United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
Candace J. Smith, United States Magistrate Judge
23, 2017, Defendant Frank Lamar Gaither
(“Gaither” or “Defendant”) was
arrested following an investigation by the Drug Enforcement
Administration (“DEA”) Task Force. (See
R. 3, at 3; R. 21, at 1). Defendant Gaither was charged in a
federal criminal complaint with possession with the intent to
distribute 50 grams or more of methamphetamine in violation
of 21 U.S.C. § 841(a)(1). (R. 3, at 1). A federal
Indictment followed on June 8, 2017, which was superseded on
October 12, 2017. (See R. 9; R. 35). Under the
Superseding Indictment, Defendant now stands charged with one
count of conspiracy to distribute controlled substances; two
counts of possession of actual methamphetamine with the
intent to distribute 50 or more grams; and one count of
possession of controlled substances with intent to
distribute, all in violation of 21 U.S.C. § 841(a)(1).
(R. 9-1; R. 35-1).
matter is now before the Court on Gaither's July 26, 2017
Motion to Suppress, wherein Gaither seeks to suppress all
evidence obtained from his May 23, 2017 arrest and subsequent
search of his person and vehicle. (R. 21). Gaither also moves
to suppress the search of 2 mobile phones recovered from his
friend Shahana Hollon's home following his May 23, 2017
arrest, as well as 2 additional phones recovered in the
course of the DEA investigation. (Id.). Defendant
Gaither contends that suppression is warranted because law
enforcement violated his Fourth Amendment right to be free
from unreasonable searches and seizures. (Id.). The
Government filed its Response on August 16, 2017 (R. 26), and
Defendant filed a Reply requesting an evidentiary hearing on
August 22, 2017 (R. 27).
Court held an evidentiary hearing on the Motion. (R. 32).
Gaither appeared by counsel, Steven Howe, and the United
States was represented by Assistant United States Attorney
Anthony Bracke. (Id.). At the hearing, the United
States called DEA Supervisory Special Agent Brian Stine, Task
Force Agent D. Shannon Taylor, and Covington Police Officer
Ryan Malone to testify regarding the investigation, arrest,
and subsequent searches and seizures. (R. 32, at 2). These
witnesses were cross-examined by defense counsel.
(Id.). Defense counsel represented Defendant's
intention to call to testify Shahana Hollon, who the
Government identified as a material witness in this case;
however, appointed counsel for Ms. Hollon represented that
she would invoke her Fifth Amendment privilege against
self-incrimination if called to testify, and she was excused
from the proceedings. (R. 32, at 1-2; R. 39, at 3-9). At the
conclusion of the hearing, the Court granted Defendant's
request to file post-hearing briefs. A transcript of the
hearing and the parties' post-hearing briefs having been
filed (R. 39; R. 42; R. 43), the matter is now ripe for
consideration. The Motion has been referred to the
undersigned for preparation of a Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
(See R. 14). For the reasons set forth below, it
will be recommended that Defendant's Motion to Suppress
(R. 21) be denied.
Factual Background and Procedural History
in February 2017, a “Cooperating Sources”
individual (hereafter “Informant”) agreed to
cooperate with the DEA and local law enforcement in the
investigation of methamphetamine distribution and trafficking
in the Northern Kentucky area by providing information on the
source of his or her supply of methamphetamine. (R. 3, at 1).
The investigation turned to Defendant Gaither based upon the
Informant's cooperation with law enforcement. The
Informant disclosed to Agent D. Shannon Taylor-a detective
with the Boone County, Kentucky Sheriff's Department
assigned to the DEA as a federal task force officer-that he
or she had purchased methamphetamine and heroin from an
individual known as “Frank” on numerous occasions
over the preceding 6 months. (Id.). The Informant
described “Frank's” physical description,
including his gender, race, approximate age, weight, and
appearance. (R. 3, at 1). The Informant also described the
color and model of 2 vehicles “Frank” drove-a
dark blue Honda and a maroon Acura SUV. (R. 3, at 1). Through
an independent investigation, the Agent identified
“Frank” as Defendant Frank Lamar Gaither.
(Id.). The investigation further confirmed from
motor vehicle records that a maroon Acura MDX SUV (the
“Acura SUV”) was registered to Defendant's
mother. (R. 3, at 3; R. 39, at 48).
