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United States v. Hawkins

United States District Court, W.D. Missouri, Central Division

August 28, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRENCE LAMAR HAWKINS, Defendant.

ORDER

BRIAN C. WIMES, District Judge.

Before the Court is Magistrate Judge Matt J. Whitworth's Report and Recommendation (Doc. #88) denying Defendant Terrence Lamar Hawkins' Motion to Suppress (Doc. #78). Defendant filed objections (Doc. #103) to the Report and Recommendation. After an independent review of the record, the applicable law, and the parties' arguments, the Court adopts Magistrate Judge Whitworth's findings of fact and conclusions of law. Accordingly, it is hereby

ORDERED, for the reasons stated in the Report and Recommendation (Doc. #88), Defendant's Motion to Suppress (Doc. #78) is DENIED. It is further

ORDERED Magistrate Judge Whitworth's Report and Recommendation shall be attached to and made part of this Order.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

On November 19, 2013, defendant Terrence Lamar Hawkins filed a motion to suppress evidence. (Doc. 78). The Government filed suggestions in opposition on December 6, 2013. (Doc. 81). A hearing was held on the motion on January 24, 2014.

Discussion

Defendant's motion to suppress seeks to suppress all physical evidence seized from him at the Lincoln University Student Center on two occasions. Specifically, a loaded Hi-Point, Model JCP, .40 caliber, semi-automatic pistol seized on February 24, 2011, and a loaded Hi-Point, Model C-9, 9mm semi-automatic pistol seized on March 24, 2011. Defendant claims that the Lincoln University police officers improperly detained and searched him on February 24, 2011, and had no cause to arrest him on March 24, 2011.

Facts

On February 24, 2011, Lincoln University Police Department (hereinafter "LUPD") Chief Bill Nelson, Lt. Greg McKinney, Cpl. Kevin Pigford and Officer Damon Nunn were all eating lunch together in the Lincoln University Scruggs Student Center cafeteria, when they observed a man sitting alone at a table who appeared to be intoxicated or under the influence of alcohol or narcotics. Neither Chief Nelson nor any of the officers recognized the man as a student or employee of Lincoln University (hereinafter "LU") and questioned whether he was a legitimate student or visitor to the LU campus. The Chief and officers testified that the Defendant looked out of place. Chief Nelson and Officer Nunn decided to approach the Defendant.[1] Chief Nelson asked the Defendant if he was a student and asked for his identification. While seated, Defendant engaged in a conversation with the Chief. Chief Nelson noticed the defendant was unkempt, had slurred speech, red eyes and had an odor of alcohol.

Defendant produced a Missouri non-driver identification card. While he was producing his ID card from his wallet a large amount of cash was observed. The Chief asked Defendant if he was a student. Defendant responded with slow, slurred, speech that he had been a student off and on at the University. The Chief then asked Officer Nunn to make a records check with dispatch. Because of connection problems with dispatch using the police radio, the Officer used his cell phone to call dispatch to make the records check. While the records check was being done, the other officers remained with Chief Nelson as he talked with Defendant (Defendant can be seen on the video showing Chief Nelson his arm to indicate where he had been shot before). A few minutes later (approximately five minutes per the videotape, Gov't. Exh. #4), dispatch confirmed that Defendant was not a student at LU and that he had a criminal history and was known to be armed. Lt. McKinney then rejoined Chief Nelson and advised of the information. At this point, Defendant stood up and attempted to leave, and was instructed by the Chief and Cpl. Pigford to remain seated. The Defendant complied and remained seated. Based on the information provided by dispatch, Lt. McKinney made a telephone call to the Missouri Department of Probation and Parole who advised Defendant was under supervision with them and had a prior felony conviction for unlawful use of a weapon.

Officer Nunn and Cpl. Pigford observed a bulge in Defendant's left front pants pocket that they were concerned was a weapon. Officer Nunn advised the Chief of his concern regarding the bulge. Chief Nelson then asked Defendant what was in his pocket. Defendant responded stating something to the effect that it was his money. The Chief responded to Defendant that he knew it was not Defendant's money because he had seen Defendant's money in his wallet, when he had removed the wallet from his pocket to show the officers his identification card. The Chief told the Defendant that they were going to search his pockets. Defendant objected and proceeded to attempt to run away, but was taken down by the officers while he was attempting to flee. Cpl. Pigford felt the bulge they had observed in the pocket area of Defendant's pants and felt what appeared to be a gun in Defendant's pants. The officer put his hand into Defendant's pocket and pulled out a loaded.40 caliber handgun.[2] The police also found marijuana in Defendant's pocket. Defendant was thereafter put in handcuffs and placed under arrest.

After being placed under arrest, Defendant was transported to the Cole County Jail and Officer McKinney orally warned Defendant that he could not trespass on the ...


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