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 Defendant Donald R.
Conway's Motion to Suppress. (R. 25). The Government has
filed its Response, to which Defendant Conway filed a Reply,
requesting an evidentiary hearing. (R. 27; R. 28).
Court held an evidentiary hearing on the Motion to Suppress
on May 4, 2018. (See R. 31). Defendant was present
for the hearing and represented by appointed counsel Edward
L. Metzger, III. The United States was represented by
Assistant United States Attorney Anthony Bracke. Following
the presentation of evidence, counsel offered brief argument
to the Court and the hearing was closed. (R. 31). Counsel
indicated that the parties did not wish to submit any further
briefing, and the Motion was therefore submitted.
(Id.). A transcript of the hearing having been filed
(see R. 34), this matter is now ripe for
consideration and preparation of a Report and Recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B). (See R.
3). For the reasons set forth below, it will be recommended
that Defendant's Motion to Suppress (R. 25) be denied.
BACKGROUND AND EVIDENTIARY HEARING
November 9, 2017, a federal grand jury returned an Indictment
against Defendant Donald R. Conway (“Conway” or
“Defendant”), charging him with possession of a
mixture or substance containing heroin, a Schedule I
controlled substance, as well as a mixture or substance
containing cocaine, a Schedule II controlled substance, with
the intent to distribute, in violation of 21 U.S.C. §
841(a)(1). Additionally, the Indictment charged Conway with
being a felon in possession of ammunition in violation of 18
U.S.C. § 922(g)(1). (R. 1).
March 29, 2018, Conway filed a Motion to Suppress, arguing
that the December 28, 2016 warrantless stop and subsequent
search of his person and vehicle by local law enforcement
violated his constitutional rights. (R. 25). At the May 4,
2018 evidentiary hearing on Defendant's suppression
motion, the United States called Officer Kyle Shepard,
Officer Galvin Adkisson, and Detective Anthony Jansen to
testify. Defendant called Tiffany Estes to testify. Both
sides introduced certain exhibits in the course of testimony,
including the body camera videos of Officers Shepard and
Adkisson from the date of the stop and search.
(Government's Exhibits (“Gov. Ex.”) 1 and 2,
Kyle Shepard testified that on December 28, 2016, he was
assigned as a patrol officer with the City of Covington,
Kentucky. (R. 34, at 6). Officer Shepard was uniformed and
driving a marked police cruiser, and equipped with a body
camera that magnetically mounted to his shirt in the middle
of his chest just underneath his collar. (Id. at
6, 17). He was tasked with patrolling the area east of
Madison Avenue between Pike Street and 26th Street in
Covington, Kentucky. (Id. at 6). Based upon his
training and experience, Officer Shepard testified he
believed this to be a high narcotics area. (Id. at
approximately 3:49 p.m. that afternoon, Officer Shepard was
patrolling northbound on Garrard Street when he observed a
white Honda Accord traveling southbound. (Id. at 7).
The vehicle had a very dark tint on all the windows, but
Officer Shepard noticed specifically that the front
windshield was tinted in violation of KRS § 189.110.
Shepard turned his cruiser around, called for backup, and
initiated a traffic stop. (Id.). When Officer
Shepard approached Defendant Conway's vehicle, he
observed the smell of, based upon his training and
experience, what he believed to be marijuana emanating from
the vehicle. (Id. at 8). At the time, Defendant
Conway was smoking a Black & Mild cigar. (R. 34, at 9).
On cross-examination, Officer Shepard testified that the
cigar did not smell like it contained any marijuana. (R. 34,
at 34). Officer Shepard notified Defendant he was being
stopped because his front windshield was tinted.
(Id. at 10; see also Govt. Ex. 1, at
20:50:13). Mr. Conway provided his identification and
complied with the officer's requests for information. (R.
34, at 10). Officer Shepard did not see any drugs or other
contraband in the car in plain view. (Id. at 46).
Shepard then asked Defendant whether he had any drugs or
weapons in the vehicle. (Govt. Ex. 1, at 20:51:28). Defendant
questioned why Officer Shepard was asking about drugs or
weapons when he was being stopped due to a windshield
violation; Officer Shepard responded that he was asking
because he smelled marijuana coming from the car. (Govt. Ex.
1, at 20:51:57). Officer Shepard asked Defendant whether
anyone had smoked marijuana in the car recently. (Govt. Ex.
1, at 20:52:00). Defendant denied that anyone smoked
marijuana and stated that the vehicle did not smell like
marijuana. (Govt. Ex. 1, at 20:52:18). Defendant stated that
he was going to see his sister Tiffany Estes, pointing to a
woman approaching the vehicle. (Govt. Ex. 1, at 20:52:25,
20:56:51). Officer Shepard asked Ms. Estes to wait and not
approach the vehicle during the stop. (Id.).
