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United States v. Wilson

United States District Court, N.D. Alabama, Eastern Division

July 16, 2018




         John Wilson is charged in a one-count indictment with possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). (Doc. 1, pp. 1-2). Mr. Wilson has asked the Court to suppress all evidence obtained as a result of what Mr. Wilson characterizes as an unconstitutional search and seizure. (Doc. 14). This opinion resolves Mr. Wilson's motion to suppress.

         I. BACKGROUND

         On July 28, 2017, at approximately 8:30 p.m., Anniston Police Department Officer James Noah Long pulled over a black Pontiac Grand Am because the driver of the vehicle made an illegal left turn. (Doc. 22, pp. 7, 9-10). The driver steered the Grand Am into a parking lot, and Officer Long pulled his patrol car behind the Grand Am. (Doc. 22, p. 42). Moments later, Officer Grant Williams arrived on the scene to assist and stopped his patrol car behind Officer Long's car. (Doc. 22, p. 10).

         Officer Long got out of his patrol car and approached the front driver side window of the Grand Am. (Doc. 22, p. 16). He was armed. (Doc. 22, p. 58). Three people occupied the car -- the driver, Keithian Kemp; the rear passenger, Mr. Kemp's brother; and the front passenger, Mr. Wilson. (Doc. 22, p. 17). Officer Long gathered identification from each occupant. (Doc. 22, p. 18). Mr. Kemp had identification, but he did not have a driver's license, and he did not have proof of insurance. (Doc. 22, pp. 18, 44). Mr. Wilson had a valid driver's license. (Doc. 22, pp. 20-21). While he was near the Grand Am, Officer Long did not see or smell anything illegal. (Doc. 22, pp. 45, 54-55, 80).

         Officer Long walked back to his patrol car. (Doc. 22, p. 18). He spent more than 10 minutes running the Grand Am's plates, checking to see if Mr. Wilson or the Kemps had outstanding warrants, and completing paperwork. (GX-1, File0032, 00:00-13:45).[1] The dispatcher informed Officer Long over the radio that Mr. Kemp's license was revoked and that nobody in the Grand Am had active warrants. (Doc. 22, pp. 20-21, 48).

         While Officer Long was in his patrol car, Officer Williams stood beside the rear passenger door of the Grand Am and shined a flashlight into the passenger compartment to monitor the car's occupants. (GX-2, File0013, 00:00-21:53). Officer Williams was armed, but he did not unholster his gun. (Doc. 22, pp. 50-51, 89). About eight minutes into the stop, Mr. Wilson told Officer Williams that his (Mr. Wilson's) house was just two minutes away, stated the street name, and seemingly motioned in the direction of his house. (GX-2, File0013, 08:12-08:27).

         When he completed the paperwork relating to the traffic violation, Officer Long walked back to the Grand Am and asked Mr. Kemp to step out of the car. (GX-1, File0032, 13:47). As Mr. Kemp got out of the car, Officer Long patted him down. (GX-1, File0032, 13:47-14:40). Officer Long found nothing during the pat down.

         Officer Long and Mr. Kemp walked back to Officer Long's patrol car. (GX-1, File0032, 14:40-14:51). Officer Long gave Mr. Kemp two citations and explained that one was for driving with a revoked license and the other for driving without insurance. Officer Long told Mr. Kemp that he was not citing him for the illegal left turn. (GX-1, File0032, 14:51-16:44). Officer Long also told Mr. Kemp that if he could prove to the court that he had just bought the car, perhaps by providing a copy of the bill of sale, the court would drop the insurance citation. (GX-1, File0032, 15:04-15:19).[2] Mr. Kemp thanked Officer Long for taking it easy on him and told Officer Long that he was “alright.” (GX-1, File0032, 16:38; Doc. 22, p. 53).

         Officer Long then indicated that he was about to tell Mr. Kemp something that Mr. Kemp would not like, but he (Officer Long) “could do worse.” (GX-1, File0032, 16:49). Officer Long explained that he could have the car towed because Mr. Kemp could not lawfully drive without a valid license or proof of insurance.[3] But instead of having the car towed, Officer Long indicated that the car could remain parked in the parking lot, and Officer Long hinted that Mr. Kemp could have someone drive the car home from the lot after he (Officer Long) left. At the suppression hearing, Officer Long acknowledged that he was being nice and did Mr. Kemp a favor by not having the Grand Am towed, and he (Officer Long) had the discretion to provide that favor. (GX-1, File0032, 17:18-17:34; Doc. 22, p. 55).

