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United States v. Crawford

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

May 18, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
RICHARD R. CRAWFORD DEFENDANT

          REPORT AND RECOMMENDATION

          CANDACE J. SMITH UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on the second Motion to Suppress of Defendant Richard R. Crawford (“Crawford”), filed on March 22, 2018, wherein Crawford seeks to suppress incriminating statements made to law enforcement officers during the June 29, 2017 execution of a search warrant. (R. 28). The Government filed its Response on March 28, 2018 (R. 29), and Defendant filed a Reply on April 2, 2018, requesting an evidentiary hearing based upon the factual assertions of the United States (R. 31). The Court held an evidentiary hearing on the subject Motion on April 19, 2018. Upon completion of the parties' presentation of evidence, counsel indicated that the parties did not wish to submit any further briefing and the matter was taken under submission. Defendant's second Motion to Suppress is now ripe for review by the undersigned for preparation of a Report and Recommendation[1] pursuant to 28 U.S.C. § 636(b)(1)(B). (See R. 3). Based upon the Court's review of the record as well as the testimony and evidence presented at the April 19, 2018 evidentiary hearing, and for the reasons set forth below, it will be recommended that Defendant's second Motion to Suppress (R. 28) be denied.

         I. BACKGROUND AND EVIDENTIARY HEARING

         On June 29, 2017, a warrant was issued by the Circuit Court of Boone County, Kentucky, based upon the affidavit of Agent Chris Boyd following a joint investigation by the Northern Kentucky Drug Strike Force and Hamilton County Sheriff's Department Regional Narcotics Unit. (See R. 19-1; R. 19-4; R. 28). Agent Boyd's affidavit recounted the investigation that led the task force officers to conclude there was probable cause to believe Crawford's vehicle, as well as the apartment of Crawford's wife in Florence, Kentucky, where Defendant was staying, were being utilized to facilitate the trafficking of controlled substances. (See R. 19-4; R. 21, at 2-4). The warrant authorized the multi-jurisdictional drug task force team to search Defendant Crawford's vehicle and apartment. (See R. 19; R. 21; R. 28).

         During the execution of the warrant on June 29, 2017, Defendant Crawford made incriminating statements when he was detained in a police cruiser and questioned by two agents. (See R. 28). A federal Indictment followed on September 14, 2017. (R. 1). Defendant stands charged with knowingly and intentionally distributing and possessing with the intent to distribute cocaine, as well as knowingly and intentionally possessing with intent to distribute 28 grams or more of a mixture or substance containing cocaine base, all in violation of 21 U.S.C. § 841. (Id.).

         Defendant Crawford filed his first Motion to Suppress on November 9, 2017, and a Supplemental Motion to Suppress on November 28, 2017. (R. 14; R. 18). Defendant Crawford's Motion sought to suppress “all evidence obtained as a result of” the search warrants issued in the investigation, as well as any statement made by Crawford. (R. 14; R. 18). Defendant's Motion argued that there was no probable cause to issue a search warrant because the affidavits in support were primarily based upon information provided by a confidential informant working with drug task force agents in this case. (See R. 18, at 3). Following briefing from the parties, the undersigned entered a Report and Recommendation (R. 21) recommending that the presiding District Judge deny Defendant's Motion to Suppress finding that, inter alia, the search warrants at issue were supported by probable cause. (See R. 21). Defendant filed Objections to the Report and Recommendation on February 22, 2018 (R. 22), and the matter has been submitted to the presiding District Judge for adjudication.

         On March 1, 2018, Crawford filed a Motion for Enlargement of Time to file a second suppression motion, as defense counsel discovered that he had not reviewed a portion of the audiovisual recording made by a body camera that was left in the police cruiser where Defendant was detained during the subject June 29, 2017 search warrant execution (“cruiser camera recording”). (R. 24). Crawford filed that second Motion to Suppress on March 22, 2018, and therein seeks to suppress incriminating statements made to law enforcement officers during the June 29, 2017 execution of the search warrant and reflected on the cruiser camera recording. (R. 28). Defendant asserts that suppression of the statements he made while detained in the police cruiser is warranted because he was subjected to custodial interrogation without first receiving any Miranda warning. (See id.). In its Response, the Government argues that Defendant received an appropriate Miranda warning before the cruiser camera began recording and chose to voluntarily waive his rights by talking with the agents. (R. 29). Crawford's Reply requested an evidentiary hearing based upon the factual assertions of the United States, to determine the time and manner in which the Miranda warning was allegedly delivered to Defendant. (R. 31).

         On April 19, 2018, the Court held an evidentiary hearing on the subject Motion, and heard evidence regarding whether Defendant Crawford was given a Miranda warning prior to being questioned by the law enforcement agents during the June 29, 2017 execution of the search warrant. (See R. 34). Crawford appeared with counsel, David Fessler, and the United States was represented by Assistant United States Attorney Anthony Bracke. (Id.). At the hearing, the United States called Retired Sergeant Pete Wilson, along with Agent Erik Nelson, a narcotics investigator with the Regional Narcotics Unit, and Agent Chris Boyd, an investigator with the Northern Kentucky Drug Strike force, to testify regarding the circumstances of Crawford's custodial interrogation. These witnesses were cross-examined by defense counsel. Defendant then indicated that he wished to testify, [2] and offered testimony in support of his suppression motion before being cross-examined by the United States. The parties also jointly submitted a DVD of the cruiser camera recording. (See Joint Exhibit 1).

