Memorandum Opinion — United States v. Al Tariq Smith (D. Md., Dkt. 66, July 8, 2024)
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Memorandum Opinion dated July 8, 2024, by Senior District Judge Richard D. Bennett in the criminal case against Al Tariq Smith, who was arrested after being found asleep in the driver's seat of a vehicle at a gas pump with a loaded handgun in plain view. Because of prior felony convictions, Smith was indicted for possession of ammunition by a prohibited person under 18 U.S.C. § 922(g). He moved to dismiss the indictment on Second Amendment grounds under Bruen and to suppress physical evidence and statements. The Court denied all three motions, noting that the Fourth Circuit's decision in United States v. Canada forecloses the facial challenge and that the Government disavows any intent to sponsor his statements at trial.
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“Memorandum Opinion — United States v. Al Tariq Smith (D. Md., Dkt. 66, July 8, 2024).”
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Case 1:23-cr-00126-RDB Document 66 Filed 07/08/24 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
UNITED STATES OF AMERICA
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v. Criminal No. RDB-23-0126
*
AL TARIQ SMITH,
*
Defendant.
*
* * * * * * * * * * * * * *
MEMORANDUM OPINION
Defendant Al Tariq Smith was arrested after he was found asleep in the driver’s seat of
a vehicle at a gas pump with a loaded handgun in plain view on the center console. Because
he had prior felony convictions, Smith was indicted for possession of ammunition by a
prohibited person under 18 U.S.C. § 922(g). 1 Smith now moves to dismiss the indictment on
Second Amendment grounds, arguing that the Supreme Court’s opinion in New York State Rifle
& Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), has rendered the felon in possession law,
18 U.S.C. § 922(g)(1), unconstitutional both on its face and as applied to Mr. Smith. (ECF No.
36.) Smith also moves to suppress physical evidence, direct and derivative, that was obtained
in connection with his warrantless arrest, as well as any and all statements, admissions, and
confessions allegedly given by him. (ECF Nos. 34, 35.) The parties’ submissions have been
reviewed, and this Court held a hearing on the motions on March 14, 2024. See Local R. 105.6
1
Under 18 U.S.C. § 922(g)(1), “It shall be unlawful for any person who has been convicted in any
court of a crime punishable by imprisonment for a term exceeding one year . . . to [ship, transport,
possess, or receive] any firearm or ammunition.”
Case 1:23-cr-00126-RDB Document 66 Filed 07/08/24 Page 2 of 17
(D. Md. 2023). For the reasons stated on the record and more fully stated below, Smith’s
motions to suppress (ECF Nos. 34, 35) and motion to dismiss (ECF No. 36) are DENIED.
BACKGROUND
On January 17, 2023, at around 9:07 a.m., a Baltimore City 911 caller reported that a
gray Jeep had been parked at pump six at the Clark gas station since 2:00 a.m. with someone
inside. (ECF No. 48 at 3–4.) The dispatcher noted that the caller sounded concerned. (ECF
No. 48-2 at 1.) At approximately 9:28 a.m., officers with the Baltimore Police Department
responded to the Clark gas station (located at 1101 West North Avenue, Baltimore City,
Maryland) for a wellness check on the person reported to be in the Jeep. (ECF No. 48 at 4.)
Baltimore City Police Officer Dollard parked next to the Jeep, and Officer Austin parked next
to the sidewalk away from the gas pumps. (Id.) Officer Gibbs parked near the convenience
store. (Id.)
Officer Dollard approached the driver’s side of the Jeep and observed Defendant Al
Tariq Smith unresponsive in the driver’s seat. (Id. at 7.) The doors were locked and no one
else was inside of the vehicle. (Id.) Officer Gibbs approached the front passenger side window.