Officer Shepard returned to his patrol vehicle to check
Conway's information, Officer Galvin Adkisson arrived at
the scene. (R. 34, at 9; Govt. Ex. 1, at 20:52:44). Officer
Adkisson was also a Covington Police Department patrol
officer assigned to patrol the same area as Officer Shepard
at the time of the subject stop. (R. 34, at 57). Officer
Adkisson was also equipped with a body camera. (Id.
at 60). Upon approaching the area of the stop, Officer
Adkisson conferred with Officer Shepard briefly and then
approached Conway's vehicle on the passenger side.
(Id. at 57-58). Officer Adkisson testified that he
smelled what, based upon his training and experience, he
recognized as marijuana coming from the vehicle.
(Id. at 58, 61). Officer Adkisson stood by the
vehicle while Officer Shepard checked Defendant's
information. (Govt. Ex. 1, at 20:53:00). Officer Shepard
checked AFIA, a driver's license database, as well as
NCIC, a national crime database, which returned nothing of
note such as a warrant. (R. 34, at 40-41).
Shepard returned to the vehicle and at that time he and
Officer Adkisson observed Defendant start to tear the window
tint film off of the inside of the windshield. (R. 34, at 10,
58; Govt. Ex. 1, at 20:54:56; Govt. Ex. 2, at 20:54:42).
Officer Shepard asked Defendant Conway to step out of the
vehicle, advising that he smelled some marijuana in the car
and would be patting Defendant down for weapons and
conducting a search of the vehicle for the presence of
narcotics, specifically marijuana. (R. 34, at 10; Govt. Ex.
2, at 20:55:14). Officer Shepard testified that he asked Mr.
Conway to step out of the vehicle because he could not safely
perform a search with Defendant in the vehicle. (R. 34, at
10). Defendant responded that he did not want Officer Shepard
to search his car. (Govt. Ex. 1, at 20:55:00).
Defendant Conway stepped out of the vehicle, Officer Shepard
asked Conway to put his hands on top of the vehicle. (R. 34,
at 11; Govt. Ex. 2, at 20:55:48). Defendant Conway complied
with the officer's requests. Officer Shepard then
performed a pat-down of Defendant's person. (R. 34, at
11; Govt. Ex. 2, at 20:55:50). Officer Shepard testified
that, for officer safety, he performs a pat-down every time
he gets someone out of a vehicle if he knows that he is going
to be searching the vehicle because he does not want anyone
with weapons sitting behind him while he performs the search.
(R. 34, at 11). During the pat-down, Officer Shepard felt
something squishy that sounded like it was in a cellophane
bag in Defendant Conway's right pocket. (Id. at
11). Officer Shepard patted down Defendant's pocket area
approximately 10 times over the course of a few seconds.
(Id. at 44). Believing it to be narcotics, Officer
Shepard withdrew the item from Defendant Conway's pocket.
(Id. at 11-12; Govt. Ex. 2, at 20:56:00). The item
was a bag of white powder which, based upon his training and
experience, Officer Shepard believed to be either cocaine or
fentanyl. (R. 34, at 12). Officer Shepard can be heard on the
body camera recording asking Defendant what the substance
was. (Govt. Ex. 1, at 20:56:20; Govt. Ex. 2, at 20:56:20).
Defendant responded, “whatever you put in my
pocket.” (Govt. Ex. 1, at 20:56:21).
finding the white powder in Mr. Conway's pocket, Officer
Shepard placed Defendant Conway under arrest and searched the
rest of his person. (R. 34, at 13, 44). Officer Shepard can
be heard on the body camera recording asking Defendant if he
had any needles in his pockets. (Govt. Ex. 1, at 20:57:31).
Officer Shepard again stated that he smelled marijuana coming
out of the car and asked Defendant whether there was any
marijuana in the car, whether he had been arrested before,
and how much money he had on his person. (Govt. Ex. 1, at
20:58:00; Govt. Ex. 2, at 20:58:00). Defendant denied having
marijuana in the car, and both officers responded to
Defendant that they could smell marijuana coming from the
vehicle. (Govt. Ex. 1, at 20:58:00; Govt. Ex. 2, at
20:58:00). Officer Shepard completed his search of
Defendant's person and placed Defendant in the back of
the patrol cruiser. (Id. at 13; Govt. Ex. 1, at
cross-examination, Officer Shepard testified he did not think
he needed to provide Mr. Conway with the Miranda
warning prior to asking these questions because the purpose
of his questions was to perform a search rather than
specifically to interrogate Mr. Conway. (R. 34, at 45-46).