23, 2017, Agent Taylor met with the Informant to set up a
controlled buy of methamphetamine from Defendant Gaither. (R.
3, at 2). The Informant made contact with Gaither by phone
and sought to arrange the purchase of half a pound of crystal
methamphetamine for $4, 500. (R. 3, at 2; R. 39, at 50).
Defendant discussed by phone with the Informant the type,
cost, and quantity of controlled substances available, as
well as the location and time for the transaction. (R. 39, at
50-53). Gaither confirmed that he had half a pound of crystal
methamphetamine but would also sell a “full one,
” a full pound, for $10, 000, and that his
“people” had 7 more pounds on hand. (R. 3, at 2).
Gaither also agreed to provide heroin. (R. 39, at 50-51).
Defendant and the Informant agreed to meet at approximately
7:00 p.m. that day at a gas station in Covington, Kentucky.
(R. 39, at 15-16). This series of phone calls was monitored
by the law enforcement team, and Agent Taylor was able to
hear both sides of the call and transmit this information to
the other law enforcement team members. (R. 39, at 49-50;
see Id. at 15).
setting up the controlled buy, the law enforcement team
planned an operation to locate Gaither at the agreed-upon
meeting location and place him under arrest. (R. 39, at 55).
DEA Enforcement Supervisor Brian Stine oversaw and assisted
Agent Taylor in planning and executing the operation. (R. 39,
at 12-13). During the operational briefing of the law
enforcement team, copies of the operational plan were
provided. (R. 39, at 13-14; id. at 34). The
operational plan contained a photograph of Defendant Gaither.
(R. 39, at 13-14, 34, 47-48). The photograph was obtained
from law enforcement from a prior April 2017 arrest, and the
Informant had positively identified the photograph as the
individual he knew as “Frank.” (R. 3, at 1; R.
39, at 47-48). The operational plan also contained a
description of the Acura SUV and identified its license plate
number. (R. 39, at 49; see Id. at 91-92).
to the prearranged meeting time of 7:00 p.m. on May 23, 2017,
Agent Taylor sent a DEA agent to a location on Windsor Street
in Cincinnati, Ohio; upon arrival, the agent observed an
Acura SUV matching the license plate and description of the
vehicle registered to Defendant's mother as set forth in
the operations plan. (R. 3, at 2; R. 39, at 48-49). The DEA
agent observed the vehicle leave the Cincinnati, Ohio,
address and proceed to Covington, Kentucky. (R. 39, at 14-16;
id. at 48-49). Shortly thereafter, the surveillance
team observed the Acura SUV leave the agreed-upon gas station
location in Covington, Kentucky, where Defendant and the
Informant had planned to meet, and travel down Madison
Avenue; a uniform car followed close behind him. (R. 39, at
16). Officer Ryan Malone, one of the law enforcement team
members, was able to see inside the windshield of the car and
identify Defendant from the photograph provided in the
operational briefing. (R. 39, at 96-97).
the Acura SUV was travelling along Madison Avenue, trailed by
surveillance, Supervisor Stine's unmarked vehicle, and
Officer Malone's marked cruiser, Defendant Gaither called
the Informant and changed the location of the transaction to
Bob's Food Mart on the corner of Madison and Alexandria
Avenues in Covington, Kentucky. (R. 39, at 16, 54, 92-94).
Officer Malone, Supervisor Stine, and the surveillance team
observed the Acura SUV turn left onto Alexandria Avenue and
pull into the parking lot of Bob's Food Mart. (R. 39, at
15-18; id. at 54-55; see also R. 3, at 2).
The other operations team members were aware from radio
transmissions that the location had been moved, and several
officers stationed at the first location, including Officer
Taylor, then began travelling to Bob's Food Mart. (R. 39,
at 18). While law enforcement did not have eyes on Defendant
every moment from beginning to end, the team substantially
maintained visual surveillance of Defendant and observed him
travel from the first location to the parking lot of
Bob's Food Mart. (R. 39, at 18).
the Acura SUV turned left into the parking lot of Bob's
Food Mart, the surveillance cars, Officer Malone, and
Supervisor Stine continued down Madison Avenue so as not to
raise suspicion. (R. 39, at 16; id. at 94).