(Id.) Officer Dollard attempted to rouse Smith by repeatedly knocking on the window, asking
if Smith was okay, and requesting that he wake up. (Id.) Officer Gibbs observed a black
handgun in plain view on top of the center console. (Id.) Officer Gibbs said to Officer Dollard,
“hey, he’s got a gun.” (Id.) Officer Gibbs then drew his own firearm. (Id.) Officer Dollard
continued to try to wake up Smith, who eventually woke up and unlocked the door. (Id.)
Officer Dollard opened the driver’s door and ordered Smith out of the vehicle. (Id.) Officer
Dollard removed Smith’s seatbelt and grabbed Smith’s arm as Smith got out of the vehicle.
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(Id.) Officer Austin approached from the rear of the vehicle and handcuffed Smith upon his
exit from the vehicle. (Id.)
Officer Gibbs recovered Smith’s handgun—a black Polymer80 Inc. model PF940C
9mm that lacked a serial number—and determined that it was loaded. (Id.) He rendered the
weapon safe. (Id.) The officers then learned Smith’s identity and that he was prohibited from
possessing a firearm due to prior convictions. (ECF No. 36 at 2.) Mr. Smith has prior
convictions for second degree assault, violating an ex parte/protective order, unlawful
possession of a controlled dangerous substance, fourth degree burglary, riding a dirt bike,
attempting to elude police by fleeing on foot, and possession with intent to distribute. (Id.)
Smith was originally charged in Baltimore City Circuit Court. Those charges were
dismissed in favor of federal prosecution. Mr. Smith was indicted and charged federally with
possession of ammunition by a prohibited person on April 6, 2023. (ECF No. 1.) On
September 14, 2023, Smith filed a Motion to Suppress Physical Evidence (ECF No. 34), a
Motion to Suppress Statements (ECF No. 35), and a Motion to Dismiss the Indictment on
Second Amendment Grounds (ECF No. 36). On February 26, 2024, the Government filed a
Response to the Motion to Suppress Physical Evidence (ECF No. 48), a Motion for Leave to
File Physical Exhibits (ECF No. 49), and a Response to the Motion to Dismiss the Indictment
(ECF No. 50). On March 8, 2024, Smith replied to the Government’s Response to the Motion
to Dismiss. (ECF No. 51.) This Court held a hearing on the motions to suppress and the
motion to dismiss on March 14, 2024. (ECF No. 55.) Pursuant to this Court’s Order (ECF
No. 59), Mr. Smith filed a supplement to his motions to suppress on March 28, 2024. (ECF
No. 62.) The Government responded on April 11, 2024 (ECF No. 63), and Mr. Smith replied
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on April 25, 2024 (ECF No. 64). Most recently, Smith filed a notice of supplemental authority
on June 5, 2024, noting the United States Court of Appeals for the Fourth Circuit’s recent
decision in United States v. Canada, 103 F.4th 257 (4th Cir. 2024).
ANALYSIS
I. Motion to Dismiss Indictment on Second Amendment Grounds (ECF No. 36)
Smith moves to dismiss his indictment, arguing that the Supreme Court’s opinion in
New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), renders the felon-in-
possession law, 18 U.S.C. § 922(g)(1), unconstitutional. Specifically, Smith argues that the
statute is unconstitutional both on its face and as applied to Smith’s case. Both arguments fail.
1. Facial Challenge
The Supreme Court has repeatedly emphasized that felon-in-possession prohibitions
do not violate the Second Amendment. In District of Columbia v. Heller, 554 U.S. 570 (2008),
and McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court recognized that the
Second Amendment codified a pre-existing “right of an ordinary, law-abiding citizen to
possess a handgun in the home for self-defense.” New York State Rifle & Pistol Ass’n, Inc. v.
Bruen, 597 U.S. 1, 8–9 (2022). Heller previously noted that “nothing in our opinion should be
taken to cast doubt on longstanding prohibitions on the possession of firearms by felons,”
554 U.S. at 626, a point which the Court reiterated in McDonald. 561 U.S. at 786. In Bruen, it
noted that the petitioners were “ordinary, law-abiding adult citizens,” making them “part of
‘the people’ whom the Second Amendment protects.” 597 U.S. at 31–32. The Bruen opinion
did not directly address the rights of non-law-abiding citizens under the Second Amendment.
