Memorandum Opinion, Motion to Suppress — United States v. Shalik Rasheem Mitchell (Dkt. 40, E.D. Va.)

Summary

A Memorandum Opinion in United States of America v. Shalik Rasheem Mitchell, Criminal No. 3:23cr39, Document 40, filed 07/26/23, in the Eastern District of Virginia, Richmond Division. It addresses the Defendant's Motion to Suppress (ECF No. 18) and Replacement Brief (ECF No. 28) in a case charging Possession of a Firearm and Ammunition by a Convicted Felon under 18 U.S.C. § 922(g)(1), and states that the Motions were denied in a previous Order (ECF No. 34) entered on July 11, 2023. It recounts the November 17, 2022 stop by Richmond City Police and the discovery of firearms in the vehicle. The Court concludes that the second search of the vehicle was constitutional under the Fourth Amendment because Officer Hunsaker had probable cause to look for additional weapons or alcohol.

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Case 3:23-cr-00039-REP Document 40 Filed 07/26/23 Page 1 of 27 PagelD# 432

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

UNITED STATES OF AMERICA
Vv. Criminal No. 3:23cr39
SHALIK RASHEEM MITCHELL,

Defendant.

MEMORANDUM OPINION

This matter is before the Court on the DEFENDANT’S MOTION
TO SUPPRESS AND INCORPORATED MEMORANDUM OF LAW (ECF No. 18)
(“original Motion”) and DEFENDANT’S REPLACEMENT BRIEF IN SUPPORT
OF MOTION TO SUPPRESS (ECF No. 28) (“renewed Motion”)
(collectively referred to as the “Motions”). For the reasons set
forth below and on the record during the hearing on July 10,
2023, the Motions were denied in a previous ORDER (ECF No. 34)
entered on July 11, 2023.

BACKGROUND

I. Procedural Background

On March 21, 2023, Shalik Rasheem Mitchell (“Mitchell”) was
charged with one count of Possession of a Firearm and Ammunition
by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1). See
ECF No. 1. Mitchell was arrested on that charge on March 27,
2023 and has remained in federal custody since that time. ECF

Nos. 5 and 15. Mitchell filed the original Motion on April 13,
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2023, and a response and reply were filed on April 27, 2023 and
May 4, 2023, respectively. The Court heard testimony on the
original Motion during an evidentiary hearing on May 16, 2023.
ECF No. 24. At the end of the hearing, the Court continued
generally the jury trial set to begin on June 5, 2023 pending
resolution of the Motions and ordered further briefing that
focused on the objective facts rather than the subjective
beliefs of the individual officers. ECF No. 25; ECF No. 27 at
81-83. The Court heard oral argument on the matter on July 10,
2023.

II. Factual Background

The facts, as delineated in the testimony and evidence
given at the evidentiary hearing on May 16, 2023, are as
follows.

At around 9:00 PM on November 17, 2022, Mitchell was pulled
over by Richmond City Police for driving recklessly on Hull
Street. ECF No. 27 at 10:11-13, 13:4-9. Before the traffic stop,
the officers observed Mitchell’s vehicle pass other traffic at a
high rate of speed that exceeded eighty miles per hour. Id. at
13:20-14:18. When the officers activated their lights and
sirens, Mitchell began to slow down, but he did not immediately
come to a stop. Id. at 16:3-12. As the vehicle slowed down, the

officers observed “furtive movements” by Mitchell and the front

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seat passenger both of whom leaned to the right and “dipp[ed]
their shoulders to the right.” Id. at 17:1-16. While that
conduct occurred, Mitchell swerved the vehicle to the right,
nearly going off the street. Id. at 18:6-12. Thereafter,
Mitchell finally stopped his vehicle. Id. at 18:24-19:2.

There were three other individuals in the car with
Mitchell: a passenger in the front seat and two other passengers
in the back seat. ECF No. 27 at 19:18-24. As soon as Detective
Ja-Ontay Wilson approached the driver’s side of the vehicle,
Mitchell admitted to speeding. Id. at 21:2-3. Detective Wilson
then asked Mitchell for a driver’s license or other
identification, and Mitchell, at least twice, started to lean to
his right side, then stopped, and said that he did not have
identification with him. Id. at 21:4-23. Detective Wilson
believed that Mitchell’s conduct (starting to lean to the right
and then stopping) was an attempt to not draw attention to the
right side of his seat. Id. at 22:2-5.