Supervisor Stine continued moving with traffic along Madison
Avenue in his unmarked car, then turned around at an ice
cream stand approximately 100 yards away from Bob's Food
Mart along Madison Avenue. (R. 39, at 16). Maintaining visual
contact after turning around, Supervisor Stine observed
Defendant exit Bob's Food Mart and then get back into his
vehicle, drive down a side street and turn around in a
driveway; Defendant then parked the Acura SUV along the
street. (R. 39, at 167-17). Supervisor Stine had parked his
unmarked car approximately 7 or 8 car lengths away. (R. 39,
at 17). Supervisor Stine then observed Defendant walk back
towards Bob's Food Mart. (R. 39, at 17). As Gaither
passed Supervisor Stine's vehicle, the officer observed
Gaither lean down and attempt to peer into the unmarked
car's heavily tinted windows. (R. 39, at 17-18).
Defendant then walked down Alexandria Avenue, passing
Bob's Food Mart and making a left turn onto Madison
Avenue towards the ice cream stand. (R. 3, at 2; R. 39, at
Defendant was walking down Madison Avenue, Agent Taylor
arrived from the first agreed-upon location with the
Informant and drove past Defendant. (R. 39, at 56). As Agent
Taylor's vehicle drove by, the Informant positively
identified Defendant Gaither in person as the individual
known as “Frank” who had arranged to meet and
conduct the transaction. (R. 26-2, at 9; R. 39, at 56;
id. at 83).
positive identification by the Informant, Agent Taylor
planned to drive the Informant to a secure location and then
return to the scene. (R. 39, at 56). Agent Taylor
communicated the call to have one of the team members in a
marked car make the stop to arrest Defendant. (Id.).
However, the team had “technical difficulties”
getting a marked car to make the arrest while maintaining
minimal exposure to the people present in the parking lot of
the ice cream stand, which was located approximately 100
yards down Madison Avenue from Bob's Food Mart. (R. 39,
at 18-21; id. at 95). Officer Malone, the team
member with the marked, uniform vehicle, had continued
driving his vehicle down Madison Avenue so as not to raise
suspicion. (R. 39, at 94). Since Stine's unmarked vehicle
was one of the few equipped with lights and a siren, he then
proceeded to stop Defendant near the ice cream stand
approximately two blocks away as Defendant walked along
Madison Avenue. (R. 39, at 18-21). Stine and other law
enforcement team members recognized Defendant Gaither from
the photograph that had been provided to the law enforcement
team, and could also see that the subject arrested was the
subject seen driving the Acura SUV. (R. 39, at 18;
id. at 96). Defendant was placed under arrest and
given Miranda warnings. (R. 39, at 38; id. at 74).
His pockets were emptied, and inside a key fob to an Acura
was found. (R. 39, at 37). No controlled substances or other
illegal objects were found on Defendant's person. (R. 39,
the arrest, Defendant Gaither was placed in a law enforcement
vehicle and moved back to the location where the Acura SUV
was parked near Bob's Food Mart. (R. 3, at 2; R. 39, at
22). Defendant denied driving the vehicle and asserted that
he was just walking to the store. (R. 3, at 3; R. 39, at 38).
When Agent Taylor returned to the scene, he was instructed to
go straight to where Defendant Gaither had parked the Acura
SUV on the side street, approximately 60 yards from Bob's
Food Mart. (R. 39, at 56). Agent Taylor had his certified
narcotic canine police dog (“K-9”) with him. (R.
39, at 39; id. at 56). The team confirmed that the
key fob taken from Defendant's pocket matched the Acura
SUV by activating the car lock with the fob. (R. 39, at 22).
Agent Taylor then conducted an open-air sniff of the exterior
of the vehicle utilizing the K-9. (R. 3, at 3). Agent Taylor
gave the K-9 a search command and walked her freely around
the vehicle, moving counterclockwise from the rear left
quarter panel near the trunk. (R. 39, at 58-59). Scanning the
vehicle, the dog then “indicated” the presence of
controlled substances near the seams of the rear passenger
door on the driver's side, as well as the driver's
side door. (R. 3, at 3; R. 39, at 40, 59).
