United States District Court, E.D. Kentucky, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Banning Jnited States District Judge
matter is before the Court upon Defendant Frank Lamar
Gaither's Motion to Suppress (Doc. # 21), and Magistrate
Judge Candace J. Smith's Report and Recommendation
(“R&R”), wherein she recommends that
Defendant's Motion to Suppress be denied. (Doc. # 44).
The Defendant having filed Objections to the R&R (Doc. #
45), and the Government having responded to the
Defendant's Objections (Doc. # 47), the Motion is ripe
for the Court's review. For the reasons that follow, the
Defendant's Objections are overruled,
the R&R is adopted, and Defendant's
Motion to Suppress (Doc. # 21) is denied.
FACTUAL AND PROCEDURAL BACKGROUND
February 2017, the United States Drug Enforcement
Administration (“DEA”) and local law enforcement
began investigating methamphetamine distribution and
trafficking in northern Kentucky. (Doc. # 3 at 2). With the
assistance of a confidential informant, the investigation
turned to the Defendant. Id. Specifically, the
Informant told Agent Shannon Taylor, a detective with the
Boone County 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 multiple occasions within the
preceding six months. Id. The Informant also
provided a physical description of “Frank” and
described two vehicles “Frank” drove-a dark blue
Honda and a maroon SUV. Id. Armed with this
information, Agent Taylor conducted an independent
investigation. Id. Agent Taylor was able to identify
“Frank” as the Defendant Frank Lamar Gaither and
the Informant positively identified the Defendant from an
April 2017 arrest photograph. Id. Additionally,
Agent Taylor obtained motor-vehicle records and confirmed
that a maroon Acura SUV was registered to Defendant's
mother. (Doc. # 39 at 48:12-22). DEA surveillance units also
observed the Defendant sitting in a maroon Acura SUV. (Doc. #
3 at 3).
23, 2017, Agent Taylor met with the Informant and another
task-force officer to set up a controlled buy of
methamphetamine. Id. The Informant made contact with
the Defendant by phone and arranged the purchase of a
half-pound of methamphetamine. Id. During that
conversation, the Defendant indicated that he had access to
additional amounts of methamphetamine, id., and
further agreed to sell the Informant heroin. (Doc. # 39 at
50:21-51:9). The Informant and the Defendant also agreed on a
time and place for the transaction-7:00 p.m. at a gas station
in Covington, Kentucky. Id. at 15:17-21. The
Informant's phone calls with the Defendant were monitored
by Agent Taylor, who was able to hear both sides of the
conversation and transmitted that information to his fellow
agents and officers. Id. at 49:20-50:8.
the controlled buy was scheduled, the law-enforcement team
planned to arrest the Defendant when he arrived at the
agreed-upon location for the drug transaction. Id.
at 55:14-18. DEA Supervisor Brian Stine oversaw and assisted
Agent Taylor in planning and executing the operation.
Id. at 12:17-13:3. At the law-enforcement briefing,
the agents and officers were provided with an operational
plan, which contained the April 2017 arrest photograph of the
Defendant, as well as a description of the maroon Acura SUV
and its license plate number. Id. at 13:4-14:15.
advance of the controlled buy, a DEA agent was conducting
surveillance in Cincinnati, Ohio, where he observed the
Defendant in an Acura SUV, matching the vehicle description
and license plate information gathered by the law-enforcement
team. Id. at 48:23-49:15. Upon locating the vehicle
on Windsor Street, it left that location and proceeded to
Covington, Kentucky. Id. at 30:19-22. The
surveillance unit followed. Id.
thereafter, the maroon Acura SUV was spotted leaving the
agreed-upon gas station and traveling down Madison Avenue in
Covington, Kentucky. Id. at 15:22-16:6. As the SUV
traveled through Covington, it was trailed by two
surveillance units- Supervisor Stine's unmarked vehicle
and Covington Police Officer Ryan Malone's marked
cruiser. Id. at 16:3-14. The SUV then turned left
onto Alexandria Avenue and pulled into the parking lot of
Bob's Food Mart. Id. at 16:7-10. At that time,
the Defendant called the Informant and changed the location
of the transaction to Bob's Food Mart, on the corner of
Madison and Alexandria Avenues. Id. at 18:25-19:14;
Stine continued on with traffic and then circled back to
resume surveillance of the Defendant. Id. at
16:15-20. As Supervisor Stine passed by, he observed the
Defendant exit Bob's Food Mart. Id. at
16:21-17:2. Supervisor Stine proceeded down Madison Avenue
for a brief time before turning his unmarked vehicle around
again. Id. at 16:22-24. After turning around,
Supervisor Stine observed the Defendant get back into the
SUV, leave Bob's Food Mart, and drive down Alexandria
Avenue. Id. at 16:23-17:9. Supervisor Stine followed
the Defendant onto Alexandria Avenue, where both he and the
Defendant parked their vehicles. Id. at 17:5-14.