Mitchell also admitted to Detective Wilson that he had been
“sipping.” ECF No. 27 at 21:13. Detective Wilson understood that
to be an admission that Mitchell had been drinking alcohol. Id.
at 22:15-19. Detective Wilson could also smell alcohol on
Mitchell’s breath. Id. at 22:19-21. During this interaction with

Mitchell, Detective Wilson also observed that the front seat

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passenger was sitting as “stiff as a statue.” Id. at 26:17-21.
From that observation, Detective Wilson concluded that’ the
passenger did not want to attract any attention to the right
side of his seat. Id. at 26:25-27:6.

Detective Wilson then ordered Mitchell out of the vehicle
after inquiring whether there were any weapons on him or in the
car, to which Mitchell responded in the negative. ECF No. 27 at
27:8-24. A pat down search of Mitchell did not reveal any
weapons. Id. at 27:24-25. Detective Wilson then ordered the
front seat passenger to exit the car, and a pat down of the
passenger did not reveal any weapons. Id. at 28:2-21.

Detective Wilson then opened the rear driver's side door
and asked the rear seat passenger (an older gentleman) to exit
the vehicle. Gov. Ex. 1 (Clip 2 at 1:57-59). The man complied
and was patted down, but no weapons were found. Id. at 2:05-
2:11. Finally, the fourth passenger (an older woman with a cane)
was asked to step out of the car, and she complied. Id. at 2:15-
2:44. She was not patted down. Id. All of the occupants of the
vehicle then waited at the rear of the vehicle with two other
officers (Officer Lucas Hunsaker and Officer Lazarus, whose
first name is unknown to the Court). Id. at 2:44.

Immediately after the older gentleman was asked to step out

of the car, Detective Wilson directed his flashlight into the

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backseat, and there he saw an open bottle of alcohol and a
backpack with “a tied baggie corner sticking out” that appeared
consistent with narcotics based on the presence of a “white
material”! in the baggie. ECF No. 27 at 29:10-25, 30:20-25, 31:6-
10. At that point, Detective Wilson handcuffed Mitchell and
placed him under detention. Id. at 32:20-25. After conducting a
search of the backpack,? Detective Wilson searched the front
driver’s seat, including the center console, to see if he could
recover any narcotics or alcoholic beverages based on the
previous furtive movements that he observed. Id. at 37:16-22.
Finding nothing, Detective Wilson moved to the front
passenger side of the vehicle where the door was already open,
and, without entering the vehicle, he noticed “a firearm jammed
in between the door and the seat” where the front seat passenger
had previously been making furtive movements. Id. at 37:22,
39:9-40:9. An extended magazine was on the firearm. Id. at
39:23-25. Based on that discovery, the fact that it is illegal
to have an extended magazine on a firearm without a permit in
Virginia, and the fact that Mitchell and the front seat

passenger previously denied that there were firearms in the

1 The “white material” turned out to be a paper towel. ECF No. 27
at 62:6-8.

2 Because the search of the backpack is not pertinent to deciding
the Motions, it is not discussed in more detail.
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vehicle, Detective Wilson placed the front seat passenger under
investigative detention until he would be “able to interview
both occupants.” Id. at 40:25-41:8.

Mindful of those facts, Officer Hunsaker then performed a
re-search of the driver’s seat and the console to ensure that
Detective Wilson did not miss anything during the first search.
ECF No. 27 at 42:9-43:11, 74:6-17. During that search, Officer
Hunsaker found a Stoeger firearm wedged between the driver's
seat and the center console. Id. at 42:12-44:15. It was then
removed from the vehicle. Id. at 44:3-4. Following the discovery
of the second firearm, Mitchell was also placed under detention
and was eventually arrested and charged with reckless driving.
Id. at 50:22-25, 68:13-19.