enforcement team then unlocked the Acura SUV using the key
fob taken from the search of Defendant's person and,
while Defendant was secured, conducted a search of the
vehicle. (R. 3, at 3; R. 39, at 35, 60). The search revealed
a plastic bag in the center console that contained 8
individual baggies of a crystalline substance Agent Taylor
identified as crystal methamphetamine; also located in the
dash compartment under the radio was a plastic bag containing
4 individual baggies of a brown chunky substance Agent Taylor
identified as heroin. (R. 3, at 3; R. 39, at 60-62). Three
cell phones and a charger were also seized from the interior
of the vehicle. (R. 26-2, at 10). Defendant denied knowledge
of the substances and maintained that the vehicle was not his
and he was just a passenger that was dropped off. (R. 3, at
approximately 9:00 p.m. that evening, Agent Taylor,
Supervisor Stine, and two other officers traveled to the
apartment of Shahana Hollon. (R. 39, at 24-25, 60).
Investigation had revealed that Ms. Hollon and Defendant had
a child in common, and Defendant stayed at Ms. Hollon's
apartment on occasion. (R. 39, at 41, 77; see also
R. 26, at 3). Two law enforcement team members stood in the
driveway out of view while Agent Taylor and Supervisor Stine
went to the front door. (R. 39, at 76). The officers
explained to Ms. Hollon that Defendant was in custody and had
been discovered with a large amount of narcotics; they
expressed that they did not believe Ms. Hollon was involved,
but they wanted to confirm whether Defendant was keeping
anything tied to the investigation at the residence. (R. 39,
at 62). The officers asked Ms. Hollon if there was anything
in the residence that she was aware of, and she responded
that there were some clothes of his as well as a box
belonging to Defendant in his closet upstairs. (R. 39, at
24-25, 63). She stated that she did not know what the box
contained, but it belonged to Mr. Gaither. (R. 39, at 25,
63). Supervisor Stine asked if Ms. Hollon would be willing to
take the officers inside and show them the box, and she said
she would. (R. 39, at 25; see also R. 21, at 3).
Hollon led Stine and Taylor into the house to an upstairs
bedroom with a double closet and directed them to a white box
on the top shelf of the right side closet. (R. 39, at 25).
The box contained various paraphernalia, including 2 mobile
phones. (R. 39, at 25, 63). After Ms. Hollon
showed the officers the box, Agent Taylor then asked Ms.
Hollon if she would allow him to bring his K-9 into the
apartment to conduct a search for controlled substances. (R.
39, at 78). Ms. Hollon agreed, and then signed a standard DEA
Consent to Search form. (R. 39, at 26, 78-79). The form
contains pre-printed statements in all capital letters
asserting that “I HAVE NOT BEEN THREATENED, NOR FORCED
IN ANY WAY” and “I FREELY CONSENT TO THIS
SEARCH.” (R. 26-1). Agent Taylor filled out the form,
and it was signed by Ms. Hollon and witnessed by Supervisor
Stine. (R. 26-1; R. 39, at 26, 63). The K-9 performed a scan
of the apartment, and no drugs or other illegal substances
were found. (R. 39, at 42, 78-79). Following the search, the
white box taken from the closet was seized; nothing else,
however, was taken from the residence. (R. 39, at 25).
Taylor and Supervisor Stine deny that Ms. Hollon asked
whether the officers had a search warrant when they asked for
her consent to search the home; they also deny that the
officers told Ms. Hollon that if forced to obtain a warrant,
the Cabinet for Family Services may have to get involved. (R.
39, at 40-41). Agent Taylor testified that at some point
during the visit to Ms. Hollon's home, he did mention
possible involvement of the Cabinet of Families and Children
should narcotics be found in Ms. Hollon's possession:
Q: When - when you-all knocked on the door, do you recall her
ever asking whether or not you had a warrant?
A: I do not recall that, no, sir.
Q: Okay. Were there any comments made concerning if you had
to get a warrant, that the Cabinet for Family Services would
be involved because of the children?
A: No, sir.
Q: Was there any - at any point, not only at the threshold
there, at any point, was there any comment made by law
enforcement to her about getting Cabinet for Family Services
involved because of the children in the place?
A: The only thing that was mentioned about the Cabinet of
Families and Children was if she was found to be in
possession of narcotics there at the house, the Cabinet would
be involved at that point to take possession of the children,
because she was the only adult there at the house.
Q: Okay. Do you know, during the sequence, Agent Taylor, when
that would - that conversation would have taken place? Was
that before the items were found in the closet or after? Do
you recall one way or the other?
A: I don't recall exactly when it was, ...