         At the evidentiary hearing, Retired Sergeant Pete Wilson testified that on the day of the warrant execution, he was a supervisor with the Northern Kentucky Drug Strike Force tasked with pre-surveillance of the apartment and supervision of the arrest team. (R. 36, at 8). At approximately 2:18 p.m., Sergeant Wilson observed Defendant Crawford come down the stairs from the subject apartment and then walk toward his vehicle. (Id. at 8-9). Sergeant Wilson walked over to Crawford and identified himself as a law enforcement officer. (Id. at 9, 51-52). Sergeant Wilson walked Crawford over to a Boone County sheriff's cruiser. (Id. at 9, 52). The Boone County cruiser was present to help secure the scene if necessary and also to furnish a secured vehicle in which to place suspects as the task force agents' covert vehicles did not have cages or other security features. (Id. at 12). With the assistance of two other officers—Agent Mike Roland and Agent Jacob Piper—Crawford was placed in handcuffs and his pockets were emptied. (Id. at 13-14, 52). Agents Roland and Piper took the keys from Defendant's pocket and coordinated with the law enforcement team to use the keys to execute the search warrant without tearing up the apartment door. (Id. at 31-32, 52).

         Sergeant Wilson took a card from his badge case and read the Miranda warning to Crawford from the card. (R. 36, at 9-10; see also Government's Exhibit 1). Sergeant Wilson testified that Crawford was cognizant of what Wilson said to him and verbally responded that he understood his rights. (See R. 36, at 9-13). Wilson indicated Crawford continued to ask what was going on, but as it was not Wilson's role to conduct the questioning, Wilson placed Crawford, handcuffed, in the back seat of the cruiser at approximately 2:23 p.m. and said that someone would be with him in a few minutes. (Id. at 9-10, 18-19).

         Agent Erik Nelson and Agent Chris Boyd also testified at the evidentiary hearing. During the relevant time period, Agent Nelson was assigned to the Hamilton County Sheriff's Department Regional Narcotics Unit (“RENU”), and Agent Boyd was assigned to the Northern Kentucky Drug Strike Force as a narcotic agent. (See R. 36, at 16-18, 29). On the date of the subject warrant execution, the two agents took up a surveillance position at the apartment complex in a plain clothes vehicle and observed Defendant being taken into custody from a vantage point approximately 75 yards away. (Id. at 18, 31). After Agents Piper and Roland took Crawford's keys, Agent Boyd coordinated getting the keys to execute the search warrant without tearing up the apartment door. (Id. at 31-32, 52).

         Agents Nelson and Boyd then approached the Defendant where he was handcuffed in the back of the marked cruiser. (R. 36, at 19, 22, 32). Agent Boyd introduced himself and Agent Nelson, and explained to Defendant Crawford that they were there with a search warrant to locate cocaine. (Id. at 32-35, 44). Agent Boyd pulled out his cellular phone and accessed an application that contains the Miranda warning. (Id. at 19, 21, 32). Agent Boyd then read from the application and Mirandized Defendant Crawford. (R. 36, at 32-33; see also Government's Exhibit 2). Agent Boyd testified that he asked Defendant if he understood his rights, and Defendant said yes. (R. 36, at 19-20, 34).

         Agent Boyd testified that nothing about his encounter with the Defendant indicated that Crawford did not understand what Agent Boyd was saying to him. (R. 36, at 34-37). Agents Nelson and Boyd testified that, when Agent Boyd then asked Defendant if he wanted to talk, Crawford responded affirmatively and stated that he wanted to know “what's going on.” (R. 36, at 20-21, 34). Mr. Crawford continued to talk after that point in time in response to the agents' questions. (Id. at 20). Defendant told the agents, inter alia, that the cocaine they located during their search had been left over following law enforcement's execution of a search warrant at his old residence in 2009; Defendant told the agents that he had found the old cocaine in storage and placed it under the sink, where it was found by law enforcement during execution of the subject search warrant. (R. 36, at 35-36, 64-67).

         The agents testified that Boone County Deputy Canfield entered the cruiser during the Agents' interrogation of Defendant, positioned a body camera in the cruiser, and began recording approximately 5-10 minutes after the agents began speaking with Crawford. (Id. at 23-24, 30, 34-37). Agent Boyd testified that the body camera was not recording prior to that time. (Id. at 32). Agent Boyd further testified that Defendant can be heard as the recording begins responding to the agents' questions and telling them about the old cocaine he had found in storage and placed under the sink. (See R. 36, at 35-36; see also Joint Exhibit 1, at 13:55:25[3]). Following their interrogation of Defendant Crawford, the ...


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