See United States v. Rahimi, No. 22-915, 602 U.S. ___, 2024 WL 3074728, at *11 (June 21, 2024)
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(“[Heller and Bruen] said nothing about the status of citizens who [are] not ‘responsible.’”).
However, in Rahimi, the Supreme Court, via an 8-1 decision, affirmed the right of the
government to disarm those determined by a court “to pose a credible threat to the physical
safety of another.” 2024 WL 3074728, at *11. The nearly unanimous Supreme Court
concluded that “[s]ince the founding, our Nation’s firearm laws have included provisions
preventing individuals who threaten physical harm to others from misusing firearms.” Id. at
*5. It accordingly held that § 922(g)(8), a sister provision of § 922(g)(1), “fits comfortably
within this tradition.” Id.
Even prior to the Supreme Court’s recent opinion in Rahimi, the United States Court
of Appeals for the Fourth Circuit recently rejected a facial challenge to the constitutionality of
§ 922(g)(1). United States v. Canada, 103 F.4th 257, 258 (4th Cir. 2024) (holding § 922(g)(1)
facially constitutional “because it has a ‘plainly legitimate sweep’ and may constitutionally be
applied in at least some ‘set of circumstances’” (quoting Washington State Grange v. Washington
State Republican Party, 552 U.S. 442, 449 (2008))). The Fourth Circuit previously recognized that
the Second Amendment has always been a right afforded only to law-abiding citizens. See
United States v. Moore, 666 F.3d 313, 319 (4th Cir. 2012) (“Thus, we have no difficulty in
concluding that § 922(g)(1) is constitutionally valid on its face.”); United States v. Carter, 669
F.3d 411, 415 (4th Cir. 2012) (declining to find § 922(g)(3) unconstitutional on its face,
explaining that “[t]he weight of the right to keep and bear arms depends not only on the
purpose for which it is exercised but also on relevant characteristics of the person invoking
the right”); Hamilton v. Pallozzi, 848 F.3d 614, 626 (4th Cir. 2017) (“[C]onviction of a felony
necessarily removes one from the class of ‘law-abiding, responsible citizens’ for the purposes
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of the Second Amendment[.]”). In fact, no federal appellate court has held § 922(g)(1) to be
facially unconstitutional post-Bruen. See Canada, 103 F.4th at 258 (“Indeed, no federal appellate
court has held that Section 922(g)(1) is facially unconstitutional, and we will not be the first.”).
Even the United States Court of Appeals for the Third Circuit, which remains the lone federal
appellate court to have held § 922(g)(1) to be unconstitutional as applied to a defendant,
emphasized that its opinion applied only to the case at hand. See Range v. Att’y Gen. United States
of America, 69 F.4th 96, 98, 106 (3d Cir. 2023) (en banc) (holding § 922(g)(1) unconstitutional
as applied to a defendant whose underlying conviction consisted of making false statements
to obtain food stamps).
Judges of this Court and district courts across this Circuit have consistently held that
§ 922(g)(1) does not violate the Second Amendment post-Bruen. See Cusick v. United States, No.
TDC-22-1611, 2023 WL 5353170, at *5 (D. Md. Aug. 18, 2023) (“[T]he conduct covered by
18 U.S.C. § 922(g)(1) is outside the scope of right covered by the Second Amendment under
Heller, McDonald, and Bruen.”); United States v. Jackson, No. ELH-22-0141, 2023 WL 2499856,
at *7 (D. Md. Mar. 13, 2023) (collecting cases that distinguish convicted felons under § 922(g)
from “the people” protected by the Second Amendment after Bruen); Antione v. United States,
No. 1:18CR17, 2023 WL 5573805 (N.D.W. Va. Aug. 29, 2023); United States v. Manns, No.
