United States v. Richardson

          ORDER DENYING MOTION TO SUPPRESS

          William J. Martinez, United States District Judge

         The Government charges Defendant Derrick Richardson with one count of being a felon in possession of a firearm and ammunition. See 18 U.S.C. § 922(g)(1). Richardson moves to suppress the gun and ammunition found by police officers on his person. (ECF No. 18.) The Court accepted further briefing on this motion (ECF Nos. 21 and 23) and held an evidentiary hearing on May 21, 2018. For the reasons explained below, the Court denies Richardson's motion.

         I. FACTUAL FINDINGS

         From the testimony and exhibits presented at the suppression hearing, the Court finds as follows.

         On the night of February 5, 2018, Denver police officers Lee Ingersoll and Wilbur Hall were on patrol in their marked police vehicle in the Park Hill neighborhood. Earlier that day, there had been a funeral for a murdered Tre Tre Crip gang member. Denver police feared this event might prompt a retaliatory shooting in the Park Hill neighborhood, which is considered the territory of the rival Park Hill Bloods. Thus, Ingersoll and Hall were conducting a high-visibility patrol in hopes of deterring violence.

         At approximately 9:00 PM, the officers were driving westbound on East 35th Avenue approaching the intersection of Forest Street. Ingersoll was behind the wheel. As the vehicle entered the intersection, Ingersoll looked to his left (southward) and noticed someone walking southbound in the middle of Forest Street. Ingersoll claims he decided to investigate this individual for violating Denver's jaywalking ordinance: “Where sidewalks are provided, it shall be unlawful for any pedestrian to walk along and upon an adjacent roadway.” Denver Revised Municipal Code (“DRMC”) § 54-543(a). Violating this ordinance is a “class B traffic infraction, ” DRMC § 54-4(b), with a potential penalty of a fine ranging from $15 to $100, see Colo. Rev. Stat. § 42-4-1701.

         Ingersoll executed a sharp left turn onto Forest Street and activated his overhead lights and front-facing spotlights. At that point, the person walking in the street, who turned out to be Richardson, was near a row of cars parked along the east side of Forest Street. He eventually turned his back to those cars (i.e., to face the middle of the street) with his hands open and held slightly in front of him, about chest-height.

         Ingersoll quickly exited his vehicle and asked, “How you doing tonight?” Richardson did not respond. Ingersoll approached and announced, “I'm going to pat you down for weapons, boss, 'kay?” With his right hand, he then reached forward and grasped Richardson's right wrist. As he slowly began to pull Richardson's wrist behind his (Richardson's) back, Richardson bolted forward and out of Ingersoll's grasp.

         Hall had exited the police vehicle by this time and was standing roughly in Richardson's attempted escape path. A five- to ten-second foot chase ensued, concluding with Ingersoll and Hall tackling Richardson and Ingersoll pinning him to the ground. Hall then immediately frisked Richardson's waistband-having suspected from the beginning that Richardson was armed-and found a handgun. Hall removed the gun, set it aside, and then assisted Ingersoll in handcuffing Richardson. The officers placed Richardson in the back of their patrol vehicle.

         II. BURDEN OF PROOF

         On a motion to suppress evidence derived from a warrantless search and/or seizure, the defendant bears the burden of presenting a prima facie case that the Fourth Amendment has been “implicated, ” at which point the burden shifts to the Government to prove “that its warrantless actions were justified (i.e., as a lawful investigatory stop, or under some other exception to the warrant requirement).” United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir. 1994); see also id. at nn.1-2 (citing authorities); 6 Wayne R. LaFave, Search & Seizure § 11.2(b), at n.35 and accompanying text (5th ed., Oct. 2017 update).

         Richardson's motion reveals that his personal Fourth Amendment rights are implicated here. He has therefore raised a prima facie case of a potential Fourth Amendment violation through a warrantless seizure and subsequent search, thus shifting the burden to the Government to justify the police officers' actions.

         III. ANALYSIS

         The Fourth Amendment to the U.S. Constitution safeguards the “[t]he right of the people to be secure in their persons, houses, paper, and effects, against unreasonable searches and seizures.” Generally speaking, to conduct a search or seizure in compliance with the Fourth Amendment, the police must obtain a warrant from a neutral magistrate based on a finding of probable cause. See Cassady v. Goering, 567 F.3d 628, 634 (10th Cir. 2009). Probable cause exists where

the facts and circumstances within the arresting officer's knowledge and of which [the officer] had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to have the belief that an offense has been or is being committed by the person to be arrested. This is an objective standard, and thus the subjective belief of an individual officer as to whether there was probable cause for making an arrest is not dispositive. Whether a reasonable officer ...