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United States v. Crawford

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

July 12, 2018

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

          ORDER ADOPTING REPORT AND RECOMMENDATION

          David L. Sunning United States District Judge.

         This matter is before the Court upon multiple Motions to Suppress filed by Defendant Richard R. Crawford (Docs. # 14, 18, and 28), and two Report and Recommendations (“R&Rs”) prepared by Magistrate Judge Candace J. Smith. (Docs. # 21 and 37). In the R&Rs, Judge Smith recommends that Defendant's Motions to Suppress be denied. Id. The Defendant having filed Objections to both R&Rs (Docs. # 22 and 38), and the Government having responded to the Defendant's Objections (Docs. # 26 and 40), the Motions are ripe for the Court's review. For the reasons that follow, the Defendant's Objections are overruled, both R&Rs are adopted, and Defendant's Motions to Suppress (Docs. # 14, 18, and 28) are denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In May 2017, the Northern Kentucky Drug Strike Force (“NKDSF”) and the Hamilton County Sheriff's Department's Regional Narcotics Unit (“RENU”) were investigating the distribution and trafficking of cocaine in the Greater Cincinnati area. With the assistance of a confidential informant (“CI”), the investigation turned toward Richard Crawford. (Doc. # 19-1 at 5).

         On May 23, 2017, RENU Agent Erik Nelson was told by a CI that Crawford was an individual who was distributing cocaine in and around Hamilton County, Ohio. Id. During this encounter, the CI provided Crawford's phone No. and positively identified Crawford, from a drivers' license photograph, as the person distributing cocaine and using the particular phone number. Id. At the time that Agent Nelson received this initial information, he knew the CI to be a “reliable and trustworthy” source. Id. In fact, the CI had previously worked as an informant for Agent Nelson's agency-RENU-and the information the CI provided led to the arrest of an individual distributing narcotics. Id. The CI had also worked as an informant for other law-enforcement agencies in the past, including the Drug Abuse Reduction Task Force and the Hamilton County Heroin Coalition Task Force. Id. Agent Nelson learned through members of those agencies that the CI's information had also led to the arrest and convictions of individuals distributing narcotics in their investigations. Id. In addition, those two agents “confirmed that the CI was reliable and trustworthy.” Id.

         Approximately four days later-on May 27, 2017-Agent Nelson and the CI communicated again. Id. In addition to verifying that Crawford continued to use the identified phone number, the CI also told Agent Nelson that Crawford had expressed his intention to distribute twenty ounces of cocaine. Id. Agent Nelson then conducted a records check with the Regional Crime Information Center (“RCIC”) and discovered that Crawford had prior convictions for possessing drugs and trafficking in drugs. Id.

         The following week, the CI and Agent Nelson spoke again. Id. After verifying that Crawford continued to use the particular phone number, the CI informed Agent Nelson that Crawford had traveled to Columbus, Ohio with the purpose of reconnecting with a drug-distribution organization. Id. at 5-6. During this conversation, the CI relayed prices from his conversations with Crawford. Id. at 6. Specifically, the CI stated that Crawford had detailed his cost for a “brick” of cocaine and that Crawford had quoted the CI a price of $1, 500 for an ounce of cocaine. Id. On June 4, 2017, Agent Nelson personally reviewed text-message conversations between the CI and Crawford, which verified the identified phone number. Id.

         Based on the above information, Agent Nelson applied for a search warrant for Crawford's cell phone. Id. at 1. Agent Nelson attached an affidavit to his warrant application that described the foregoing facts. Id. at 4-7. On June 5, 2017, the Hamilton County Court of Common Pleas issued a search warrant authorizing the “electronic monitoring and tracking information” for Crawford's Sprint cell phone (“the cell phone warrant”). Id. at 2.

         The following day-June 6, 2017-the CI informed Agent Nelson that Crawford was driving a silver BMW X5, bearing the Ohio registration of ENQ 9175. (Doc. # 19-2 at 3). Agent Nelson verified that information through a records check with RCIC and confirmed that the identified vehicle was registered to Crawford, with an address of 11408 Raphael Place, Cincinnati, Ohio 45240. Id.

         Using RENU investigative techniques, Agent Nelson learned that Crawford was in the area of 661 Mission Lane, Florence, Kentucky. Id. And on the morning of June 9, 2017, Agent Nelson conducted surveillance of Crawford at that address. Id. In addition to spotting the silver BMW X5 in the parking lot, Agent Nelson also observed Crawford exit the front door of 661 Mission Lane and enter the driver-side door of the silver BMW X5 and depart the apartment complex. Id. That same day, Agent Nelson conducted a records check through Autotrack and found that Crawford had a reported address of 661 Mission Lane, Unit # 608, Florence, Kentucky 41042. Id.

