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United States v. Hendrix

United States District Court, E.D. Missouri, Southeastern Division

June 17, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
DARMARRO L. HENDRIX, Defendant.

REPORT AND RECOMMENDATION

ABBIE CRITES-LEONI, Magistrate Judge.

This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). Pending before the undersigned is Defendant Darmarro L. Hendrix's Motion to Suppress (Doc. 31) evidence and statements that were obtained following the stop of a Tahoe in which he was a passenger. Hendrix argues that no traffic violation was committed, which would make the stop of the Tahoe unlawful. He also argues that the officers' directive for Hendrix to reenter the Tahoe was an unlawful seizure. Hendrix requests suppression of all physical objects seized from him, as well as his statements. The Government filed a Brief in Opposition to Hendrix's suppression motion. (Doc. 34.)

An evidentiary hearing was held on April 15, 2015. (Doc. 36.) Two Steele Police Department Officers testified at the hearing, Officer Richard Altice and Officer Josh Carter. Both officers were cross-examined extensively by defense counsel. In addition, two lay people testified on behalf of the Defendant, including: a woman named Tammy Barber and the Defendant's girlfriend.

The parties filed post-hearing memoranda (Docs. 40 and 43), after which the matter was taken under submission. Based on the testimony and evidence adduced and having had the opportunity to observe the demeanor and evaluate the credibility of the witnesses, the undersigned recommends that the following findings of fact and conclusions of law be adopted, and that the Defendant's Motion to Suppress be denied.

I. Findings of Fact

Hendrix is charged with being a previously convicted felon in possession of a firearm. (Doc. 2.) Hendrix has two prior felony convictions - one for Possession of Crack Cocaine and the other for Burglary First Degree. Id.

On November 29, 2014, Steele Police Officers Richard Altice and Josh Carter were on routine patrol around 6:30 p.m., when they observed a Tahoe parked in the middle of Yarbrough Street.[1] The Tahoe was motionless in the middle of the street for between two and five minutes.

Although the identity of the occupants did not become known to the officers until later, the driver of the Tahoe was Edward Covington, Jr. The Defendant, Darmarro Hendrix, was in the front passenger seat. Hendrix's girl-friend and her sister were in the backseat. Hendrix's girl-friend testified that Covington had been drinking and he stopped in the street for about five minutes to fix the car speakers. (Tr. 126, 137.)

Officer Altice testified that while travelling down First Street in Steele, he observed the Tahoe stopped. He explained that the vehicle "was travelling and came to a stop... in the middle of the roadway." (Doc. 41 at 7.) Officer Altice indicated that in order for oncoming traffic, or a vehicle coming from behind the Tahoe to pass the Tahoe, such vehicles "would have to take the grass in order to pass it." Id. at 8. Officer Altice believed that such conduct was a violation of a city ordinance. He also had concerns that the operator of the vehicle may have been under the influence of a prohibited substance based on the odd behavior of being parked in the middle of the street.

Although Officer Altice was not initially aware of who was driving the Tahoe, he knew that it belonged to Edward Covington, Jr. On multiple prior occasions, Officer Altice had stopped Covington in the Tahoe on suspicion of driving while intoxicated. Officer Altice testified that he had previously issued citations to Covington for possession of marijuana, as well as operating a motor vehicle with an open container.

Both officers testified that there is a city ordinance that prohibits vehicles from parking in the street in a manner that obstructs traffic. In reference to the Tahoe on the evening in question, Officer Carter explained that he and Officer Altice were "patrolling down First Street... coming up towards Factory Drive. There was a tan Tahoe parked in the middle of the street." (Doc. 41 at 67.) When Officer Carter observed the Tahoe in the middle of the roadway, he also believed the Tahoe was in violation of the city ordinance. The applicable Steele City Code section provides:

No person shall park any vehicle upon a street, other than an alley, in such a manner or under such conditions as to leave available less than ten (10) feet of the width of the roadway for free movement of vehicular traffic.

Steele City Code § 355.020, Gov't. Ex. #1.

After observing the Tahoe parked in the middle of Yarbrough Street, Officer Altice pulled in behind the Tahoe. Around that time, Officer Altice turned on his emergency lights and Covington began to drive the Tahoe forward. Within a very short distance, Covington pulled into the driveway of a residence. The ...


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