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United States v. Rushing

United States District Court, W.D. Washington, Seattle

October 8, 2019



          Thomas S. Zilly United States District Judge.

         THIS MATTER comes before the Court on defendant Jonathan Rushing's motion to suppress “fruits of illegal seizure, ” docket no. 273, and defendant's motion to suppress “evidence seized pursuant to search warrant, ” docket no. 274. Having reviewed all papers filed in support of, and in opposition to, the motions, including the photograph and two video recordings submitted on a digital versatile disc (“DVD”), docket no. 303, as Exhibits 1, 2, and 3, [1] respectively, to the Government's response, the Court enters the following order.


         In the fall of 2017, investigators began surveilling individuals believed to be part of a drug-trafficking organization, including co-defendants Patrick Tables and Michael Turner, who have since entered guilty pleas and been sentenced in this matter. See Palermo Aff. at ¶¶ 21-22 (Dec. 1, 2017) (docket no. 129-7); see also Judgment (docket no. 305); Judgment (docket no. 240). On November 8, 2017, officers observed Tables get out of a Dodge minivan and, while standing on Yesler Street in Seattle, speak to Turner, who had arrived in a white Suburban. Palermo Aff. at ¶¶ 17-20 (docket no. 129-7). Both men got in the Suburban, and shortly thereafter, a black Lexus drove up. Id. at ¶ 21. The male driver and sole occupant of the Lexus then joined Tables and Turner in the Suburban. Id.

         The Lexus was registered to Arianna Moyner, the fiancée of Nicholas Pines. See Knapp Aff., Ex. 4 to Gov't Resp. (docket no. 302-4). After comparing a photograph of Pines to the individual who had exited the Lexus, one of the investigators, namely Seattle Police Detective Steve Knapp, drew the conclusion that the driver of the Lexus was Pines, who had at least one warrant outstanding for his arrest. See id. Detective Knapp later learned that the person he had been observing was defendant Jonathan Rushing. See id.

         After returning to the Lexus for approximately twenty minutes, defendant left the vehicle and walked toward Pioneer Square. See Palermo Aff. at ¶ 21 (docket no. 129-7). Investigators located defendant standing outside Merchant's Cafe and Saloon on Yesler Way and requested that Seattle Police Officers Cole Nelson and David Toner make contact, telling them a “50/50” chance existed that the suspect was Nicholas Pines. See DVD containing portions of Nelson's and Toner's body camera recordings, Exs. 2 & 3 to Gov't Resp. (docket no. 303). While walking toward defendant, Officer Nelson asked defendant for his name. See Ex. 2 to Gov't Resp. After defendant responded, “Jonathan, ” Officer Nelson requested identification and inquired whether defendant had any weapons. See id. Defendant denied possessing a weapon. See id. Officer Nelson asked defendant if he was sure, and defendant replied, “Positive.” Id. With his right hand, defendant withdrew his wallet from a pocket, but his left hand remained in a different pocket. See id. After two requests by Officer Nelson to take his hand out of his pocket, defendant fled away on foot. See id. The entire interaction lasted less than twenty seconds. See id.

         Defendant was apprehended a few blocks away. See id. As soon as defendant was handcuffed by other officers, Officer Nelson stated, “Nicholas Pines, you're under arrest.” See id. Defendant responded, “Who is Nicholas Pines? I'm Jonathan Rushing.” Id. Officer Nelson then read the standard Miranda warnings, which defendant indicated he understood. Id. A different officer, who had located defendant's wallet, asked for and obtained defendant's permission to look at his identification. Id. Disagreeing with another officer's suggestion to stand defendant up and take him to a nearby car, Officer Nelson proceeded to search defendant, expressing concern that he might have a weapon and noting that, earlier, defendant would not take his hand of out of his pocket. Id. A loaded firearm was discovered during the course of Officer Nelson's search. Id.; see also Ex. 4 to Gov't Resp.

