United States v. Johnson

UNITED STATES OF AMERICA v. DERRICK DEMOND JOHNSON

CRIMINAL ACTION NO. 2:19-cr-442-ECM-JTA (WO)

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

April 9, 2020

RECOMMENDATION OF THE MAGISTRATE JUDGE

This cause is before the court on Defendant Derrick Demond Johnson's motion to suppress (Doc. No. 17) and the government's response in opposition thereto (Doc. No. 23). The court held an evidentiary hearing on the motion on January 10, 2020. (Doc. No. 31.) After due consideration of the parties' arguments, witness's testimony and applicable law, the court concludes that the motion to suppress is due to be denied.

I. PROCEDURAL HISTORY

Defendant Derrick Demond Johnson ("Johnson") is charged with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a controlled substance crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Doc. No. 1.) Johnson moved to suppress the firearm and marijuana that were discovered on his person by law enforcement on May 15, 2019 during a warrantless search. (Doc. No. 17.) The United States responded to the motion asserting that the stop and search of Johnson was lawful. (Doc. No. 23.) This matter is ripe for disposition.

II. FINDINGS OF FACT

The evidence adduced at the evidentiary hearing establishes that around 3:00 p.m. on May 15, 2019, State Trooper Hunter Odom ("Trooper Odom") of the Alabama Law Enforcement Agency was patrolling alone in his marked vehicle on Kolb City Road in Butler County when he stopped Johnson. The government presented Trooper Odom as its sole witness at the evidentiary hearing (Doc. No. 31, Hr'g Tr. 6-38) and defense counsel admitted Trooper Odom's body camera recording from the stop into evidence (Def. Ex. 2). According to Trooper Odom, the stop occurred in a rural area known to law enforcement for illegal narcotics and illegal activity.

Trooper Odom was traveling eastbound on Kolb City Road when he noticed a red sedan traveling westbound that had no license tag displayed.¹ Trooper Odom immediately activated his vehicle lights and turned his patrol vehicle around. Trooper Odom, now traveling westbound on Kolb City Road in pursuit of the red sedan, observed a man walking eastbound in the middle of Kolb City Road. This man was not in the roadway earlier when Trooper Odom was traveling eastbound. Trooper Odom suspected that the man, later identified as Johnson, had been a passenger in the red sedan but did not observe Johnson exit the sedan.² When Johnson saw Trooper Odom's patrol vehicle, he moved from themiddle of the road and began walking down the side of the road. Trooper Odom pulled alongside Johnson with his front passenger window open and stopped his patrol vehicle. Johnson approached Trooper Odom's front passenger window and Trooper Odom began asking him questions concerning walking in the roadway. As Trooper Odom questioned Johnson, he smelled a strong scent of marijuana emanating from Johnson.³ Johnson did not respond to Trooper Odom's questions.⁴ Trooper Odom observed Johnson moving around and reaching toward his back. Trooper Odom then activated his body camera, exited his patrol vehicle, and approached Johnson.

