United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
CANDACE J. SMITH UNITED STATES MAGISTRATE JUDGE.
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 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.
BACKGROUND AND EVIDENTIARY HEARING
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).
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.).
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.
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).
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,
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).
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).
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).
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).
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).
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,
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). Following their
interrogation of Defendant Crawford, the ...