United States v. Freeman

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UNITED STATES OF AMERICA v. DAVON WILLIAM FREEMAN, Defendant.

CRIMINAL ACTION No. TDC-22-0454

United States District Court, D. Maryland

July 11, 2024

MEMORANDUM OPINION

THEODORE D. CHUANG, NITED STATES DISTRICT JUDGE

Defendant Davon William Freeman has been charged with one count of possession of a firearm by a felon, in violation of 18 U.S.C § 922(g)(1), arising out of a January 25, 2022 police search of his person and vehicle conducted in District Heights, Maryland. Freeman has filed a Motion to Suppress ECF No. 27, in which he seeks suppression of two firearms seized at the scene on the grounds that they were found during searches conducted in violation of his rights under the Fourth Amendment to the United States Constitution. After the Motion was fully briefed, the Court held an evidentiary hearing on the Motion on June 21,2024. For the reasons set forth below, the Motion will be GRANTED.

BACKGROUND

The following facts were established at the evidentiary hearing based on the testimony of Corporal Timothy Green of the Prince George's County Police Department (“PGCPD”) and the exhibits admitted as evidence, including a video recording from the body-worn video camera of PGCPD Officer Carolyn Cosey (“the Cosey Video”). Mot. Suppress Hrg. (“Hrg.”) Ex. 1.

On January 25, 2022 at approximately 10:22 p.m., Corporal Green and Officer Cosey were on a proactive patrol in District Heights, Maryland as part of the PGCPD Criminal Activity Suppression Team. At the prompting of a radio call from another officer, PGCPD Officer Eason, Corporal Green and Officer Cosey proceeded to Scott Key Drive, near the intersection with District Heights Parkway, and approached a silver Toyota Camry ("the vehicle”) parked near a streetlight with its headlights on and its engine running. The vehicle was in a residential neighborhood within an area which, according to Corporal Green, was known as a high-crime area, including in relation to violent crimes. As they approached the vehicle, Officer Eason was nearby, in an unmarked police vehicle, positioned at the beginning of Scott Key Drive.

Upon reaching the driver's side of the vehicle, Officer Cosey shined a flashlight through the driver's window, saw Freeman asleep in the driver's seat, then knocked on the window several times to awaken him. After about 10 seconds, Freeman opened his eyes. Officer Cosey then opened the vehicle door and asked Freeman, the sole occupant of the vehicle, where he lived. Freeman responded by pointing to the right of the vehicle. Officer Cosey asked Freeman if he had been drinking, and Freeman answered that he had been drinking earlier. Freeman's speech was slurred, and he did not use complete sentences. Officer Cosey then asked if Freeman had not been able to make it home. After Freeman acknowledged that he was on his way home but could not make it and had pulled over to the side of the road, Officer Cosey responded that his actions were “responsible.” Cosey Video Tr. at 3, Hrg. Ex. 1 A.

When Officer Cosey asked Freeman for identification. Freeman pointed to the driver's side door map compartment, which contained a wallet with his driver's license. Officer Cosey brought Freeman's wallet and license to the rear of the vehicle while Corporal Green asked Freeman where he lived and for his address. Officer Cosey. apparently looking at Freeman's license, which listed an address of 2306 Delano Lane, then said that Freeman lived "down the street.” Id. at 4. At the hearing, Corporal Green acknowledged that when asked where he lived. Freeman had said “over there,” that Delano Lane was located to the right of the vehicle as it was parked, in the general direction to which Freeman had pointed at the outset of the encounter, and that it was a two-minute walk from the location of the vehicle. Hrg. Tr. at 54-56.

Officer Cosey radioed the police dispatcher (“the dispatcher”) for information about Freeman based on the details appearing on Freeman's license, including whether he had any outstanding warrants. While Officer Cosey awaited a response from the dispatcher. Corporal Green advised Freeman that if was going to take a nap in the vehicle, he should “check” his headlights, and that he should find somewhere else to sleep because they were not in the “safest place for you to go to sleep.” Cosey Video Tr. at 4-5.