5:22-CR-00066, 2023 WL 3121230 (S.D.W. Va. Apr. 27, 2023); United States v. Dawson, No.
3:21-CR-00293-RJC-DCK, 2022 WL 17839807 (W.D.N.C. Dec. 21, 2022); United States v.
Spencer, No. 2:22-CR-106, 2022 WL 17585782 (E.D. Va. Dec. 12, 2022); United States v. Wagoner,
No. 4:20-CR-00018, 2022 WL 17418000 (W.D. Va. Dec. 5, 2022); United States v. Burton, No.
CR 3:22-362-MGL-1, 2022 WL 16541139 (D.S.C. Oct. 28, 2022).
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As Smith acknowledges, the Fourth Circuit’s ruling in Canada “forecloses his facial
challenge to § 922(g)(1).” 2 (ECF No. 65 at 2.) Accordingly, because § 922(g)(1) “may
constitutionally be applied in at least some ‘set of circumstances,’” Smith’s facial challenge
fails. Canada, 103 F.4th at 258.
2. As-Applied Challenge
Smith also brings an as-applied challenge. He argues that the reasoning in United States
v. Canada, 103 F.4th 257, 258 (4th Cir. 2024), applies only to the felonies enumerated in the
Canada opinion itself. (ECF No. 65.) Because Smith has not been convicted for any of those
felonies, he argues that Canada does not foreclose his as-applied challenge. He also argues that
there is no robust tradition of disarming persons convicted of the crimes of which Smith has
been convicted. (ECF No. 36 at 23.) He claims that the “presumptively lawful” language in
District of Columbia v. Heller, 554 U.S. 570 (2008), regarding the constitutionality of felon-in-
possession prohibitions is both mere dictum and incorrect. (ECF No. 36 at 24–28.) Smith also
argues that New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022), demands discrete
tests regarding the similarity of the law at issue and historical regulations, depending on
whether the problem being addressed by the modern regulation is novel (“relatively similar”
test) or if it existed at the founding (“distinctly similar” test). (ECF No. 36 at 8.)
The Government argues that felons are not included among “the people” for Second
Amendment purposes; that prohibiting firearm possession by persons perceived to be
dangerous has always been allowed; that the only valid historical test to emerge from Bruen is
2
Smith “believes Canada was wrongly decided, and continues to preserve [his] claim for possible future
review by the Supreme Court or the en banc Fourth Circuit.” (ECF No. 65 at 2.)
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the “relatively similar” test; and that in any case, § 922(g)(1) is constitutional as applied to
Smith because he is a dangerous felon. (ECF No. 50 at 18–19.)
The Fifth, Eighth, and Tenth Circuits have foreclosed the possibility of as-applied challenges
to § 922(g)(1) based on a determination that under Heller, McDonald, and Bruen, felons are not among
“the people” whose rights are protected under the Second Amendment. See Vincent v. Garland,
80 F.4th 1197, 1201–1202 (10th Cir. 2023) (upholding the constitutionality of defendant’s
conviction under § 922(g)(1)); United States v. Jackson, 69 F.4th 495, 505 (8th Cir. 2023) (same);
United States v. Hickox, No. 22–50365, 2023 WL 3075054, at *1 (5th Cir. Apr. 25, 2023)
(declining to overturn defendant’s conviction under § 922(g)(1) because “it is not clear that
Bruen dictates such a result”). However, some courts have allowed as-applied challenges to
§ 922(g)(1)’s constitutionality after determining that felons are among the Second
Amendment’s “people.” See, e.g., Range v. Att’y Gen. United States of Am., 69 F. 4th 96, 106 (3d
Cir. 2023) (en banc)); United States v. Bullock, No. 3:18-CR-165-CWR-FKB, 2023 WL 4232309,
at *20–21 (S.D. Miss. June 28. 2023).