         Based on that information, as well as the information previously relied on to seek the cell phone warrant, Agent Nelson applied for a search warrant authorizing the installation and monitoring of a GPS device on Crawford's vehicle for a period of thirty days. Id. at 5. The Hamilton County Municipal Court issued that warrant (“the Ohio GPS warrant”) on June 12, 2017. Id.

         On June 21, 2017, a similar search warrant for the same vehicle was obtained from the Boone County Circuit Court in Kentucky. (Doc. # 19-3). That warrant (“the Kentucky GPS warrant”) also authorized the installation and monitoring of a GPS device on Crawford's vehicle, but for a period of sixty days. Id. at 1. In support of that warrant, NKDSF Agent Chris Boyd prepared an affidavit. Id. at 5-7. In addition to outlining his training and experience, Agent Boyd's affidavit reiterated the exact same information that supported the two prior Ohio warrants. Id. In addition, Agent Boyd included information gained on June 13, 2017, the day after the Ohio GPS warrant was issued. Id. at 7. Specifically, Agent Boyd's affidavit relayed that the CI had informed agents that Crawford had told the CI that “he had 18 ounces of cocaine left” and “offered to sell the CI ounces” at $1, 400 an ounce. Id.

         On June 27, 2017, Agent Nelson, Agent Boyd, and other NKDSF agents met with the CI. (Doc. # 19-4 at 4). During that meeting, the CI told the agents that Crawford had recently made numerous attempts to sell the CI “large quantities of cocaine.” Id. At the direction of Agent Nelson and Agent Boyd, the CI “made a consensually monitored and recorded call” to Crawford, using the previously identified phone number, and set up a controlled buy. Id.

         With the controlled buy scheduled, agents “conduct[ed] pre-surveillance” in the area of 661 Mission Lane, Unit # 608, Florence, Kentucky, where Crawford resided. Id. at 5. “Agents observed Crawford exit his apartment building with a small black duffel bag in his hand, ” which corroborated the CI's prior statement that Crawford usually kept “his cocaine inside the black duffel, ” and entered the silver BMW X5. Id. Agents then followed Crawford to “430 Meijer Drive, the agreed upon place to meet and conduct the transaction.” Id.

         Prior to the controlled buy, NKDSF agents searched the CI and his/her vehicle and confirmed that the CI did not have any contraband or currency. Id. “Agents then provided the CI with recorded NKDSF funds and equipped him/her with an audio recording/transmitting device.” Id. Agents followed the CI to the agreed-upon location and maintained “constant observation until he/she entered the location.” Id. “Within a few minutes, the CI exited the building” and “left the location followed by agents.” Id. Agent Boyd then met the CI, and he/she “immediately turned over a quantity of cocaine.” Id. Thereafter, the CI was searched again for contraband and currency and none were found. Id.

         After the controlled buy, the CI provided details about his exchange with Crawford. Id. Specifically, the CI told agents that “he/she purchased the cocaine from Richard Crawford inside 430 Meijer Drive in exchange for the provided funds.” Id. The CI also informed agents that Crawford “attempted to provide additional cocaine on consignment.” Id. Agent Boyd then confirmed multiple facts. First, Agent Boyd conducted a test on the substance the CI had purchased and it “tested positively for cocaine.” Id. Then, Agent Boyd “reviewed the GPS log” and discovered that Crawford “left his residence” at approximately 1:52 p.m. and “arrived at Meijer Drive” at approximately 2:00 p.m. Id. “Further review of the GPS data showed after the controlled purchase was complete” Crawford left the parking lot of 430 Meijer Drive at approximately 3:19 p.m. and returned back to his residence at 661 Mission Lane at approximately 4:12 p.m. Id. Agent Boyd also made contact with an employee at the “Trellises Apartment complex” and confirmed that Amber Crawford was “the person on the lease for 661 Mission Lane Unit # 608” and that “Amber's husband [was] Richard Crawford.” Id.

