out?” Officer Barnes said, “Yeah.”

Officer Barnes then walked around the back of the Ford and returned to the driver side window. At 9:34:25 p.m., Officer Barnes asked Mr. Dillard: “Hey, Mr. Dillard, will you just hop out real quick? We're just gonna step to the back of the car, everything's good.” Mr. Dillard said: “What's happening?” Officer Barnes said: “Just . . . I just want you to get out, and we'll talk.” Mr. Dillard began opening his door, and Officer Barnes said, “We're good, just step out,” helping the car door open fully after Mr. Dillard opened it.

As Mr. Dillard exited the Ford and stood up, Mr. Dillard asked, “What's going on, sir?” Officer Barnes asked, “Is there any weapons?” Mr. Dillard said, “No, sir.” Officer Barnes asked, “Do you mind if I pat you down?” Mr. Dillard responded, “Yes, sir.” Officer Barnes immediately followed up his “Do you mind if I pat you down?” question with, “Is that okay?” Mr. Dillard looked Officer Barnes in the eyes and gave a quick, singular nod.

Officer Barnes testified that, from this interaction, he subjectively believed that he had Mr. Dillard's consent to pat him down. According to Officer Barnes, he asked Mr. Dillard “Is that okay?” to confirm that he had consent to pat Mr. Dillard down.

Mr. Dillard testified that he subjectively misunderstood the tail end of this exchange, and he subjectively did not believe that he was providing consent to Officer Barnes. Mr. Dillard testified that he understood his “Yes, sir,” response to Officer Barnes's “Do you mind if I pat you down?” question as a negative response to that question-as in, “Yes, sir[, I mind].” And after correctly hearing Officer Barnes ask, “Do you mind if I pat you down?”, Mr. Dillard testified that he incorrectly thought that Officer Barnes followed up not with “Is that okay?”, but with “Are you sure?” So, according to Mr. Dillard's testimony, he understood his affirmative nod in response to that follow up as, “Yes[, I am sure that I mind].”

At 9:34:40 p.m., after Officer Barnes asked, “Is that okay?”, and Mr. Dillard nodded, Officer Barnes told Mr Dillard to turn around, saying, “Just face away from me.” Mr. Dillard turned. Officer Barnes testified that Mr. Dillard spun around on his own. Mr. Dillard testified that Officer Barnes had his left hand on Mr. Dillard to guide Mr. Dillard on which way he was to turn. Officer Barnes testified that, after Mr. Dillard turned, Mr. Dillard voluntarily spread his feet apart. However, Mr. Dillard testified that Officer Barnes put his leg between Mr. Dillard's legs and kicked both legs, signaling to Mr. Dillard to stand with his feet shoulder width apart. Officer Barnes began patting Mr. Dillard down. Officer Barnes moved Mr. Dillard's right hand higher up on the car to pat down under his arm. Officer Barnes patted down Mr. Dillard's sides, and he testified that he immediately felt a hard, L-shaped object on Mr....