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United States v. Perkins

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

January 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
HAROLD PERKINS, Defendant.

          MEMORANDUM, AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE.

         This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b).

         Defendant Harold Perkins filed Defendant's Motion to Suppress Evidence and Statements on February 14, 2018 (Doc. No. 32). The government filed a Response to Defendant's Motion To Suppress Evidence and Statements on February 23, 2018 (Doc. No. 37). The court held a hearing on defendant Perkins' Motion on July 3, 2018.[1] The government presented the testimony of two law enforcement officers with the St. Louis Metropolitan Police Department. At the conclusion of the hearing, the undersigned ordered that post-hearing briefs be filed. On August 31, 2018, defendant filed a pro se motion, styled as “Amend To Motion To Suppress Evidence and Statements.” (Doc. No. 61). Defense counsel filed Defendant's Post-Evidentiary Hearing Memorandum in Support Of Motions to Suppress Evidence and Statements and Request for Leave To Supplement. (Doc. No. 64). An additional evidentiary hearing was held on October 18, 2018. The court ordered that copies of the evidentiary hearing transcripts be prepared to assist the court in making findings of fact and conclusions of law. The final transcript was filed on October 29, 2018. On December 10, 2018, defendant Perkins filed a pro se Motion to Dismiss For Violation of Constitution Right Of Due Process Of Law (Doc. No. 70). Based on the evidence and testimony adduced, as well as a review of the transcripts of the hearings in this matter; and after having had an opportunity to evaluate the credibility of the witnesses and observe their behavior, the undersigned makes the following findings of fact and conclusions of law.

         FACTS[2]

         In the early morning hours of Wednesday, July 26, 2017, St. Louis Metropolitan Police Officer Robert Cooper, a 2016 graduate of the police academy, was on routine patrol in the Fourth District driving in his marked police Chevy Tahoe. Officer Cooper drove northbound on North Grand Boulevard approaching Montgomery Street in the far left lane. (See Gov't Exs. 1, 3). At approximately 12:15 a.m., Officer Cooper saw a 2004 black four-door Saturn Ion violate a city traffic ordinance by turning northbound from Montgomery Street onto North Grand and bypassing the closest turn lane. The car traveled into the farthest lane of North Grand approximately 100 yards in front of him. Officer Cooper followed the Saturn northbound at a distance for approximately ten blocks. He believed that the car was traveling at a high rate of speed, exceeding the 35 mile per hour speed limit, as he saw it passing other vehicles. Officer Cooper eventually closed the distance, pursuing the car about three quarters of a mile until the Saturn stopped at a red light at the intersection of North Grand and Natural Bridge. Officer Cooper could not see inside the car, which had dark tinted windows. He could see a defective brake light on the car's right rear side and he noted the Missouri license plate number.

         Officer Cooper knew that an inoperable brake light on a moving vehicle is a safety concern and a violation of St. Louis City Ordinance 17.16.150(C). The improper turn that the car made from Montgomery Street onto North Grand violated St. Louis City Ordinance 17.16.120. Once the light turned green, Officer Cooper ran an inquiry on the Saturn's license plate. The vehicle was not reported stolen. Officer Cooper decided to conduct a traffic stop. Officer Cooper also requested assistance via his police radio. Officer Ishmael Tyson would later respond to the scene.

         Officer Cooper followed the Saturn for another three to four blocks. (See Gov't Ex. 2). He activated his emergency lights and siren. The Saturn turned immediately right onto the 3500 block of Kossuth near a street light and the car moved to the side of the road. Officer Cooper could not see inside the vehicle even with his vehicle's headlights and spotlight directed at the car. Officer Cooper did not know how many individuals were inside the vehicle when he exited his patrol car and made his approach. He was in uniform. He yelled for the driver to roll down his windows three times. Approximately 30 seconds passed between the time he activated his police vehicle lights and the driver's action of rolling down the driver's side car window.

         The driver, who was later identified as defendant Harold Perkins, opened the driver's side door a bit and yelled back that he could not roll down all the windows. Perkins made no furtive movements, nor did he make any moves that Officer Copper considered to be dangerous. The other car windows remained closed. The driver's window was open at least halfway, and the door was open enough for Officer Cooper to see defendant's face between the door frame and the door. Defendant yelled to Officer Cooper that he was the only person in the car.

         Officer Cooper told Perkins to put his hands out the window. Defendant opened the driver's side door more and stuck his feet out and put them on the ground. Then, he showed his hands. Defendant held no weapons. Officer Cooper did not consider defendant's actions to be in compliance with his command to show his hands. Officer Cooper was concerned that he was “losing control” of the traffic stop because defendant did not follow his instructions. In Officer Cooper's nine months of training and experience, a driver's actions of opening a car door during a stop presented a greater potential threat than when a driver opens the window and follows instructions. The act of opening of a car door can signal to him the worst-case scenario that the driver intends to start shooting.