         The Lexus was impounded, and on November 9, 2017, Detective Knapp sought a search warrant for the Lexus. Ex. 4 to Gov't Resp. The affidavit for the search warrant did not discuss the drug-trafficking organization under investigation, and instead recited facts, and sought further evidence, relating to defendant's commission of the crime of unlawful possession of a firearm. See id. The search warrant affidavit described Pines as having several outstanding warrants for his arrest and a history of firearms possession, but also made clear that defendant had been identified as Rushing, not Pines. Id. The search warrant affidavit recounted Rushing's criminal history, which included a conviction for second-degree murder, and reported that the gun recovered from defendant was a stolen Glock Model 42. Id. Based on probable cause to believe that the crime of unlawful possession of a firearm had been committed, King County District Judge Anne C. Harper issued a search warrant, directing that the following items, if located in the Lexus, be seized: guns, ammunition or other firearm accoutrements, safes or locked containers, evidence of weapon purchases or identity, and “any other item illegally possessed.” See id. In executing the search warrant, investigators found, in the glove compartment of the Lexus, a black sock containing several small bags of cocaine base (crack) and methylenedioxymethamphetamine (MDMA). Defendant seeks to suppress the firearm and the controlled substances.


         A. Search Incident to Arrest

         The first issue before the Court is whether the evidence seized from defendant's person, including a loaded firearm, was obtained during a valid search incident to arrest. The Court concludes that an evidentiary hearing is not required to resolve this question because the moving papers fail to identify contested issues of fact. See United States v. Cook, 808 F.3d 1195, 1201 (9th Cir. 2015). Defendant contends that Officers Nelson and Toner lacked “reasonable suspicion” to conduct a Terry stop. See Terry v. Ohio, 392 U.S. 1 (1968). The Court disagrees. The officers had been asked to approach and identify defendant by narcotics detectives who were “50/50” that defendant was Nicholas Pines. Defendant does not dispute that Pines had at least one warrant outstanding for his arrest, see Def.'s Mot. at 4 (docket no. 274), and the officers therefore had “reasonable suspicion” to conduct a Terry stop to ascertain whether defendant was Pines. See United States v. Castro, 379 Fed. App'x 549 (9th Cir. 2010) (holding that a Terry stop was permissible to determine the identity of a passenger in a car previously driven by a person having an outstanding arrest warrant (citing United States v. Crapser, 472 F.3d 1141, 1147 (9th Cir. 2007))).

         Defendant accuses the police of “maliciously” pretending not to notice the differences in physical appearance between defendant and Pines. Defendant also asserts that the local law enforcement officers knew or should have known that, on the day of the Terry stop, Pines was in a federal detention facility and could not have been the driver of the Lexus. Defendant offers no evidence to support either of these allegations. These events occurred in the dark of night, and Officers Nelson and Toner were candidly advised that the narcotics detectives were unsure about the suspect's identity. The record reveals no malice and no indication that either the narcotics detectives or the officers conducting the Terry stop were aware of Pines's custody status.

         The Court is satisfied that the Terry stop of defendant was based on “reasonable suspicion” and that, prior to defendant's flight, the Terry stop had not transformed into a seizure for purposes of Fourth Amendment analysis. Officer Nelson would have been entitled during the course of the Terry stop to perform a “pat down” for weapons, and thus, his attempt to control defendant's left forearm while defendant's left hand remained concealed in a pocket did not amount to an arrest. See United States v. Salas, 879 F.2d 530, 535-36 (9th Cir. 1989).

         The Court further concludes that defendant's subsequent arrest was valid. At the time, Officer Nelson still believed defendant was Nicholas Pines, for whom an arrest warrant was outstanding, and he did not learn defendant is Jonathan Rushing until later. See Hill v. California, 401 U.S. 797, 802 (1971). Moreover, Officer Nelson had probable cause to believe that defendant obstructed a law enforcement officer in the discharge of official duties in violation of RCW 9A.76.020, which defines such behavior as a gross ...

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