United States District Court, D. Colorado
ORDER GRANTING DEFENDANT'S MOTION TO
William J. Martinez, United States District Judge.
Government charges Defendant Brandon Washington
(“Washington”) with possession of a firearm by a
convicted felon (18 U.S.C. § 922(g)(1)), possession of a
controlled substance with the intent to distribute (21 U.S.C.
§ 841(a)(1)), and possession of a firearm in furtherance
of a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)).
(See ECF No. 1.) Washington has filed a Motion to
Suppress (ECF No. 20), arguing that he was subject to a
traffic stop that impermissibly escalated into a full
custodial arrest without probable cause, and so the evidence
found on his person and in his car should be suppressed.
Washington nor the Government requests an evidentiary
hearing. After reviewing the parties' briefs and watching
a video of the incident in question (see ECF No.
40), the Court finds that the material facts are not in
dispute and that the question may be answered as a matter of
law. For the reasons explained below, the Court finds that,
even assuming Washington was never subject to anything more
than an investigatory detention (as the Government contends),
the Government has failed to justify the search of
Washington's person that led to the discovery of drugs on
his person and both drugs and a gun in his vehicle. Thus,
Washington's Motion to Suppress will be granted and the
evidence discovered through that unlawful search will be
following facts are based on the parties' representations
in their briefs and on the videos submitted at ECF No. 40.
Police Department Sergeant Longnecker was sitting in his patrol
car on April 22, 2017, when he witnessed a traffic accident
at 5:47 PM at the intersection of Peoria Street and 17th
Avenue in Aurora. Specifically, Longnecker observed a red
Mitsubishi vehicle run a red light and broadside another
vehicle crossing through the intersection. The Mitsubishi
then rolled to a stop along the curb just south of the
intersection. Longnecker maneuvered his patrol car behind the
Mitsubishi and activated his emergency lights.
Longnecker's body cam captured most of the ensuing
encounter with the Mitsubishi's driver and sole occupant,
time Longnecker exited his patrol car, Washington had partly
opened his driver's side door and placed his left foot on
the ground immediately outside the car, while otherwise
remaining seated in the driver's seat. As Longnecker
approached the driver's side door, he asked, “You
all right?” The video contains no audible response from
says that, around this time, he could see Washington trying
to stuff something under his leg. This is not visible in the
video, although Washington's manner of leaning forward is
consistent with this account. Washington by this point was
leaning slightly out of the car and heavily forward, almost
as if trying to touch his nose to his left knee.
immediately asked, “What are you doing, bud? Stay in
there, stay in there, what's wrong? You hurt your
leg?” Washington answered, “Little bit.”
Longnecker then told Washington to “lean back.”
He then continued to question Washington: “What's
wrong? Your leg? Huh? Can you lay back in the seat?”
The music in Washington's car was also rather loud, so
Longnecker asked Washington if he could “reach up and
turn that music down.” Washington did so, and
Longnecker continued, “What's hurting? Huh?”
Washington replied, “Nothing.” Longnecker then
asked, “Is this your car?” Washington answered,
“Rental car.” By this time Washington had moved
his left leg back into the car.
turned his focus to Washington's left hand which was
clenched into a fist and resting, fingers down, on the
outside of his front left pants pocket. Longnecker inquired,
“What do you got in your hand now? You're just
holding your-your-”, at which point Washington
responded, “Hand kinda tight.” Longnecker again
told Washington to “lean back” and again asked,
“What's in your hand?”, at that point
reaching down with his left hand and grabbing
Washington's left wrist. Longnecker began trying to
gently pull Washington's fist away from his
(Washington's) body and Washington resisted, prompting
Longnecker to ask yet again “What is in your hand,
dude?” while still holding Washington's wrist.
of answering Longnecker's question, Washington asked,
“Can I get out?” Longnecker quickly and sternly
responded, “No, stay in your car, just relax, I've
got rescue coming.” According to the video, Longnecker
then placed his right hand on Washington's shoulder, let
go of Washington's wrist with his left hand, and
Longnecker used his left hand to operate his shoulder radio
and call for additional support. The parties briefs, however,
state that Longnecker pinned Washington's left hand to
his (Longnecker's) left side as he called for support.
(ECF No. 20 ¶ 5; ECF No. 32 at 2.) This seems
impossible, at least as of the moment Longnecker was calling
for support, but the Court assumes that Longnecker used his
left hand to grab Washington's wrist again immediately
after he had finished operating the radio.
Longnecker's brief radio call, Washington started leaning
forward and out of the driver's side door and moved his
leg out of the car again, abruptly announcing, “I need
to get out.” Longnecker forcefully responded,
“No, stay in the car, ” and-using his right hand
which was still on Washington's left shoulder-tried to
push Washington down into his seat. Washington continued to
push his way out, stating, “I need to get out,
dog.” Longnecker again refused, commanding Washington
to “stay in the car, dude.” Washington did not
time, a second officer named Petering had arrived and
Longnecker told him, “He's got something in his
hand.” Washington began struggling with the officers,
who told him to “stop fighting” and “stop
resisting.” Petering then deployed his taser on
Washington's leg, and Washington fell back onto the
driver's side seat. He retreated until he was laying with
his torso across the passenger side seat and his legs across
the driver's side seat. His head rested against the
passenger side window, which was already rolled down about
one-quarter of the way.
moved around to the passenger side door and began speaking to
other officers who had just arrived: “This guy's
fighting with us, you ready, he's going to the ground.
He's already been tased.” Longnecker then whipped
open the passenger side door and he and another officer
pulled Washington out of the car and onto the sidewalk face
down. They began shouting repeatedly, “Give me your
hands!” and Longnecker told his fellow officers,
“He's got something in his hands that he won't
give up.” Washington continued to resist, although he
was not thrashing. He told them several times, “My
hands hurt, ” as the officers tried to pry them open.
Unsuccessful in these further attempts, Longnecker ordered
another officer to tase Washington again. The officer
deployed the Taser against the back of Washington's left
shoulder, which allowed the other officers-after still more
resistance-to pull Washington's arms behind his back and
handcuff him in that position.
started repeatedly crying, “I can't breathe!”
The police officers rolled Washington onto his left side,
still unable to pry open his hands. Longnecker said to
someone on his radio, “We've got him in custody.
He's still fighting with us, though.” After about a
minute in which all parties were apparently just catching
their breath, another officer managed to pry open one of
Washington's hands at least somewhat and announced,
“It's a bunch of dope.” Yet another officer
told Washington to “give it up” ...