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United States v. Colvin

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

October 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH LAYMOND COLVIN, Defendant.

          MEMORANDUM OF OPINION AND ORDER

          L. Scott Coogler United States District Judge

         I. Introduction

         Defendant, Joseph Colvin (“Colvin” or “the defendant”) filed his motion to suppress (doc. 24) on October 5, 2018, and this Court heard testimony and argument at a hearing set on the motion on October 11, 2018. After considering all submissions, the motion is due to be denied.

         II. Background

         On the 2nd day of March 2017, while on patrol at night in a “high crime” neighborhood, officers Jonathan Toxey and James Wallace observed a vehicle parked on the side of the road with its running lights illuminated. The officers could see two individuals in the vehicle. The officers proceeded past the vehicle as they were on their way to another call.

         Approximately fifteen minutes later, the officers returned to the area and noticed that the vehicle had not moved. The officers then noticed one of the passengers make what they described as a furtive movement when that individual reached up and placed something in a compartment located at the center of the vehicle's interior roof.

         The officers parked and approached the vehicle on foot. When officer Toxey reached the driver's side he asked that the driver roll down his window so that they could talk. Officer Wallace assumed a position on the passenger side of the vehicle. While talking with the driver, Officer Toxey noticed a green leafy substance in the lap of the driver that appeared, based upon his experience, to be marijuana, and an open beer in the lap of Colvin, who was seated on the front passenger seat.

         Officer Wallace did not notice the substance in the driver's lap but did see the beer in Colvin's lap. Colvin's possession of an open alcoholic beverage was a violation of a Tuscaloosa municipal ordinance, and so Colvin was directed by the officers to exit the vehicle. Since Colvin had a prosthetic leg, he asked the officer to assist him in putting on the leg and standing up. Officer Wallace assisted Colvin and then allowed him to sit on what Officer Wallace described as concrete steps located beside the passenger side of the vehicle. Colvin, who was acting in an irate manner, then dove into the passenger side floorboard of the vehicle, apparently reaching for a firearm that was located beneath the passenger seat. Officer Wallace dove on top of Colvin to stop him from retrieving what the officer ultimately learned was a pistol.

         As the officer was attempting to secure Colvin, Colvin made statements such as “it's loaded” and “it's about to go off.” After he was secured, he told the officers, “If you were going to take me down, I was going to take you down with me.” In addition to the green leafy substance in the driver's lap and the open beer in Colvin's lap, officers recovered a “marijuana like” substance (there was no testimony as to it actually being tested) in the compartment located at the center of the vehicle's interior roof.

         Colvin was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 921(g)(1).

         III. Discussion

         The seizure of the firearm from Colvin was lawful, and therefore, the evidence obtained during the encounter will not be suppressed.

         The officers did not stop the vehicle occupied by Colvin. Instead, they simply walked up to the vehicle that was already parked and engaged in a conversation with the driver. Upon arriving at the already-parked vehicle, it was open and obvious to the officers that its occupants were then violating the law. The driver had what appeared to be marijuana in his lap and the passenger, Colvin, had an open beer can in his lap. At that point, the officers were free to remove the occupants from the vehicle, including the defendant, and place them under arrest. In addition, the officers did not search for the firearm Colvin seeks to suppress. Colvin grabbed it from under his seat in what must be assumed to have been an effort to shoot the officers.

         Nonetheless, Colvin seeks to suppress all of the evidence then seized under the Fourth Amendment's protection from unreasonable searches and seizures. See U.S. Const. amend. IV. It is without question that courts can order the suppression of evidence obtained in unreasonable searches and seizures. United States v. Gilbert, 942 F.2d 1537, 1541 (11th Cir. 1991). However, not all law enforcement encounters constitute “seizures” and merit scrutiny under the Fourth Amendment. United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir. 2011). An encounter only becomes a seizure when an officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio,392 U.S. 1, 19 n. 16 (1968). Police can stop and detain a person for investigative purposes if the officer has a ...


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