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United States v. Hardy

United States District Court, M.D. Alabama, Northern Division

August 7, 2018



          L. Scott Coogler United States District Judge.

         I. Introduction

         The magistrate judge to whom the defendant's “Motion to Suppress” (doc. 16) and the United States' “Response to Defense Motion to Suppress” (doc. 21) were referred has entered a Report and Recommendation recommending that the motion to suppress be granted. (Doc. 24.) The magistrate judge found that the detaining officer lacked reasonable suspicion to conduct a lawful Terry stop. The United States timely filed an objection to the magistrate judge's Report and Recommendation (Doc. 28). After now having thoroughly reviewed the entire record, this Court finds that the magistrate judge's Report and Recommendation is not due to be adopted and accepted. Rather, for the following reasons, the motion to suppress is due to be denied.

         II. Background

         On November 8, 2017, at 1:21 a.m., the resident of 400 West Wilding Drive called the Montgomery Police Department (“MPD”) and informed the operator that she heard someone making noise outside her house and that this was the third night in a row she heard someone outside her house. The responding police officer, Joshua Howell (“Officer Howell”), who had nine months' experience as a patrol officer on the night shift in the neighboring district and who was familiar with the caller's Spring Valley neighborhood, arrived at the resident's home at 1:28 a.m., only seven minutes after the 911 call. Given that dispatch told Officer Howell that the resident “could hear someone around her house, ” Officer Howell treated the call as a prowler call.

         After arriving at the caller's residence and failing to locate the source of the sound, Officer Howell drove around to investigate the immediate area. Officer Howell was familiar with the neighborhood, which was adjacent to his normal patrol district, and he knew that it was a “high crime area.” Officer Howell knew that that “property crime, ” including burglary, was typical in this neighborhood. Officer Howell had himself responded to burglary calls in this neighborhood in the past and knew that it was not uncommon for burglary suspects to be armed.

         At 1:32 a.m., only 11 minutes after the resident made a call reporting that “someone” was making noise outside her house, Officer Howell encountered the defendant at the intersection of Adler and Spring Valley, which is only 0.3 miles from the residence, about a six-to-seven minute walk. Officer Howell did not see anyone else on the street other than the defendant. Based on his familiarity with the neighborhood, Officer Howell knew that it was it was uncommon for people to be out and about at 1:32 a.m. on a weeknight in this neighborhood. In addition, the defendant's all-black clothing provided further evidence in Officer Howell's calculation that the defendant was connected to the prowler call. Officer Howell knew that the MPD received calls on a daily basis describing criminal suspects wearing all-black clothing.

         When Officer Howell engaged the defendant in conversation, the defendant responded evasively to Officer Howell's inquiries as to where the defendant was coming from and whether the defendant was armed. The defendant told Officer Howell that he was headed home from the store, but the nearest store had been closed for an hour and a half, and the nearest open store, Singh's Market, was approximately a mile and a half away, a thirty-minute walk. Officer Howell found the defendant's claim that he walked thirty minutes to a store and thirty minutes back in the middle of the night in a high crime neighborhood just to get cigarillos to be unbelievable.

         After noting the defendant's black clothing, evasive responses, unbelievable story for why he was out at 1:30 a.m. on a weeknight in a high crime area that often features property crime, standing only a six-to-seven minute walk from an 11-minute-old prowler call, Officer Howell testified that he believed the defendant was not only connected to the prowler call, but that the defendant was armed. Officer Howell testified that the defendant's conduct in reaching for his pockets further created officer safety concerns and influenced Officer Howell's decision to frisk the defendant for weapons. In addition to reaching into his pockets once, the defendant also kept his hands at his sides near his pockets during the entire encounter, which made Officer Howell nervous. Officer Howell knew that pockets could be where weapons are stored. Officer Howell instructed the defendant to stand still and informed the defendant that he would pat him down for weapons. Howell asked the defendant if he was armed, which resulted in the defendant pleading with Officer Howell not to shoot him, another bizarre act. The defendant complied with Officer Howell's commands to stand still and put his hands out to his sides. Officer Howell testified that “don't shoot me” is not a normal response to the question of whether a person is armed, which further made Officer Howell suspicious that the defendant was armed. Officer Howell started his frisk at the front of the waistband where he immediately felt the pistol grip of a weapon. The weapon was secured and the defendant was charged with its possession.

         III. Standard of Review

         Following a timely written objection, the standard of review for a magistrate judge's report and recommendation is de novo. 28 U.S.C. § 636(b)(1). De novo review requires the court to conduct an independent consideration of factual issues based on the record. Jeffrey S. by Ernest S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 513 (11th Cir. 1990). “If the magistrate makes findings based on the testimony of witnesses, the district court is obliged to review the transcript.” Id.

         IV. Discussion

         The Terry stop and subsequent pat down for weapons were lawful, and therefore the evidence obtained during the stop will not be suppressed. On the basis of the late hour, the high-crime neighborhood, the defendant's temporal and geographic proximity to a prowler call, the defendant's all-black clothing, and the defendant's evasive conduct and unbelievable story, Officer Howell had a reasonable suspicion that there was criminal activity afoot and that the defendant was connected to the prowler call. This justified a lawful Terry stop. Furthermore, the defendant's reaching for his pockets and the fact that burglary suspects are often armed provided reasonable suspicion that the defendant was armed and justified Officer Howell's pat down for weapons.

         A. ...

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