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United States v. Berry

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

October 29, 2018




         Raymond Berry is charged in a one-count indictment as a felon in possession of a firearm - technically, the crime of possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). (Doc. 1, pp. 1-2). Mr. Berry asks the Court to suppress evidence that law enforcement officers obtained when they responded to a 911 call concerning a suspicious attempt to purchase syringes at a pharmacy. Mr. Berry contends that the United States should not be able to use the evidence because the evidence is the product of an unconstitutional seizure. (Doc. 12). This opinion resolves Mr. Berry's motion to suppress.


         On the morning of August 21, 2017, Corporal Matthew McGill of the Jefferson County Sheriff's Department received a dispatch call concerning a suspicious person at a Rite Aid Pharmacy in Pinson, Alabama. (Doc. 18, pp. 3-6). According to the dispatcher, three people -- two males and a female -- visited the Rite Aid together, and one of the three tried to buy syringes. (Doc. 18, pp. 7-8). The individual who tried to buy the syringes did not have a valid prescription, and the individual “could [not] prove that they would need these syringes.” (Doc. 18, p. 7). The pharmacist was unwilling to sell the syringes to the individual who requested them. (Doc. 18, p. 31). In his 19 years as a law enforcement officer, Corporal McGill has been in situations involving drug users and syringes. (Doc. 18, p. 14). Based on his training and experience, Corporal McGill knows that drug users sometimes try to buy syringes “over the counter without a prescription.” (Doc. 18, p. 31).

         The dispatcher described the three individuals this way: “One black male had on an orange shirt. The white female with shorts on, brown hair and another black male in a black polo shirt.” (Doc. 18, p. 8). Dispatch reported that when the three individuals walked out of the pharmacy, they got into a black Honda Accord. (Doc. 18, p. 8). When Corporal McGill arrived at the Rite Aid a few minutes after receiving the dispatch call, he saw a car fitting the description he had received in the parking space nearest the front door of the pharmacy. (Doc. 18, pp. 8, 10; see also Doc. 17-1, p. 1).

         Deputy Scott also responded to the dispatch call and arrived at the Rite Aid at nearly the same time as Corporal McGill. (Doc. 18, pp. 23, 25). Both Corporal McGill and Deputy Scott were driving marked cars, and they were dressed in uniforms. (Doc. 18, p. 13). Deputy Scott stopped her vehicle directly behind the black Honda Accord, blocking the Accord's path. Officer McGill stopped his car to the side of the Accord. (Doc. 17-1, p. 1; Doc. 18, pp. 10, 24, 28). As soon as they stopped their cars, both law enforcement officers got out of their cars and moved towards the Accord. In the Accord's driver's seat, Corporal McGill saw a black male wearing an orange shirt. (Doc. 18, pp. 12-13). Corporal McGill saw a front seat passenger wearing a dark shirt, and he saw a white woman in the back of the car. (Doc. 18, pp. 13-14). Neither Corporal McGill nor Deputy Scott saw the Accord's occupants walk out of the Rite Aid, and neither officer saw one of the car's occupants commit a crime. (Doc. 18, pp. 25-26).

         As he approached the car, Corporal McGill saw the driver “make a furtive move with is right hand, ” so Corporal McGill instructed everyone in the Accord to show their hands. (Doc. 18, pp. 14-15, 26). Corporal McGill used a commanding voice when he gave the instruction. (Doc. 18, p. 16). After the Accord's occupants complied, Corporal McGill ordered the driver to get out of the car. The driver, who eventually was identified as Mr. Berry, stepped out of the car, and Corporal McGill began a Terry pat of Mr. Berry. (Doc. 18, pp. 15-17).

         Meanwhile, Deputy Scott asked the passenger to step out of the Accord. The passenger, eventually identified as Perry Mixon, did not cooperate; he tried to run from Deputy Scott. (Doc. 18, pp. 17-18). After ordering Mr. Mixon to stop and receiving no response, Deputy Scott used her Taser to stop him. (Doc. 18, pp. 18-19). Corporal McGill handcuffed Mr. Berry while Deputy Scott was trying to subdue Mr. Mixon because Corporal McGill had to control Mr. Berry and the female in the back seat of the Accord. (Doc. 18, pp. 19-20). When Deputy Scott gained control of Mr. Mixon, Corporal McGill returned to his pat down and saw the butt of a handgun sticking out of Mr. Berry's right front pocket. (Doc. 18, p. 20). Corporal McGill immediately seized the gun. (Doc. 18, p. 20).

         Without advising Mr. Berry of his rights, Corporal McGill asked him if he (Mr. Berry) had a valid pistol permit. Mr. Berry stated that he did not have a permit. (Doc. 18, p. 21). Corporal McGill then placed Mr. Berry under arrest for carrying a pistol without a license. (Doc. 18, p. 21). Still without advising Mr. Berry of his rights, Corporal McGill asked him if he had ever been to jail, and Mr. Berry admitted that he had served 20 years in prison for murder. (Doc. 18, pp. 21-22).

         At the suppression hearing in this case, Corporal McGill testified that asking to buy syringes is not a crime. (Doc. 18, p. 27). Corporal McGill acknowledged that his interaction with the passengers in the Accord constituted a brief investigatory stop, and he testified that when he ordered Mr. Berry to step out of the car, he did not have articulable suspicion that Mr. Berry had committed a crime. (Doc. 18, pp. 29, 32-33).

         On this record, Mr. Berry asks the Court to exclude the evidence that Corporal McGill gathered because Mr. Berry contends that the stop was unconstitutional. (Doc. 12).


         The Fourth Amendment prohibits an unreasonable seizure of an individual. California v Hodari D., 499 U.S. 621 (1991). For purposes of the Fourth Amendment, a seizure occurs “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980). In determining whether law enforcement officers have seized an individual, a court may consider, for example, the extent to which law enforcement officers blocked the individual's path, the length of time law enforcement officers detained and questioned the individual, the number of police officers present relative to the number of individuals stopped, the officers' display of weapons, and the language and tone of the voice used by police. Michigan v Chesternut, 486 U.S. 567, 573-74 (1988); United States v. De La Rosa, 922 F.2d 675, 678 (11th Cir. 1991).

         It is undisputed that Corporal McGill and Deputy Scott seized Mr. Berry. Deputy Scott pulled her vehicle directly behind the Honda Accord in which Mr. Berry was sitting, blocking his ability to drive away from the pharmacy where the Honda was parked. In addition, when he arrived, Corporal McGill got out of his car, walked toward the Honda and, using a commanding voice, ordered Mr. Berry to show his hands and get out of the car. Under these circumstances, a reasonable person would conclude that he was not free to leave. Childs v. DeKalb Cty., Ga., 286 Fed.Appx. 687, 695 (11th Cir. 2008) (suspects seized when, among other things, police used blue lights, blocked ...

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