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United States v. Harvey

United States District Court, E.D. Kentucky, Central Division, Lexington

September 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
STEVEN D. HARVEY and CHRISTOPHER D. WASHINGTON, Defendants.

          RECOMMENDED DISPOSITION

          ROBERT E. WIER, UNITED STATES MAGISTRATE JUDGE

         Defendants Steven D. Harvey and Christopher D. Washington each filed a motion to suppress. DE ##18, 20 (Motions). The United States responded in opposition. DE #30 (Response). Harvey replied. DE #31 (Reply). The Court held a joint hearing on September 5, 2017, where it heard the sworn testimony of four witnesses and admitted three exhibits. DE #34 (Minute Entry Order). The matters are ripe for consideration. For the following reasons, the Court RECOMMENDS that the District Judge wholly DENY the dual effort to suppress (DE ##18, 20).

         I. FACTUAL BACKGROUND AND THE TESTIMONY[1]

         The motions center on the events of June 20, 2017, but the relevant background is necessary for full context. Defendant Steven Harvey had long been the target of law enforcement investigation, coordinated among or involving state and federal officials in different districts and states (including in Lexington, Louisville, and Arkansas). As relevant, in late-May 2017, the DEA learned that Harvey was allegedly trafficking controlled substances (specifically, heroin) in the Lexington area (continuing similar behavior that law enforcement had investigated in 2016). The source of information told law enforcement that Harvey used Space Center Storage units to house the drugs; he would allegedly make trips to the units, pick up quantities of the substances, and distribute them to individuals throughout Lexington.

         To corroborate the provided storage unit information, law enforcement used administrative subpoenas to identify the registered renters of certain storage units, ultimately tagging Mark Byrd (Harvey's father) as the renter of unit R7006 and Shana McCann as the renter of unit R3045. Law enforcement, due to prior investigation, knew the contact telephone number Ms. McCann provided to the storage center to be a number Harvey utilized. Officers conducted video surveillance and monitored use of the unique storage unit site access codes. Further, they deployed Bo, a certified LPD drug detection dog, on the units on two different dates. Bo positively alerted to both units on both occasions. During this investigation, officers placed Harvey physically on site at Space Center Storage, using the R7006 code and entering near R3045. Law enforcement ultimately obtained state search warrants for each storage unit. Upon execution-around 1:17 p.m. on June 20, 2017-officers found a large amount of heroin, bulk currency, and other evidentiary items in R3045, but no items of evidentiary value in R7006. Post-searches, Agent Moore maintained custody over the R3045 lock, but not the R7006 lock. The DEA knew the unit lessee provided the lock for each unit at the storage center.

         Using cell location tracking data, around 1:45 p.m. on June 20, law enforcement established surveillance of Harvey, then at Dick's Sporting Goods at Fayette Mall, driving a Yukon. Officers observed Harvey accompanied, at least during parts of the afternoon, by a black man later (likely) identified as Co-Defendant Christopher Washington (although police did not know the man's identity at the time). [Law enforcement could not say with absolute certainty that the black male companion during the afternoon was, in fact, Washington. All Moore said was that he had no reason to believe the companion was not Washington.] After Harvey left Dick's, he went to Zaxby's, returned home on Grayson Lake Drive, drove back to Zaxby's, and then returned home again. Agents affirmatively saw the man later identified as Washington arriving with Harvey at the residence. Officers surveilling the residence observed Harvey and Washington making trips in and out of the Audi parked in the driveway. Around 4:40 p.m., Harvey and Washington exited the residence together, and law enforcement moved into the scene to effectuate a probable-cause arrest of Harvey based on the storage unit heroin.

         Lexington Police Department Detective Blake Leathers and a second officer approached Harvey, giving him verbal orders to go to the ground. Harvey complied. Leathers made contact, handcuffed Harvey, and began to stand him back up. When Harvey began to rise, Leathers observed a set of keys with a lanyard underneath his body. The keys, Leathers said, had been on Harvey's person, in his possession, as he was on the ground.