Supervisor Stine observed the Defendant exit and lock the
SUV, and then walk down Madison Avenue towards Bob's Food
Mart and an ice-cream shop. Id. at 17:15-18:4.
During the surveillance of the Defendant, the law-enforcement
team communicated with each other via radio transmissions.
Id. at 14:18-20; 19:3-4; 34:11-17; 54:14-55:9.
Supervisor Stine informed the other officers and agents that
the Defendant had exited the SUV and was walking towards
Bob's Food Mart and the ice-cream shop, Agent Taylor
called out for one of the uniformed cruisers to stop and
arrest the Defendant. Id. at 18:2-8. Because the
uniformed cruisers were not close enough, Supervisor Stine
pursued the Defendant and arrested him at the entrance of the
ice-cream shop. Id. at 18:6-16. Supervisor Stine
informed the Defendant that he was under arrest, handcuffed
him, patted him down, and gave him Miranda warnings.
Id. at 21:11-22:7. The officers then emptied the
Defendant's pockets, which contained an Acura key fob.
Id. at 37:7-25.
the Defendant's arrest, Agent Taylor drove by with the
Informant, who identified the Defendant as
“Frank.” Id. at 56:1-8. Following the
arrest, Supervisor Stine and the assisting officers put the
Defendant in a cruiser and drove him back to Alexandria
Avenue-approximately 100 yards away-where the SUV was parked.
Id. at 22:8-15. Because the Defendant denied
possessing or driving the SUV, Supervisor Stine activated the
lock and unlock features on the key fob and confirmed that it
matched the maroon Acura SUV. Id. at 37:19-38:4;
39:14-40:4. Neither Supervisor Stine nor the other officers
searched the SUV at that time. Id. at 40:5-8.
Instead, they waited for Agent Taylor to arrive on the scene
with his K-9 unit. Id. at 40:8-10. The K-9 was given
a search command and walked around the SUV. Id. at
58:20-24. The K-9 alerted to the presence of a narcotic odor
on two parts of the SUV: the rear passenger door on the
driver's side and the driver's door. Id. at
law-enforcement team then unlocked the SUV and conducted a
search of the vehicle. Id. at 40:8-10; 60:9-18. The
search revealed a plastic bag containing eight individual
baggies of a crystalline substance, which was identified as
crystal methamphetamine; a plastic bag containing four
individual baggies of a brown chucky substance, which was
identified as heroin; three cellphones; and a cellphone
charger. (Docs. # 3 at 4; 26-2 at 10). After the search of
the SUV, Agent Taylor advised the Defendant of his
Miranda rights and questioned him about the illegal
contents of the vehicle. (Docs. # 3 at 4; 39 at 74:1-9). The
Defendant maintained that the vehicle was not his and denied
any knowledge regarding its contents. (Docs. # 26-2 at 10; 39
at 74:11-17; 75:11-14). Defendant was then removed from the
scene and transported to the Kenton County Detention Center.
(Docs. # 3 at 4; 39 at 23:17-18).
that evening-at approximately 9:00 p.m.-Agent Taylor,
Supervisor Stine, and two other officers traveled to the
apartment of Shahana Hollon, in Florence, Kentucky. (Doc. #
39 at 23:19-24:1; 60:19-22). Agent Taylor's prior
investigation had uncovered that Ms. Hollon and the Defendant
had a child in common and that the Defendant occasionally
stayed at Ms. Hollon's apartment. Id. at
41:7-12; 77:1-10. Agent Taylor and Supervisor Stine
approached the front door, while the other officers stood at
the corner of the driveway. Id. at 76:5-10.
making contact with Ms. Hollon, Agent Taylor and Supervisor
Stine explained that the Defendant had been arrested and
discovered with a large amount of narcotics, and while they
did not believe she was involved, they wanted to confirm that
the Defendant was not keeping anything related to the
investigation inside the residence. Id. at 62:1-6.
When asked if she was aware of anything illegal inside the
home, Ms. Hollon indicated that she was unsure, but did know
that the Defendant kept a box in his closet. Id. at
25:2-6. Supervisor Stine then asked Ms. Hollon if she would
be willing to take the officers inside and show them the box.
Id. at 25:9-10. Ms. Hollon agreed and led the
officers to a bedroom upstairs. Id. at 25:10-14. At
some point during this exchange, Agent Taylor mentioned
possible involvement of the Cabinet for Health and Family
Services. Id. at 77:14-78:6. Specifically, Agent
Taylor testified at the evidentiary hearing that he warned
Ms. Hollon that “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.”
Id. at 77:22-78:1.
the officers and Ms. Hollon were upstairs, Ms. Hollon opened
the closet door and pointed the officers to a white box on
the top shelf. Id. at 25:14-17; 63:11-12. Supervisor
Stine pulled the box down, opened it, and found drug
paraphernalia and two cellphones. Id. at 25:18-19.
