United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Akiem Cooper's
("Cooper") [ECF No. 31] motion to suppress the
firearm located on his person and any statements made by him
subsequent to the search. A hearing on the motion was held on
July 12, 2018. For the reasons stated below, the Court
DENIES Cooper's motion to suppress.
and Procedural Background
15, 2017, the Horry County Police Department was attempting
to locate Shawn Tisdale ("Tisdale"), who was wanted
on charges for armed robbery, burglary 1st degree, and
various weapons charges. Tisdale was known to be a member of
a local gang known as the Ville Squad. On the morning of June
15, 2017, Horry County Police Department officers were
monitoring a Facebook Live feed, which showed Tisdale,
Kenneth Jackson ("Jackson"), and Defendant Cooper
riding in a vehicle driven by Cooper.
enforcement watched the video in real time as Tisdale,
Jackson, and Cooper drove to a local barbershop. During the
Facebook Live video, Tisdale, Jackson, and Cooper can be seen
singing along to rap music and making various hand gestures.
The officers testified basically that they interpreted the
conduct or actions of the three men during the video as being
gang related conduct, consistent with gang activity, and gang
related displays or signs. The defense argued that the
actions displayed in the video could be interpreted
otherwise, such as music. Jackson and Tisdale are seen
smoking what appears to be marijuana while Cooper drives.
Tisdale, Jackson, and Cooper arrived at the barbershop, they
stand outside the barbershop for several minutes. While
outside the barbershop, Jackson continues to talk to the
camera. At one point, Cooper proclaims that he is "up
with the roosters" and "I go down with my
shooters." Jackson states that "everybody over
here, we eating, slinging, working, whatever, robbing . . .we
good." Cooper and Tisdale then appear to make the Ville
Squad hand sign endorsing what Jackson just said.
enforcement was able to determine the location of the
barbershop through the Facebook Live video, which showed the
address of the barbershop. Law enforcement proceeded to the
barbershop to arrest Tisdale pursuant to his outstanding
warrants. When officers arrived at the barbershop, Jackson,
who was standing outside, immediately fled from the police as
soon as he saw them. Law enforcement did not pursue Jackson
because of his head start.
entered the barbershop where they found Tisdale and Cooper.
Tisdale was sitting in the barber's chair and was
arrested without incident. Cooper was sitting in a chair by
the window. Officers recognized Cooper from the Facebook Live
video and attempted to conduct a pat down of him for officer
safety and the safety of the other patrons of the barbershop.
resisted law enforcement's attempts to frisk him and
appeared to be guarding his waistline. Cooper claimed he was
just getting a haircut, denied having any weapons, and
offered his identification. Cooper did not consent to a pat
down. Because of Cooper's resistance to be frisked, law
enforcement secured Cooper in handcuffs. While in handcuffs,
officers are heard on the video asking Cooper what he was
going after or reaching for. At that point, officers
discovered a loaded firearm in Cooper's underwear. Cooper
was then placed under arrest.
about March 27, 2018, Cooper was indicted in a one count
indictment for felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). On May 3, 2018, Cooper filed
the pending motion to suppress the firearm and any statements
made after the firearm was discovered.
argues that law enforcement did not have particularized
suspicion to seize him other than his mere association with
Tisdale and Jackson. Cooper argues "mere
association" is not sufficiently particularized and
objective to justify his seizure under the prevailing
case, however, also implicates a rule known as the
"automatic companion" rule. John J. O'Shea,
Automatic Companion Rule: A Bright Line Standard for the
Terry Frisk of an Arrestee's Companion, 62 Notre
Dame L. Rev. 751 (1987). The rule provides that "all
companions of the arrestee within the immediate vicinity,
capable of accomplishing a harmful assault on the officer,
are constitutionally subjected to a cursory
'pat-down' reasonably necessary to give assurance
that they are unarmed." United States v. Poms,
484 F.2d 919, 922 (4th Cir. 1973) (citing United States
v. Borehole, 445 F.2d 1189, 1193 (9th Cir. 1971));
United States v. Williams, 215 F.3d 1323, 2000 WL
718395, at *7 (4th Cir. June 5, 2000) (unpublished);
United States v. Hicks, 121 F.3d 701, 1997 WL
540910, at *2 (4th Cir. Sept. 4, 1997) (unpublished) (stating
"[i]n United States v. Poms, we adopted the
principle that officers may conduct a limited search for
weapons of a known companion of an arrestee who is within the
vicinity of the arrest").
had an arrest warrant for Tisdale for armed robbery, burglary
1st degree, and weapons charges. From the Facebook Live
video, officers were able to determine Tisdale's location
and that Cooper, Jackson, and Tisdale were companions. Cooper
was in the immediate vicinity of Tisdale during Tisdale's
arrest and could have accomplished a harmful assault on the
arresting officers. Jackson fled on foot immediately when
officers arrived. When law enforcement entered the barbershop
to effect Tisdale's arrest and recognized Cooper as
Tisdale's companion from the Facebook Live video, they
were justified in conducting a limited search of Cooper for
weapons to ensure officer safety. See Poms, 484 F.2d
at 922. The officers credibly testified that they conducted a
pat-down for officer safety and ...