UNITED STATES OF AMERICA v. JEROME TURNBULL
CRIM. NO.: 10-cr-0038
IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX
February 09, 2011
Finch, Senior Judge
Case: 1:10-cr-00038-RLF-GWC Document #: 102 Filed: 02/09/11 Page 1 of 10
Finch, Senior Judge
THIS MATTER is before the Court on Defendant Jerome Turnbull‘s (“Defendant“) Motion to Suppress. During a traffic stop of Defendant, police found a 9 mm semi-automatic pistol under the driver‘s seat rug. Defendant was subsequently charged with felon-in-possession of a firearm in violation of
On the night of May 1, 2010, Deputy Chief Howell of the Virgin Islands Police Department (“VIPD“) was patrolling in the Estate Grove Place area during a “saturated patrol.” D/C Howell observed a white Ford Explorer run a stop sign and then make an unsignaled turn. D/C Howell engaged his vehicle‘s blue emergency lights and effectuated a traffic stop of the Explorer. He radioed 911 dispatch to inform them of the traffic stop. While still seated in his police vehicle, D/C Howell observed the Explorer‘s driver, later identified as the Defendant, Jerome Turnbull, leaning over and reaching toward the floor.
D/C Howell exited the Tahoe and approached the driver‘s door of the Explorer. He observed Defendant, seated in the driver‘s seat, breathing extremely heavily. D/C Howell explained to Defendant why he had been stopped and asked Defendant for his license and registration. Defendant complied. After looking at Defendant‘s license, D/C Howell asked Defendant if he was related to Elton Turnbull to which Defendant replied in the affirmative. D/C Howell then explained that he was one of the investigating officers in Elton Turnbull‘s drug trafficking case and that he was partly responsible for putting Elton Turnbull in jail. Defendant then denied any relation to Elton Turnbull. At some point during this conversation, D/C Howell returned Defendant‘s documents. Defendant, however, continued to breathe heavily.
D/C Howell then asked Defendant if he had any guns, drugs, or anything else that he was not supposed to have in the vehicle.2 Defendant, who was looking straight at Howell, did not
At about the same time that D/C Howell was questioning Defendant, Chief Benta of the VIPD arrived at the scene. Howell informed Defendant that he was going to speak with Chief Benta and then left Defendant‘s car to speak with Benta. With his back turned to Defendant, D/C Howell informed Chief Benta that Defendant seemed extremely nervous, refused to answer questions, and that “something was not right.” Benta then alerted Howell that Defendant “was reaching toward the floor.” D/C Howell approached the Explorer‘s passenger side and told Defendant to keep his hands on the steering wheel where they could be seen.
D/C Howell then returned to his police vehicle and called 911 dispatch to request for a K-9 unit. He testified that he requested a K-9 unit because he suspected that Defendant might have drugs in the vehicle and that he wanted additional backup because Defendant‘s actions had made him nervous. The K-9 unit was in the vicinity and arrived two or three minutes after being called.
Officers Jason Riveros and Jose Ramos of the VIPD K-9 unit approached the driver‘s door of the Explorer while Howell approached the passenger side. Officer Ramos and D/C Howell each witnessed Defendant reach down toward the floor of the vehicle. Officer Ramos instructed Defendant to show his hands. Defendant briefly complied and then again reached towards the floor. After several more ignored commands to show his hands, Officer Ramos
Officer Ramos again ordered Defendant out of the car. Defendant exited the vehicle and Ramos escorted him to the rear bumper and advised Defendant that he was being arrested for obstructing an officer in the discharge of his duties. Officer Ramos instructed Defendant to sit on the rear bumper. Defendant looked around and refused to sit down. At that point, Officer Ramos was concerned that Defendant might attempt to flee. Officer Riveros remotely released his canine partner, who came and heeled at his side. Officer Ramos then informed Defendant that if he attempted to run, they would “deploy” the dog.
While Defendant was detained by Officers Ramos and Riveros at the rear of Explorer, D/C Howell looked at floor area where Defendant had repeatedly been reaching and noticed what he described as a “bulge” in the carpet. He lifted the bulge and found the firearm that is the subject of Defendant‘s suppression motion. D/C Howell yelled “Gun!” Officer Riveros and Ramos then brought Defendant to the ground and cuffed him.
