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United States v. Cooper

United States District Court, W.D. Kentucky, Louisville

April 21, 2017



          Thomas B. Russell, Senior Judge.

         This matter is before the Court on Defendant Gary Ross's Motion to Suppress and Supplement to his Motion to Suppress. [DN 148; DN 160.] The United States responded, [DN 165], and Ross did not reply. The Court held a suppression hearing on February 2, 2017, at which it heard testimony from Sergeant Steve Bailey, Officer Sean Szpila, Ross's girlfriend, Akia Ellis, and Defendant Ross. [DN 166; DN 167.] The parties filed simultaneous post-hearing briefs, [DN 170; DN 171], and Ross filed a response, [DN 178.] Fully briefed, Ross's motion is ripe for adjudication. For the following reasons, Ross's Motion to Suppress [DN 148] is DENIED.


         On the night of October 28, 2014 at approximately 9:15 p.m., Sergeant Steve Bailey of the Louisville Metro Police Department (LMPD)[1] was dispatched to a house on Southdale Road in Louisville, Kentucky to respond to a panic alarm that was set off at the residence. [DN 167 at 5 (Evidentiary Hearing Transcript).] Sergeant Bailey testified that he arrived at the house by 9:18 p.m., about three minutes later. [Id. at 6.] After Sergeant Bailey exited his vehicle and approached the house, he observed the silhouette of a person through the glass on the front door. [Id. at 7-8.] The person, who was the Defendant, Gary Ross, stepped out of the front door to stand on the porch. [Id. at 7.] As Sergeant Bailey walked toward the porch, Ross informed him that he had tried to call dispatch to cancel any police response to the panic alarm, and Sergeant Bailey testified that Ross did this in a “suspicious and kind of nervous” way that indicated “he didn't want police presence at that particular time.” [Id.] Sergeant Bailey explained that, while in his experience homeowners are typically grateful when police respond to alarms, Ross acted “very defensive, ” stood in close proximity to his front door, and “was kind of mad . . . or disgusted with dispatch” for failing to cancel the police response. [Id. at 9.] Sergeant Bailey testified that immediately upon speaking with Ross, he could “smell a strong fresh odor of marijuana emitting from within the residence.” [Id. at 12.] Sergeant Bailey testified that he had encountered this smell on numerous occasions throughout his twenty-three years as a police officer, and that after working in narcotics, he can discern a difference between the smell of burnt or recently smoked marijuana and fresh marijuana. [Id. at 14.]

         To verify that Ross did, in fact, live at the residence on Southdale Road, Sergeant Bailey asked Ross for identification, which Ross provided. [Id. at 13; 16; 46.] During this initial encounter, the door to Ross's house was slightly open, and at one point Sergeant Bailey observed Ross's girlfriend, Akia Ellis, in the house with a young child. [Id. at 15.] Although Ross informed Sergeant Bailey that his son accidentally set off the home alarm, Sergeant Bailey testified that the alarm coupled with Ross's defensiveness made him concerned about the possibility of a domestic disturbance or a home invasion. [Id. at 16.] Sergeant Bailey testified that Ross started to become more “belligerent, ” and he began to suspect that illegal activity was going on. [Id.] At this point, Office Bailey asked Ross for his consent to search his home. [Id.] In response, Sergeant Bailey testified that Ross became more belligerent, possibly as “a distractionary technique.” [Id. at 17.] Sergeant Bailey further testified that Ross admitted that he had recently smoked marijuana and that he stated that he was in a rush to leave his house. [Id.] Ross turned to Ellis and told her to shut the door and not to let Sergeant Bailey in. [Id.] In response, Sergeant Bailey instructed Ellis “[d]on't shut that door.” [Id.]

