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United States v. Washington

United States District Court, D. Colorado

April 24, 2018



          William J. Martinez, United States District Judge.

         The 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.

         Neither 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 suppressed.

         I. FACTS

         The following facts are based on the parties' representations in their briefs and on the videos submitted at ECF No. 40.

         Aurora Police Department Sergeant Longnecker[1] 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, Defendant Washington.

         By the 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 Washington.

         Longnecker 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.

         Longnecker 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.

         Longnecker 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.

         Instead 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.

         After 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 obey.

         By this 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.

         Longnecker 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.

         Washington 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” ...

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