         As a result of Perkins' comment, Officer Cooper instructed defendant to show his hands by placing them outside the car window. Officer Cooper walked toward the driver's side door. Defendant was wearing a small leather satchel with a zipper draped over his left shoulder. Based on his training and experience, Officer Cooper was concerned that the unzipped satchel could contain a firearm. Officer Cooper has had ongoing discussions with other police officers about their collective concern that weapons are inside the leather satchels that are worn by people on the street.

         Officer Cooper's security assist police officer had yet to arrive when he asked defendant Perkins to step out of the Saturn for safety. Defendant made no furtive movements doing this encounter, and he was placed in handcuffs immediately and near the Saturn. Officer Cooper described defendant as African American. Defendant's age was roughly in his “thirties, ” he was intelligent, and he did not appear to be under the influence of any alcohol or drugs on July 26, 2017. Office Cooper, who is Caucasian, had permission to look inside the satchel within one minute of the stop. Defendant was not free to leave.

         Officer Cooper asked defendant Perkins if he had a gun in the satchel. Perkins responded, “No, you can check it.” Officer Cooper looked in the satchel with the illumination of his police flashlight. He saw two .40 caliber cartridges. Officer Cooper thought that if defendant had bullets, he likely also had a gun.

         Officer Cooper asked, as a safety measure, why defendant had bullets in his bag. Officer Cooper testified that defendant Perkins said, “I keep them in there to remind me that I am not allowed to have guns.” Because that response did not “make sense” to him, Officer Cooper next asked defendant Perkins if he was a felon. Defendant responded, “Yes, I'm on parole for dope.” Officer Cooper thought that there was a weapon in the Saturn and he believed he had authority at that time to arrest defendant for being a felon in possession of ammunition.

         Officer Tyson also testified at the hearing. He explained that his general assignment was working as a one-man assigned patrol unit, similar to Officer Cooper's assignment. He responded to the radio call that he was the security assist officer who watched defendant Perkins while Officer Cooper completed the traffic stop.

         When he arrived, Officer Tyson parked his patrol vehicle behind Officer Cooper's patrol vehicle and walked toward the two men. Defendant was handcuffed. The three men were the only persons present at the scene of the traffic stop, although people walked by. Officer Tyson heard them talking as he approached, and he heard defendant say, “Yes, you can, but what are you looking for?” He then stood with defendant Perkins while Officer Cooper walked to his police vehicle to conduct a computer records check. About five minutes after the initial traffic stop, Officer Cooper's computer check via his mobile REGIS system showed no active warrants or wanted status for defendant. It did show that defendant was on parole and that he was a previously convicted felon. The REGIS report also showed that defendant had multiple prior arrests and convictions, including prior gun convictions.

         Officer Cooper then asked defendant's permission to search the car because he suspected that weapons were present. Officer Cooper testified similarly to Officer Tyson that Defendant said, “That's fine. Can I ask what you are looking for?” Officer Cooper told him that he was looking for weapons because of the bullets found. Defendant did not object to the car search as the vehicle sat curbed on Kossuth Street. No. threats or promises were made to defendant. Officer Cooper did not draw his gun at any time. Officer Cooper peered into the front seat and looked into the back seat where he saw a spent .40-caliber shell casing on the floorboard. The spent casing was a similar caliber to the two bullets he saw in the leather satchel that defendant was wearing. He found items including a loaded .40 caliber Smith & Wesson handgun underneath the driver's seat, a .40-caliber Glock magazine loaded with eight live rounds, and a Glock handgun with a 30-round extended magazine behind the driver's seat. Officer Cooper found more ammunition in the glove box and another firearm. He did not check whether the Saturn had electric windows or manual roll-down windows.

         After Officer Cooper completed the vehicle search, he removed the firearms and ammunition. Defendant Perkins then asked Officer Cooper, “What's going on?” After the weapons were seized and Officer Cooper told defendant what he found, defendant made a spontaneous statement at the scene that his friend left the firearms in the car. Defendant Perkins was arrested for unlawful possession of a firearm and possession of a defaced firearm. Officer Cooper also issued citations for the vehicle and traffic violations.

         Both Officer Tyson and Officer Cooper recalled that Officer Cooper read Miranda warnings to defendant after the firearms were seized.[3]

         An officer contacted Defendant's mother who responded to the scene to drive the vehicle away. Officer Tyson saw the driver's side window go up after defendant's mother drove the car away.

         DISCUSSION

         I. SUPPRESSION OF EVIDENCE

         A. The Initial Traffic Stop Of The Saturn Ion Was Based On Probable Cause And It Did Not ...


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