         After this exchange, Sergeant Bailey called for backup, and while he waited for another officer to arrive, he placed Ross in handcuffs “for mine and [his] safety, ” though he did not place Ross under arrest. [Id.] Ross remained in handcuffs until police left his residence at approximately 4:45 a.m. the next morning. [Id. at 49.] Officer Sean Szpila arrived at the house shortly thereafter and observed that Ross “seemed agitated” and “was not calm” when he arrived. [Id. at 49; 65-67.] However, both officers testified that Ross seemed to interact more calmly with Officer Szpila than he did with Sergeant Bailey and that the two developed a “bit of a rapport.” [Id. at 19; 67-68.] Officer Szpila also testified that he could smell marijuana from outside the house. [Id. at 68; 71.] The officers both testified that, shortly after Officer Szpila arrived and began talking with Ross, he admitted to them “that he had a little bit of marijuana inside the residence” and gave Officer Szpila permission to go into the house to seize the marijuana. [Id. at 19-20; 68; 72.] When Officer Szpila went into the house, he observed a small amount of marijuana, some money, and a stack of loose leaf paper in the kitchen. [Id. at 68-69.] Officer Szpila also saw Ellis and her young son. [Id. at 68.] He then went back out onto the porch and told Sergeant Bailey what he saw. [Id. at 23; 69.]

         Sergeant Bailey and Officer Szpila then took Ross inside the house, and while Officer Szpila remained with Ross and Ellis, Sergeant Bailey conducted a “protective sweep of the house to make sure there w[ere] no other suspects present within.” [Id. at 23; 70.] After the sweep concluded, Officer Szpila and a third officer who arrived on the scene, Officer Jones, stayed with Ross and Ellis in the living room while Sergeant Bailey gathered information he would need to apply for a search warrant of the home. [Id. at 28.] Sergeant Bailey then left to type up the warrant affidavit and present the application to a state court judge, who granted and signed the warrant at approximately 1:40 a.m. on October 29, 2014. [Id. at 28; 49.]

         After Sergeant Bailey arrived back at Ross's house, the officers took Ellis's information and allowed her to leave with her young son. [Id. at 29.] Then, Sergeant Bailey and the rest of his five-person unit, which had since arrived at the residence, executed the search warrant and performed a detailed search of the house. [Id.] The officers found various evidence during their search, the most significant of which was large sums of money located at the bottom of a laundry basket in the master bedroom, including three $30, 000 stacks and one $55, 000 stack of cash. [Id. at 29-32.]

         While the officers searched and filled out a log sheet documenting the evidence they found during their search, Sergeant Bailey and Ross began talking “in an interview-type forum.” [Id. at 33.] Sergeant Bailey testified that he read Ross his Miranda rights and that Ross “agreed. He waived his rights and agreed to speak with me.” [Id. at 33-34.] However, Sergeant Bailey did not obtain a written Miranda waiver. [Id. at 51-53.] Sergeant Bailey testified that the two began to talk in more detail about the case, and that Ross responded to him more positively than he had during their initial encounter. [Id. at 34-35.] However, neither Ross nor the United States have identified for the Court any statements Ross made after waiving his Miranda rights.

         Ross and Ellis, who also testified at the evidentiary hearing, told the story with some key differences. First, Ellis testified that their two-year-old son set off the alarm to their house when playing with the alarm key fob on Ross's keys. [Id. at 80; 92.] When the alarm system went off, Ellis stated that she put in the correct code to stop it. [Id. at 80.] When the alarm company called Ross, he explained that their son had accidentally set the alarm off and provided the proper passcode. [Id.] Ellis estimated that it was approximately twenty to thirty minutes later when Sergeant Bailey arrived at the house. [Id. at 80-81.] On cross-examination, defense counsel questioned Sergeant Bailey regarding an incident report pertaining to these events that states “alarm company advises false alarm; did speak to homeowner that provided proper passcode.” [Id. at 42-43.] Ross and Ellis testified that they explained this to Sergeant Bailey, [id. at 90-94], however, Sergeant Bailey testified that he never received word from dispatch to disregard the panic alarm. [Id. at 27-28.] Rather, Sergeant Bailey explained that he believed that incident report was generated from the police dispatch center, “[b]ut chronologically speaking, there's information on there . . . that's not relayed to me as the officer on scene.” [Id. at 57.] Accordingly, Sergeant Bailey was hesitant to take Ross's word for it that the alarm was an accident. [Id. at 61.]

         Second, both Ross and Ellis testified that it was Officer Szpila, “[t]he uniformed officer, ” rather than Sergeant Bailey, who performed the sweep of their home. [Id. at 82-83; 95.] They testified that after Officer Szpila performed this sweep, he came back out, told Sergeant Bailey that “everything [wa]s clear, ” and that is when the officers took Ross and Ellis inside and sat them on the couch in the living room. [Id. at 83; 95.] Shortly thereafter, the officers allowed Ellis to leave with their son. [Id. at 83.]

