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United States v. Dupree

United States District Court, Fourth Circuit

August 20, 2013

UNITED STATES OF AMERICA,
v.
SHARIEEF DUPREE, Defendant.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

On July 18, 2013, Defendant Sharieef Dupree ("Defendant" or "Dupree") was charged in a three-count Superseding Indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count One), possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count Two), and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count Three).[1] Pending before this Court are Defendant Sharieef Dupree's Motions to (1) Suppress Evidence (ECF No. 18) with respect to the firearm that was seized, (2) Suppress Statements (ECF No. 19) made by Defendant to the arresting officer, and (3) Suppress Tangible and Derivative Evidence (ECF No. 20) with respect to narcotics that were seized pursuant to a search incident to his arrest. The Court heard testimony and argument on Dupree's motions during a two-day motions hearing held on Thursday, August 1, 2013 and Friday, August 9, 2013. For the reasons that follow, Defendant Sharieef Dupree's Motion to Suppress Evidence (ECF No. 18), specifically the firearm, is GRANTED. However, Defendant Sharieef Dupree's Motion to Suppress Statements (ECF No. 19) and Motion to Suppress Tangible and Derivative Evidence (ECF No. 20) are DENIED.[2]

BACKGROUND

On June 5, 2012, at approximately 6:30 p.m., City Watch Camera Operator Jesus Leon ("Leon")[3] was in the City Watch Camera Center observing, via a remotely controlled camera, the activity on the 600 block of Cokesbury Avenue, Baltimore, Maryland. According to him, he was monitoring that block because a shooting had occurred in that area the previous day. At the hearing, Leon testified that, for about the next twenty minutes, he focused his observations on a man, later identified as Defendant Sharieef Dupree ("Defendant" or "Dupree"), with a yellow shirt who was "displaying characteristics of an armed person." Aug. 9, 2013, Mots. Hrg., ECF No. 45. As Leon reviewed the tape of the footage from the events relevant to this case, admitted and played during the hearing as Government Exhibit 1, he identified for the Court several of Defendant's actions which led him to believe that Defendant Dupree was carrying a concealed weapon. Specifically, Leon testified that he repeatedly observed an angular bulge in the "dip" of Defendant's right side. He further testified that he had seen Defendant walk "stiffly" and perform several "security checks" coinciding with Defendant's attempt to secure a possible weapon that he was carrying without a holster. During the motions hearing, the Court noted that many of the instances Leon referred to as security checks appeared to coincide with the Defendant touching his stomach or his leg. Additionally, during the playing of the videotape and subsequent legal argument, the Court also indicated that while there was a bulge on Defendant's right side, there was never any specific indication that this bulge was caused by a firearm. Indeed, Leon acknowledged that the videotape does not contain any video of the firearm itself. However, Leon testified that based on his training and experience as well as his observations of the Defendant's activity from about 6:30 p.m. to 6:50 p.m. on June 5, 2012, he specifically notified police officers patrolling the area that a man wearing a yellow shirt was in fact armed and standing on the porch of 656 Cokesbury Avenue.

At or about 6:50 p.m. on June 5, 2012, Detective Romey ("Romey") testified that he, Sergeant Burns ("Burns") and Detective Hersl ("Hersl") were in a patrol car at the intersection of Hargest Lane and Aiken Street in Baltimore, Maryland. According to the testimony of both Romey and Hersl, at that time they received a report from Leon on the patrol car's department radio that an individual wearing a yellow shirt was armed and standing on the porch of 656 Cokesbury Avenue. The recording of this report indicates that Leon also mentioned that it looked like "there's gonna be a war or something."[4] C-Channel Recording, Gov't Ex. 3, Track 3. As a result of this report, Burns, Romey and Hersl went to 656 Cokesbury Avenue to investigate the situation. As they arrived at the location, Romey got out of the car and headed in the direction of the house, and Hersl ultimately walked to the back of the house. According to Romey and Hersl, they were both wearing vests identifying themselves as police officers. Romey initially testified that as he approached the residence Defendant Dupree fled into the house. However, the tape showed and Romey acknowledged, following direct questioning by the Court, that Defendant Dupree did not in fact flee into the house. Instead, the video reflected that contemporaneous with Romey's arrival, Defendant was standing in the doorway of 656 Cokesbury Avenue and turned and went into the house in a normal, regular fashion and shut the door. The video then showed another individual with a white shirt and white cap going up the stairs more quickly and into the house. The video then reflected that Detective Romey ran up the stairs onto the porch and opened the closed door, entering the residence at 656 Cokesbury Avenue.

