Opinion
Case No. 03-10140-01-JTM
December 2, 2003
MEMORANDUM AND ORDER
On November 10, 2003, this matter came before the court on the various motions filed by defendant Jerry Lee Williams: (1) a Motion to Suppress [Dkt. No. 18], on the grounds of a lack of a reasonable suspicion to conduct an investigatory detention; (2) a Motion to Dismiss [Dkt. No. 22], on the grounds that 18 U.S.C. § 922(g)(1) is unconstitutional as applied here; (3) a Motion to Suppress statements made by defendant [Dkt. No. 23], on the grounds that his intoxication and gunshot wound rendered his waiver of his Miranda rights involuntary; and (4) a Motion in Limine [Dkt. No. 24], seeking the exclusion of any testimony relating to Williams's criminal record in light of his willingness to stipulate to the existence of a prior felony conviction.
During the course of the hearing, the court granted Williams's Motion in Limine for good cause shown, but otherwise denied the Motions to Dismiss or Suppress. Williams's argument that § 922(g) is unconstitutional, because it lacks an explicit commerce nexus element, was denied in light of United States v. Bayles, 310 F.3d 1302, 1307-08 (10th Cir. 2002). The argument was made merely to preserve the issue.
At the conclusion of the hearing, the court made extensive findings of fact regarding the Motions to Suppress, noting that an additional written order would be issued in due course. The findings and conclusions of the court made during the hearing are incorporated herein.
Suppression of Williams's post-arrest statement is unjustified, since the evidence establishes that the statement was voluntary. The parties do not dispute the relevant standard:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.Colorado v. Spring, 479 U.S. 564, 573 (1987) ( quoting Moran v. Burbine, 457 U.S. 412, 421 (1986)). Williams argues that the statement he made was involuntary, focusing upon the facts that at the time of the statement he had been shot; had previously been taking high blood pressure medication, and was intoxicated. The evidence before the court, however, leads to the conclusion that Williams's statement was voluntary.
Although Williams had been shot, his injury was inflicted by a small-caliber handgun to an extremity. He had been treated and released by a hospital. There is no evidence that he was under any mentally-impairing medication. The only evidence relating to his potential intoxication relates to a period many hours before the statement was rendered. A close review of the tape recording made of the interrogation fails to demonstrate that Williams was suffering from any significant intoxication at the time of the statement. The court finds that Williams's statement was voluntary.
With respect to Williams's motion to suppress the firearm, the evidence establishes that on July 19, 2003, at around 1:50 a.m., Wichita police officers went to the Denney's restaurant located at 4024 E. Harry in Wichita, Kansas in response to a call from the restaurant's security guard. The guard had been told by two patrons that a black male currently seated in the restaurant was in possession of a firearm. The officers were directed to a table where four people were seated. One of the four people at the table was the defendant Jerry Lee Williams.
The officers approached Williams and asked him to stand. Williams stood, but placed both hands in his pants pockets. The officers asked Williams several times to remove his hands from his pockets. Williams refused
Because they were investigating a report of a firearm, the officers thought Williams might have a firearm in his pocket. One of the officers tried to grab Williams's arms and pull Williams's hands from his pockets. As Williams's hands came out of his pockets, the officers saw a .25 caliber semi-automatic handgun emerge from a pocket. Immediately after the gun came out, it discharged, striking Williams in the leg.
Williams then dropped the weapon. A second man, who had been seated with Williams, picked up the gun and pointed it at one of the police officers. One of the officers kicked the man's hand, causing the gun to fall to the ground. A police officer secured the weapon. The officers then struggled with Williams and his party for an extended period of time and, eventually, three members of the party were subdued and arrested.
Williams's argument is that the officers did not have a reasonable suspicion to stop and frisk him, based solely upon an anonymous tip, citing Florida v. J.L., 529 U.S. 266 (2000). Had the officers immediately, upon their entry of the restaurant, attempted to stop and frisk all the black male patrons of the restaurant, the defendant's argument could be persuasive. But here the officers only approached the table where Williams was sitting in order to ask some questions. The mere act of a police officer approaching a person and asking questions does not constitute a seizure. Florida v. Bostick, 501 U.S. 429, 434 (1991). A seizure occurs when the officer exercises some physical force or the circumstances otherwise establish that the citizen was compelled to submit to the officer's authority. California v. Hodari D., 499 U.S. 621, 627-28 (1991). Here, the seizure occurred after Williams stuck his hands in his pants pockets and refused several requests to remove them.
Florida v. J.L. is thus distinguishable. In that case, officers were responding to a report that a black male was standing on a street corner with a gun. The officers, finding the defendant on the corner with two other black males, immediately ordered the defendant to place his hands on the bus stop sign and conducted a full frisk, leading to the discovery of a gun. The Supreme Court stressed that prior to the frisk the defendant "made no threatening or otherwise unusual movements."
That cannot be said here. The officers were investigating a report that one of the patrons at the restaurant had a concealed firearm. Williams ignored repeated requests by the officers to keep his hands above the table. When the officers tried to question Williams, he placed his hands in his pants pockets and refused several requests that he remove them. Only after this conduct by Williams did the officers use physical means to restrain him and thereby seize his person. Under the circumstances, grabbing Williams's arms was a seizure of the defendant, but it was then supported by a reasonable suspicion that he was in fact armed with a concealed weapon.
IT IS ACCORDINGLY ORDERED this 2nd day of December, 2003, that the defendant's Motions to Dismiss and Suppress (Dkt. Nos. 18, 22, 23) are denied; defendant's Motion in Limine (Dkt. No. 24) is granted.