III. Parties’ Arguments

At the evidentiary hearing, the Court instructed the
parties to revise and narrow their initial arguments to conform
with the Fourth Amendment’s requirement of objectivity. ECF No.
27 at 81-83. Accordingly, only the arguments relating to the
renewed Motion are summarized below.

a. Mitchell’s Position

First, Mitchell argues that Officer Hunsaker’s second

protective sweep of the driver’s seat was unlawful because

Mitchell and the other passengers were not in the car, so they

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did not have access to the weapons, and there was no risk that
anyone would be able to obtain the weapons at that point during
the traffic stop. ECF No. 28 at 6-7. Mitchell bases this
argument in the Supreme Court of the United States and Fourth
Circuit precedent, explaining that the distillation of different
cases instructs that “police may search for weapons [in] any
area the detainee could have accessed,” which was not the inside
of the vehicle. Id. at 7-8 (quotations omitted). Mitchell also
contests the Government’s previous argument that the traffic
stop could have ended with everyone being released by pointing
to the fact that there is no evidence to support the idea that
there was a “reasonably particularized suspicion that Mr.
Mitchell, or any of his passengers, was in fact so ‘dangerous’
that they . . . needed to be separated from any weapons

after that stop was concluded,” which is required to perform a
Terry frisk. Id. at 8-9. Mitchell argues that, even assuming
that he could be considered “armed” (which he does not concede),
a reasonable officer could not conclude that he was “dangerous”
because (1) he followed all directions and remained calm; (2)
none of the officers had ever encountered Mitchell before that

night, so they did not know prior information that would allow
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them to consider Mitchell dangerous; (3) under Virginia law,
owning a firearm is legal, so one cannot be considered dangerous
simply because they own a gun; and (4) the stop was over when
the officers searched the vehicle. Id. at 9-13.

Second, Mitchell contends that, based on United States v.

Graham, 686 F. App’x 166 (4th Cir. 2017), Officer Hunsaker
cannot rely on an “alternative ground” to justify the second
protective sweep if that was not his initial justification for
the sweep, even when examining the facts of the case in an
objective manner. ECF No. 28 at 13-14. Equating the facts of
this case against Graham (discussed below), Mitchell contends
that Officer Hunsaker cannot rely on the discovery of the
alcohol bottle in the backseat to justify the protective sweep
when he initially justified the search on the discovery of the
first firearm. Id. at 14-16.
b. Government’s Position

The Government counters’ that, for four reasons, the
officers had probable cause to justify the search of Mitchell’s
vehicle, or at least a reasonable suspicion to conduct a “Terry
frisk” of the vehicle for officer safety. ECF No. 31 at 1.
First, the officers had probable cause to believe that Mitchell

had been consuming alcohol while driving in violation of Va.
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Code §§ 18.2-323.1(A) and 18.2-2663 because (i) Mitchell was
driving erratically; (ii) Detective Wilson could smell alcohol
on Mitchell’s breath; (iii) Mitchell admitted he was “sipping”;
and (iv) the open bottle of alcohol was lawfully found in his
backseat. Id. at 7-8. Second, the Government argues that there
was probable cause to search the entire vehicle based on
Detective Wilson’s suspicion that there were narcotics in the
vehicle based on the plastic baggie he saw sticking out of the
backpack. Id. at 8-9. Third, the Government contends that there
was probable cause to conduct a second search of the vehicle
after the first firearm was discovered near the front passenger
seat because (i) Mitchell and the front passenger had lied about
firearms being in the car; and (ii) the officers previously
observed furtive movements from both individuals before
conducting the stop, so it was reasonable to believe that there
was another concealed weapon. Id. at 9-10.

Fourth, in the alternative, the Government argues that the

officers had at least a reasonable suspicion to believe that

3 Under Va. Code § 18.2-323.1(A), “[i]lt is unlawful for any
person to consume an alcoholic beverage while driving a motor
vehicle upon a public highway of the Commonwealth.”

Similarly, under Va. Code § 18.2-266, “[i]lt shall be unlawful
for any person to drive or operate any motor vehicle .. . (ii)
while such person is under the influence of alcohol[ or] (iii)
while such person is under the influence of any narcotic drug.”

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Mitchell was armed and dangerous such that a search of

Mitchell's vehicle would be warranted under Terry v. Ohio, 392

U.S. 1 (1968). ECF No. 31 at 12-13. The Government contends that
“the following specific and articulable facts” support the
officers’ conclusion that Mitchell was armed and dangerous: (i)
Mitchell was traveling at high rates of speed at night and
driving erratically; (ii) he did not come to an immediate stop
when Detective Wilson initiated the traffic stop; (iii)
Detective Wilson observed furtive movements that were indicative
of concealing contraband; (iv) Mitchell admitted to “sipping”;
(v) Detective Wilson could smell alcohol coming from Mitchell's
breath; (vi) Mitchell and the front seat passenger both avoided
their right sides where they had previously been making furtive
movements; and (vii) the occupants of the car were never placed
under arrest and were only standing a few feet away from the
vehicle. Id. at 12-14. Further, the Government relies on

