United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
criminal action, Defendant Vincent Donta McSwain is charged
with (1) Unlawful Possession of Ammunition by a Person
Convicted of a Crime Punishable by Imprisonment for a Term
Exceeding One Year in violation of 18 U.S.C. §
922(g)(1), and (2) Receipt or Possession of Firearm
Unidentified by Serial Number in violation of 26 U.S.C.
§ 5861(i). Indictment, ECF No. 3. Defendant has moved to
suppress any and all tangible physical evidence and any
statements whether obtained before, during, or after his
arrest as the result of the allegedly unlawful seizure from
his person of a loaded firearm without a serial number on
February 27, 2019. Defendant argues that such evidence was
seized in violation of the Fourth Amendment. Specifically,
Defendant contends that officers lacked probable cause to
detain him and that the officers further lacked reasonable
and articulable suspicion to frisk him. If such evidence was
unconstitutionally obtained, then it must be suppressed.
consideration of the pleadings,  the relevant legal
authorities, and the record as a whole, the Court DENIES
Defendant's Motion to Suppress. The Court concludes that
the Fourth Amendment was not violated when law enforcement
officers detained Defendant, conducted a limited search of
him, and seized from him a loaded firearm without a serial
number. Based on a traffic violation, the officers had
probable cause to temporarily detain Defendant, and, during
that temporary detention, the officers developed a reasonable
articulable suspicion to conduct a limited search.
FINDINGS OF FACT
Court held an evidentiary hearing on Defendant's motion
to suppress on May 14, 2019. The Court has considered the
evidence presented during the hearing. In doing so, the Court
considered the demeanor and behavior of the witnesses on the
stand, the witnesses' manner of testifying, whether the
witnesses impressed the Court as truthful, whether the
witnesses impressed the Court as having an accurate memory
and recollection, whether the witnesses had any motive for
not telling the truth, whether the witnesses had a full
opportunity to observe the matters about which they
testified, and whether the witnesses had any interest in the
outcome of the case, or friendship or hostility to the other
persons concerned with the case. The Court also considered
the reasonableness or unreasonableness and the probability or
improbability of the testimony of the witnesses in
determining whether to accept it as true and accurate, as
well as whether the testimony was contradicted or supported
by other credible evidence. The Court has also considered the
pleadings, the footage from officers' body-worn cameras,
and the entire record in this case.
Court credits the testimony of the witnesses, Officer Allorie
Sanders and Officer Robert Kelly, as follows.
Court makes the following findings of fact. The Court will
first make findings of fact that are relevant to the
Defendant's motion and undisputed and/or uncontroverted
by any evidence, and then make findings as to facts that are
relevant and disputed or controverted by some evidence.
The Undisputed or Uncontroverted Relevant Evidence
the evidentiary hearing, the Government presented two
witnesses. Officer Allorie Sanders has worked for the
Metropolitan Police Department for almost four years. May 14,
2019 Hr'g Tr. 9: 9-13. She works with the crime
suppression team which patrols the sixth district in the
District of Columbia looking for illegal firearms, drug
offenses, and wanted individuals. Id. at 9: 14-21.
Officer Robert Kelly has worked for the Metropolitan Police
Department for approximately four and a half years.
Id. at 54: 2-3. He is also with the crime
suppression team. Id. at 54: 5-6. Defendant
presented no witnesses.
February 27, 2019, both Officer Sanders and Officer Kelly
were on duty separately. Officer Sanders was driving in a car
with her partners Officer Gennady Julien and Officer Kyle
Weber. Id. at 10: 3-6. While the officers were
patrolling the area around 5100 Queens Stroll Place in
Southeast, District of Columbia, the officers came across a
black Audi vehicle. Id. at 10: 11-15. Officer
Sanders and the other officers in her patrol vehicle stopped
this car. Officer Sanders testified that the car was stopped
due to a suspected window tint violation. Id. at 31:
13- 15. However, as will be further explained below,
Defendant disputes this testimony, contending that the
alleged tint violation was merely a pretext for stopping the
the car was stopped, Officer Sanders ran the license plate
tag number through the system, as was her normal procedure.
