IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CR. NO. 1:06cr197-MEF-CSC

)

RODERICK CHARLES MELVIN )

UNITED STATES’ RESPONSE TO MOTION TO SUPPRESS

 Comes now the United States of America, by and through Leura G. Canary, United States

Attorney for the Middle of Alabama, and in response to Defendant Roderick Charles Melvin’s

Motion to Suppress, previously filed in this cause, state as follows:

I. Background

On July 24, 2005, at approximately 5:00 p.m. Deputies Tim Crooks and Ed Preston

Fleshman of the Dale County Sheriff’s Office responded to a suspicious person call at the Grimes

Petro Station on County Road 112, Dale County, Alabama. Activities during the early morning

hours led residents to telephone the Sheriff’s Department.

On Sunday morning, July 24, 2005, Mary Steele was returning to her home from

purchasing a newspaper at the Grimes Petro Station when she observed a black male (later

identified as Roderick Charles Melvin) with a dark colored back pack walking on the side of the

road. After Ms. Steele arrived at her residence, she received a telephone call from her sister-inlaw, Rebecca Hutto, who lives a couple of houses away from Ms. Steele. Mrs. Hutto asked Ms.

Steele whether she had seen a black male with a back pack, because this person had just been

“banging” on her door demanding to use her telephone. According to Mrs. Hutto, the subject

was wearing a red muscle top [tee-shirt]. Melvin went to Mrs. Hutto back and front doors two

times. Mrs. Hutto ignored Melvin hoping that he would go away. According to Mrs. Hutto’s

Case 1:06-cr-00197-MEF-CSC Document 16 Filed 10/23/2006 Page 1 of 8
The undersigned learned that Mrs. Hutto’s home was burglarized on 03/05/05, 1

during preparation for this response and the evidentiary hearing.

2

statement, her home had been previously burglarized. Therefore, Mrs. Hutto told Melvin she 1

did not have a phone. Ms. Steele told Mr. John Herring what happened at Mrs. Hutto’s residence

and gave him a description of the subject.

Later on this Sunday morning, Mr. John Herring observed a subject who matched the

description given by Ms. Steele come to the Grimes Petro Station. Mr. Herring said that the

subject came to the Grimes Petro Station, put his back pack down outside of the store and entered

the store. A short time later, the subject left the store without purchasing anything, picked up his

back pack and left. According to Mr. Herring, the subject did not ask to use the phone.

Mr. Herring observed the individual go behind a residence and then cross the highway and go

behind a church. The individual then proceeded down the road toward Mr. Herring’s residence. 

Ms. Steele arrived at the Grimes Petro Station. Mr. Herring told Ms. Steele that the

subject she had called about earlier had been to the store. They decided to call the Sheriff’s

deputies. The information related to the deputies was that there was a person going around and

behind houses knocking on doors. The residents were concerned because of a previous burglar in

the area. 

According to Deputy Fleshman, they received what is called a “10-38", which is a call

regarding suspicious circumstances. When the deputies arrived, they were met by Mr. Herring

and Ms. Steele, who pointed out a vehicle that the “suspicious person” had just gotten into. Mr.

Herring and Ms. Steele stated that the person appeared to be lying down in the rear seat as to

Case 1:06-cr-00197-MEF-CSC Document 16 Filed 10/23/2006 Page 2 of 8
It should be noted that the defendant was given a ride by James Robert Duncan. 2

Mr. Duncan’s front passenger seat had been removed. The defendant was in the back seat of the

car.

3

avoid being seen. The vehicle was still in view when the deputies arrived. Deputy Crook will 2

testify that he noticed the subject sitting in the back seat of the vehicle, which appeared odd to

him.

The deputies executed a stop of the vehicle. Deputy Crook requested identification from

the driver, James Robert Duncan and the passenger, Defendant Melvin. While Deputy Crook

returned to his unit to run a check of both identifications, Deputy Fleshman stayed in a position

to observe both subjects. Deputy Fleshman observed Melvin unzip his back pack and remove an

object from it. As Melvin dropped the object onto the floor behind the driver’s seat, Fleshman

saw that it was a silver handgun. Deputy Fleshman notified Deputy Crook, who requested that

both subjects get out of the vehicle for their safety and the officers’ safety. Deputy Crook asked

Mr. Duncan for his consent to search the vehicle. Mr. Duncan consented to the search of his

vehicle. Deputies found a loaded .22 caliber revolver. Melvin was arrested for carrying a

concealed weapon without a permit. Melvin was searched incident to his arrest. Deputies found

75 live rounds of .22 caliber ammunition in Melvin’s front cargo pocket. Mr. Duncan said that

he did not have a firearm in his car. The deputies determined that Melvin was a convicted felon.

II. Legal Discussion

A. Dale County Deputies’ Stop Was Based Upon Reasonable Articulable

Suspicion.

The defendant’s first and most crucial argument is that Deputies Crook and Fleshman did

not have probable cause to stop the car driven by James Duncan because there was no violation

Case 1:06-cr-00197-MEF-CSC Document 16 Filed 10/23/2006 Page 3 of 8
4

of traffic laws, the occupants had not committed any criminal offense and the vehicle did not

contain contraband. The defendant’s argument is meritless and the defendant misunderstands the

nature of the reasonable suspicion inquiry. In Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868

(1968), the officers observed two individuals pacing back and forth in front of a store, peering

into the window and periodically conferring. (quoting from Illinois v. Wardlow, 528 U.S. 119,

125-26, 120 S.Ct. 673, (2000). The Supreme held that the conduct of the two individuals was

not illegal, but “suggested that the individuals were casing the store for a planned robbery.” Id. 

However, Terry recognized that the officers could detain the individuals to resolve the ambiguity. 

