Police had reasonable suspicion to stop man

Where the police saw an extended magazine sticking out of defendant’s waistband and sitting at an angle that suggested it was attached to a firearm, witnessed him shoving that extended magazine deeper into his pants and saw him continue to place his hand on it as he approached the officers and knew that the area was marred by gun violence and other crime, this provided a reasonable suspicion for a stop.

Background

Traquan Malik Henderson has moved to suppress the pistol and extended magazine seized from his person on May 25, 2021, along with any statements he made relating to that search and seizure. He contends that the evidence was obtained in violation of the Fourth Amendment following an unlawful investigative stop.

Stop

Officer Railey began his detention of defendant when he grabbed defendant’s arm, stepped in front of him, and said, “Lemme talk to you man.” At that moment, Railey had reasonable suspicion that crime was a foot based on four facts.

First, Railey saw an extended magazine sticking out of defendant’s waistband and sitting at an angle that suggested it was attached to a firearm. Second, Railey witnessed defendant shove that extended magazine deeper into his pants as he walked towards the two officers, possibly to hide it from the officers.

Third, Railey saw defendant continue to place his hand on the extended magazine as he approached the officers. Fourth, Railey knew that the Shop-N­Go and the surrounding area were marred by gun violence and other crime. These facts, taken together, would allow a reasonable officer to detain defendant for a brief time in order to investigate possible firearm violations.

Relying on United States v. Nathaniel Black, 707 F.3d 531 (4th Cir. 2013), defendant argues that Railey unlawfully stopped him merely for carrying a firearm. In Nathaniel Black, the Fourth Circuit held that seeing a suspect in a high-crime area at night and openly carrying a firearm in a state where it is legal to do so did not create reasonable suspicion. In that case, besides seeing the suspect legally carrying a firearm, the officers had no particularized reason to stop him.

In this case, unlike in Nathaniel Black, Railey had additional, particularized reasons to stop defendant. Of course, such suspicious activity could be “susceptible of an innocent explanation,” but a key purpose of a Terry stop is to “resolve the ambiguity” between innocent and criminal actions.

Next, defendant contends that Railey’s investigative stop was unlawful because Railey did not know for certain that defendant was breaking Virginia’s extended magazine law. An officer who sees a person carrying an extended magazine by itself, equipped with no other information, likely has no reason to detain that person for an investigative stop. But again, those are not the facts here.

Not only did Railey see the extended magazine sticking out of defendant’s waistband, but he also saw (1) that defendant attempted to hide the magazine deeper in his pants when he noticed the presence of law enforcement; (2) that defendant was touching the extended magazine as he approached the officers; (3) that the angle of the extended magazine suggested a firearm was attached and (4) that gun violence and shootings were common around the Shop-N-Go convenience store. Armed with these additional observations, Railey had reasonable suspicion that the extended magazine was attached to a firearm and could hold 20 or more rounds.

Frisk

Even after stopping a suspect for a brief investigation, an officer must separately have reasonable suspicion that the suspect is armed and dangerous before frisking him for a weapon. Here, Railey had reasonable suspicion that defendant was armed and dangerous.

What is more, Railey had additional evidence that defendant possessed a weapon by the time he searched defendant. After defendant was detained, Railey grabbed defendant’s right hand to put it in handcuffs. While he was doing so, Railey felt defendant tightly holding the firearm, felt the extended magazine near defendant’s hand and felt the grip of the firearm.

After defendant finally let go of the extended magazine, Railey saw the object slip deeper into defendant’s pants but not fall out. These observations add even more weight to Railey’s reasonable suspicion that defendant was armed and dangerous. Then, after obtaining reasonable suspicion, Railey conducted a reasonable Terry frisk.

Defendant’s motion to suppress denied.

United States v. Henderson, Case No. 3:21-cr-134, July 25, 2022. EDVA at Richmond (Hudson). VLW 022-3-321. 14 pp.