In Range, the Third Circuit declared § 922(g)(1) unconstitutional as applied to the
defendant, whose lone conviction was for making false statements to obtain food stamps. 69
F.4th at 98. The Court’s analysis turned on its determination of “who is among ‘the people’
protected by the Second Amendment.” Id. at 101. After determining that “the people” refers
to all Americans, and that the legislature may then constitutionally “strip certain groups of
[their Second Amendment] right,” id. at 101, 102 (citation omitted), the Court then examined
“whether the Government [was] justified applying § 922(g)(1) to Range,” based on the
Section’s consistency “with the Nation’s historic tradition of firearm regulation.” Id. at 103
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(citation omitted) (internal quotation marks omitted). The Court held that the Government
could not bar Range from possessing firearms. Id. at 104–05 (“The Government has not cited
a single statute or case [from history] that precludes a convict [like Range] . . . from purchasing
[a firearm].”). This holding was predicated upon, among other things, a lack of “relevantly
similar” laws depriving criminals of weapons in the wake of convictions for nonviolent
offenses, as well as the fact that the original iteration of § 922, the Federal Firearms Act,
applied only to violent criminals. Id. at 104.
In Canada, the Fourth Circuit noted multiple avenues for holding § 922(g)(1)
constitutional: (1) felons’ non-inclusion in the Second Amendment’s definition of “the
people;” (2) a well established history of disarming those who threaten public safety; (3) Heller’s
and Bruen’s assurances regarding “longstanding prohibitions” on the possession of firearms by
felons; and (4) preexisting circuit precedent. 103 F.4th at 258. The Court elected not to choose
any one of those paths alone because “they all lead to the same destination.” Id. It then
provided a nonexhaustive list of felonies that would clearly allow for constitutional application
of § 922(g)(1): drive-by shooting, carjacking, armed bank robbery, and assassinating the
President of the United States. Id. This list illustrated the Court’s point that § 922(g)(1) “may
constitutionally be applied in at least some ‘set of circumstances.’” Id. (quoting Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 449 (2008)).
Most recently in United States v. Rahimi, No. 22-915, 602 U.S. ___, 2024 WL 3074728
(June 21, 2024), in an 8-1 decision, the Supreme Court upheld the constitutionality of 18 U.S.C.
§ 922(g)(8), which allows for the temporary disarming of a person subject to a domestic
violence restraining order. In doing so, the Court affirmed the “presumptively lawful” nature
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of prohibitions on firearm possession by felons. Id. at *10 (citing Heller, 554 U.S at 626, 627
n.26). Referencing its Heller, McDonald, and Bruen opinions, the Court recognized a
longstanding national tradition of “preventing individuals who threaten physical harm to
others from misusing firearms.” Rahimi, 2024 WL 3074728, at *5. To illustrate that point, the
Court cited “going armed” laws, which allowed legislatures to disarm individuals whom a court
had previously determined had used firearms to menace others. Id. at *8.
In this case, even assuming felons are included in “the people” whose rights are
protected under the Second Amendment—which is granting Defendant more than the
Supreme Court’s reasoning in Rahimi indicates he deserves—the Government has met its
burden under Bruen to show that § 922(g)(1) is consistent with a well established tradition of
disarming those who threaten public safety. The “relevantly similar” test is the only test valid
in determining whether a historical regulation is sufficiently analogous to the current law at
issue. See Rahimi, 2024 WL 3074728, at *6 (“A court must ascertain whether the new law is
‘relevantly similar’ to laws that our tradition is understood to permit, ‘apply[ing] faithfully the
balance struck by the founding generation to modern circumstances.’” (alteration in original)
(quoting Bruen, 597 U.S. at 24)). There is a well established and representative body of
“relevantly similar” laws providing for the constitutionality of disarming those who threaten
public safety. The Government addresses this history in its brief by citing the ample Supreme
Court precedent—Heller, McDonald, and Bruen—which discusses and confirms that well
established national history. (ECF No. 50 at 10–17.) The Government also cites the 1689
English Bill of Rights (id. at 15) and colonial-era laws of six states (id. at 16–17), tracing the
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history of the government’s ability to limit the initially unfettered right to bear arms to exclude
persons deemed dangerous or disloyal.
