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United States v. Moberly

United States District Court, E.D. Kentucky, Central Division, Lexington

November 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RAKIM MOBERLY, Defendant.

          MEMORANDUM OPINION AND ORDER

          DANNY C REEVES. CHIEF JUDGE

         Defendant Rakim Moberly filed a motion to suppress evidence obtained as a result of an investigatory stop on April 11, 2019. [Record No. 18] The matter was referred to United States Magistrate Judge Matthew Stinnett for the issuance of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Stinnett conducted an evidentiary hearing and issued a report, recommending that the Court deny Moberly's motion to suppress. [Record No. 28] Moberly filed objections to Magistrate Judge Stinnett's characterization of the scene and his behavior. He also objects to the magistrate judge's reliance on United States v. Howard, 632 Fed.Appx. 795 (6th Cir. 2015).

         This Court must make a de novo determination of those portions of the magistrate judge's recommendations to which timely objections are made. Thomas v. Arn, 474 U.S. 140, 150 (1985). “When a magistrate's findings and recommendations rest upon the evaluation of the credibility of a witness, the district court is not required to rehear the testimony in order to conduct a de novo determination of the issues.” United States v. Woodruff, 830 F.Supp.2d 390, 396 (E.D. Tenn. 2011) (citing United States v. Bermudez, No. 99-6097, 2000 U.S. App. LEXIS 33159, at *8-9 (6th Cir. Dec. 11, 2000)). Further, “credibility determinations of the magistrate judge who personally listened to the testimony . . . should be accepted unless in its de novo review of the record the district court finds a reason to question the magistrate judge's assessment.” Woodruff, 830 F.Supp.2d at 396 (internal citations and quotations omitted).

         After considering the full record, the Court will adopt the magistrate judge's recommendation and deny Moberly's motion to suppress.

         I.

         Officers received a call on April 11, 2019, regarding an individual potentially with a gun at 1840 McCullough Drive. [Record No. 27');">27');">27');">27');">27');">27');">27');">27, p. 4] Officer Ryan Bedtelyon was dispatched to the scene. The 911 call was received at 8:09 a.m., and the original update provided to Bedtelyon from dispatch indicated that there might be a gun but there was no visual on the weapon. [Record No. 27');">27');">27');">27');">27');">27');">27');">27, p. 4-5] Bedtelyon testified that the caller described a “male black with dreads, brown jacket, [who] has a gun” and drove a silver Oldsmobile. [Record No. 27');">27');">27');">27');">27');">27');">27');">27, pp. 12-13] A few seconds later, Bedtelyon received a notification that the caller advised she did not know the suspect and she had been out all night watching her apartment because it had been burglarized. [Record No. 27');">27');">27');">27');">27');">27');">27');">27, pp. 9-10] Dispatch advised that the caller ran to another building to get away and stated that the caller did not see a gun but that “he had something heavy in his pocket.” [Record No. 27');">27');">27');">27');">27');">27');">27');">27, p. 10]

         Bedtelyon testified that, when he arrived on the scene, he observed an individual with dreadlocks and that the individual was the only person at the scene meeting that description. [Record No. 27');">27');">27');">27');">27');">27');">27');">27, pp. 14-15] He also noticed that the individual was wearing a dark jacket and his demeanor led Bedtelyon to further investigate why he was there. The suspect was also standing near a metallic-colored Buick LeSabre.[1] Bedtelyon approached the suspect, later identified as Defendant Moberly, and asked about the incident. Moberly explained that he had an altercation with a woman standing near him. Moberly noted that, at one point, she pushed him and ran away. [Body Cam at 0:39] Bedtelyon mentioned to Moberly that the woman might have “mental issues” as a way of creating rapport to calm him down. [Record No. 27');">27');">27');">27');">27');">27');">27');">27, p. 20] Other officers arrived at the scene and one interviewed the woman in question and confirmed she was the 911 caller.

         While speaking with Moberly, Bedtelyon asked if he had a weapon on his person. Moberly responded that he did not. Bedtelyon then asked if Moberly would agree to a pat down but Moberly declined. Bedtelyon then told Moberly he was going to pat him down for his safety and due to the nature of the call. [Body Cam at 1:27');">27');">27');">27');">27');">27');">27');">27-1:39] He explained to Moberly that he would not be in any trouble and asked again if he was armed. Moberly adjusted his stance and appeared to take a defensive position. Bedtelyon asked in response if Moberly was “squaring up on him.” [Body Cam at 1:39] Moberly said he was not. Bedtelyon again asked if Moberly had a gun and Moberly admitted he had a gun in his left pocket. [Body Cam at 2:01] Bedtelyon recovered the firearm and Moberly sat on the curb.

         Officers ran a background check and discovered that Moberly had a prior felony conviction. Moberly was then arrested for being a felon in possession of a firearm. Officers also recovered narcotics from Moberly's person after he was placed in custody. Moberly was later indicted for three counts of possession with intent to distribute fentanyl, methamphetamine, and cocaine, in violation of 21 U.S.C. § 841(a)(1), possession of a firearm in furtherance of drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). [Record No. 1]

         Moberly filed the pending motion to suppress the evidence recovered from his person during the April 11, 2019 incident. [Record No. 18] He asserts that police lacked the authority to legally detain and search him. [Id.] The parties agreed that Moberly was not free to leave during the encounter. As a result, Magistrate Judge Stinnett has focused on the legality of the search. The magistrate judge concluded that there was reasonable, articulable suspicion to believe Moberly was armed and dangerous. Accordingly, he recommended that the evidence discovered during the search conducted by Bedtelyon should not be subject to suppression. Moberly objects to the Court's reliance on United States v. Howard, 632 Fed.Appx. 795 (6th Cir. 2015). [Record No. 29] He further objects to the characterization of the scene as volatile, frantic, and not secure. [Id.] Finally, he objects to the characterization that he was nervous and evasive. [Id.]

         II.

         The Fourth Amendment protects individuals from unreasonable searches and seizures, including brief investigatory stops. United States v. Johnson, 620 F.3d 685, 690 (6th Cir. 2010). The parties appear to agree that this was an investigative detention governed by Terry v. Ohio and its progeny. “Terry . . . permits a police officer briefly to detain a person or property for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that criminal activity has occurred or is about to occur.” United States v. Davis, 430 F.3d 345, 354 (6th Cir. 2005) (citing Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 543-44 (6th Cir. 2002)). Therefore, the Court must determine whether: (i) the stop was justified at its inception; and (ii) whether the officer's actions during the stop were reasonably related to the circumstances that justified the initial stop. Terry v. Ohio, 392 U.S. 1, 20 (1968).

         Law enforcement “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts that reasonably warrant that intrusion.” Id. at 21. “Where an informant tip, rather than police observation, is the basis of an investigatory stop, the tip must exhibit ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'” Robinson v. Howes, 663 F.3d 819, 828 (6th Cir. 2011) (quoting Fla. v. J.L., 529 U.S. 266, 27');">27');">27');">27');">27');">27');">27');">270 (2000)). The Court looks at the totality of the circumstances to determine whether an officer had reasonable articulable suspicion. United States v. Arvizu, 534 U.S. 266, 27');">27');">27');">27');">27');">27');">27');">273 (2002).

         An officer may also “perform a precautionary search - known as a “frisk” or “pat down” - whenever he has ‘reasonable suspicion' that the person searched may be armed and dangerous.” United States v. Pacheco, 841 F.3d 384, 390 (6th Cir. 2016). However, there needs to be a separate justification from the ...


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