         Lexington Police Department Detective and DEA TFO Robert Hart, without drawing his weapon, approached Washington (although Hart did not know which person he was approaching at the time) near the front passenger fender of the Audi in the driveway. Hart verbally instructed Washington to the ground; Washington complied. Hart, within moments, was straddled on top of him, applying pressure to his back. Hart cuffed Washington's hands behind his back. During the process, while Washington was on the ground, Hart asked him “if he had any weapons”; Washington advised that he did and asked “if there was anything wrong with that.” [Hart testified he had no indication Washington was armed until Washington's statement.] Hart said that the question came “during” the period of time he was cuffing Washington, in a fluid interaction, “as that procedure was going on”; Hart also testified, though, that that he did not think the cuffs were yet applied at the time of the question. Hart stated that he did not give Washington Miranda warnings before inquiring about weapon possession.

         Hart said that, at the time, he did not know Washington and did not know his criminal history; he asked the weapon question solely for purposes of officer safety based on, according to his training and experience, a likelihood that associates of a large-scale drug trafficker (Harvey)-whom officers had previously observed armed and who has a criminal history involving firearms offenses-would likely also be armed. Hart affirmed that locating any weapons at Harvey's arrest scene was “absolutely” an officer safety issue. Even with the positive response on weapon possession, though, Hart did not immediately search Washington. He said the response “did not heighten anything” regarding their physical contact; Washington remained compliant with all instructions, and everything seemed to Hart to be under control. Law enforcement subsequently patted Washington down and located a firearm on his person. [This is the Count 2 basis.] Washington also admitted to Lexington Police Detective Danny Page, who further ran a records check of Washington's status, that he is a convicted felon.

         Hart described his role as a canine handler for Bo, a USPCA-certified[2] drug detection dog. He described the applicable training regimen (including controlled deployments in rooms, on cars, and on packages) and the yearly recertification process. Hart called the USPCA the “gold standard” in canine certification. Hart has been Bo's only handler since Bo began the job. TFO Hart described the standard detection procedure he uses for Bo and stated that he is a passive alert dog-Bo sits when he positively alerts for the odor of a controlled substance. Hart testified that Bo's last recertification was in May 2017. His initial certification was in fall 2012; he has had no performance-based lapse in certification. Post-arrests on June 20, Hart deployed Bo on the Audi in the driveway, as well as the Yukon and Caprice parked on the street, parallel with the curb, in front of the home. Bo positively alerted on all three vehicles for the presence of narcotics odor; law enforcement then searched the Caprice and Yukon. Page testified that the Caprice appeared to be mobile, and Harvey had driven the Yukon earlier that very day.

         After officers had secured the scene at Grayson Lake Drive, Agent Moore arrived and took possession of the keys previously found underneath Harvey. Moore located a key that fit the R3045 lock and opened the lock. He also called the number associated with the R3045 storage unit, and a phone that had been in Harvey's possession rang. Harvey disclaimed ownership of the keys and the phone. Officers arrested both men on probable cause, initiating the current case.

         II. ANALYSIS

         A. General Legal Principles

         The Fourth Amendment generally prohibits unreasonable searches and seizures. This case implicates several well developed Fourth Amendment doctrines.