         Third, Ross and Ellis both testified that after Ross told Ellis to shut the door, she attempted to do so but Sergeant Bailey placed his foot in the doorway to prevent this from happening. [Id. at 81-82; 94-95.] When defense counsel asked Sergeant Bailey whether he placed his foot in the door, he stated “I don't recall, but I may have, obviously to keep her from shutting the door on us.” [Id. at 47.] When asked again whether he may have Dated this “so that the homeowner cannot close the door to keep police out, ” Sergeant Bailey again replied “Yes.” [Id.]

         Fourth, Ross and Ellis both testified that at no time did Ross ever give either officer any consent to enter his residence. [Id. at 85; 95-97.] On cross-examination of Sergeant Bailey, defense counsel questioned him regarding a “request for forfeiture” form that had printed at the top “a consent search was denied.” [Id. at 37-39.] Sergeant Bailey clarified that, though Ross did deny him consent to perform a full search of his home, this occurred before the consent Ross granted Officer Szpila after he arrived on scene. [Id. at 56.] However, the warrant affidavit that Sergeant Bailey wrote out at the station immediately after leaving Ross and Ellis at the house with Officers Szpila and Jones makes no mention of any consent for Officer Szpila to enter Ross's home. [See DN 148-2 at 4 (Sergeant Bailey's Affidavit).] Instead, Sergeant Bailey wrote in the warrant affidavit that “Officers conducted a safety sweep of the residence to make sure no other suspects were present inside his home where officer could observe in plain view a baggie of Marijuana and a pile of cash on the kitchen table.” [Id.] Moreover, in the report Sergeant Bailey wrote on October 29, 2014, the same day officers left Ross's house, he made no mention of the claim that Ross “consented to anyone entering at the time.” [DN 167 at 62.] Rather, Sergeant Bailey stated in his report only that “Detective asked Ross for consent to search residence where he continued to act defensive and became belligerent.” [Id. at 38.]

         Finally, while both officers testified that Ross told them he had marijuana in his house, Ross testified that Sergeant Bailey “found the marijuana. I didn't tell him anything.” [Id. at 100.] Rather, Ross stated that he “told him I smoked marijuana. I never told him there was marijuana inside my house.” [Id. at 101.]

         Police officers left Ross's house around 4:45 a.m. on the morning of October 29, 2014. [Id. at 49; 96-97.] Ross was not arrested, but was instead given a citation for possession of Marijuana. [Id. at 37; 40.] On January 28, 2015, Chief Judge Joseph H. McKinley, Jr. signed an order authorizing the interception of wire communications from “Target Telephone 2, ” a phone being used by Ross. [See DN 171-3 (Application for the Interception of Wire Communications).] On July 6, 2016, Ross was indicted on charges of conspiracy to possess with the intent to distribute heroin in violation of 21 U.S.C. §§ 841 and 846. [DN 112 (Indictment).] Later that same day, the LMPD obtained a search warrant for a house on Keeling Park Drive in Louisville, Kentucky, Ross's primary residence at the time. [See DN 171-4 (Search Warrant for Keeling Park Drive).]

         In December 2016 and January 2017, Ross filed a motion to suppress and a supplemental brief in support of that motion. [DN 148; DN 160.] Therein, Ross alleges many grounds on which he argues evidence should be suppressed. First, Ross argues that the initial warrantless entry of his house on Southdale Road on October 28, 2014 was unlawful. [DN 148 at 2.] Second, Ross claims that the October 29, 2014 state search warrant was invalid because the warrant affidavit relied partly on information obtained during the alleged unlawful entry and because, without that information, the affidavit failed to establish probable cause. [Id. at 2-4.] Third, Ross asserts that certain statements he made to police were made without a valid waiver of his Miranda rights. [Id. at 3; DN 160 at 1.] Fourth, Ross contends that the federal wiretap warrants relied, in part, on the alleged unlawful search of Ross's residence on October 28, 2014, and that the warrants also failed to establish the requisite probable cause and necessity. [DN 148 at 4-7.] Fifth, Ross alleges that the July 6, 2016 state search warrant affidavit failed to establish probable cause to search his house on Keeling Park Drive. [DN 160 at 1-3.]

