United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION AND ORDER
Scott Coogler United States District Judge
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.
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
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.
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
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.
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.
was charged with being a felon in possession of a firearm in
violation of 18 U.S.C. § 921(g)(1).
seizure of the firearm from Colvin was lawful, and therefore,
the evidence obtained during the encounter will not be
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.
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 ...