         As a starting point, the Court recognizes the “basic rule that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” United States v. McCraney, 674 F.3d 614, 618 (6th Cir. 2012) (internal quotation marks removed). One such “recognized exception” is a search incident to arrest. Id. “This exception authorizes the warrantless search of the arrestee's person and the area within his immediate control.” Id. at 618-19 (internal quotation marks removed). The search incident to arrest doctrine is “a straightforward rule” that a “lawful arrest . . . establishes the authority to search” and that “a full search of the person is reasonable in the case of a lawful custodial arrest.” United States v. Hudgins, 52 F.3d 115, 118 (6th Cir. 1995) (quoting United States v. Robinson, 94 S.Ct. 467, 477 (1973) (rejecting earlier limiting language in Chimel)); see also Robinson, 94 S.Ct. at 474 (referencing “the traditional and unqualified authority of the arresting officer to search the arrestee's person”). The area “within a person's immediate control” includes “the area from within which he might gain possession of a weapon or destructible evidence.” Northrop v. Trippett, 265 F.3d 372, 379 (6th Cir. 2001). “However, the right to search an item incident to arrest exists even if that item is no longer accessible to the defendant at the time of the search. So long as the defendant had the item within his immediate control near the time of his arrest, the item remains subject to a search incident to arrest.” Id. (citing cases).

         As is relevant on these facts, “the mere insertion of a key into a lock, by an officer who lawfully possesses the key and is in a location where he has a right to be, to determine whether the key operates the lock, is not a search.” United States v. Salgado, 250 F.3d 438, 456 (6th Cir. 2001); see also United States v. Stewart, 315 F. App'x 554, 560 (6th Cir. 2009) (same). The Sixth Circuit particularly found persuasive a First Circuit case “holding that the insertion of a key into the padlock of a storage unit was not a search, or, in the alternative, was not an unreasonable search prohibited by the Fourth Amendment.” See Salgado, 250 F.3d at 456 (describing United States v. Lyons, 898 F.2d 210 (1st Cir. 1990)). Lyons “noted that the insertion of the key into the lock of the storage unit was merely a means of identifying a storage unit to which the defendant had access, ” and that “it is th[e] contents that are the object of the lessee's privacy expectations, not the padlock.” Id. (characterizing and quoting Lyons).

         Another exception to the general rule is the so-called automobile exception. See California v. Carney, 105 S.Ct. 2066, 2068-69 (1985). Under the automobile exception, “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more.” Pennsylvania v. Labron, 116 S.Ct. 2485, 2487 (1996) (per curiam). The probable cause determination (there and in all cases) generally requires a common sense, totality of the circumstances assessment of the basis for a seizure or search. See, e.g., United States v. Torres-Ramos, 536 F.3d 542, 554-55 (6th Cir. 2008). A court must determine whether “‘the facts and circumstances within [the officers'] knowledge and of which [they] had reasonably trustworthy information [are] sufficient to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.” United States v. Hughes, 606 F.3d 311, 320 (6th Cir. 2010) (quoting United States v. Davis, 430 F.3d 345, 352 (6th Cir. 2005)). The standard requires “more than mere suspicion” but not “evidence to establish a prima facie case . . . much less evidence sufficient to establish guilt beyond a reasonable doubt.” United States v. Strickland, 144 F.3d 412, 416 (6th Cir. 1998). Importantly, the probable cause standard is objective. “Subjective intentions play no role in probable cause Fourth Amendment analysis.” Schneider v. Franklin Cnty., 288 F. App'x 247, 251 (6th Cir. 2008) (citing Whren v. United States, 116 S.Ct. 1769, 1773-74 (1996)). The Court eschews hyper-technicality here and commonsensically probes and considers evidence. “If probable cause justifies a search of a vehicle . . ., then that probable cause extends to justify the search of every part of the vehicle and all containers found therein in which contraband could be hidden.” United States v. Crotinger, 928 F.2d 203, 205 (6th Cir. 1991).

         Ready mobility, a key criterion, means “[t]he mere inherent mobility of the vehicle.” United States v. Howard, 489 F.3d 484, 494 (2d Cir. 2007) (holding an inquiry into “the proximity of the drivers and passenger to the vehicles” in an automobile exception situation to be “misplaced”); see also United States v. Graham, 275 F.3d 490, 510 (6th Cir. 2001) (noting that the Labron truck's ready mobility “was not questioned, despite the fact that . . . the defendants had been arrested outside of the truck and prior to the truck search”). Indeed, as the Sixth Circuit has directly stated, a vehicle's mere “mobility” satisfies this element. Id. at 511; see also United States v. Brookins, 345 F.3d 231, 238 (4th Cir. 2003) (holding “readily mobile” means “operational”).