Officer Shepard further testified on cross-examination that
he remembered asking Defendant if anyone had smoked marijuana
in the car and commenting to Defendant that he smelled burnt
marijuana. (R. 34, at 36-37). Officer Shepard testified that
the purpose of the question was to gauge Defendant's
cooperation level. (Id.). Officer Shepard further
testified that he specifically smelled fresh marijuana in the
vehicle, though it could have been a mixture of both burnt
and fresh marijuana. (Id.). He testified that fresh
and burnt marijuana have different smells. (R. 34, at 46).
Officer Adkisson testified that he is not able to distinguish
between the smell of fresh marijuana versus burnt marijuana,
and he did not recall smelling Defendant's Black &
Mild cigar during the stop. (R. 34, at 63).
the officers secured Defendant Conway in the patrol cruiser,
Officer Shepard and Officer Adkisson convened outside
Defendant's vehicle and discussed the quantity of drugs
produced from Defendant's pocket, both muting their body
cameras. (Govt. Ex. 1, at 21:02:11). Officers
Shepard and Adkisson then searched Defendant Conway's
vehicle, with Officer Shepard searching the driver's
side, and Officer Adkisson searching the passenger side. (R.
34, at 13-14, 58). During the search, the officers found
multiple bags of suspected narcotics as well as a bag of
ammunition. (Id. at 14). Officer Shepard stated
during the search, “I need the marijuana.” (R.
34, at 22; Govt. Ex. 1, at 21:06:37; Govt. Ex. 2, at
21:06:37). Officer Adkisson responded, “yeah it reeks
of weed in here.” (Govt. Ex. 2, at 21:06:52). Officer
Shepard then stated, “I can smell it, I just don't
know where it's going to be.” (Govt. Ex. 1, at
21:06:55; Govt. Ex. 2, at 21:06:55).
the officers also located marijuana in the vehicle. (R. 34,
at 14). Officer Adkisson was searching the rear passenger
side of the vehicle and located approximately one gram of
marijuana inside of a leather jacket pocket, wrapped up in
some paper and stuffed down into a Black & Mild box. (R.
34, at 23, 46-48, 64; Govt. Ex. 2, at 21:12:04). Officer
Adkisson testified that he noticed the smell of marijuana
more when he began searching the back seat of the passenger
side of the vehicle. (Id. at 59). He can be observed
on the body camera recording picking a leather jacket up from
the back passenger seat, sniffing, and stating “Now it
really smells of weed back here.” (Id. at 62;
Govt. Ex. 2, at 21:11:50). Officer Shepard testified that the
marijuana that was found was very pungent, stronger than what
he typically encounters. (R. 34, at 14, 23). Officer Adkisson
also testified that the marijuana he found had a strong
smell. (Id. at 59).
the marijuana was found, Officer Shepard returned to
Defendant Conway in the police cruiser and informed him of
his Miranda rights. (Id. at 14; Govt. Ex.
1, at 21:26:00). He further informed Defendant that once he
arrived at the jail, he would be charged with an additional
felony if any other contraband were located during the
initial screening and search. (R. 34, at 15). During the
drive to the jail, Mr. Conway informed Officer Shepard that
he had some contraband hidden in his underwear.
(Id.; Govt. Ex. 1, at 21:36:25). Officer Shepard
pulled over into a parking lot and a further search of
Conway's person revealed another bag of narcotics. (R.
34, at 15; Govt. Ex. 1, at 21:36:43).
recovering the narcotics from Defendant's clothing,
Officer Shepard testified that he had a conversation with
Defendant Conway in the parking lot regarding the source of
the narcotics and the possibility of cooperating. (R. 34, at
16, 27; Govt. Ex. 1, at 21:40:00). Based upon that
conversation, Officer Shepard called Detective Anthony Jansen
with the Narcotics Unit, who wanted to speak with Mr. Conway.
(R. 34, at 16). Officer Shepard then stopped at the Covington
Police Department headquarters garage to allow Detective
Jansen to interview Defendant Conway. (Id. at 16,
27-28; Govt. Ex. 1, at 21:44:00, 21:48:00).
Anthony Jansen testified at the evidentiary hearing that he
was working as a narcotics detective for the City of
Covington Police Department on the date of Defendant's
arrest. (Id. at 65-66). Detective Jansen testified
that he was not present for the arrest of Defendant Conway.
(R. 34, at 70). Officer Shepard contacted Detective Jansen
and indicated he had arrested a subject with a quantity of
narcotics. (Id. at 66). Detective Jansen advised
that he would meet Officer Shepard at the Covington Police
Department headquarters and see if Defendant wanted to
provide any information or intelligence that would help
further any investigations. (Id.). Detective Jansen
read Defendant his Miranda rights in the rear of
Officer Shepard's patrol vehicle from a printed
defendants' rights card provided to him by the Department
of Criminal Justice. (Id. at 67; see also
Govt. Ex. 3). Detective Jansen then began interviewing
Defendant Conway. (R. 34, at 67; see also Govt. Ex.