         Officer Long showed Mr. Kemp a liability release form, and this exchange took place:

Officer Long: . . . since the car doesn't have insurance on it and you're driving revoked, technically I'm supposed to tow it, all right . . . . But I'm not going to tow it, okay? You're in a parking lot. I'm going to let you leave it here, okay?
Mr. Kemp: But the house is right there on that corner.
. . .
Officer Long: What this is saying is that you're going to leave this legally parked, all right? This is what this piece of paper is saying. And that anything that happens to it while it's legally parked where it is, uh, the City of Anniston is not liable, all right. Now, what you do when I leave here is up to you, but I don't want to see that car leave that spot, okay? And I'm not going to drive back around to see if you left or whatever -- Mr. Kemp: Let me ask you a question. So I'm going to ask you this, if you leave, you ain't in sight, we can -- Officer Long: I'm not going to sit here.
Mr. Kemp: [My uncle, Mr. Wilson] can come and get it and just take it to his house?
Officer Long: Yeah. Now, he can drive it. You cannot drive this car, all right?
Mr. Kemp: He going to take it -- we going to his house. You can follow us to the house.
Officer Long: I don't want to follow you to the house, okay?
Mr. Kemp: But that's where we going.
Officer Long: I got you. But what I'm saying is I cannot see this car leave this parking lot. Now, if it's gone later tonight, that's whatever.
Mr. Kemp: What if we just sit, and he get on the driver's side, and he just take it to the house?
Officer Long: That's on you.
Mr. Kemp: That's what we doing.
Officer Long: All right. All right.
Mr. Kemp: That's what we going to do.
Officer Long: But I don't want to watch it leave, okay?
Mr. Kemp: That's fair enough, man.
Officer Long: All right.
Mr. Kemp: Thank you.

(GX-1, File0032, 17:35-18:27; Doc. 25-1, pp. 7-9).

         Officer Long explained the liability release form. Mr. Kemp received a phone call and answered it while he signed the release form. (GX-1, File0032, 18:28-18:53). Mr. Kemp spoke on the phone for just over one minute while Officer Long remained standing in front of him. (GX-1, File0032, 18:53-19:57). Mr. Kemp twice told the person with whom he was speaking that Officer Long gave him a break. (GX-1, File0032, 19:17, 19:47; Doc. 22, p. 31). Mr. Kemp told the person on the phone to meet him “at the house” because “I'm on my way home . . . . Well, I'll be at the house. I love you. Bye.” (GX-1, File0032, 19:40-19:55).

         Immediately after Mr. Kemp hung up, Officer Long said, “all right, man. So . . . we're done with all that, okay? All right. But --”. (GX-1, File0032, 19:58-20:01). Mr. Kemp tried to leave. He stated: “I'm going to tell him to drive, man, I ain't got time, ” and he stepped to the side of Officer Long towards the Grand Am. (GX-1, File0032, 20:01-20:05). Officer Long pressed on: “Here's the question, okay?” Mr. Kemp replied, “Yes, sir.” Officer Long asked: “Is there anything illegal in that car?” (GX-1, File0032, 20:03-20:06). Mr. Kemp stopped and said “no.” (GX-1, File0032, 20:06). Officer Long asked, “you mind if I look?” Mr. Kemp replied, “no, sir. Ain't anything [inaudible]. I promise . . . .” (GX-1, File0032, 20:07-20:10). Officer Long again asked, “so it's okay if I search the car?” Mr. Kemp replied, “I mean, shit. I don't care.” (GX-1, File0032, 20:14-20:16). Officer Long instructed Mr. Kemp to “hang out right here . . . [and] sit on the bumper for me.” (GX-1, File0032, 20:18-20:23; see also Doc. 22, p. 56). While Officer Long stopped Mr. Kemp and questioned him about contraband in his car, Officer Williams remained standing at the side of the Grand Am, shining his flashlight into the car. (GX-2, File0013, 21:35-21:53).

         In fact, during the entire interaction between Officer Long and Mr. Kemp at Officer Long's patrol car, Officer Williams stood beside the Grand Am and observed Mr. Kemp's brother and Mr. Wilson, shining a light into the passenger compartment of the car. (GX-2, File0013, 00:00-21:53). A few minutes after Officer Long asked Mr. Kemp to step out of the car, Mr. Wilson told Officer Williams that he was on dialysis. Officer Williams replied: “We're not going to hold you up any longer than we have to.” (GX-2, File0013, 10:11-10:33).[4] A few minutes later, Mr. Wilson made a remark to Officer Williams about needing to get his pills. Officer Williams explained that “the process” took time and repeated: “We're not gonna hold you up any longer than we have to.” (GX-2, File0013, 12:54-13:05). A minute after that, Mr. Wilson asked Officer Williams about the stop, and Officer Williams replied: “It could honestly be any number of things.” (GX-2, File0013, 14:00-14:22).

         Officer Williams testified that he believed he watched Mr. Wilson and Mr. Kemp's brother for approximately 20 minutes. (Doc. 22, p. 90). During those 20 minutes, Officer Williams did not observe anything illegal in the car. (Doc. 22, p. 92). He did not smell alcohol or marijuana. (Doc. 22, p. 92). He did not direct Mr. Wilson to keep his hands in sight or to get out of the car. (Doc. 22, p. 91). Nothing in Officer Wiliams's body camera video suggests that he had a particular concern for his safety or a sense that illegal activity was afoot in the Grand Am.

         Officer Long testified that after Mr. Kemp said that he could look in the car, “[u]nless the driver revoked consent, [he] was going to search [the car] with no one in the vehicle, ” so he intended to remove the car's occupants. (Doc. 22, p. 57). Officer Long ...

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