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United States v. Pendelton

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

June 23, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
CORNELIUS EUGENE PENDELTON DEFENDANT

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge

         I. Introduction

         A federal grand jury indicted Defendant Cornelius Eugene Pendelton and his co-defendants for conspiring “to possess with the intent to distribute five kilograms or more” of cocaine. Indictment 1, ECF No. 1. Pendelton moved to suppress any evidence obtained as a result of a traffic stop on May 14, 2015, ECF No. 100. The United States responded, ECF No. 108. This Court referred the motion to the magistrate judge “for a hearing, if necessary, and for findings of fact, conclusions of law, and recommendation” under 28 U.S.C. § 636(b)(1)(A). June 6, 2016 Order, ECF No. 113. On October 17, 2016, the magistrate judge held an evidentiary hearing on the motion to suppress. Evid. Hr'g Tr., ECF No. 141. Both the United States and Pendelton filed post-hearing briefs. U.S. Brief, ECF No. 148; Pendelton Brief, ECF No. 153; U.S. Reply, ECF No. 163. The magistrate judge recommended that this Court grant in part and deny in part Pendelton's motion to suppress. R. & R. 1, ECF No. 165. Pendelton objects to the magistrate judge's findings of fact, conclusions of law, and recommendation (“report and recommendation”). Obj. R. & R., ECF No. 168.

         For the reasons set forth below, the Court will adopt the report and recommendation in full. The Court will overrule Pendelton's objections to the magistrate judge's report and recommendation. The Court will grant in part and deny in part Pendelton's motion to suppress.

         II. Legal Standard

         The Court shall make a de novo determination of the proposed findings or recommendations to which Pendelton objects. See 28 U.S.C. § 636(b)(1)(B); Fed R. Crim. P. 59(b)(3). The Court shall accept those findings and conclusions to which neither party objects. See Fed. R. Crim. P. 59(b)(3).

         III. Background

         The magistrate judge accepted the following facts based upon the testimony of Officers Gregory Odle and Josh Thompson that was presented at the evidentiary hearing. See Evid. Hr'g Tr. 97, ECF No. 141. This Court will repeat those facts necessary to provide context for review of Pendelton's objections.

         From late 2014 to the middle of 2015, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) conducted an ongoing investigation of narcotics trafficking in the Park Hill Housing Authority (“Park Hill”) in West Louisville. R. & R. 1, ECF No. 165. Park Hill is a “very active” area for crime, including for narcotics trafficking. Id. The ATF sought assistance in the Park Hill investigation from the Louisville Metro Police Department's Housing Authority Liaison Officers (“the HALO officers”). Id. at 2.

         Two of these HALO officers were Officers Odle and Thompson, both of whom are experienced officers that have worked for the Louisville Metro Police Department since 2011 and 2010, respectively. Id. Officers Odle and Thompson were briefed on the specifics of the Park Hill investigation and given access to pole cam footage within Park Hill, which they could access in real time via computers in their vehicles. Id. Officers Odle and Thompson were informed that Roscoe Clark's unit in Building 5, Apartment D and Building 2, Apartments B and C were target locations of the investigation. Id. Officers Odle and Thompson were also aware that Pendelton was suspected of regularly moving drugs from one location to another. Id.

         On May 14, 2015, HALO officers received an independent tip from a concerned citizen of a narcotics complaint on Building 2, Apartments B and C. Id. Based on this tip, Officers Odle and Thompson recovered narcotics after stopping two or three vehicles leaving Building 2, Apartments B or C early that day. Id. Later that afternoon, Officer Odle was parked on 11th Street. Id. He could not directly view Building 5 but was watching pole cam footage of the outside of Clark's unit in Building 5, Apartment D on his computer. Id. In a nearby alley, Officer Thompson and a probationary officer were also watching pole cam footage of the target apartments. Id. Officers Odle and Thompson were communicating with one another through a closed police radio channel and discussing their observations. Id.

         Officer Odle observed pole cam footage of an individual on a bicycle leaving Clark's unit at Building 5, Apartment D and traveling to Building 2, Apartment B. Id. The individual was wearing orange. Id. at 3. From his parked view on 11th Street, Officer Odle observed the individual enter Building 2, Apartment B, stay inside for a few minutes, exit the apartment, and ride his bicycle back toward Building 5. Id. Again utilizing pole cam footage, Officer Odle observed the individual enter Building 5, Apartment D and remain inside for a few minutes. Id. Based on his previous experience, Officer Odle recognized the individual's actions of traveling by bicycle and remaining in the target locations for only a few minutes as consistent with narcotics trafficking. Id.

