United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM, AND REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
C. COLLINS UNITED STATES MAGISTRATE JUDGE.
matter was referred to the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b).
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. 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
Officer Tyson and Officer Cooper recalled that Officer Cooper
read Miranda warnings to defendant after the
firearms were seized.
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.
SUPPRESSION OF EVIDENCE
The Initial Traffic Stop Of The Saturn Ion Was Based On
Probable Cause And It Did Not ...