United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C REEVES. CHIEF JUDGE
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).
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
considering the full record, the Court will adopt the
magistrate judge's recommendation and deny Moberly's
motion to suppress.
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]
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. 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.
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.
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]
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
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).
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).
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