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United States v. Booker

United States District Court, N.D. Mississippi

December 28, 2016

UNITED STATES OF AMERICA
v.
JOHNNY LEE BOOKER

          MEMORANDUM OPINION AND ORDER

          Debra M. Brown, UNITED STATES DISTRICT JUDGE

         Based on an investigation prompted by an anonymous call, Johnny Lee Booker was indicted of the crime of possessing a firearm as a convicted felon. Seeking to suppress the gun on which his indictment is premised, Booker argues that law enforcement officers lacked reasonable suspicion to make a Terry stop. Because the seizure of the gun from Booker was, at the least, based on information obtained during a consensual encounter and, at the most, based on a valid Terry stop, suppression will be denied.

         I Factual Background[1]

         In the afternoon of September 16, 2016, Ricky Bridges, a captain in the Clarksdale Police Department's Narcotics Division, received an anonymous telephone call on his cellular phone from an unknown number.[2] The caller said that Johnny Lee Booker was carrying a gun in the barbershop at “Jay's Market ... in his White Suburban.” Captain Bridges, who knew Booker from past investigations, drove with Sergeant Gary Smith and Corporal Myette Dawson to Jay's Market to investigate the anonymous tip.

         The officers drove to a point nearby where they could see the Suburban and “set up surveillance.” While waiting there, Bridges, who knew Booker from previous investigations, called the Mississippi Department of Corrections (“MDOC”) and confirmed his knowledge that Booker was a convicted felon.

         The officers thereafter observed Booker leave the barbershop, enter his car, pull into a nearby gas station, and then enter the station store. Corporal Dawson approached the gas station store's entrance door and opened it. Dawson, who was also familiar with Booker, saw Booker and asked him “to come outside the store.” Booker complied with this request.

         “Immediately” after Booker exited the gas station, Captain Bridges asked Booker if he had any weapons on him. Booker stated that he did. Based on this admission, during what Bridges described as “a fairly pleasant conversation, ” Bridges retrieved and confiscated the gun from Booker.[3] While Bridges took the gun to his vehicle “to make it safe, ” Dawson and Smith searched Booker and retrieved an amount of cash. Booker was arrested on the scene for being a felon in possession of a firearm. During all events, the officers were not in uniform but in plain clothes, with their weapons and badges visible. The officers did not draw their weapons and did not make any violent physical contact with Booker.

         II Procedural History

         On November 3, 2016, Booker was indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). Doc. #1. On November 30, 2016, Booker filed the instant motion to suppress the gun which is the subject of the indictment. Doc. #12. The Government responded in opposition to the motion on December 9, 2016. Doc. #14. Booker did not reply.

         The Court convened an evidentiary hearing on the motion on December 20, 2016. Doc. #15. The Government called two witnesses-Captain Bridges and Corporal Dawson. Defendant called no witnesses but introduced into evidence without objection[4] a video of the encounter among Booker, Bridges and Dawson which occurred outside the gas station on September 16, 2016.

          III Standard of Review

         “The proponent of a motion to suppress has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of his Fourth Amendment rights.” United States v. Iraheta, 764 F.3d 455, 460 (5th Cir. 2014) (quoting United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir. 1993)). Where, as here, evidence has been obtained through a warrantless search and seizure, “the government bears the burden of proving, by a preponderance of the evidence, that the search and seizure were constitutional.” United States v. McKinnon, 681 F.3d 203, 207 (5th Cir. 2012) (quoting United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001)).

         IV ...


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