4). Officer Shepard did not participate in the interview. (R.
34, at 16, 28; R. 34, at 67).
Conway's interview with Detective Jansen, Officer Shepard
transported Conway to jail. (See Govt. Ex. 1). After
Defendant's arrest, Officer Shepard applied for a search
warrant to search five cellular phones recovered from the
December 28, 2016 search of Defendant's vehicle.
(See R. 34, at 30; Deft. Ex. 1; Deft. Ex. 2).
Following the testimony of Officer Shepard, Officer Adkisson,
and Detective Jansen, the United States rested. (R. 34, at
then called Tiffany Estes. (Id.). Ms. Estes
testified that Defendant was pulled over near her home on
December 28, 2016. She went outside and was present at the
scene while the vehicle was searched. (Id. at 72).
Ms. Estes further testified that she stood “about three
to five feet, three to five inches, somewhere in there”
from Defendant's vehicle and did not smell any marijuana
emanating from the car. (Id.). Ms. Estes testified
that she was concerned about testifying in front of Officer
Shepard because of incidences of police harassment in the
neighborhood and out of fear that she would be a victim of
getting pulled over. (Id. at 73). On
cross-examination, Ms. Estes testified that she was standing
a few feet away from Defendant's vehicle and never
actually leaned inside. (Id. at 74).
close of evidence, counsel for the parties provided brief
oral argument. (Id. at 77). Counsel for the United
States argued that, for purposes of the hearing, the only
important question is whether the officers smelled marijuana.
(Id.). Counsel pointed out that both officers
testified under oath that they smelled marijuana, with no
evidence of bias or motive; additionally, the body camera
videos demonstrated that contemporaneously during the
encounter, both officers repeatedly discussed the smell of
marijuana. (Id.). Moreover, consistent with their
testimony, the officers did find marijuana. (Id. at
78). Although it was a small amount, the officers testified
that the marijuana was very pungent and smelled strongly.
(Id.). Based on the officers' observations, the
Government argued that they had probable cause to search the
car. (Id.). While not conceding that the subsequent
pat-down of Defendant was improper, the Government asserted
that nothing that happened during the course of the pat-down
was important, because the officers found marijuana, heroin,
cocaine, and bullets during the search of the vehicle and
Defendant inevitably would have been arrested as a result and
subsequently searched incident to that arrest.
(Id.). Counsel for the United States further
clarified that that the Government did not intend to rely
upon any statements made by Defendant prior to when Officer
Shepard read Defendant his Miranda rights and that
none of Defendant's statements at that point were really
incriminating. (Id. at 79).
for Defendant then presented brief oral argument. (R. 34, at
80). Defense counsel first argued that the pat-down of
Defendant was unconstitutional because Officer Shepard
testified that he searches every subject during a vehicle
search. (Id.). A pat-down is appropriate not as a
matter of course, but rather only upon a showing of
reasonable suspicion based upon a particularized and
objective basis for suspecting that the suspect is armed and
dangerous. (Id. at 81) (citing United States v.
Noble, 762 F.3d 509, 522 (6th Cir. 2014)). Moreover,
defense counsel pointed out that Officer Shepard had backup
present at the scene when he patted Defendant down, so he
should not have had a concern that Defendant Conway was a
safety threat. (R. 34, at 81).
defense counsel agreed with the United States that the
predominant issue at hand is whether the officers actually
smelled the marijuana that triggered probable cause.
(Id. at 81-83). This requires a credibility
determination between the testimony of the two officers, who
testified that they smelled marijuana, and the testimony of
Ms. Estes, who testified that she could not smell marijuana
emanating from the vehicle. (Id. at 81). Defense
counsel questioned the credibility of the officers when
Officer Adkisson testified that he could smell a small amount
of marijuana but could not recall smelling Defendant's
Black & Mild cigar, which Defendant was clearly smoking
in the body camera recordings. (Id. at 81-82).
Additionally, defense counsel characterized Officer
Shepard's testimony that he smelled a mixture of fresh
and burned marijuana as a post-hoc justification, as Officer
Shepard stated in the body camera recording that he smelled
burnt marijuana, and asked Defendant if anyone had been
smoking marijuana in the vehicle. (Id. at 82).
Defense counsel further cautioned of the potential for police
officers to pretend to smell marijuana as a pretext for
conducting a search. (Id. at 83). Defense counsel
concluded that a ...