At approximately 10:27 p.m., the dispatcher informed the officers that Freeman appeared to be “negative all around" for any outstanding warrants but also noted that “officer safety” information was available. Id. at 5. The dispatcher then stated that Freeman had “multiple priors,” including for first-degree murder, armed robbery, assaults, and the distribution and manufacture of controlled dangerous substances. Id. At the hearing, Corporal Green acknowledged that such references to “priors” are not limited to convictions but also include prior arrests and charges, even if they did not result in convictions. He also acknowledged that such references do not provide information on the date of the prior charges or the underlying circumstances.

Upon hearing this information, Corporal Green immediately ordered Freeman out of the vehicle, and Freeman stepped out without showing any difficulty moving or standing. Corporal Green then ordered Freeman to turn around and put his hands on top of the vehicle, which Freeman did. Corporal Green then asked Freeman whether he had anything “on you that's going to poke, stick me, cut me. nothing like that?” Id. at 5. At the hearing, Corporal Green testified that he asked this question for his own safety so that he knew “exactly what we are dealing with” and that it was also "an indication to the person that's about to be pat[ted] down that we are indeed going to pat him down.” Hrg. Tr. at 28. Although Freeman's response cannot be heard on the Cosey Video, according to Corporal Green, Freeman responded by referencing a knife and reaching toward his right pants pocket. Corporal Green then asked whether Freeman had a knife, moved Freeman's hands back to the top of the vehicle, and reached into Freeman's right pants pocket. Corporal Green pulled out a firearm, called out “7A,” a PGCPD code used to reference a firearm, and handed the firearm to Officer Cosey. Cosey Video Tr. at 5-6. Officer Cosey brought the firearm to the rear of the vehicle and rendered it safe while Corporal Green placed Freeman in handcuffs. At that point, Officer Eason and other officers arrived at the vehicle. Officer Cosey then conducted a search of the interior of the vehicle, including a backpack found on the front passenger seat, and found a second firearm in that backpack.

On December 21, 2022, a federal grand jury returned the Indictment against Freeman charging him with one count of possession of firearms by a felon, in violation of 18 U.S.C. § 922(g)(1).

DISCUSSION

In the Motion to Suppress, Freeman argues that the two firearms seized during the encounter should be suppressed because the officers located them during searches that violated the Fourth Amendment. The Government argues that the first firearm was located during a lawful pat frisk pursuant to Terry v. Ohio, 392 U.S. 1 (1968), because the officers had a reasonable suspicion of criminal activity as required to conduct a Terry stop and also had a reasonable suspicion that Freeman was armed and dangerous as required to conduct a Terry frisk. Specifically, the Government argues that the officers had a reasonable suspicion that Freeman was armed and dangerous because Freeman appeared to be intoxicated, was found in a parked vehicle with the engine running in a high crime area, and the police dispatcher reported that Freeman had "multiple priors,” including for first-degree murder, armed robbery, and assault. Cosey Video Tr. at 5. The Government alternatively argues that the officers had probable cause to arrest Freeman on alcohol-related offenses such that the search was permissible as a search incident to arrest. Freeman disputes that there was a sufficient basis to support a reasonable suspicion that he was armed and dangerous, or that there was probable cause to arrest him for operating a vehicle under the influence of alcohol.

I. Legal Standard

Under the Fourth Amendment, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV. Generally, evidence obtained during a search or seizure conducted in violation of the Fourth Amendment is to be excluded at trial pursuant to the exclusionary rule. United States v. Stephens, 764 F.3d 327, 335 (4th Cir. 2014). A traffic stop constitutes an investigatory seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653 (1979).

II. Terry Stop-and-Frisk

The Government primarily argues that the firearm was recovered during a lawful Terry stop-and-frisk. Consistent with the Fourth Amendment, law enforcement officers may conduct a brief investigatory stop of an individual or vehicle if they have a reasonable, articulable suspicion that criminal activity is afoot. See Terry, 392 U.S. at 30. Consistent with Terry, police officers may conduct a traffic stop if they observe conduct that establishes either probable cause or reasonable suspicion to believe that a traffic violation has occurred. See United States v. Johnson, 734 F.3d 270, 275 (4th Cir. 2013). To conduct a frisk of a suspect during a Terry stop officers need additional justification beyond the reasonable suspicion required for the initial stop. United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998). They must have a “reasonable suspicion” that the suspect is armed and dangerous, consisting of “a particularized and objective basis for...