Id. at 31: 2-5. When Officer Sanders ran the license
plate tag number through the system, the system showed that
the vehicle was not properly registered to the driver.
Id. at 10: 13-24.
officers then conducted a traffic stop investigation.
Id. at 11: 1. Officer Julien approached the
driver's side of the stopped vehicle and Officer Sanders
approached the passenger's side, where Defendant was
seated. Id. at 11: 5-8. Officer Julien asked the
driver for his license, registration, and other official
information. Id. After the driver supplied his
information, the officers conducted a new check through the
system, but the vehicle still came back as unregistered.
Id. at 11: 12-15.
the officers could not confirm the registration of the
vehicle, they asked the driver and the Defendant to step out
of the vehicle, and the driver consented to a search of the
vehicle. Id. at 12: 13-15. Officer Sanders had the
identification cards for both the driver and Defendant.
Id. at 12: 23-24.
Defendant exited the car, Officer Sanders testified that
Defendant began trying to leave the scene, asking her for his
identification card back, saying that he had “nothing
to do with this, ” and asking if he could go to his
father's house which was nearby. Id. at 13: 2-9.
Officer Sanders stated that she told Defendant,
“[y]ou're rushing me. Just slow down. Let me do
what I have to do. Then we can get you out of here.”
Id. at 13: 12-14. Each time Defendant tried to walk
away or leave the scene, Officer Sanders further explained
that he had to stay and wait until the investigation was
over. Id. at 13: 15-17.
Sanders's statement is supplemented by Government's
Exhibit 1, the body-cam footage from Officer Crawley. On the
video, Defendant points away from the scene of the
investigation and attempts to walk away. Gov.'s Ex. 1,
4:50. Officer Sanders then tells him to “hold on”
so that the investigation could be completed. Id.
Defendant goes on to explain that his father was in the area,
that he had nothing to do with the investigation, and that he
wanted to go home. Id. at 5: 15. Defendant was
repeatedly told to relax by the officers.
the officers were conducting the search of the vehicle, the
driver was standing near the trunk of the vehicle with his
backside leaning against the vehicle. May 14, 2019 Hr'g
Tr. 14: 9-10. Defendant was also standing at the rear of the
vehicle with the front of his lower body awkwardly pressed
against the car. Id. at 14: 21-22. Defendant had not
been told to stand in that position, but he had also not been
asked to change positions. Id. at 34: 15-21. Officer
Sanders testified that “how he was standing, it was in
the motion of trying to conceal something in the front half
of his body.” Id. at 34: 25- 35: 1.
Kelly asked both the driver and Defendant to step away from
the car so that the officers could search the trunk.
Defendant began slowly walking towards Officer Kelly.
Id. at 15: 15-23. As will be discussed further
below, the parties dispute whether or not Defendant stopped
where Officer Kelly had requested or whether he continued
walking past Officer Kelly in an attempt to leave the scene.
point, Defendant was stopped by Officer Kelly. Officer Kelly
along with Officer Rafael Lopez then brought Defendant to the
side of the police vehicle. Id. at 17: 11-12. The
officers were on either side of Defendant so that Defendant
could not leave. Id. at 69: 5-8. Defendant's
hands were placed on the vehicle. Id. at 72: 20-22.
Officer Kelly testified that Defendant's hands were
placed on the vehicle because Defendant “had made
several attempts to keep leaving the scene, we then brought
him over to the vehicle and asked him to keep his hands
there. It's our general practice if we're going to
then attempt to do a pat-down or ask for consent, that's
where we will stand someone and have them put their
hands.” Id. at 72: 25-73: 5. Defendant was
asked to place his hands in this position for officer safety.
Id. at 73: 10-11.
Kelly asked Defendant if he could do a pat-down. Defendant
replied “huh” or something to that effect, but
Defendant did not say yes or no. Id. at 67: 11- 68:
3; Gov.'s Ex. 2, 10: 35. Officer Lopez asked Defendant if
he had any weapons on him, and he replied “Yes. I have
a weapon.” Then, Officer Kelly asked what type ...