         Officer Odle observed the individual exit Building 5, Apartment D on foot and walk toward 12th Street out of view of his pole cam footage. Id. From his vehicle, however, Officer Odle was able to then see the individual enter the passenger side of a Ford F-150 pickup truck. Id. Officer Odle recognized the truck from previous traffic stops in the Park Hill investigation. Id. While previous stops of the F-150 had not turned up narcotics, the most recent time that officers had attempted to stop the F-150, the vehicle had fled. Id.

         Officer Odle observed the F-150 disregard a stop sign while making a right-hand turn before losing sight of the truck. Id. He radioed Officer Thompson to alert him of the stop-sign violation and remained parked on 11th Street to continue his surveillance of Park Hill. Id. Officer Thompson began following the F-150 down 11th Street. Id. He continued to follow the F-150 for five or six blocks to avoid making the traffic stop within Park Hill. Id. Officer Thompson then initiated his emergency equipment, and the F-150 immediately pulled over. Id.

         Officer Thompson approached the F-150 on the passenger side, while the probationary officer approached the driver's side. Id. at 4. Officer Thompson immediately recognized the front seat passenger as Clark and knew that Clark had two bench warrants for his arrest. Id. Officer Thompson asked Clark to exit the F-150, placed him in handcuffs, performed a search incident to arrest, and found a small baggie of pills in his pocket. Id. Officer Thompson also recognized the F-150's driver as Keith Irvin and the back seat passenger as Pendelton. Id.

         After securing Clark in handcuffs at the rear of the vehicle, Officer Thompson opened the back passenger door where Pendelton was seated and asked him to step out of the vehicle. Id. Officer Thompson noticed that Pendelton had an orange pullover on the seat beside him. Id. At that point, Officer Thompson concluded that Pendelton was the individual that Officer Odle had observed walking and biking between the two target locations. Id. Officer Thompson noticed that Pendelton was acting very nervous-sweating and breathing heavily-which was inconsistent with Officer Thompson's prior interactions with Pendelton, when Pendelton had been “cool, calm, and collected” and “very respectful to police officers.” Id. Based on these observations, Officer Thompson was “100 percent sure there was something on [Pendelton's] person narcotics wise.” Id.

         Officer Thompson did a quick pat down of Pendelton, checking for weapons because he knew that narcotics traffickers are frequently armed. Id. During this pat down, Officer Thompson felt what he immediately recognized as narcotics in both Pendelton's right and left pockets. Id. He recovered hydrocodone pills from Pendelton's right pocket and a baggie of marijuana from his left pocket. Id. Pendelton continued acting nervously during the pat down and stated multiple times that he believed he was going to jail. Id. at 4-5. Officer Thompson tried to “play it off, ” telling Pendelton that he was “not looking to take nobody to jail here today.” Id. at 5. After uncovering the pills and marijuana, Officer Thompson discontinued his pat down for weapons and initiated a more thorough search of Pendelton's person. Id. Officer Thompson then found a baggie of cocaine wrapped in a twenty-dollar bill in Pendelton's small coin pocket on his right side. Id. Officer Thompson subsequently put Pendelton in handcuffs and placed him in custody at the back of the vehicle. Id.

         After receiving Irvin's consent to search the F-150, Officer Thompson recovered a large baggie of suspected crack cocaine from under Pendelton's seat. Id. Upon questioning, Pendelton admitted that the crack cocaine under the rear passenger seat was his. Id. At no point during Officer Thompson's interaction with Pendelton did he give Pendelton Miranda warnings. Id.

         Officer Thompson gave Irvin a verbal warning for disregarding the stop sign. Id. He wrote Pendelton a citation for possessing narcotics, trafficking in narcotics, and possession of marijuana. Id. Officer Thompson did not arrest any of the individuals in the F-150. Id. at 6. Nearly five months later, a federal grand jury in the Western District of Kentucky indicted Pendelton and his co-defendants. Id. The Court will adopt the magistrate judge's factual findings in full.

         IV. Analysis

         Pendelton moves to suppress all evidence obtained as a result of this traffic stop. Mot. Suppress 1, ECF No. 100. Pendelton made four arguments in his motion: (1) the officers' stop of the F-150 was illegal; (2) the length and scope of the detention exceeded that allowed for a traffic stop; (3) Officer Thompson did not have probable cause to search Pendelton's person; and (4) Officer Thompson did not have probable cause to search the F-150. Id. at 1-2. Pendelton's post-hearing brief also asserts that his ...


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