Michigan v. Long, 463 U.S. 1032 (1983), to support its

contention that, because Mitchell and the other occupants were
not under arrest, they could have been released or broken away
at any time and obtained the weapon to use against the officers.
ECF No. 31 at 14-15. Additionally, the Government argues that
the legality of possessing the firearms is irrelevant because,

whether legal or not, simply possessing a firearm in combination

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with the other circumstances gives a reasonable officer an
objective basis to conclude that an individual is armed and
dangerous. Id. at 15.

In response to Mitchell’s argument that the Fourth
Circuit’s decision in Graham applies here, the Government argues
that the two cases can easily be distinguished because, in this
case, “probable cause was not developed after the fact.” ECF No.
31 at 10-12. The Government contends that Officer Hunsaker
himself had probable cause to search the vehicle given his
knowledge of (1) the furtive movements, (2) the fact that
Mitchell admitted he was drinking, (3) the discovery of the
first firearm from the front passenger side of the vehicle, and
(4) the lies told about the absence of firearms. Id. at 12.

Lastly, the Government argues that suppression is not an
appropriate remedy because the officers did not act
deliberately, recklessly, or in a grossly negligent manner. ECF
No. 31 at 16.

c. Mitchell’s Reply

In his reply, Mitchell contends that there was no probable
cause to search the vehicle for three reasons: (1) there were no
narcotics in plain view; (2) the officers had already seized the
bottle of alcohol from the backseat, so “the warrantless

intrusion should have ended because his objective of his

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investigation had been fulfilled”; and (3) the plain-view
doctrine that warranted the seizure of the first firearm does
not apply to searches. ECF No. 32 at 1-4. As for his reliance on
Graham, Mitchell argues that Officer Hunsaker cannot rely on
Detective Wilson’s discovery of the alcohol bottle as a basis
for probable cause because there is nothing in the record to
suggest that Officer Hunsaker knew about the alcohol bottle
before conducting the second protective sweep. Id. at 5. Lastly,
Mitchell argues that suppression is the proper remedy because it
is “[t]he best way to ensure that the police take seriously
their Fourth Amendment obligations.” Id. at 6.
DISCUSSION

I. Legal Standard

The Fourth Amendment protects “persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. This amounts to a default rule that “law
enforcement must obtain a warrant, grounded in probable cause,

before seizing or searching individuals.” United States v.

Harris, No. 3:21-cr-18, 2021 WL 2384554, at *3 (E.D. Va. June

10, 2021) (citing United States v. Yengel, 711 F.3d 392, 396

(4th Cir. 2013)). However, there are several exceptions to the

warrant requirement. United States v. Currey, 965 F.3d 313, 321

(4th Cir. 2020). At least three exceptions are relevant to this

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case: plain-view doctrine, Terry frisks, and the automobile
search exception. “Where law enforcement seize or search an

individual without a warrant and under circumstances in which no
exception to the warrant requirement applies, the Fourth
Amendment is violated, and the evidence found as a result of the
violation must be suppressed.” Harris, 3:21-cr-18, at *3 (citing

Wong Sun v. United States, 371 U.S. 471, 484-85 (1963)).

a. Plain-view Doctrine

The “plain view” doctrine “permits warrantless seizure by
police of private possessions where three requirements are
satisfied”: (1) the police must lawfully be in a location from
which they can view the particular area; (2) “the officer must
discover incriminating evidence ‘inadvertently’”;4 and (3) “it
must be ‘immediately apparent’ to the police that the items they
observe may be evidence of a crime, contraband, or otherwise

subject to seizure.” Texas v. Brown, 460 U.S. 730, 736-37 (1983)

(quoting Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 470

(1971)); see also United States v. Runner, 43 F.4th 417, 421

(4th Cir. 2022) (defining the second prong as “the officer had a

lawful right of access to the object itself” (cleaned up)).

4 In this context, “inadvertently” means that the officer “may
not know in advance of the location of certain evidence and
intend to seize it, [yet] rely on the plain view doctrine only
as a pretext.” Texas v. Brown, 460 U.S. 730, 737 (1983).

