United States District Court, D. Delaware
January 7, 2016, the Grand Jury for the District of Delaware
indicted Defendant Michael King ("Mr. King") for
one count of knowingly possessing a firearm that moved in
interstate commerce after having been convicted of a crime
punishable by imprisonment for a term exceeding one year.
See (D.I. 8). Presently before the court is Mr.
King's Motion to Suppress Evidence. (D.I. 20). Judge
Andrews held an evidentiary hearing in connection with this
motion on September 20, 2016. After the hearing, Defendant
filed his post-hearing brief. (D.I. 29). The Government filed
a letter outlining potential reasons why Judge Andrews should
recuse himself. (D.I. 30). On November 3, 2016, Judge Andrews
decided to recuse himself, recognizing that he had previously
supervised the prosecution of Mr. King for a similar crime in
his role as Criminal Chief in the United States
Attorney's Office. After reassignment, the Government
filed its post hearing brief. (D.I. 33). For the reasons that
follow, the court will deny Mr. King's motion to
FINDINGS OF FACT
evidentiary hearing before Judge Andrews on September 20,
2016, the United States called one witness, Trooper Austin
Andres ("Trooper Andres"). (D.I. 25). Mr. King did
not call any witnesses. Id. The court held a
Teleconference on November 16, 2016, to discuss Judge
Andrews' recusal and to determine whether another
evidentiary hearing was necessary. Both Defendant and the
Government agreed that "the record . . . [was] clear
from the evidentiary hearing, " witness credibility
determinations by this court were, therefore, unnecessary,
and the only issue to be resolved was a legal one: when was
Mr. King seized by Trooper Andres? Teleconference Tr.
3:10-20. The following represents the court's essential
findings of fact as required by Rule 12(d) of the Federal
Rules of Criminal Procedure. The following findings of fact
were made from the testimony of Trooper Andres, (D.I. 29-1),
the audio recording admitted into evidence as Government
Exhibit 1, (D.I. 29-1, Ex. 1), and the audio-video recording
admitted into evidence as Government Exhibit 2, (D.I. 29-1,
about 8:00pm on December 4, 2015, Trooper Andres reported to
the hibachi restaurant in Glendale Plaza in Bear, Delaware,
in response to a radio transmission from dispatch stating
that two males were fighting in the lobby of the restaurant.
(D.I. 29-1, Ex. 2 at 4:19-5:1). The dispatcher requested that
"[u]nits respond to the Hibachi in Glendale Plaza, in
reference to a couple of disorderly subjects." (D.I.
29-1, Ex.1 at 0:00-0:47). The dispatcher also relayed the
description of the subjects and specific events noted by the
reporting party ("RP"):
You have a 24-year-old black male wearing a dark-colored
hoodie and a 24-year-old white male, brown hair, also wearing
a dark-colored hoodie and blue jeans. The two subjects were
inside the restaurant fighting. RP initially advised that one
left and one was still inside the restaurant and we were
further updated that they both left the restaurant, possibly
still in the parking lot.
Andres indicated to the dispatcher that he could respond to
the request for investigation at the Hibachi. (D.I. 29-1,
8:9-11). Trooper Andres arrived at the Hibachi about a minute
after he communicated to the dispatcher that he would
respond. Id. 8:9-11. When Trooper Andres arrived at
the Hibachi, he parked his car slightly past the entrance of
the restaurant, walked through the front entrance door, and
opened the interior door leading to the lobby. Id.
walking into the lobby of the Hibachi, Trooper Andres made
eye contact with RP, the host of the restaurant. Id.
8:23-24. Without walking over to RP, Trooper Andres asked RP
if he called the police. Id. 8:25. In response to
Trooper Andres question, RP nodded yes and then pointed to a
black male subject leaning against the front lobby windows
inside of the restaurant. Id. 9:2-4. The subject
that RP pointed to was wearing a dark hooded sweatshirt, grey
jeans, and black sneakers. Id. 9:10. During the
hearing, Trooper Andres confirmed that the subject RP pointed
to was, in fact, Mr. King. Id. 9:11-12.
pointed at Mr. King, Mr. King stopped leaning on the front
window and started walking toward Trooper Andres.
