United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
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.
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).
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).
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). 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 Kemp's license was revoked and that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.
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,
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
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). 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).
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. 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).
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,
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).
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).
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,
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). 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).
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.
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 ...