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Evidence of illegal activity discovered in plain view can serve
as the basis for probable cause to conduct a more extensive

search. United States v. Hall, 397 F. App’x 860, 862 (4th Cir.

2010) (unpublished).

b. Search Pursuant to Terry v. Ohio

Often referred to as a “Terry frisk,” police officers may
conduct “a reasonable search for weapons for the protection of
[that] police officer, where he has reason to believe that he is
dealing with an armed and dangerous individual, regardless of
whether he has probable cause to arrest the individual for a

crime.” Terry v. Ohio, 392 U.S. 1, 27 (1968). The purpose of the

search is protective, meaning that the officer is looking for
weapons that could harm them or others in the vicinity.

Minnesota v. Dickerson, 508 U.S. 366, 373 (1993). Accordingly,

the officer must rely on “specific reasonable inferences” that
the individual is both armed and dangerous, drawn from the facts
in light of his experience, to objectively determine whether
such a search is warranted. Terry, 392 U.S. at 27. In the
context of a traffic stop, two requirements must be met to
conduct a frisk: (1) the officer must have conducted a lawful
stop; and (2) “the officer [must] reasonably suspect that person

is armed and therefore dangerous.” United States v. Robinson,

846 F.3d 694, 700 (4th Cir. 2017) (en banc) (emphasis omitted).
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Whether such reasonable suspicion exists relies on the totality
of the circumstances, and officers can consider a range of
factors, including “[a] suspect’s suspicious movements,” “the
context of the stop, the crime rate in the area, and the nervous
or evasive behavior of the suspect,” to determine whether there
is “a ‘particularized and objective basis’ for believing that
the detained suspect might be armed and dangerous.” United

States v. George, 732 F.3d 296, 299 (4th Cir. 2013) (quoting

United States v. Arvizu, 534 U.S. 266, 273 (2002)).

The Supreme Court has also extended Terry frisks to frisks
of vehicles if (1) the search is “limited to those areas in
which a weapon may be placed or hidden” and (2) “the police
officer possesses a reasonable belief based on ‘specific and
articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant’ the officers in
believing that the suspect is dangerous and the suspect may gain

immediate control of weapons.” Michigan v. Long, 463 U.S. 1032,

1050 (1983) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). This

standard is different from the more-typical search of a car
without a warrant, which requires a finding of probable cause
that the vehicle has evidence of a crime or contraband.

California v. Acevedo, 500 U.S. 565, 569 (1991); United States

v. Johnson, 599 F.3d 339, 347 (4th Cir. 2010).

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c. Automobile Search Exception

Because vehicles “‘can quickly be moved out of the locality
or jurisdiction in which [a] warrant must be sought,’”
warrantless searches of vehicles are authorized if they are
supported by “probable cause to believe that the vehicle

contained evidence of crime.” California v. Acevedo, 500 U.S.

565, 569 (1991) (quoting Carroll v. United States, 267 U.S. 132,

153 (1925)). This includes the “search of compartments and
containers within the vehicle whose contents are not in plain
view” as long as “a magistrate could authorize a warrant

particularly describing the place to be searched.” United States

v. Ross, 456 U.S. 798, 800 (1982). However, if there is only
probable cause to search a container within a vehicle but not
the whole vehicle, the police may only search that container.
Acevedo, 500 U.S. at 580.
II. Analysis

Mitchell raises a number of arguments for why the second
search of his vehicle was unconstitutional, but none of those
arguments counter the fact that Officer Hunsaker had probable
cause under two lines of argument presented by the Government:

(1) the discovery of the first firearm in plain view, and (2)

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the alcohol-related evidence.5 Accordingly, for the reasons
discussed below, the Court denied Mitchell’s Motions’ to
Suppress.
a. Probable Cause to Conduct a Second Search

As is clear from the following testimony and evidence
presented during the hearing, Officer Hunsaker had probable
cause to conduct the second search of the vehicle on two
grounds. First, Officer Hunsaker had probable cause to search
for weapons based on the following information: (1) he observed
Mitchell driving erratically, which included Mitchell swerving
off to the right (ECF No. 27 at 71:12-15); (2) as is captured on
the body camera footage worn by Detective Wilson, officer
Hunsaker was aware that Detective Wilson had observed the
furtive movements to the right (Gov. Ex. 1 (Clip 1 at 0:47-
1:10)); (3) as is captured by the body camera footage worn by
Officer Hunsaker, he was standing next to Detective Wilson when

Mitchell stated that there were no weapons in the vehicle (Gov.

