United States v. Eley

515 F.Supp.3d 415

UNITED STATES of America,

v.Joshua ELEY, Defendant.

Criminal Action No. 4:20-cr-52

United States District Court, E.D. Virginia, Newport News Division.

Signed January 27, 2021

Lisa K. Man, Jared a. Hernandez, Kenneth P. Kaplan, United States Attorney Office, Newport News, VA, Richard D. Cooke, United States Attorney's Office, Richmond, VA, for United States of America.

Andrew William Grindrod, Office of the Federal Public Defender, Norfolk, VA, for Defendant.

MEMORANDUM OPINION AND ORDER

RAYMOND A. JACKSON, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Joshua Eley's ("Defendant" or "Mr. Eley") Motion to Suppress. ECF No. 24. Defendant, through counsel, filed a memorandum in support of his Motion; the Government filed a response; and, Defendant filed a reply. ECF Nos. 24, 27, and 29. A hearing on Petitioner's Motion was held on January 14, 2020. ECF No. 43. For the reasons stated at the hearing and discussed below, Defendant's Motion to Suppress is GRANTED.

I. BACKGROUND & PROCEDURAL HISTORY

Just after 5:30 pm on April 24, 2020, Newport News police officers observed Defendant—a young, Black man—walking near the 700 block of 16th street in Newport News, Virginia. Suppress Hr'g Tr. at 20-23, 58:1-5; ECF No. 24 at 1. At first, Defendant was walking on the sidewalk of the street. Id. at 57-58. Detective Daniel Akaratovic ("Officer Akaratovic"), with two additional police officers, drove past Defendant in an unmarked police car and recognized Defendant as "Joshua Eley." Id. at 78-80. The officers noticed that Defendant was "looking back" at them as they drove by and one of the officers asked the others, "[d]o you guys want to go and talk to him?" Id. The officers agreed to go talk to Mr. Eley and at that point, Officer Akaratovic made a U-turn in his patrol vehicle. Id. When asked why the officers turned around to speak with Defendant, Officer Akaratovic stated that "it was just odd that [Defendant] was near 16^th Street" because ordinarily "Mr. Joshua Eley was usually always around the areas close to the station." Id. at 84-85. Officer Akaratovic testified that he did not suspect Defendant of any criminal activity at the time that he made the U-turn. Id. at 79. Various officers then exited Officer Akaratovic's vehicle and walked towards Defendant on the street. ECF Nos. 27-1, 27-2, and 27-3.

While continuing to walk down 16^th street, Defendant crossed the street without making use of a crosswalk. Suppress Hr'g Tr. at 57-58. The record is unclear as to the precise location of any nearby crosswalks; however, a witness to Defendant's crossing-Officer Mark Hillman "Officer Hillman" – testified that crosswalks were located "[f]urther down the road and a little behind me." Id. at 58:1-5. While Defendant crossed the street. Officer Hillman approached Defendant at 25 miles per hour in an unmarked patrol vehicle, requiring Officer Hillman to brake at approximately 50 yards in front of Defendant as he crossed the street. Id. at 39-40. Alternatively. Officer Hillman also testified that he began to brake approximately 30 feet from Defendant. Id. at 56:19-22.

Officer Hillman then parked the car and exited the vehicle along with his partner. Officer Paulino. Id. at 21-24. Officer Hillman testified that when he parked the vehicle, his "intent at that time was just to talk to Mr. Eley" because "[b]ased on [his] training and experience ... people who are carelessly walking in the middle of the road could have several things going on." Id. at 24. Officer Hillman further testified that he intended to talk to Mr. Eley because "he was breaking the law, [ ] just walking in front of traffic, in front of my vehicle." Id.

At another occasion during Officer Hillman's testimony. Officer Hillman responded "yes. sir" when asked "[n]ow. when you first got out of the car, you said you didn't suspect [Defendant] of a crime ... is that correct?" Id. at 62:7-12. Officer Hillman later responded "[c]orrect, yes, sir" when asked "so the only thing that you were concerned about is that you believe that [Defendant] was jaywalking?" Id. at 62:13-15.

When asked whether the police report from the incident stated that he stopped Defendant due to a jay-walking violation, Officer Hillman responded, "I don't recall that that exactly says those words. I believe it says that Mr. Eley was walking across the street and almost was in front of me, sir." Id. at 63:7-11. No police report of the incident was presented at the hearing, or entered into evidence, by either party. See generally id.

