United States District Court, N.D. Mississippi
MEMORANDUM OPINION AND ORDER
M. Brown, UNITED STATES DISTRICT JUDGE
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.
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. 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.
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.
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.
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. 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.
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.
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 a video of the encounter among Booker,
Bridges and Dawson which occurred outside the gas station on
September 16, 2016.
III Standard of Review
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)).