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United States v. Conway

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

June 4, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
DONALD R. CONWAY DEFENDANT

          REPORT AND RECOMMENDATION

          Candace J. Smith United States Magistrate Judge

         This 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).

         The 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).[1] (See R. 3). For the reasons set forth below, it will be recommended that Defendant's Motion to Suppress (R. 25) be denied.

         I. BACKGROUND AND EVIDENTIARY HEARING

         On 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).

         On 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, respectively).

         Officer 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.[2] (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 8).

         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. (Id.).

         Officer 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).

         Officer 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.).

         As 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).

         Officer 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).

         After 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).

         Upon 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 20:59:50).

         On 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).

         Once 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.[3] (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).

         Eventually, 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).

         After 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).

         After 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).

         Detective 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).

         Following 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 71).

         Defendant 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).

         At the 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).

         Counsel 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).

         Additionally, 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 ...


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