Smith’s circumstances are far different from those of the defendant in Range. Unlike
the defendant in Range, whose lone conviction was for the nonviolent offense of making false
statements to obtain food stamps and who perhaps did not even make those false statements
willfully, Smith has been convicted of multiple, significantly more serious offenses: second-
degree assault, fourth-degree burglary, and unlawful possession of a controlled dangerous
substance, to name just three. These charges distinguish Range and preclude Smith from
skirting § 922(g)(1) via an as-applied challenge. Despite Smith’s argument to the contrary,
Canada’s list of felonies that render § 922(g)(1) constitutional is nonexhaustive. See Canada, 103
F.4th at 258. An overwhelming number of courts to have upheld the constitutionality of
§ 922(g)(1) post-Bruen. See, e.g., United States v. Coleman, No. 3:22CR87 (DJN), 2023 WL
6690935, at *1–2, *19 (E.D. Va. Oct. 12, 2023) (holding the Second Amendment’s “the
people” to include felons, but identifying a “robust history of disarming those deemed
dangerous to society, like felons,” before citing more than 170 federal district court opinions
nationwide which have rejected post-Bruen challenges to the constitutionality of § 922(g)(1)).
In light of the Supreme Court’s recent opinion in Rahimi, there is even less room for as-applied
challenges to § 922(g)(1). Regardless, Smith’s prior convictions for assault and burglary render
him a dangerous criminal. See Rahimi, 2024 WL 3074728, at *9 (“When an individual poses a
clear threat of physical violence to another, the threatening individual may be disarmed.”).
Section 922(g)(1) is therefore constitutionally applied to Smith, and his Motion to Dismiss
(ECF No. 36) is DENIED.
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II. Motion to Suppress Physical Evidence (ECF No. 34)
Smith has moved to suppress direct and derivative evidence from his warrantless arrest.
(ECF No. 34.) In analyzing a motion to suppress, the burden of proof is on the
defendant. United States v. Matlock, 415 U.S. 164 (1974). Probable cause is required for a
warrantless arrest. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). The Supreme Court
has described “probable cause” to search as “a fair probability that contraband or evidence of
a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). “If an
officer has probable cause to believe that an individual has committed even a very minor
criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the
offender.” Atwater, 532 U.S. at 354.
As the United States Court of Appeals for the Fourth Circuit stated in United States v.
Elston, 479 F.3d 314 (4th Cir. 2007), “an arrest is defined using an objective standard: whether
‘the suspect’s freedom of action is curtailed to a degree associated with formal arrest.’” Id. at
319 (quoting Park v. Shifflet, 250 F.3d 843, 850 (4th Cir. 2001)). “A brief but complete
restriction of liberty is valid under Terry.” Id. (quoting United States v. Leshuk, 65 F.3d 1105,
1109 (4th Cir. 1995)). The Fourth Circuit has held that even the drawing of weapons,
handcuffing of a suspect, and placing the suspect in a patrol car for questioning “do[ ] not
necessarily elevate a lawful stop into a custodial arrest.” Elston, 479 F.3d at 320 (citing Leshuk,
65 F.3d at 1109–10); see also Elston, 479 F.3d at 321 (holding that the district court did not err
by concluding that the suspect’s initial detention did not rise to the level of custodial arrest
when officers drew their weapons and placed the suspect in handcuffs); Peters v. City of Mount
Rainier, No. GJH-14-00955, 2016 WL 1239921, at *5 (D. Md. Mar. 24, 2016), aff’d sub
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nom. Peters v. Caplan, 672 F. App’x 327 (4th Cir. 2017) (finding that officers approaching the
suspects with guns drawn, requiring them to lie on the ground, and performing a search did
not rise to the level of an arrest).
