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United States v. Gaither

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

February 22, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
FRANK LAMAR GAITHER DEFENDANT

          ORDER ADOPTING REPORT AND RECOMMENDATION

          David L. Banning Jnited States District Judge

         This 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 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).

         On May 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.

         After 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.

         In 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.

         Shortly 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; 54:6-9; 55:4-12.

         Supervisor 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.

         After 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.

         During 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 59:4-24.

         The 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).

         Later 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.

         Upon 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.

         Once 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.

         The 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.[1] (Doc. # 9).

         On June 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.

         The 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 cellphones. Id.

         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 review.

         II. ANALYSIS

         A. Standard of Review

         Pursuant 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. 59(b)(2).

         The 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)).

         The Defendant has raised four objections to the Magistrate Judge's R&R.[2] (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 ...


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