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United States v. Orrick

United States District Court, E.D. Tennessee, Greeneville Division

October 25, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
KRISTOFER M ORRICK, Defendant

          REPORT AND RECOMMENDATION

          Clifton L. Corker United States Magistrate Judge

         This matter is before the Court pursuant to 28 U.S.C. § 636 and standing orders of the District Court. Before the Court are Defendant Kristofer Orrick's (“Orrick”) motions to suppress his statements and to suppress the property seized from his person and apartment. [Doc. 15, 16]. The Government has filed its responses in opposition, and the Court conducted an evidentiary hearing on the motions on October 21, 2016. The motions are now ripe for consideration.

         I. PROCEDURAL BACKGROUND

         On June 14, 2016, a federal grand jury returned an indictment against Defendant Kristofer Orrick charging him with knowingly, intentionally, and without authority, possessing with the intent to distribute a quantity of marijuana, a Schedule I controlled substance, in violation of United States Code Title 21 section 841(a)(1) and knowingly possessing firearms in furtherance of a drug tracking offense in violation of United States Code Title 18 section 924(c)(1)(A). On August 17, 2016, Orrick filed a motion to suppress statements taken in violation of his Fifth, Sixth, and Fourteenth Amendment rights. Additionally, he filed a motion to suppress the property seized from his person alleging he was detained and searched without reasonable, articulable suspicion, arrested without probable caused, and that the search and seizure of his person was unreasonable and conducted in violation of the “plain feel doctrine.” Defendant also sought to suppress the property seized from his apartment alleging: (1) that the search warrant executed in this case lacked probable cause; (2) that the affidavit accompanying the search warrant lacked the sufficient nexus between the property to be searched and the suspected illegal drug activity; and (3) that the information contained in the affidavit was stale. With respect to the validity of the warrant, Defendant alleged that the affidavit contained deliberately and/or recklessly omitted information that was pertinent to the determination of probable cause. Finally, he argued that any sworn testimony by the issuing officer was not recorded, transcribed, and made part of the affidavit pursuant to Federal Rule of Criminal Procedure 41(d)(2)(C).

         II. FINDINGS OF FACT

         On November 1, 2015, Officers Craig Ferguson and Jared Glover of the Kingsport Police Department (“KPD”) both received calls from dispatch reporting that Apartment 5 at 306 Spring Lane, Kingsport, Tennessee, possessed an odor of marijuana, and that the resident was known to possess firearms. Officer Ferguson was the first to respond to the apartment, arriving at approximately 1:00 a.m. He parked in the public parking area, which faced the back of the apartment row. As he began approaching Apartment 5, Officer Ferguson smelled a strong odor of “raw” marijuana, which, as he indicated, has a distinctive smell from burned marijuana. Based upon his training and experience, Officer Ferguson testified he believed the smell to be marijuana. He reached the back door and knocked. Although lights were on, no one answered the door. He then knocked once again, still receiving no answer.

         Despite the lack of response, Officer Ferguson opted to wait in the parking lot to see if anyone would leave the apartment. During this time, Officer Glover arrived and went around the apartment row to watch the front door. Within approximately ten minutes, Defendant exited the apartment and appeared to be walking towards the parking lot. Officer Ferguson approached him from the side of the parking lot and asked if he lived in the apartment. Defendant responded that he did not. Officer Ferguson then asked who lived at the residence. Defendant informed him that a friend of his lived there who was not currently home.

         Officer Ferguson next asked Defendant if he possessed any weapons on his person. Instead of responding, Defendant made a furtive movement with his right hand towards his right hip, which appeared to Officer Ferguson as him reaching for a gun.[1] Immediately, Officer Ferguson grabbed Defendant's right arm. As he grasped Defendant's arm, Officer Ferguson simultaneously saw the bottom of a holster sticking out from below Defendant's shirt at his right hip. Officer Ferguson then secured the weapon from Defendant and asked if he had a concealed weapon permit. Defendant responded negatively. Officer Ferguson next placed Defendant in handcuffs and effectuated a search incident to arrest.[2] The search uncovered brass knuckles, two containers of marijuana, a pipe, and $1, 870.00 in cash. Defendant was charged with simple possession, drug paraphernalia, and carrying a weapon with the intent to go armed.

         After Defendant was handcuffed, he was placed in Officer Ferguson's patrol car to be transported to Kingsport Detention Center for booking. It is undisputed that Defendant was never advised of his Miranda rights. At some point between being placed in the patrol car and arriving at the Detention Center, Defendant admitted to living at the apartment and refused to consent to his apartment being searched. Sometime after arriving at the Detention Center, Sergeant Gerald Hurd and Detective Robert Coffey spoke to Defendant while he was in the holding cell. Sergeant Hurd testified that they went to ask Defendant if he would change his mind and consent to a search of his apartment. While they were with him, Defendant made the following statements: (1) that he lived at the apartment; (2) that he lived in the apartment alone; and (3) that he had lived in the apartment for at least one winter. Defendant once again refused to consent to a search.[3] At no point did Sergeant Hurd or Detective Coffey Mirandize Orrick.

         After Defendant declined to grant consent, Sergeant Hurd began filling out the necessary paperwork to obtain a warrant to search Defendant's apartment. At 6:00 a.m. on November 1, 2016, Sullivan County (Tennessee) General Sessions Court Judge Ray Conkin signed the search warrant. The warrant was timely executed, and during the search, numerous firearms, ammunition, and over ten pounds of marijuana were seized.

         III. DISCUSSION

         A. Motion to Suppress Evidence from Person [Doc. 16]

         i. Initial Encounter

         Defendant contends that: (1) he was detained and searched without reasonable, articulable suspicion, (2) the pat down of his person was not supported by reasonable, articulable suspicion, (3) the search and seizure of the contents on his person were unreasonable and in violation of the “plain feel doctrine, ” and (4) he was arrested and searched without probable cause. The Fourth Amendment guarantees “[t]he right of the people to be secure . . . against unreasonable searches and seizures. . . .” U.S. Const. amend. IV. The “ultimate touchstone of the Fourth Amendment is ‘reasonableness.'” Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

         There are three types of permissible encounters between the police and citizens: “(1) the consensual encounter, which may be initiated without any objective level of suspicion; (2) the investigative detention, which, if non-consensual, must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if supported by probable cause.” United States v. Smith, 594 F.3d 530, 535 (6th Cir. 2010). “While purely consensual encounters are not subject to Fourth Amendment scrutiny, see Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), all seizures-including brief investigatory stops-receive this protection, see Smith, 594 F.3d at 535.” United States v. Beauchamp, 659 F.3d 560, 566 (6th Cir. 2011).

         “A seizure occurs when a reasonable person would have believed that he was not free to leave.” Mitchell v. United States, 233 F. App'x 547, 550 (6th Cir. 2007). “In order to determine if a seizure has occurred, [courts should] look to ‘all of the circumstances surrounding the incident' and consider whether ‘a reasonable person would have believed that he was not free to leave.'” Beauchamp, 659 F.3d at 566 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). “Whether an encounter is consensual depends on the officers' objective behavior. The officers' subjective beliefs are irrelevant, unless communicated to the defendant.” Mitchell, 223 F. App'x at 550. In Mitchell, two officers approached the defendant after hearing gun shots and asked him if he heard the shots and if he was armed. Id. The Sixth Circuit held that this interaction was a consensual encounter as “no physical force or show of authority” occurred. Id. (citing Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). Specifically, the court noted that the officers “did not have the squad car lights on or guns drawn; they simply approached on foot, and asked two questions.” Id. Similarly, in United States v. Waldon, 206 F.3d 597, 603 (6th Cir. 2000), an officer approached the defendant, mentioning that he was investigating a bank robbery, asked what the defendant was doing in the area, and eventually requested identification. The court found that this behavior did not rise to the level of a seizure because the officer did not engage in overbearing or coercive behavior, and “there was no evidence suggesting the officer conveyed a message that compliance with his requests was required.” Id.

         In the instant matter, Defendant argues that he was detained and subsequently searched without reasonable, articulable suspicion. The Government asserts that when Officer Ferguson initially approached and questioned Defendant up until the he grabbed Defendant's arm, the interaction constituted a consensual encounter. The Court agrees with the Government. The facts here are analogous to both Mitchell and Waldon. When Officer Ferguson initially approached Defendant, he did not have his gun drawn, his squad car lights were not on, nor did he engage in any physical force or show of authority. He merely asked a few questions. Although, similar to Mitchell, Officer Ferguson's final question was weapon related, nothing inherent about this type of question is coercive or a show of force. Accordingly, until Officer Ferguson physically grabbed Defendant's arm, the interaction was consensual, and, accordingly, no seizure occurred.

         ii. ...


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