United States District Court, E.D. Kentucky, Northern Division, Covington
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Sunning United States District Judge.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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.
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.”
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
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
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.
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).
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).
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).
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 ...