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United States v. McSwain

United States District Court, District of Columbia

May 29, 2019

UNITED STATES OF AMERICA
v.
VINCENT DONTA McSWAIN, Defendant

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         In this 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.

         Upon consideration of the pleadings, [1] 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.

         I. FINDINGS OF FACT

         The 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.

         The Court credits the testimony of the witnesses, Officer Allorie Sanders and Officer Robert Kelly, as follows.

         The 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.

         A. The Undisputed or Uncontroverted Relevant Evidence

         During 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.

         On 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 vehicle.

         After 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.

         The 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.

         After 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.

         After 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.

         Officer 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.

         While 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.

         Officer 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.

         At this 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.

         Officer 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 ...


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