Trooper Odom walked around the front of his patrol vehicle to the front passenger side where Johnson stood in the grass holding out his wallet with both hands. Trooper Odom testified that Johnson was acting "pretty nervous and fidgety." Trooper Odom immediately instructed Johnson to place his hands on the hood of the patrol vehicle. Trooper Odom conducted a pat down search, detected a firearm in Johnson's pants, and advised Johnson that he was not under arrest but being handcuffed for "our" safety.⁵ Trooper Odom then handcuffed Johnson. Johnson inquired, "What did I do?" Trooper Odom responded that he would explain in a moment. Trooper Odom then walked Johnson toward the back passenger door of his patrol vehicle and informed Johnson that he smelledmarijuana on Johnson. Johnson admitted to Trooper Odom that he had smoked marijuana. Trooper Odom advised Johnson that he was going to remove the firearm from Johnson's pocket and directed him not to move. Johnson responded that he would remove the firearm and began moving his hands to do so while handcuffed. Trooper Odom ordered Johnson not to touch the firearm. Trooper Odom then commanded Johnson to stay still and proceeded to contact local law enforcement for assistance. While Trooper Odom contacted local law enforcement, Johnson made a remark about the situation "being crazy" and directed Trooper Odom to get his cigarettes out of his pants' pocket. Trooper Odom responded that he would help Johnson in a second. Johnson moved his hands and attempted to remove something from his pocket. Trooper Odom advised Johnson that he would retrieve the cigarettes but first must remove the firearm from the front of Johnson's pants. Trooper Odom then removed the firearm, a .380 Cobra pistol, from Johnson's pants while asking Johnson about his intended destination. Johnson replied "down there." Trooper Odom took possession of the firearm and secured it in his patrol vehicle. Meanwhile, Johnson commented again about retrieving the cigarettes from his pocket and retrieved the package of cigarettes. Trooper Odom removed the package of cigarettes from Johnson's hands and placed a cigarette in Johnson's mouth. While doing so, Trooper Odom asked Johnson if he had "anything on him" that Trooper Odom "need[ed] to know about" and Johnson responded negatively. Trooper Odom commented that he would retrieve Johnson's cigarette lighter as Johnson again moved his hands in his pocket. As evidenced on Trooper Odom's body camera, Trooper Odom observed a cigarette lighter and a mass of plastic coming from Johnson's pocket while Johnson was moving his handsin his pocket. Trooper Odom grabbed the cigarette lighter from Johnson's hand and directed him to release the other items he was holding in his pocket. Trooper Odom then lit Johnson's cigarette with the cigarette lighter and removed the plastic bag from Johnson's pocket. The plastic bag, when retrieved by Trooper Odom, appeared to contain several clear bags of suspected marijuana. Trooper Odom placed the plastic bags on the front passenger seat of his patrol vehicle and asked Johnson if he was "selling" to the occupants of the red sedan. Johnson replied that he knew the driver of the sedan and questioned whether it was a "set up." While Trooper Odom conducted a search of Johnson's person, where he found another plastic bag containing individual bags of suspected marijuana, Johnson asked him why he turned his vehicle around and Trooper Odom replied that he did so because the red sedan did not have a license tag displayed. Trooper Odom completed his search of Johnson's person which yielded twenty-two individual bags of marijuana. Johnson admitted to Trooper Odom that he was a convicted felon.

III. DISCUSSION

A. Johnson's Motion to Suppress

Johnson challenges the warrantless stop⁶ and the resulting search arguing that Trooper Odom lacked an articulable reasonable suspicion to stop him as required under Terry v. Ohio, 392 U.S. 1 (1968). (Doc. No. 17.) Johnson asserts that any incriminating statements he made and any physical evidence seized should be excluded as the "fruit of the poisonous tree." (Doc. No. 17 at 3; Doc. No. 31, Hr'g Tr. 50:12-18.) The governmentresponds that Johnson's motion is due to fail because Trooper Odom had a reasonable suspicion to believe that Johnson had committed a violation of Alabama law so the investigatory stop of Johnson was permissible under the Fourth Amendment. (Doc. No. 23 at 2.) The government also argues that the smell of marijuana gave Trooper Odom grounds to proceed with a stop and search under Terry. (Id. at 3-4.) Finally, the government argues that the pat down search was proper based on the totality of the circumstances. (Id. at 5.)

B. Governing Legal Principles

The law is well-settled. "The Fourth Amendment guarantees '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Whren v. United States, 517 U.S. 806, 809 (1996). The Eleventh Circuit has explained that there are three types of encounters between police and citizens "for purposes of . . . Fourth Amendment analysis: (1) police-citizen exchanges involving no coercion or detention; (2) brief seizures or investigatory detentions; and (3) full-scale arrests." United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006) (citation omitted). In regard to the first type of encounter, "[c]onsensual encounters between police officers and citizens do not trigger Fourth Amendment safeguards." United States v. Santibanez Garcia, 132 F. Supp. 2d 1338, 1341 (M.D. Fla. 2000) (footnote omitted).

Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage - provided they do not induce cooperation by coercive means.

Perez, 443 F.3d at 777 (citing United States v. Drayton, 536 U.S. 194, 200-01 (2002)). See also Florida v. Bostick, 501 U.S. 429, 434 (1991) ("[M]ere police questioning does not constitute a seizure.").

For the purposes of Fourth Amendment analysis, a seizure occurs "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). "The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive...