United States District Court, E.D. Tennessee, Greeneville Division
REPORT AND RECOMMENDATION
Clifton L. Corker United States Magistrate Judge
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.
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).
FINDINGS OF FACT
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.
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.
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
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. 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
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. At no point did Sergeant Hurd or Detective
Coffey Mirandize Orrick.
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.
Motion to Suppress Evidence from Person [Doc. 16]
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).
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
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.”
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.