United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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.
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).
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).
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.
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).
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).
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).
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 ...