         Based on all of the aforementioned information, Agent Boyd applied for a search warrant for the premises located at 661 Mission Lane Unit # 608, Florence, Kentucky, as well as the silver BMW X5. Id. at 6. A Boone County Circuit Court Judge issued that search warrant (“the apartment and vehicle warrant”) on June 29, 2017, and it was executed that same day. Id. at 8-9. Agents made initial contact with Crawford outside his residence. (Doc. # 36 at 8-9). Specifically, Sergeant Wilson, an officer with the Kentucky State Police, observed Crawford “come down the stairs from the subject apartment and walk towards his vehicle.” Id. At that time, Sergeant Wilson approached Crawford, identified himself as a law-enforcement officer, and escorted Crawford to a Boone County Sheriff's cruiser. Id. at 9, 51-52. With the assistance of two other officers- Agent Roland and Agent Piper-Crawford was handcuffed and his pockets were emptied. Id. at 13-14, 52. Inside his pockets, officers found keys, which were used to execute the search. Id. at 31-32, 52.

         As Sergeant Wilson placed Crawford in the cruiser, he removed a card from his badge case and read Crawford his Miranda rights. Id. at 9-10. Agent Nelson and Agent Boyd, who had been conducting surveillance of Crawford from an unmarked vehicle, observed Crawford being taken into custody. Id. at 18, 31. Agent Nelson and Agent Boyd then approached Crawford when he was handcuffed and in the cruiser and began to speak with him. Id. at 32-35, 44. First, the agents explained that they were there with a search warrant to locate cocaine. Id. At that time, Agent Boyd pulled out his cell phone, accessed an application on his phone, and relied on that application to read Crawford his Miranda rights. Id. at 32-33.

         After questioning began, Boone County Deputy Canfield opened the cruiser's door, positioned a body camera in the cruiser, and began recording the interrogation. Id. at 23-24, 30, 34-37. As the recording begins, Crawford can be heard responding to the agents' questions and telling them about the old cocaine he had found in storage and placed under the sink. (Doc. # 35, Joint Ex. 1 at 13:55:25). Following the interrogation, Agent Nelson and Agent Boyd went upstairs and assisted with the execution of the search of the apartment. (Doc. # 36 at 22-23). Crawford was left in the custody of Boone County Deputy Canfield. During his time with Deputy Canfield, Crawford posed several questions to him regarding probable cause. (Doc. # 35, Joint Ex. 1 at 14:00:00-14:20:46). The exact wording of Deputy Canfield's responses changed, but the message was consistent-he denied any specific knowledge of Crawford's case and avoided asking Crawford any questions about the alleged criminal activity. Id. Deputy Canfield also explained to Crawford why he adopted such an approach-he was unaware if Crawford had received his Miranda warnings and did not want to violate Crawford's rights. Id.

         On September 14, 2017, a federal grand jury returned an Indictment against Crawford, charging him with the following three counts: (1) knowingly and intentionally distributing a mixture or substance containing cocaine, (2) knowingly and intentionally possessing a mixture or substance containing cocaine with the intent to distribute it, and (3) knowingly and intentionally possessing twenty-eight grams or more of a mixture or substance containing cocaine base (crack cocaine) with the intent to distribute it, all in violation of 21 U.S.C. § 841(a)(1). (Doc. # 1). The Defendant was arrested four days later, on September 20, 2017. (Doc. # 8).

         The Defendant filed a Motion to Suppress on November 9, 2017 (Doc. # 14) and a Supplemental Motion to Suppress on November 28, 2017. (Doc. # 18). In those Motions, the Defendant claimed that each of the warrants issued were not supported by probable cause, and sought the suppression of all evidence obtained as a result of those warrants, as well as any “fruit of the poisonous tree.” (Docs. # 14 and 18). After the United States filed its Response (Doc. # 19) and Defendant filed his Reply (Doc. # 20), Judge Smith issued an R&R, recommending that Defendant's Motions to Suppress be denied. (Doc. # 21).

         During the time period for objections to the first R&R, the Defendant sought leave to file another Motion to Suppress, which Judge Smith granted. (Docs. # 24 and 27). On March 22, 2018, the Defendant filed the additional Motion to Suppress, arguing that the incriminating statements he made to law-enforcement officers during the June 29, 2017 execution of the search warrant should be suppressed because he did not receive Miranda warnings. (Doc. # 28). After briefing on that Motion concluded (Docs. # 29 and 31), Judge Smith held an evidentiary hearing on April 19, 2018. (Doc. # 34). On May 18, 2018, Judge Smith issued her second R&R, recommending that the Court deny that Motion to Suppress as well. (Doc. # 37).

         Both R&Rs having been objected to (Docs. # 22 and 38), and the United States having responded to both Objections (Docs. # 26 and 40), the Motions to Suppress (Docs. # 14, 18, and 28) and the R&Rs ...


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