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United States of America v. James E. Carson

April 18, 2012


The opinion of the court was delivered by: Bumb, United States District Judge:

[Dkt. Ent. 14]


Before the Court is a motion to suppress evidence by the defendant James E. Carson ("Defendant"). Defendant argues that police officers stopped and frisked him in violation of his Fourth Amendment rights, and the firearm they seized from him during this encounter was therefore obtained unlawfully and must be suppressed. After conducting an evidentiary hearing on this matter on June 20, 2011, the Court denied Defendant's motion. [Dkt. Ent. 23.] Subsequently, the government produced evidence, which the Court determined it must disclose to Defendant pursuant to Giglio v. United States, 405 U.S. 150 (1972).*fn1 The Court therefore reopened Defendant's motion to suppress, permitted defense counsel time to review the relevant evidence, and subsequently conducted two additional evidentiary hearings on August 19, 2011, and March 8, 2012. At Defendant's request, the parties then submitted supplemental briefing. The matter is now ripe for adjudication. Having considered the parties' arguments and all the evidence, the Court again denies Defendant's motion.


Defendant was arrested in Camden, New Jersey, on April 11, 2010, for unlawful possession of a weapon and related charges. A grand jury indicted him on September 15, 2010, with (1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and (2) possession of a shotgun with a barrel length of less than 18 inches, which is not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Defendant pled not guilty on September 30, 2010. He filed an omnibus motion on May 19, 2011, which included the pending motion to suppress.


Generally, a defendant who seeks to suppress evidence carries the burden of proof. United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995), cert. den'd, 518 U.S. 1007 (1996) (citing United States v. Acosta, 965 F.2d 1248, 1257 n. 9 (3d Cir. 1992), in turn citing Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978)); United States v. Leake, Crim. No. 07-655, 2009 WL 482372, *2 (D.N.J. Feb. 25, 2009), aff'd, 396 Fed. Appx. 898 (3d Cir. 2010), cert. den'd, 131 S.Ct. 1541 (2011). "However, once the defendant has established a basis for his motion, i.e., the search or seizure was conducted without a warrant, the burden shifts to the government to show that the search or seizure was reasonable." Johnson, 63 F.3d at 245 (citation omitted); Leake, 2009 WL 482372 at *2. Here, the parties agree that Defendant was stopped and frisked without a warrant. Thus, the government must show by a preponderance of the evidence that this conduct did not exceed the bounds of the Fourth Amendment. United States v. Matlock, 415 U.S. 164, 178 n. 14 (1974); Leake, 2009 WL 482372 at *2.

The Fourth Amendment protects individuals from "unreasonable searches and seizures" by the government. U.S. Const. amend. IV. "Generally, for a seizure to be reasonable under the Fourth Amendment, it must be effectuated with a warrant based on probable cause." United States v. Lewis, -- F.3d --, 2012 WL 556065, *4 (3d Cir. 2012) (quoting United States v. Robertson, 305 F.3d 164, 167 (3d Cir. 2002), cert. den'd, 538 U.S. 1043 (2003)) (internal quotations omitted). However, a "well-established exception to the Fourth Amendment's warrant requirement permits an officer to conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000), in turn citing Terry v. Ohio, 392 U.S. 1 (1968)) (internal quotations omitted). If the officer has reasonable suspicion that a suspect is armed and dangerous, he may also conduct a protective frisk of the suspect's outer clothing for weapons. Terry, 392 U.S. at 27.

To determine whether reasonable suspicion existed to justify a search and seizure, courts must consider the "totality of the circumstances -- the whole picture." Robertson, 305 F.3d at 167 (quoting United States v. Sokolow, 490 U.S. 1, 8 (1989)) (internal quotations omitted). In making this assessment, courts "'give considerable deference to police officers' determinations of reasonable suspicion.'" United States v. Lopez, 441 Fed. Appx. 910, 913 (3d Cir. 2011), cert. den'd, -- S.Ct. --, 2012 WL 645892 (2012) (quoting United States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006)); see also United States v. Goodrich, 450 F.3d 552, 559 (3d Cir. 2006) ("[W]e must allow 'officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.'") (quoting United States v. Arzivu, 534 U.S. 266, 273 (2002)). Nevertheless, the detaining officer must have a "particularized and objective basis for suspecting the particular person stopped of criminal activity." Goodrich, 450 F.3d at 559 (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). Importantly, "[r]easonable suspicion is 'a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.'" United States v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000), cert. den'd, 532 U.S. 1014 (2001) (quoting Wardlow, 528 U.S. 119).