Upon exiting his vehicle. Officer Hillman turned on his body camera to allow the camera to "buffer up." Id. at p. 26. Without turning on the record button. Officer Hillman testified that he yelled out to Defendant. " ‘[h]old on a second. Let me talk to you for a moment,’[or] something along that line." Id. In response, Officer Hillman stated that "Mr. Eley disregarded me. He didn't pay any attention to me." Id. at 27. Officer Hillman furthers that "I continually asked him to stop and talk to me for a moment, and he continually walked down the sidewalk." Id. Defendant ultimately turned around in response to Officer Hillman's commands. Id. at 30. At that point, Officer Hillman alleges that he observed an extended magazine in Defendant's right jacket pocket and Defendant's hands were also in his pockets. Id. at 27. Officer Hillman further alleges that at the time he made this magazine observation, Defendant was facing him straightforward and he was "able to observe his face, the front of his body, and his hands." Id. at 30.

Officer Hillman notes that based upon his training and experience, he "assumed that there might have been a firearm due to the magazine [ ] portraying [sic] out of the jacket." Id. at 28. At that time, Officer Hillman drew his weapon and "continued giving Mr. Eley commands to show [ ] his hands and to stop." Id. at 30. Officer Hillman testified that he was "worried that [he] would have to deploy lethal force," and later during the arrest, Officer Hillman joked that "his range time almost got extended" since he and other officers had just departed the gun range that morning. Id. at 31, 34.

Video evidence further demonstrates that at some point, one of the arresting officers removed a gun (with a magazine inserted in the clip) from Defendant's person and placed the gun on the ground. ECF No. 27-2, 27-4, and 27-5. This is contrary to Officer Hillman's first recollection of the event for which he stated, "the firearm fell out of Mr. Eley's right pocket." Suppress Hr'g Tr. at 35. Prior to the hearing, upon review of the video evidence, Officer Hillman retracted this statement, at which time he recalled that he "actually removed the firearm out of Mr. Eley's pocket." Id.

Just after the gun was removed from Defendant's person, Defendant was placed in hand restraints as several additional officers (at least three more according to the video footage) approached the scene. Id. These officers had body camera footage of the incident from the time they arrived on scene. ECF Nos. 27-1, 27-2, and 27-3. Some of those officers were previously in the patrol vehicle with Officer Akaratovic. Suppress Hr'g Tr. at 73-74. Officer Hillman did not record the event until after Defendant was already detained. Id. at 47-49; ECF No. 27-4. Of the five, possibly six, officers at the scene of the arrest, none of the officers were of Black or African descent. Id. at 61-62, 83-84. Defendant did not resist arrest once he was in handcuffs. Id. Defendant was ultimately apprehended, read his Miranda rights, and admitted that he was a prior felon in possession of a firearm. ECF Nos. 27-2, 27-4, and 27-5.

Officer Hillman testified that he had no reason to believe Defendant was armed prior to exiting his vehicle. Suppress Hr'g Tr. at 28. Officer Hillman furthered that "it was Mr. Eley's disregard to my commands, observing the extended magazine, and him keeping his hands in his pockets continuously [that] gave me the impression that there was a firearm involved." Id. at 30.

On August 21, 2020, a federal grand jury returned a one count indictment charging Defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). ECF No. 3. On October 28, 2020, Defendant filed a Motion to Suppress all the evidence obtained in violation of the Fourth Amendment pursuant to Rule 12 of the Federal Rules of Criminal Procedure. ECF No. 24. The Government filed its response on November 12, 2020. ECF No. 27. Defendant replied on November 18, 2020. ECF No. 29. The Court held a hearing on Defendant's Motion to Suppress on January 14, 2020. Trial is currently scheduled for February 23, 2021. Having heard the parties and reviewed their briefing, this matter is now ripe for judicial determination.

II. LEGAL STANDARD

The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV. An investigatory stop constitutes a seizure under the Fourth Amendment. United States v. Arvizu. 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). A law enforcement officer can execute an investigatory stop if that officer "observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." United States v. Slocumb , 804 F.3d 677, 681 (4th Cir. 2015) (quoting Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ) (internal quotations omitted).

In order to perform a Terry stop, the police office must have a reasonable articulable suspicion that a crime is about to be or has been committed. See United States v. Black , 707 F.3d 531, 537 (4th Cir. 2013) (citing Terry , 392 U.S. at 21, 88 S.Ct. 1868 ). This reasonable articulable suspicion " ‘must [have a] particularized and objective basis for suspecting the particular person stopped of criminal activity.’ " Id. at 539 (quoting United States v. Griffin , 589 F.3d 148, 152 (4th Cir. 2009) ). The police officer " ‘must be able to point to specific and...