In this case, Officer Dollard and Officer Gibbs responded to a dispatch to check the
wellbeing of a person behind the wheel of a car that had been parked at a gas pump for seven
hours. Given that the Defendant had been parked at the gas pump for seven hours, the officers
were rightly on alert. After Officer Dollard tried to wake up the Defendant, Officer Gibbs saw
a handgun in plain view on the center console. Officer Dollard and Officer Gibbs both
testified that, according to their familiarity with Maryland law, a firearm must be separated
from ammunition and preferably be placed in a lockbox or glovebox to be legally transported
in a vehicle. (Tr. 15:15–16, 70:3–5.) Upon seeing the handgun, Officer Dollard removed the
Defendant from the vehicle, and Officer Gibbs rendered the weapon, which was loaded, safe.
They had probable cause to arrest the Defendant under these facts.
Upon seeing the handgun, the officers had reason to believe that the Defendant had
committed a crime under Md. Code Ann., Crim. Law § 4-203(a)(1). That law provides in part
that, absent exception, a person may not:
(i) wear, carry, or transport a handgun, whether concealed or open, on or about the
person;
(ii) wear, carry, or knowingly transport a handgun, whether concealed or open, in a
vehicle traveling on a road or parking lot generally used by the public, highway,
waterway, or airway of the State . . . .
Md. Code Ann., Crim. Law § 4-203(a)(1). Although Defendant argues that there is insufficient
evidence under this statute, he misses the point: the officers needed only probable cause to
arrest him, not proof beyond a reasonable doubt. Defendant also argues that the officers did
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not identify § 4-203(a)(1)(i) during their testimony and that the Government did not raise that
subsection in its initial response (ECF No. 48). As to the officers’ testimony, the officers
testified about their general knowledge of laws regarding the proper transport of firearms,
which could involve multiple subsections of § 4-203(a)(1). (See Tr. 15:15–16, 70:3–5.)
Defendant’s arguments on the merits of the Government’s § 4-203(a)(1)(i) argument
emphasize that the Government must show “(1) the defendant wore, carried, or transported
a handgun, and (2) the handgun was ‘on or about the person.’” (ECF No. 64 at 7.) As
Defendant’s citation to the Maryland Pattern Jury Instructions illustrates, these are facts
necessary to be proven at trial when pursuing a conviction under § 4-203(a)(1)(i). But the
burden when seeking to establish probable cause is different, particularly in this case where
the defendant was indicted on a charge unrelated to the Maryland statute. As to the
Government’s raising of § 4-203(a)(1)(i) in its response brief, it is clearly a response to
Defendant’s theory of the case presented at the hearing and in his supplemental brief (ECF
No. 62), which requires an adequate response by the Government.
The officers clearly had probable cause. Upon seeing a person behind the wheel of a
vehicle at a gas pump, a reasonable person’s first thought would be that the person had driven
the vehicle to the gas pump. With that in mind, the officers had probable cause to believe the
Defendant had driven the vehicle with the gun unsecured. Defendant’s argument that the
officers had no evidence of the vehicle moving pushes the limits of reason. No reasonable
person observing these circumstances would have expected anything other than baseline facts
that violate the Maryland statute. Accordingly, the officers had probable cause both to arrest
the Defendant and to seize the gun. See United States v. White, 549 F.3d 946, 949 (4th Cir. 2008)
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(“It is well established that officers who have probable cause can search a vehicle without a
warrant.” (citing Carroll v. United States, 267 U.S. 132 (1925)); see also Arizona v. Gant, 556 U.S.
332, 338 (2009) (noting that the search-incident-to-arrest doctrine “derives from interests in
officer safety and evidence preservation that are typically implicated in arrest situations.”).
