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United States v. Gaither

United States District Court, E.D. Kentucky, Northern Division, Covington

January 17, 2018



          Candace J. Smith, United States Magistrate Judge

         On May 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 A federal Indictment followed on June 8, 2017, which was superseded on October 12, 2017.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).

         This 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).

         The 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[1] 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.

         I. Factual Background and Procedural History[2]

         Beginning 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).

         On May 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).

         After 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).

         Prior 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).

         While 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).

         When 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 18).

         While 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).

         Upon 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, at 37).

         Following 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.[3] (R. 3, at 3; R. 39, at 40, 59).

         The law 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 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).

         Ms. 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.[4] (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).

         Agent 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, ...

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