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United States v. Dudley

United States District Court, D. Colorado

March 28, 2019



          William J. Martínez United States District Judge

         The Government charges Defendant Marvin Sakori Maleik Dudley (“Dudley”) with possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii); possession of a firearm as a felon, 18 U.S.C. § 922(g)(1); and possession of a firearm during and in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A)(i). (ECF No. 22 at 1-2.) Dudley filed a Motion to Suppress Statements (ECF No. 38) and a Motion to Suppress all evidence resulting from the allegedly illegal stop (ECF No. 37) (together, “Motions”). For the reasons explained below, the Court grants in part and denies in part the Motion to Suppress Statements (ECF No. 38), and denies the Motion to Suppress (ECF No. 37).

         I. BACKGROUND

         On April 28, 2018, Denver Police Department (“DPD”) Officers Heather Jossi and Gavin Whitman were on patrol driving a marked DPD vehicle. Around 9:20 p.m., the officers observed a gold Suzuki sedan with Colorado license plate ONH737 at the gas pumps of a 7-Eleven and Conoco (“7-Eleven”) located at 1000 East Colfax Avenue, Denver, Colorado. While Officer Whitman drove, Officer Jossi ran the licence plate through the National Crime Information Center and Colorado Crime Information Center on her in-car computer to check the status of the vehicle. The officers learned that the vehicle had been reported stolen on April 16, 2018, and called f or additional officers to assist in their investigation of a potentially stolen vehicle. While the officers were checking the status of the vehicle, the driver, later identified as Dudley, moved the car from the gas pump to a parking spot in front of the doors to the 7-Eleven.

         Officers Jossi and Whitman decided to contact Dudley “for fear that he would walk off” and initiated a high-risk traffic stop. (ECF No. 37-1 at 1, 3.) Officer Whitman turned on his vehicle's emergency lights and parked behind Dudley, blocking him into the parking spot. Officer Jossi approached the vehicle on the passenger's side and Officer Whitman approached on the driver's side, both with guns drawn. Within approximately 20 seconds of Officer Whitman stopping his vehicle behind Dudley's, two other units arrived with an additional four officers, who also drew their weapons.

         Officer Whitman ordered Dudley to exit the vehicle. Dudley did not immediately exit, but rather asked why he had been stopped and stated that he was afraid because the officers had their guns drawn and pointed at him. Dudley eventually placed the vehicle in park, took off his seatbelt, and exited the vehicle with his hands raised.

         Immediately after Dudley got out of the car, the officers placed him in handcuffs. Officers inquired whether he had any weapons or a gun on his person, and Dudley stated that he had a gun in a holster. Officer Mejia felt what he thought was a firearm on Dudley's right side near his waist. Officer Mejia recovered a Kahr Arms model CW45, serial number SF9024, with seven rounds of ammunition in the magazine.[1]

         According to bodyworn camera footage of several officers submitted by Dudley, [2]Dudley then had a medical incident in the parking lot, during which time he sat on the ground. Officers asked Dudley several questions, including his name, last time he was arrested, whether he had ever gone to prison, and where he acquired the weapon. Several minutes later, when Dudley was able to stand and move to the backseat of a patrol car, the officers searched Dudley and bagged the possessions on his body. At that time, they found a green Crown Royal bag tied around Dudley's belt loop and hanging down inside Dudley's pants. Officer Mejia removed the bag, looked inside, and found two separate plastic bags containing suspected methamphetamine.[3] Officers then sat Dudley in the back of a patrol vehicle.

         Officer Whitman then met with Dudley and advised him of his Miranda rights. Dudley expressly agreed to talk with the officers and answer questions. During this conversation, Dudley stated that the owner of the vehicle let him use the vehicle until she could pay for $80 worth of heroin, and that she had likely reported the car stolen several days ago. Dudley also stated that he acquired the firearm from a person who brings him guns. Officers also stated that Dudley seemed to have a lot of methamphetamine on him, and inquired whether he was in downtown Denver to sell it. In response, Dudley stated that he “had pounds of that [inaudible].”


         On a motion to suppress evidence obtained from a warrantless search 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. 2018 update).

         Similarly, where a violation of Miranda v. Arizona, 384 U.S. 436 (1966), is alleged, once a defendant presents evidence or allegations sufficient to support a motion to suppress, “the Government must then carry the countervailing burden of proving a waiver of the constitutional privilege against self-incrimination.” United States v. Crocker, 510 F.2d 1129, 1135 (10th Cir. 1975) abrogated on other grounds by United States v. Bustillos-Munoz, 235 F.3d 505, 516 (10th Cir. 2000); United States v. Fountain, 776 F.2d 878, 886 (10th Cir. 1985); Bond v. United States, 397 F.2d 162, 165 (10th Cir. 1968).

         III. ANALYSIS

         A. Initial Stop and Arrest (ECF No. 37)

         Dudley contends that the officers did not have probable cause to stop and arrest him, and therefore the “high-risk traffic stop” at gunpoint and subsequent seizure violated the Fourth Amendment. (ECF No. 37 at 5.) Dudley adds that even if the officers did have probable cause, “their conduct went well beyond the scope of what was reasonable under the circumstances.” (Id. at 8.) Therefore, Dudley contends, the exclusionary rule should apply and all evidence and statements subsequent to the illegal seizure should be suppressed. (Id. at 5.) In response, the Government argues that the warrantless felony arrest was based on probable cause and lawful under the circumstances. (ECF No. 43 at 9.)

         Dudley is incorrect: the DPD officers had probable cause to stop and arrest Dudley on suspicion of driving a stolen vehicle. The Tenth Circuit has held that a “NCIC report indicating that the vehicle had been reported as stolen, as relayed to the officers by the dispatcher, was sufficient to provide probable cause for the arrest.” Miller v. City of Nichols Hills Police Dep't, 42 Fed.Appx. 212, 216 (10th Cir. 2002); see also Dorato v. Smith, 108 F.Supp.3d 1064, 1143 (D.N.M. 2015) (collecting cases). Miller, Dorado, and the caselaw cited therein make clear that an NCIC report alone is sufficient to provide probable cause for arrest; contrary to what Dudley argues, ...

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