Id. 9:15-16. At that time, Trooper Andres was
standing in front of the entrance to and exit from the
Hibachi. Id. 9:18-19. When Mr. King started walking
toward Trooper Andres, Trooper Andres put his "arm out
across the doorway and told [Mr. King] to stop" because
Trooper Andres "needed to talk to [him] for a
second." Id. 9:21-22. Mr. King
"immediately turned around [and] started walking back
inside the Hibachi towards the seating area where people were
dining." Id. 9:24-25. Mr. King was walking at a
fast pace away from Trooper Andres, and, even after Trooper
Andres told him to stop, Mr. King did not respond and
continued to walk away. Id. 10:1-7.
Mr. King did not respond to Trooper Andres requests to stop
walking, Trooper Andres took hold of the back of Mr.
King's black, hooded sweatshirt, turned him around, and
walked him out of the restaurant. Id. 10:9-11. Once
Trooper Andres took hold of Mr. King's sweatshirt, Mr.
King complied and walked with Trooper Andres out of the
restaurant. Id. 10:15-19. Trooper Andres did not
drag Mr. King out of the restaurant. Id.
Andres let go of Mr. King's sweatshirt once they were
outside of the Hibachi. Id. 11:1-2. When Trooper
Andres and Mr. King began to speak outside of the Hibachi,
Trooper Andres noticed the smell of alcohol emanating from
Mr. King, and he also noticed that Mr. King had glassy,
bloodshot eyes. Id. 11:1-6. When Trooper Andres
asked Mr. King what had happened that night, Mr. King
repeatedly stated that he did not do anything wrong, but he
was drunk. Id. 11:14-15. Trooper Andres asked Mr.
King if he had any identification on him. Id.
11:16-21. Mr. King pulled out his wallet and handed Trooper
Andres a credit card even though Trooper Andres observed a
Delaware identification in Mr. King's wallet.
Id. Trooper Andres asked to see Mr. King's
identification card, and Mr. King responded by telling
Trooper Andres his name but asking the trooper not to
"run" him. Id. 12:3-4. This caused Trooper
Andres to think that Mr. King had something to hide.
Trooper Andres' conversation with Mr. King outside of the
Hibachi, Trooper Andres observed that Mr. King continually
placed "his hands inside of his front jean
pockets." Id. 12:9- 11. Trooper Andres asked
Mr. King "many times" to stop placing his hands in
his pockets during questioning. Id. 12:12-14. When
Mr. King failed to comply with the Trooper's orders to
keep his hands out of his pockets, Trooper Andres told Mr.
King he had to pat him down. Id. 13:1. While patting
him down, Trooper Andres asked Mr. King if he had anything on
him that could harm the Trooper. Id. 13:1-3. Mr.
King did not respond to the Trooper's question.
Andres found nothing in Mr. King's front pockets during
the pat down. Id. 13:8-9. When the Trooper tried to
pat down Mr. King's back pockets and waistband, Mr. King
pushed the Trooper's hand away and started to back away
from him. Id. 13:10-15. When Mr. King started to
turn away from Trooper Andres, the Trooper said, in a
"command voice, " id. 13:20, "stop,
don't move, let me see your hands." Id.
13:16. Mr. King tried to walk away and Trooper Andres pushed
him up against the patrol car to stop him. Id.
13:22-23. At that point, Trooper Andres also pulled out his
"department issued taser, " id. 14:1, and
he turned on his microphone. Id. 14:10. When the
microphone is turned on, the camera in the patrol car also
begins recording. Id. 14:11-17. Trooper Andres
testified that he pulled out his taser and ...