Each case must be decided on its own face. Moreover, officers are not required to have

reasonable suspicion of ongoing illegal activity in order to make investigative stops. It is enough

that the officer has reasonable suspicion that criminal activity may be afoot. The very point of

Terry was to permit officers to take preventive action and conduct investigative stops before

crimes are committed, based on what they view as suspicious, although legal, activity. See,

Illinois v. Wardlow, 528 U.S. 119, 125-26, 120 S.Ct. 673, (2000). The Terry standard is whether

an officer reasonably believed that “criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1,

30, 88 S.Ct. 1868 (1968), not whether there is probable cause to believe that a crime has been

committed.

In the instant case, the officers had sufficient reasonable suspicion based upon their

collective experiences, the call to the Sheriff’s Office describing the defendant’s activities, and

the defendant’s appearance of hiding in the back seat of Duncan’s vehicle as he passed the

Case 1:06-cr-00197-MEF-CSC Document 16 Filed 10/23/2006 Page 4 of 8
Deputy Crook will testify that when he began his shift, he learned that deputies 3

had been to the area earlier in the day looking for the same subject. Crook was given a clothing

description of the subject and that the subject had been knocking on doors and attempting to get

into houses. The subject in Mr. Duncan’s vehicle matched the description Crook had been given.

5

Grimes Petro Station. As discussed in Wardlow, the Supreme Court reasoned that 3

“Terry accepts the risk that officers may stop innocent people. 

Indeed, the Fourth Amendment accepts that risk in connection with

more drastic police action; persons arrested and detained on

probable cause to believe that they have committed a crime may

turn out to be innocent. The Terry stop is a far more minimal

intrusion, simply allowing the officer to briefly investigate further. 

If the officer does not learn facts rising to the level of probable

cause, the individual must be allowed to go on his way. But in this

case the officers found respondent in possession of a handgun, and

arrested him for violation of an Illinois firearms statue.

Wardlow at 126.

The facts are very similar in this case. Concerned reliable citizens reported what they

believe to be suspicious activities in their neighborhood. These activities were not witnessed by

only one person who immediately panicked, but by three different individuals. Collectively, they 

witnessed the defendant do the following: (1) go to the rear and front of several houses and a

church; (2) pass an operative pay phone while requesting to use a resident’s phone; (3) go into a

store (Grimes Petro Station) and leave without asking to use a phone; and (4) appear to lean

down in a vehicle as to avoid being seen when the police arrived. Based upon a totality of the

circumstances in this case, the deputies had an obligation to investigate further, especially since

there had been a burglary in the small community a few months earlier. In Illinois v. Gates, 462

U.S. 213, 230-235 (1983), the Supreme Court held that the Fourth Amendment touchstone of

“reasonableness” rejects a rigid absolute rule and encourages the practical and particularized

review of stops and searches. Applying the same principle in this case, neighborhood watch

Case 1:06-cr-00197-MEF-CSC Document 16 Filed 10/23/2006 Page 5 of 8
6

would have absolutely no affect on safeguarding and protecting themselves from criminal

activity that may be afoot. Instead, neighbors would be required to watch and wait until an actual

crime has been committed and then call law enforcement after the fact. The more practical

approach, as in Gates and Terry, would be to do just as Mrs. Hutto, Ms. Steele and Mr. Herring

did in this case.

B. The Defendant Lacks Standing to Challenge the Search of the Vehicle.

Defendant Melvin does not have standing to challenge the search of Duncan’s vehicle. 

Fourth Amendment rights are personal rights which cannot be asserted by a mere passenger in a

vehicle. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). “A person who is aggrieved by an

illegal search and seizure only through the introduction of damaging evidence secured by a

search of a third person’s premises or property has not had any of his Fourth Amendment rights

infringed.” Rakas at 134. The defendant in the instant case has not demonstrated that he had an

expectation of privacy in Duncan’s vehicle, the place searched, and that the expectation of

privacy is reasonable. United States v. Chaves, 169 F.3d 687, 690 (11 Cir. 1999). th

Notwithstanding, Mr. Duncan gave Deputy Crook consent to search his vehicle.

II. Conclusion 

For the reasons stated above, the stop of the vehicle was justified and Defendant Melvin

had no expectation of privacy in the vehicle searched. Therefore, his motion to suppress should

be denied.

Case 1:06-cr-00197-MEF-CSC Document 16 Filed 10/23/2006 Page 6 of 8
7

Respectfully submitted on this 23 day of October 2006. rd

LEURA G. CANARY

UNITED STATES ATTORNEY

/s/Tommie Brown Hardwick

TOMMIE BROWN HARDWICK

One Court Square, Suite 201

Montgomery, AL 36104

Phone: (334) 223-7280

Fax: (334) 223-7135

E-mail: tommie.hardwick@usdoj.gov

ASB4152 W86T

Case 1:06-cr-00197-MEF-CSC Document 16 Filed 10/23/2006 Page 7 of 8
8

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) CR. NO. 1:06cr197-MEF-CSC

)

RODERICK CHARLES MELVIN )

CERTIFICATE OF SERVICE

I hereby certify that on October 23, 2006, I electronically filed the foregoing with the

Clerk of the Court using the CM/ECF system which will send notification of such filing to the

following: Kevin L. Butler, Esq.

Respectfully submitted,

/s/Tommie Brown Hardwick

TOMMIE BROWN HARDWICK

One Court Square, Suite 201

Montgomery, AL 36104

Phone: (334)223-7280

Fax: (334)223-7135

E-mail: tommie.hardwick@usdoj.gov

ASB4152 W86T

Case 1:06-cr-00197-MEF-CSC Document 16 Filed 10/23/2006 Page 8 of 8