5 The Government also argued that Officer Hunsaker had probable
cause to search the vehicle for narcotics based on the plain-
view discovery of the baggie containing “white material” in the
rear of Mitchell's vehicle. ECF No. 31 at 8-9. This argument is
unavailing because, once a reasonable officer pulled the baggie
out of the backseat, he or she would have recognized that the
“white material” was a paper towel rather than narcotics, which
would have terminated probable cause on that basis. Accordingly,
this argument will not be addressed beyond this footnote.
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Ex. 2 at 2:47-2:53);® and (4) he knew that Detective Wilson had
recovered a firearm concealed in the front passenger side of the
vehicle to the right of the seat, which violated Virginia Code §
18.2-287.4 (ECF No. 37 at 72:22-73:15; ECF No. 31 at 9-10) .?
Based on the totality of the circumstances, a reasonable officer
would have had probable cause to conduct a search of the
vehicle, so Officer Hunsaker’s second sweep did not violate

Mitchell’s Fourth Amendment rights. California v. Acevedo, 500

U.S. 565, 569 (1991).

Alternatively, the officers could derive probable cause
from the following alcohol-related evidence: (1) Detective
Wilson observed Mitchell speeding and driving erratically (ECF
No. 27 at 71:12-15); (2) Mitchell and the passenger made furtive
movements to the right (Gov. Ex. 1 (Clip 1 at 0:47-1:10)); (3)
Mitchell admitted that he had been “sipping,” which the officers

understood as an admission to drinking alcohol, especially when

6 This fact supports a finding of probable cause because, after
being told there were no firearms in the vehicle, the officers
located a firearm, which would lead a reasonable officer to
infer that there could be additional firearms in the vehicle.

7 In his Reply brief, Mitchell rightfully concedes that “the
seizure of the gun found in the passenger side of Mr. Mitchell’s
car was justified by the plain-view doctrine.” ECF No. 32 at 3.
Accordingly, it is permissible for a piece of evidence seized in
a constitutionally-sound manner to be the basis of probable
cause for a search. United States v. Hall, 397 F. App’x 860, 862
(4th Cir. 2010) (unpublished).

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combined with the smell of alcohol coming from Mitchell (ECF No.
27 at 22:15-23:4); (4) Mitchell went to retrieve identification
from his right side but stopped short on two occasions,
indicating to Detective Wilson that Mitchell was trying not to
draw attention to his right side (ECF No. 27 at 21:7-22:5);® and
(5) Detective Wilson legally located an open bottle of alcohol
in the backseat of the vehicle (ECF No. 27 at 29:10-21). Based
on this evidence, there was probable cause to believe that
Mitchell was violating either Virginia Code § 18.2-323.1(A) or
Virginia Code § 18.2-266, so the officers could legally search
the vehicle for further evidence of a violation of those
statutes. Accordingly, Officer Hunsaker’s search of the vehicle
can also be justified by this line of argument.
b. Mitchell’s Arguments Are Unavailing

Mitchell makes five arguments that cannot overcome the
finding that there was probable cause to conduct the second

search but will still be addressed.

8 During oral argument, the Government described this fact as
Mitchell appearing to be nervous. However, based on a review of
Detective Wilson’s testimony, Detective Wilson never directly
testified that Mitchell appeared nervous but, instead, described
this situation, which can be interpreted as being nervous.

9 Mitchell makes more than five arguments for why the Court

should suppress the seizure of the firearm, but these are the

five arguments that are relevant to a finding of probable cause
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First, Mitchell argues that Officer Hunsaker did not have
probable cause to conduct a second search because, among other
reasons, the plain-view doctrine only provides a Fourth
Amendment exception for seizures, not searches. ECF No. 32 at 3.

This precept is correct as a matter of law. United States v.

