United States District Court, D. Colorado
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 ...