Once in the house, Romey testified that as Defendant Dupree noticed him, he immediately took a gun from under his shirt and threw it on a nearby couch. Romey testified that as Dupree began to run toward the back of the house, he attempted to follow him. However, Romey testified that he stopped his pursuit of the Defendant once Dupree exited the house from the back door. Romey then returned to the couch and secured the weapon which was later identified as a Glock 9mm caliber handgun, serial number NKL259 containing four (4) 9mmm caliber rounds of firearm ammunition.

In the meantime, Hersl had taken a position at the rear of the residence because in his experience, suspects are known to run out the back of houses. He testified that he saw Defendant Dupree run out the back of the house, jump a fence and then run northbound. Hersl then testified that he began pursuing Defendant Dupree. While he lost track of Dupree for a couple of seconds, he caught a glimpse of Dupree as he attempted to hide by laying down on the porch of a house a couple of blocks away. Hersl testified that he then proceeded to a location where he could have a tactical advantage over the Defendant and then drew his weapon as he approached the Defendant's location. He testified that when he came upon the Defendant, he began shouting commands. In response, Hersl testified that Defendant Dupree raised his hands, called him by name and said "Hersl, I don't have a gun. I just got some cokes and dopes."[5] Aug. 1, 2013, Mots. Hrg., ECF No. 33. Hersl testified that he understood "cokes" to mean cocaine and "dopes" to mean heroin. As a result, Hersl placed Defendant Dupree under arrest and testified to recovering seven (7) baggies containing suspected cocaine and heroin from the Defendant. The substance was later identified as heroin, hence the dismissal of the cocaine possession charge contained in Defendant's original Indictment.

As of July 18, 2013, Defendant Dupree is charged in a three-count Superseding Indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count One), possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count Two), and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count Three). Pending before this Court are Defendant's motions to suppress the gun (ECF No. 18), the statements made to Hersl (ECF No. 19) and the drug evidence recovered from his person (ECF No. 20).

ANALYSIS

I. MOTION TO SUPPRESS THE GUN

Defendant Sharieef Dupree ("Defendant" or "Dupree") has moved to suppress the gun recovered from 656 Cokesbury Avenue. The government contends that the police had reasonable, articulable suspicion to believe that the Defendant was armed under the "collective knowledge" doctrine and that the subsequent "flight" of the Defendant into the house validated and heightened this suspicion. In response, Defendant argues that the police did not have reasonable, articulable suspicion to believe that he was armed and that even if there was reasonable, articulable suspicion, it did not rise to a level justifying an intrusion, absent probable cause and/or exigent circumstances, into 656 Cokesbury Avenue.

A. Reasonable, Articulable Suspicion

The first issue with respect to the search and seizure of the gun is whether Detective Romey ("Romey") had the requisite reasonable, articulable suspicion to chase Defendant Dupree into 656 Cokesbury Avenue ("the house"). In the context of a motion to suppress evidence seized during a warrantless search, the government bears the burden to prove by a preponderance of the evidence that the search and seizure did not violate the Fourth Amendment. See United States v. Matlock, 415 U.S. 164, 177-178 n.14 (1974) (noting that "the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence"). As the United States Court of Appeals for the Fourth Circuit has recently noted:

The Fourth Amendment protects "[t]he right of the people to be secure in their persons... against unreasonable searches and seizures." U.S. Const. amend. IV. The Fourth Amendment does not proscribe all contact between the police and citizens, but is designed to prevent arbitrary and oppressive interference by ...

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