A.Evidentiary Hearing on June 20, 2011

At the first evidentiary hearing, held on June 20, 2011, the Court heard testimony from State Troopers Fausto Zapata and Kurt Kennedy and Defendant's cousin, Jonathan Candelario. Certain facts are not in dispute. On April 11, 2010, at 11:00 p.m., Troopers Zapata and Kennedy were conducting a "sneak and peek" operation in Camden, in response to complaints of drug sales and people brandishing weapons. (Hearing Transcript, June 20, 2011, 126:8-10, Dkt. Ent. 27 ("Tr.").)*fn1 As part of this operation, the troopers sat in an unmarked car on Baring Street, observing Defendant and others from approximately 30 yards away. It was dark, but the weather was clear, and there was light coming from nearby residences and street lamps. The parties agree that this is a high-crime area. Trooper Zapata testified that a month or two prior to this arrest, he was involved in an investigation in which he retrieved weapons from two separate individuals in this neighborhood. (Tr. 19:1-7.)

1. Zapata and Kennedy's Testimony

Zapata and Kennedy testified consistently as to all the relevant events leading up to Defendant's arrest. Both troopers testified that their view of Defendant was clear and unobstructed (Tr. 21:8-10, 66:4-7) and that they observed Defendant acting in a suspicious manner, see infra.

Trooper Zapata testified that he observed "three or four black males standing halfway down the block." (Tr. 20:12-13.) Defendant caught his attention, because he was "looking up and down the street", walking in an unusual manner, "dragging his left leg", and "continually grabbing" the left side of his waistband. (Tr. 20:12-20.) Zapata explained: "normally when you walk, you bend your knees and walk in a fluid motion. He wasn't walking fluid, he was kind of dragging his left leg." (Tr. 21:1-3.) Zapata testified that based on his nine and a half years of experience and training (Tr. 12:1-7), Defendant's behavior led him to believe that he was possibly carrying a firearm. (Tr. 15:22-16:6, 25:5-12.) Zapata had made approximately 20 to 25 arrests involving firearm offenses in Camden prior to this. (Tr. 13:15-14:1.)

Trooper Kennedy corroborated Zapata's testimony, stating that he observed Defendant, who had distanced himself from the others, "looking up and down the street" as if watching for "some type of police presence." (Tr. 70:7-12.) Kennedy testified that Defendant was "manipulating the left side of his waistband" as if there were "something on his left side that normally had to be held by both of his hands to keep it up." (Tr. 65:22-66:1.) Based on his training and experience, Kennedy believed Defendant was "concealing something" on his left side. (Tr. 69:3-8.) Since Kennedy had worked for the New Jersey State Police for nine years at the time of the hearing, he had approximately eight years of experience at the time of the arrest. (Tr. 59:7-8.)

According to Trooper Zapata, after observing Defendant's suspicious behavior and concluding that he was possibly carrying a firearm, the troopers began driving toward him and the other individuals to investigate further. (Tr. 25:11-18.) Zapata testified that as the officers approached, Defendant started turning or "blading" his body, so as to keep his left side away from them. (Tr. 26:11-15.) As he did this, Zapata noticed an outline of what appeared to be a shotgun.*fn2 Zapata testified that he and Kennedy exited their vehicle and stated "State Police", at which point Defendant attempted to walk into an alleyway. (Tr. 26:19-24). According to Zapata, he seized and frisked Defendant and recovered a loaded shotgun from his left side. (Tr. 27:16-23.) Specifically, Zapata testified, "I frisked [Defendant] because I wanted to make sure that what I saw was what I saw because I didn't want him to hurt me with that ...

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