After discovering this evidence, the officers asked Ms.
Hollon to consent to a further search of the residence.
Id. at 63:18-64:8. Ms. Hollon consented and signed a
consent-to-search form. (Doc. # 26-1). To speed up the
process, Agent Taylor asked Ms. Hollon if he could bring his
K-9 into the apartment to search for narcotics. Id.
at 78:12-18. Ms. Hollon agreed and the K-9 performed a search
of the apartment, but no other illegal substances were found.
Id. at 42:1-19.
next day-on May 24, 2017-the Defendant was charged in a
federal criminal complaint. (Doc. # 3). A federal Indictment
followed on June 8, 2017. (Doc. # 9).
12, 2017, Agent Taylor applied for, and a Magistrate Judge in
the Southern District of Ohio issued, four search warrants to
extract electronically stored information from the cellphones
seized during the investigation. (Docs. # 26-2, 26-3, 26-4,
and 26-5). Pursuant to Federal Rule of Criminal Procedure 41,
the warrants commanded the United States to execute the
warrants within fourteen days-on or before June 26, 2017.
Id. The Cellbrite program, which electronically
extracts data from cellphones, was successful in extracting
data from one of the cellphones. Id. The other three
phones, however, were incompatible with the Cellbrite
program. Id. For those three phones, Agent Taylor
conducted manual searches and took photographs of the
displayed contents, including text messages and other data.
(Doc. # 39 at 85:13-86:1). Agent Taylor testified at the
evidentiary hearing that the manual search took him a couple
of days and he completed the search of the cellphones on June
27, 2017. Id.
Defendant filed the instant Motion to Suppress on July 26,
2017, seeking suppression of the evidence recovered from his
May 23, 2017 arrest, including the evidence obtained from the
search of his person, the Acura SUV, and Ms. Hollon's
apartment. (Doc. # 21). The Defendant also seeks suppression
of the evidence obtained from the officers' search of the
Defendant's Motion to Suppress was referred to Magistrate
Judge Smith for the preparation of an R&R. After the
Government filed its response (Doc. # 26), Magistrate Judge
Smith held an evidentiary hearing on September 29, 2017.
(Doc. # 32). Following the evidentiary hearing, the parties
submitted supplemental briefing. (Docs. # 42 and 43). On
January 17, 2017, Magistrate Judge Smith entered her R&R,
wherein she recommends that the Defendant's Motion to
Suppress be denied in full. (Doc. # 44). The Defendant having
filed Objections to the R&R (Doc. # 45), and the
Government having filed its response to those objections
(Doc. # 47), this matter is now ripe for the Court's
Standard of Review
to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Criminal
Procedure 59, a district court may refer a motion to suppress
to a magistrate judge for the preparation of a report and
recommendation. “The magistrate judge must promptly
conduct the required proceedings and enter on the record a
recommendation for disposing of the matter, including any
proposed finding of fact.” Fed. R. Crim. P. 59(b)(1).
If a party files timely objections to the recommendation, the
district court must consider those objections de
novo and “accept, reject, or modify the
recommendation.” Fed. R. Crim. P. 59(b)(3). Failure to
object to a Magistrate Judge's findings or conclusions
results in waiver of those objections. Fed. R. Crim. P.
objections must be specific, however. “[V]ague, general
or conclusory objections” are “tantamount to a
complete failure to object.” Cole v. Yukins, 7
F. App'x 354, 356 (6th Cir. 2001) (citing
Miller, 50 F.3d at 380). Moreover, “an
‘objection' that does nothing more than state a
disagreement with a magistrate judge's suggested
resolution, or simply summarizes what has been presented
before, is not an ‘objection' as that term is used
in this context.” United States v. Vanover,
No. 2:10-cr-14-DLB, 2017 WL 1356328, *1 (E.D. Ky. Apr. 11,
2017) (quoting VanDiver v. Martin, 304 F.Supp.3d
934, 938 (E.D. Mich. 2004)).
Defendant has raised four objections to the Magistrate
Judge's R&R. (Doc. # 45). First, the Defendant claims
that his arrest was not supported by probable cause.
Id. at 1-4. Second, and building on his
unlawful-arrest argument, the Defendant argues that the
search of the SUV was unlawful for two reasons: (1) without a
lawful arrest, the officers could not perform a legitimate
search incident to arrest and thus, Supervisor Stine did not
lawfully possess the key to the Acura, and (2) the automobile
exception to the warrant requirement is inapplicable in this
case. Id. at 5-6. Third, the Defendant argues that
the officers coerced Ms. Hollon into consenting to the search
of her apartment, and therefore, the evidence discovered at
her home must be suppressed. Id. at 8-9. Fourth, the
Defendant claims that the evidence obtained from the