         Further, in a dog-sniff situation, the probable cause determination is considerably more streamlined: an “alert by a properly trained and reliable drug-detection dog is sufficient to establish probable cause for the presence of a controlled substance.” United States v. Winters, 782 F.3d 289, 304 (6th Cir. 2015); see also, e.g., United States v. Sharp, 689 F.3d 616, 618-19 (6th Cir. 2012) (same).[3] Indeed, “such probable cause extends to every part of the vehicle and all containers found therein in which the object of the search could be hidden.” Winters, 782 F.3d at 304 (internal quotation marks removed).

         Relevant to Defendant Washington, “[w]here an individual is in an area immediately adjoining the arrestee, the individual may be placed in temporary protective detention even in the absence of probable cause or a reasonable suspicion that the individual poses a threat to officer safety.” United States v. Kinzalow, 236 F. App'x 414, 418 (10th Cir. 2007) (citing United States v. Maddox, 388 F.3d 1356, 1362-63 (10th Cir. 2004), which, in turn, relies on Tennessee v. Garner, 105 S.Ct. 1694 (1985) and Maryland v. Buie, 110 S.Ct. 1093 (1990)). Simply put, “the governmental interest in securing the area around [an] arrestee and protecting officers from potential danger is sufficient to justify the temporary detention of [a] bystander.” Maddox, 388 F.3d at 1363 (internal quotation marks and alterations removed). The Sixth Circuit has directly instructed that “police have the limited authority to briefly detain those on the scene, even wholly innocent bystanders, as they execute a[n] . . . arrest warrant.” Cherrington v. Skeeter, 344 F.3d 631, 638 (6th Cir. 2003) (citing Michigan v. Summers, 101 S.Ct. 2587, 2595 (1981)); see also, e.g., United States v. Lawrence, No. 1:17 CR 16 SNLJ (ACL), 2017 WL 2859258, at *3-5 (E.D. Mo. July 5, 2017).

         These facts also may require consideration of Terry principles. The general rule under Terry v. Ohio, 88 S.Ct. 1868 (1968), is that “‘where a law enforcement officer lacks probable cause, but possesses a reasonable and articulable suspicion that a person has been involved in criminal activity, he may detain the suspect briefly to investigate the suspicious circumstances.' United States v. Bentley, 29 F.3d 1073, 1075 (6th Cir. 1994).” United States v. Foster, 376 F.3d 577, 584 (6th Cir. 2004). Reasonable suspicion “must be supported by specific and articulable facts that would ‘warrant a man of reasonable caution in the belief that the action taken was appropriate.'” United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008) (quoting Terry, 88 S.Ct. at 1880). “Reasonable suspicion is more than an ill-defined hunch; it must be based upon a particularized and objective basis for suspecting the particular person of criminal activity.” United States v. Collazo, 818 F.3d 247, 257 (6th Cir. 2016). The “standard is less demanding than the probable-cause standard.” Id. “A determination regarding the existence of reasonable suspicion is based on the totality of the circumstances, and a reviewing court views the evidence offered in support of reasonable suspicion using a common sense approach, as understood by those in the field of law enforcement.” Id. (internal quotation marks and alteration removed).

         Terry also may permit a frisk / patdown-that is, “a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime[.] Terry does not require the officer to be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Because a pat-down search is for the limited purpose of ensuring the safety of the officer and others around him, the search must be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” United States v. Wilson, 506 F.3d 488, 492 (6th Cir. 2007) (internal quotation marks and citations omitted).

         B. Harvey's Motion

         1. Probable Cause to Arrest

         The Court begins, for thoroughness, with the foundation of the events of June 20: whether law enforcement had probable cause to arrest Harvey. The Court has already found that officers did. See DE #7 (finding ‚Äúthat probable cause exists to ...


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