Defendant does not quarrel with the initial stop of his vehicle; rather, he challenges two aspects of the ensuing events that lead to the discovery of the firearm. First, Defendant argues that D/C Howell unlawfully prolonged the traffic stop by not issuing him a ticket or letting him go upon returning his documents. Second, Defendant argues that D/C Howell unlawfully searched his car because, at the time of the search, he was in police custody and could not have reasonably accessed anything inside the Explorer.
a. The Traffic Stop
Defendant‘s first argument is essentially that the VIPD prolonged the stop beyond its initial scope. However, “[a]fter a traffic stop that was justified at its inception, an officer who develops a reasonable, articulable suspicion of criminal activity may expand the scope of an inquiry beyond the reason for the stop and detain the vehicle and its occupants for further investigation.” United States v. Givan, 320 F.3d 452, 458 (3d Cir. 2003); see also United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006) (“[O]nce a car has been legally stopped, the police may ‘escalate’ the encounter by visually inspecting the interior of the car, and checking credentials and asking questions of the occupants.“). The test for reasonable suspicion is “one of reasonableness given the totality of the circumstances, which can include [defendant]‘s location, a history of crime in the area, [defendant]‘s nervous behavior and evasiveness, and [the officer]‘s ‘commonsense judgments and inferences about human behavior.‘” Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir. 2003) (quoting Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000)).
Here, Defendant‘s actions - from the beginning of the stop until his arrest - provided the VIPD with reasonable suspicion to increase the scope of the detention beyond a traffic violation
After reviewing Defendant‘s documents and asking him about his relationship to Elton Turnbull,5 D/C Howell asked Defendant whether he had any weapons or illegal items in the car.6
Defendant initially refused to respond to this question and when asked again, Defendant provided an evasive response - that he was out getting diapers for his child. Defendant was not required to answer this question. His evasive answer, however, did not assuage Howell‘s safety concerns and Howell was justified in taking further safety measures such as calling for backup. See Holt, 264 F.3d at 1224 (“Although nothing compels the motorist to answer such a question, when a motorist declines to answer it, the officer may draw clues from that declination that he or she should be more prudent and concerned about personal safety. The officer may not use the refusal to answer as the basis for a more intrusive search, but the officer would certainly be permitted to use that information to justify prudent safety-related measures.“).
When D/C Howell left Defendant‘s Explorer to briefly talk to Chief Benta, Defendant again reached down towards the floor of his vehicle, precipitating Howell‘s return to the vehicle to instruct him to keep his hands on the wheel. D/C Howell testified that, at this point, he called a K-9 backup unit because he was concerned for his safety and believed that Defendant may have possessed contraband in the car. Defendant‘s continued suspicious behavior - including his repeated hand movements toward the floor of the Explorer, prolonged nervousness and evasive answer to D/C Howell‘s question about weapons in the car - provided reasonable suspicion that Defendant possessed something illegal in the car, sufficient to justify his continued detention
The K-9 unit arrived a few minutes later. Despite multiple commands from officers of the VIPD to keep his hands on the wheel, Defendant continued to reach toward the floor of his car. At one point, Defendant put the Explorer in gear and released the emergency brake as if to flee from the scene. He was then arrested by Officer Ramos for interfering with an officer in the discharge of his duties. Defendant‘s conduct was sufficient to justify his arrest for interfering with an officer in the discharge of his official duties as he continually disobeyed a lawful command to keep his hands on the wheel. See Moorefield, 111 F.3d at 12 (holding that police may lawfully order occupants of car to keep their hands in the air);8
b. Search of the Explorer
Defendant‘s second contention is that the firearm in question was discovered during an unlawful search-incident-to-arrest, because at the time of the search, Defendant had been secured by several police officers and there was no reasonable possibility that he could have accessed the interior of the car. In support of this claim, Defendant cites the case of Arizona v. Gant, 129 S.Ct. 1710 (U.S. 2009), where the Supreme Court narrowed the scope of the search-incident-to-arrest-doctrine and held that “searches of a suspect‘s automobile are not permitted incident to an arrest when the police ‘could not reasonably have believed ... that [the arrestee] could have accessed his car at the time of the search.‘” United States v. Shakir, 616 F.3d 315, 318 (3d Cir. 2010) (quoting Gant, 129 S.Ct. at 1719).
The Court does not need to analyze the discovery of the firearm under the search-incident-to-arrest-doctrine, because, as argued by the Government and expressly stated in Gant, police may search a vehicle “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” Gant, 129 S.Ct. at 1714. Defendant was arrested by Officer Ramos for repeatedly violating his instruction to keep his hands on the wheel by reaching down toward the floor. D/C Howell first peered into the vehicle and noticed a bulge under the carpet where Defendant had repeatedly reached. This bulge, combined with his prior observations of Defendant‘s nervousness, evasive answers, flight attempt, and repeated reaches toward the floor despite multiple commands to keep his hands on the wheel, provided D/C Howell with probable cause to believe that there was something of evidentiary value under the
III. Conclusion
For the foregoing reasons, the Court DENIES Defendant‘s Motion to Suppress. Accordingly, it is hereby ORDERED that
Defendant‘s Motion to Suppress is DENIED.
ENTERED:
Dated: February 9, 2011
___________/s/_______________
RAYMOND L. FINCH
SENIOR U.S. DISTRICT JUDGE