Defendant’s reliance on United States v. Graham, 686 F. App’x 166 (4th Cir. 2017), is
misplaced. In that case, while responding to a 911 hang-up call, officers approached a vehicle
that was parked illegally in the traffic lane of a road. One of the officers saw open containers
of beers in the center console, and after learning that there was a warrant for the driver’s arrest
in a different city in South Carolina, the officer arrested him. The officers then conducted a
custodial interrogation of the defendant without Mirandizing him. 3 That interrogation led to
the discovery of a firearm in the vehicle, eventually resulting in charges brought under 18
U.S.C. § 922(g)(1). These basic facts highlight major differences between that case and the
instant one. There, the firearm was only discovered pursuant to an illicit custodial
interrogation. In this case, the handgun was in plain view on the center console. Moreover,
the handgun was easily within the Defendant’s reach, whereas in Graham the defendant had
already been arrested. Lastly, whereas probable cause was established in this case via the
Maryland statute, the officers in Graham lacked probable cause to search the truck for
contraband under 18 U.S.C. §922(g)(1) because they only discovered that the defendant could
not possess a gun after the defendant’s gun had already been retrieved.
3
Miranda v. Arizona, 384 U.S. 436, 444 (1966) (holding that a suspect must, before any questioning,
be informed that he has a right to remain silent, that his statements may be used as evidence against
him, and that he has a right to an attorney).
15
Case 1:23-cr-00126-RDB Document 66 Filed 07/08/24 Page 16 of 17
In sum, the officers had probable cause to arrest the Defendant and to seize the
handgun when they saw it in plain view on the center console when responding to a wellness
check on him, especially in light of his failure to respond and his presence at the gas pump for
seven hours. The officers acted objectively reasonably, and they had sufficient evidence both
to arrest the Defendant and to seize the handgun. See White, 549 F.3d at 950 (“Gates 4 thus
directs courts to assess whether officers had probable cause by examining all of the facts
known to officers leading up to the arrest, and then asking ‘whether these historical facts,
viewed from the standpoint of an objectively reasonable police officer,’ amount to probable
cause.” (citing Ornelas v. United States, 517 U.S. 690, 696 (1996)). Under these facts, evidence
obtained in connection with the Defendant’s arrest cannot be suppressed. Accordingly,
Defendant’s Motion to Suppress Physical Evidence (ECF No. 34) is DENIED.
III. Motion to Suppress Statements (ECF No. 35)
Defendant also moved to suppress any and all statements he made to law enforcement
agents during his arrest. (ECF No. 35.) Defendant argues for suppression chiefly on the basis
that the statements were obtained during a custodial interrogation in the absence of Miranda
warnings. The question thus becomes whether the Defendant was in custody at the time of
his interrogation such that Miranda warnings were required. See Miranda v. Arizona, 384 U.S.
436, 444 (1966); see also United States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001) (“Absent formal
arrest, Miranda warnings only apply ‘where there has been such a restriction on a person’s
freedom as to render him “in custody.”’” (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)
(per curiam))). However, the Government notes that it “has not discovered any inculpatory
4
Illinois v. Gates, 462 U.S. 213 (1983).
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Case 1:23-cr-00126-RDB Document 66 Filed 07/08/24 Page 17 of 17
statements the Defendant made in response to any questioning by law enforcement, nor does
the Government intend to sponsor any statements made by the Defendant at trial.” (ECF No.
48 at 3 n.1.) Defendant does not address this point in any of his supplemental briefing. As
neither party has identified any specific statements at issue, and because the Government
disavows any intent to sponsor any of the Defendant’s statements at trial, the Motion to
Suppress Statements (ECF No. 35) is DENIED.
CONCLUSION
For the reasons stated above, Defendant’s Motion to Suppress Physical Evidence (ECF
No. 34), Motion to Suppress Statements (ECF No. 35), and Motion to Dismiss the Indictment
on Second Amendment Grounds (ECF No. 36) are DENIED.
A separate Order follows.
Dated: July 8, 2024
/s/
Richard D. Bennett
United States Senior District Judge
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