Jackson, 131 F.3d 1105, 1108 (4th Cir. 1997) (“The ‘plain-view’
doctrine provides an exception to the warrant requirement for
the seizure of property, but it does not provide an exception
for a search.” (emphasis in original)). However, the Government
is not arguing that the plain-view doctrine authorized the
second search of the vehicle. Nor could it. Rather, the
Government is arguing that the seizure of the first firearm
under the plain-view doctrine supported the finding that there
was probable cause to conduct another search, which is a
meritorious argument as recounted above. ECF No. 32 at 9-10.
Second, Mitchell argues that, because possessing a firearm
is not illegal in Virginia, recovering a firearm would not give
a reasonable officer probable cause to search the vehicle. ECF
No. 28 at 11-13. This argument is misguided for two reasons.
First, while some firearms may be legally possessed in Virginia,

the first firearm recovered on the front passenger side of the

based on the seizure of the first firearm and the alcohol-
related evidence.
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vehicle could not because, as the Government notes, it is
unlawful “to carry a loaded semi-automatic center-fire rifle or
pistol that . . . is equipped at the time of the offense with a
magazine that will hold more than 20 rounds of ammunition”
without a permit. ECF No. 31 at 9-10; Va. Code § 18.2-287.4(a).
Second, Mitchell had previously told the officers that there
were no firearms in the vehicle, so, once an illegal firearm was
found in the vehicle contrary to Mitchell's statement, a
reasonable officer could conclude that it was probable that
additional illegal firearms were in the vehicle and conduct a
more thorough search. Accordingly, the fact that possessing
certain firearms is legal in Virginia will not save Mitchell’s
Motions.

Third, Mitchell relies on United States v. Davis, 997 F.3d

191 (4th Cir. 2021), to argue that the existence of the first
firearm cannot serve as the basis for probable cause. ECF No. 32
at 4-5. However, Mitchell’s reliance on Davis is misplaced. In
Davis, the Fourth Circuit held that the warrantless search of
the defendant’s car was unconstitutional under the automobile
exception because the police could not garner probable cause
from the following facts: (1) the defendant fled during the
traffic stop; (2) the defendant was subsequently arrested; and

(3) the police discovered cash on his person. 997 F.3d at 201.
21
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In contrast, there was enough evidence in this case from
which a reasonable officer could determine that there was
probable cause to believe Mitchell’s vehicle contained
contraband based on the furtive movements to the right,
Mitchell’s statement that there were no firearms in the vehicle,
and the seizure of the first firearm from the vehicle or,
alternatively, based on the reckless driving, furtive movements
to the right, Mitchell’s admission to drinking, and the open
bottle of alcohol found in the backseat. As Mitchell notes in
his Reply, the officers in the instant case uncovered an
“explicitly incriminating object” in the location where they
suspected it might be based on the furtive movements and after
they had been told there were no firearms in the vehicle while
no such object was uncovered in Davis. Likewise, an open bottle
of alcohol is an “explicitly incriminating object” that, when
coupled with the fact that Mitchell admitted that he was
“sipping,” gives more than enough probable cause to search the
vehicle for additional alcohol. Thus, the Court can
differentiate the findings here from those made by the Fourth
Circuit in Davis.

Fourth, Mitchell argues that the Fourth Circuit's decision

in United States v. Graham, 686 F. App’x 166 (4th Cir. 2017),

supports his claim that the Government cannot rely on an

22
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alternative theory other than what Officer Hunsaker testified to
to justify the search when the justification that he gave was
that he was conducting a “‘second protective sweep.’” ECF No. 28
at 13-16. In Graham, the Fourth Circuit held that the search and
seizure of a firearm in a vehicle was not justified under the
exigent circumstances exception and declined to consider the
Government’s alternative theory of probable cause because the
court declined to say “that any source of probable cause cures a
warrantless search and seizure—and especially not when that
source of probable cause is determined after the fact and where
the officers readily admit that their search and seizure was not
based on that source of probable cause.” 686 F. App’x at 174.
Additionally, in Graham, the Government was attempting to
justify the seizure of the firearm based on one officer’s plain
view of open containers of alcohol when it was a different
officer—who had no knowledge of the open containers—that seized
the firearm. Id.

In this case, the body camera footage worn by Officer
Hunsaker shows that he went into the front seat of Mitchell’s
vehicle to do a “re-check” of the area after Detective Wilson’s
initial search. Gov. Ex. 2 (Clip 6 at 0:39-0:45). And, during
the evidentiary hearing, while Officer Hunsaker did describe his

search as a “second protective sweep,” he also described

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Detective Wilson’s initial search as a “protective sweep” while
Detective Wilson testified (and as is clear from the body camera
footage) that he was searching for “[alny narcotics, any
alcoholic beverages, or any firearms,” not that he was
conducting a protective sweep for weapons. ECF No. 27 at 74:8-
17. Thus, this case can be differentiated from Graham because
the officers and the Government here were not devising a post-
hoc explanation for why they had entered Mitchell’s vehicle that
was completely disconnected from the actual order of events.
Rather, Detective Wilson conducted an initial search of the
vehicle for alcohol, narcotics, and weapons, and Officer
Hunsaker conducted a second search of the vehicle after the
discovery of the first firearm strengthened the probability that
there were additional weapons in the vehicle. Because of those
important differences, the outcome of this case is not dictated
by Graham.

