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United States v. Marshall

United States District Court, D. South Carolina, Columbia Division

March 11, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
BRYAN MARSHALL, Defendant.

ORDER ON MOTION TO SUPPRESS

JOSEPH F. ANDERSON, JR. UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on the Defendant’s motion to suppress the evidence seized during a search of a vehicle he was operating on April 22, 2014 in Columbia, South Carolina. The Defendant claims: (1) that probable cause did not exist for the officers to initially arrest him for disorderly conduct because he was merely exercising his First Amendment right to protest the officers’ presence at the scene; and (2) that the officers’ decision to tow the vehicle he was driving and perform an search of that vehicle violated his rights under the Fourth Amendment. The Court has reviewed the record and the memoranda of counsel and considered the testimony and arguments presented at the motion hearing held on February 23, 2016. For the reasons set forth below, the Court denies the Defendant’s motion.

Factual Background

Most of the following facts appear to be undisputed. On April 22, 2104, at approximately 10:03 p.m., the Columbia Police Department (CPD) 911 operator received two calls reporting “shots fired” in the area of 1808 Tremain Street. The first caller, who was identified, reported hearing gunshots outside of his home on Tremain Street. He estimated hearing forty shots fired from what sounded like three guns, but stated that he failed to see anything or anyone because he took cover when he heard the shots.

The second caller (Caller #2), who remained anonymous, told the operator what he saw and heard before dialing 911 and also kept the operator informed as to what he was seeing and hearing while he talked to the operator. Caller #2 reported hearing ten to fifteen shots fired in rapid succession coming from the Tremain Street and Barhamville Road area. He also stated that it sounded like two different guns were fired as if people were shooting at each other. He then reported hearing shouting, and that a black or dark blue Dodge Ram pickup truck with rims sped off down Tremain Street towards Barhamville Road.

Caller #2 further stated that he did not believe that the people in the truck were the ones who fired the shots, but he did believe that they were going to retaliate against the shooters. He then described hearing the people in the truck talk about who fired the shots, and further told the operator that they were getting several guns from the trunk to find and confront the shooters. The last bit of information Caller #2 relayed to the operator before ending the conversation was that the driver was parking the truck, two people were getting out of it, and that the police cars had arrived.

Master Patrol Officer James Heywood (Heywood) and Officer Trainee Christon Miller (Miller) were on duty patrolling a nearby area when Dispatch informed them of the shooting. Heywood received reports regarding multiple shots fired in the vicinity of Tremain Street and Barhamville Road along with information linking a dark colored pickup truck with rims to the incident. Within minutes of receiving this information, Heywood saw the pickup truck on Waites Road. The pickup truck turned left onto Tremain Steet, stopped, and backed up onto the property at 2417 Waites Road.

At that point, two Columbia Police Department (CPD) vehicles stopped at 2417 Waites Road. One CPD vehicle was driven by Heywood, and the other was driven by CPD Officer Mark Juergens (Juergens). Heywood observed the Defendant, who was driving the vehicle, get out of the truck with two or three other people. Heywood concentrated on the Defendant while Officer Miller focused his attention on a group of ten to fifteen people who were coming out of the 2417 Waites Road residence. After the Defendant exited the vehicle, he initially walked towards the 2417 Waites Road residence with the keys to the vehicle still in his hand. Heywood called out to the Defendant and asked if he could speak with him about the report of shots fired in the area, as well as whether the pickup truck was involved.

In response to Heywood addressing him, the Defendant left the area of the house and moved towards Tremain Street where Heywood was standing. As Heywood asked the Defendant questions, the Defendant initially admitted that he was the driver of the truck before becoming uncooperative. Heywood eventually asked the Defendant if he could search the truck, but the Defendant did not answer. It was at this point that the Defendant became loud and boisterous and began shouting profanities at the officers. These profanities were within hearing distance of the gathering crowd-most of which came from the porch and out of the residence at 2417 Waites Road.[1]

Some of the members of the crowd sided with the Defendant and also began shouting profanities at the officers. As some of the crowd continued shouting and questioning why the police were present at the scene, the officers heard one member of the crowd say that the officers could not search the truck if they did not have the keys to it. As a result, the officers stated that they witnessed the Defendant throw the keys into some bushes near the crowd.[2]

Due to the nature of the 911 calls, the gathering crowd, and Heywood’s experience and knowledge of the area, he believed that the Defendant’s behavior created a substantial risk of inciting the crowd and endangering the officers and civilians at the scene. Consequently, Heywood arrested the Defendant for Disorderly Conduct pursuant to City of Columbia Ordinance 14-91(1), and placed him in Officer Juergens car. After the Defendant was arrested, the scene became even more unstable. At approximately the same time as the Defendant was being arrested, a K9 officer-Officer C.W. Newman (Newman)-arrived on the scene.

The officers discovered eleven 9mm and two .45 caliber casings while investigating the report of shots being fired from a field adjacent the 2417 Waites Road. They also ran the truck’s license plate through the Department of Motor Vehicles (DMV) records and discovered that the truck was registered to a woman who was not present at the scene. At that point, Heywood had the truck towed pursuant to law enforcement’s community caretaking function, which was permitted by CPD Policy # 7.2, Section 06, Chapter 05 Auxiliary Traffic Services.[3] Because the truck was locked and the crowd at the scene was still unstable, the officers did not inventory the truck prior to towing it to Metro District Headquarters at 2638 Two Notch Road.[4]

Once the truck was at Metro District Headquarters, K9 Officer Newman conducted a free air sniff of the truck using his trained canine, “Rufus.” During the sniff, Rufus alerted, which indicated the presence of narcotics in the truck. The officers notified CPD Narcotics investigators of Rufus’ alert, and the truck was towed to CPD Headquarters at 1 Justice Square. The next day, April 23, 2014, CPD Narcotics Agent M. J. Harlan obtained a search warrant for the truck. Agents then performed a search of the truck pursuant to the warrant, and found the following items in the truck: (1) five plastic bags containing 558.06 (19.66 ounces) of marijuana; (2) 9.6 grams of hashish; (3) an FNP .45 caliber firearm with one round in the chamber and thirteen rounds in the magazine; (4) a plastic bag containing $2, 000; (5) a digital scale; (6) various other plastic bags; and (7) a wallet containing the Defendant’s drivers’ license along with other items that belonged to him.

The Defendant was charged in state court for Possession of Marijuana and Hashish with Intent to Distribute, Unlawful Carrying of a Pistol, and Possession of Marijuana and Hashish in Proximity to a School. On May 14, 2015, the Defendant pled guilty in General Sessions Court to one count of Possession with Intent to Distribute Marijuana, 2nd offense. The Defendant received a sentence of two years’ probation, and the other charges against him were dismissed in exchange for his guilty plea. On September 9, 2015, the Disorderly Conduct charge was nolle prossed by the arresting officer in anticipation of federal prosecution.

On September 15, 2015, the Defendant was indicted in a three count indictment for Possession with Intent to Distribute Marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D), Possession of a Firearm in Connection with a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), and Felon in Possession of Ammunition in violation of 18 U.S.C. § 922(g).[5] The Defendant has moved to suppress all of the evidence seized from the truck, claiming that the truck was not in lawful ...


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