         The Court held an evidentiary hearing on February 2, 2017, at which Sergeant Bailey, Officer Szpila, Ellis, and Ross all testified. [See DN 167.] Following the hearing, both parties filed simultaneous briefs, [DN 170; 171], and Ross filed a response brief, [DN 178.] Fully briefed, Ross's motion is now ripe for adjudication. For the reasons that follow, Ross's motion to suppress [DN 148] is DENIED.


         The Fourth Amendment protects the “right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. If the government violates a defendant's Fourth Amendment rights, that defendant may move, pursuant to Federal Rule of Criminal Procedure 12(b)(3)(C), to exclude the evidence gathered against him. United States v. Haygood, 549 F.3d 1049, 1053 (6th Cir. 2008). It is well-settled that, in seeking suppression, “the burden of proof is upon the defendant” to show that the search or seizure violated “some constitutional or statutory right.” United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003) (quoting United States v. Feldman, 606 F.2d 673, 679 n.11 (6th Cir. 1979)). In resolving a motion to suppress, the evidence must be viewed in the light most favorable to the Government. United States v. Rose, 714 F.3d 362, 366 (6th Cir. 2013) (citing United States v. Beauchamp, 659 F.3d 560, 565 (6th Cir. 2011)).


         1) The Initial Entry and Subsequent Search Warrant for the Southdale Road House

         Ross dedicates much of his motion to suppress and his post-hearing briefing on the argument that the officers' initial warrantless entry into his home on October 28, 2014, during which officers observed marijuana and a small amount of cash in Ross's kitchen, violated Ross's Fourth Amendment rights. [See DN 148; DN 170; DN 178.]

         A “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Andrews v. Hickman Cty., Tenn., 700 F.3d 845, 854 (6th Cir. 2012) (quoting United States v. United States Dist. Ct., 407 U.S. 297, 313 (1972)). Accordingly, “searches and seizures inside a home without a warrant are presumptively unreasonable, ” id. (quoting Groh v. Ramirez, 540 U.S. 551, 559 (2004)), and therefore “a warrantless search or seizure inside a home by a law enforcement officer violates the Fourth Amendment unless an exception to the warrant requirement applies.” Id. (citing Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).

         The United States does not dispute that this initial entry in Ross's home was warrantless, but asserts that it was nonetheless constitutional. Specifically, the United States offers three justifications for the officers' initial warrantless entry into Ross's home on October 28, 2014. These are the exigent circumstances exception, consent, and the need to perform a protective sweep of Ross's home. [DN 171 at 8.] Indeed, each of these exceptions to the warrant requirement, if satisfied, can justify law enforcement's warrantless entry into a residence. See United States v. Johnson, 457 F. App'x 512, 516 (6th Cir. 2012) (discussing the exigent circumstances exception); United States v. Holland, 522 F. App'x 265, 273-76 (6th Cir. 2013) (discussing consent and the protective sweep doctrine).

         Ross argues that none of these three exceptions is applicable here; specifically, he asserts that no exigent circumstances existed, that officers' contention that Ross gave them consent to enter is not credible, and that officers lacked sufficient articulable facts to justify entering Ross's home to perform a protective sweep. [DN 170 at 3-6.] However, the Court ultimately need not reach the issue of whether an exception to the warrant requirement applies here, because the United States also argues, and the Court agrees, that the affidavit in support of the search warrant for Ross's home established probable cause independent of the information obtained during officers' initial entry into Ross's home. [See DN 171 at 17.]

         The Warrant Clause of the Fourth Amendment guarantees that “no [w]arrants shall issue, but upon probable cause, . . . and particularly describing the place to be searched, and . . . things to be seized.” U.S. Const. amend. IV. The test for probable cause is simply whether “there is a fair probability that [1] contraband or evidence of a crime [2] will be found in a particular place.” United States v. Grubbs, 547 U.S. 90, 95 (2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). The job of the judge “presented with a search warrant application is ‘simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, '” both propositions ring true. United States v. Brown, 828 F.3d 375, 381 (6th Cir. 2016) (alteration in original) (quoting Gates, 462 U.S. at 238). The duty of a reviewing court, in turn, is “to ensure that the [issuing judge] had a substantial basis for concluding that probable cause existed.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (quoting Gates, 462 U.S. ...

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