Fifth, Mitchell argues that, once the bottle of alcohol was
retrieved from the vehicle, the officers were not free “to
search the entire interior compartment of the vehicle, because
the contraband related to the crime they were investigating

had been seized.” ECF No. 32 at 2-3. Mitchell supports this

argument with a discussion of United States v. Washington, 439

F. Supp. 2d 589 (E.D. Va. 2006), where the court found that the
24
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officer’s search of the defendant’s vehicle to retrieve an open
bottle of alcohol was constitutionally permissible because the
“limited search was ‘focused on its objective and no more
intrusive than necessary to fulfill that objective.’” Id. at

596-97. As the court noted in Washington, “a law enforcement

officer cannot lawfully extend a vehicle stop once the
applicable traffic citations have been issued, unless the
officer has reasonable suspicion to believe that additional

criminal activity is afoot.” Id. at 596 (citing United States v.

Sokolow, 490 U.S. 1, 7 (1989)). In this case, the officers did
have a reasonable suspicion to believe that additional criminal
activity was afoot based on (1) the furtive movements to the
right and (2) Mitchell’s hesitation to draw attention to his
right side. Those two facts indicated that additional
contraband—whether that be more alcohol or something else—was
present in the vehicle, so it was constitutionally permissible
for the officers to extend the traffic stop to finish searching

the vehicle. Accordingly, Washington cannot be interpreted to

mean that the officers had to cease searching the vehicle once

the open bottle of alcohol was seized as Mitchell contends.?°

10 Another key factual difference between Washington and this

case is that the officers in Washington had issued citations to

the defendant before locating the bottle of alcohol while the

officers here had not issued any citations to Mitchell or any of
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Accordingly, because none of Mitchell’s arguments serve to
overcome the Government’s justification for the search, the
Court found that there was probable cause to support the second
search of the vehicle that ultimately uncovered the firearm that
underlies the charges against Mitchell. Additionally, it is not
necessary to decide whether there was a reasonable suspicion
that Mitchell was both armed and dangerous to support a Terry
frisk of the vehicle or whether the search was authorized under
the officer safety rationale.

CONCLUSION

In sum, the second search of the vehicle was
constitutional under the Fourth Amendment because Officer
Hunsaker had probable cause to look for additional weapons or
alcohol in the vehicle. Likewise, none of the arguments
presented by Mitchell negate such a finding on the facts or as a
matter of law. Additionally, because the Court can determine
that probable cause existed based on the facts as recounted

above, the Court need not determine (1) whether there was a

the other passengers. Compare Washington, 439 F. Supp. 2d at 592
with ECF No. 27 at 32:14-33:3. Accordingly, the Washington
court’s discussion about extending a traffic stop is relevant to
that case because the traffic stop there was ending. In
contrast, that discussion is less relevant in the instant case
because the traffic stop was still ongoing for three reasons:
(1) no citation had been issued; (2) no arrest or detention was
made; and (3) there was still at least a reasonable suspicion
that criminal activity was afoot.

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reasonable suspicion that Mitchell was armed and dangerous so
that a Terry frisk was justified; and (2) whether suppression is

the proper remedy. O’Neal v. Brennan, No. 1:14-cv-1770, 2015 WL

11109492, at *2 (E.D. Va. May 27, 2015) (“Because these
arguments are so dispositive, the Court need not consider the
defendant's other arguments.”). Accordingly, the DEFENDANT’S
MOTION TO SUPPRESS AND INCORPORATED MEMORANDUM OF LAW (ECF No.
18) and DEFENDANT’S REPLACEMENT BRIEF IN SUPPORT OF MOTION TO
SUPPRESS (ECF No. 28) were denied.

It is so ORDERED.

/s/ VE

Robert E. Payne :
Senior United States District Judge

Richmond, Virginia
Date: July , 2023

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