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United States v. Conway

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

July 17, 2018

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

          ORDER ADOPTING REPORT AND RECOMMENDATION

          David L. Bunning United States District Judge.

         This matter is before the Court upon Defendant Donald R. Conway's Motion to Suppress (Doc. # 25), and Magistrate Judge Candace J. Smith's Report and Recommendation (“R&R”), wherein she recommends that Defendant's Motion to Suppress be denied. (Doc. # 35). The Defendant having filed Objections to the R&R (Docs. # 37 and 40), [1] and the Government having responded to the Defendant's Objections (Doc. # 38), the Motion to Suppress is ripe for the Court's review. For the reasons that follow, the Defendant's Objections are overruled, the R&R is adopted, and Defendant's Motion to Suppress (Doc. # 25) is denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On December 28, 2016, Covington Police Officer Kyle Shepard stopped Defendant Donald R. Conway for a traffic violation in Covington, Kentucky. (Doc. # 25 at 4). Officer Shepard approached Conway and informed him that he was stopped because his front windshield was unlawfully tinted in violation of Ky. Rev. Stat. Ann. § 189.100. Id. Conway complied with Officer Shepard's request and provided his identification. (Doc. # 35 at 3).

         When Officer Shepard approached Conway's vehicle, he detected the odor of what he believed to be marijuana emanating from the vehicle. Id. At the time of the stop, Conway was smoking a Black & Mild cigar, but Officer Shepard testified that the cigar did not smell like it contained any marijuana.[2] Id. Officer Shepard did not see any drugs or other contraband in the car in plain view. Id. Officer Shepard asked Conway whether he had any drugs or weapons inside of the vehicle or whether anyone had smoked marijuana in the car recently. Id. Conway denied having drugs or weapons in the vehicle and denied that anyone had smoked marijuana recently. Id.

         Officer Shepard returned to his patrol vehicle to check Conway's information. Id. at 4. Shortly thereafter, Officer Galvin Adkisson arrived at the scene and briefly conferred with Officer Shepard. Id. Officer Adkisson then approached Conway's vehicle on the passenger side. Id. Officer Adkisson testified that he smelled what he recognized as marijuana coming from the vehicle. Id.

         After checking Conway's information, Officer Shepard returned to the vehicle and asked Conway to exit the vehicle. Id. After Conway complied, Officer Shepard asked Conway to put his hands on top of the vehicle. Id. at 5. Officer Shepard then performed a pat-down of Conway's person. Id. At the evidentiary hearing on the Motion to Suppress, Officer Shepard testified that 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 to be sitting behind him while he performs the search. Id.

         Officer Shepard patted down Conway's pocket area approximately ten times over the course of a few seconds. Id. Officer Shepard felt something that he believed to be narcotics, which led him to withdraw the item from Conway's pocket. Id. The item was a bag of white powder, which Officer Shepard believed to be either cocaine or fentanyl. Id. Upon finding the white powder, Officer Shepard placed Conway under arrest and searched the rest of his person. Id. Officer Shepard completed his search of Conway's person and placed Conway in the back of the patrol cruiser. Id.

         Once the officers secured Conway in the patrol cruiser, Officer Shepard and Officer Adkisson searched Conway's vehicle. Id. at 6. During the search of the vehicle, the officers found multiple bags of suspected narcotics, as well as a bag of ammunition. Id. at 7. After further searching, the officers also located marijuana in Conway's vehicle. Id. Approximately one gram of marijuana was found inside of a leather jacket pocket, wrapped up in paper, and stuffed down into a Black & Mild cigar box. Id. Officer Shepard testified that the marijuana that was found was very pungent-stronger than what he typically encounters. Id. Officer Adkisson also testified that the seized marijuana had a strong smell. Id.

         Conway's sister, Tiffany Estes, was present at the scene while Conway's vehicle was searched. Id. at 9. Estes testified that she stood “about three to five feet, three to five inches, somewhere in there” from Conway's vehicle and did not smell any marijuana emanating from the car. Id. On cross-examination, Estes testified that she was standing a few feet away from Conway's vehicle and never actually leaned inside. Id.

         After the officers located the marijuana, Officer Shepard returned to the police cruiser and informed Conway of his Miranda rights. Id. at 7. He further informed Conway that once he arrived at the jail, he would be charged with an additional felony if any other contraband was located during the initial screening and search. Id. During the drive to the jail, Conway informed Officer Shepard that he had some contraband hidden in his underwear. Id. Officer Shepard pulled over into a parking lot and conducted an additional search of Conway's person, which revealed another bag of narcotics. Id.

         Officer Shepard testified that he had a conversation with Conway regarding the source of the narcotics and the possibility of cooperating with law-enforcement officers. Id. at 8. Based upon that conversation, Officer Shepard called Detective Anthony Jansen, who later interviewed Conway at the Covington Police Department headquarters garage. Id. Detective Jansen also read Conway his Miranda warnings before he began interviewing Conway. Id. Following Detective Jansen's interview, Officer Shepard transported Conway to jail. Id. Officer Shepard then applied for a search warrant to search five cellular phones seized during the search of Conway's vehicle. Id. at 9.

         On November 9, 2017, a federal grand jury returned an Indictment against the Defendant, charging him with possession of a mixture or substance containing heroin, as well as a mixture of substance containing cocaine, with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). (Doc. # 1). The Indictment also charged the Defendant with being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). Id.

         On March 29, 2018, the Defendant filed a Motion to Suppress, arguing that the December 28, 2016 warrantless stop and the subsequent search of his vehicle and person violated his constitutional rights. (Doc. # 25). After the United States filed its Response (Doc. # 27) and the Defendant filed his Reply (Doc. # 28), Judge Smith held an evidentiary hearing on May 4, 2018 (Doc. # 31), and subsequently issued an R&R, recommending that Defendant's Motion to Suppress be denied. (Doc. # 35).

         The R&R having been objected to (Docs. # 37 and 40), and the United States having responded to said Objections (Doc. # 38), the Motion to Suppress (Doc. # 25) and the R&R (Doc. # 35) are ripe for the Court's review.

         II. ANALYSIS

         A. Standard of Review

         Pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Criminal Procedure 59, a district court may refer a motion to suppress to a magistrate judge for the preparation of a report and recommendation. “The magistrate judge must promptly conduct the required proceedings and enter on the record a recommendation for disposing of the matter, including any proposed finding of fact.” Fed. R. Crim. P. 59(b)(1). If a party files timely objections to the recommendation, the district court must consider those objections de novo and “accept, reject, or modify the recommendation.” Fed. R. Crim. P. 59(b)(3). Failure to object to a Magistrate Judge's findings or conclusions results in waiver of those objections. Fed. R. Crim. P. 59(b)(2).

         Moreover, the objections must be specific. “[V]ague, general or conclusory objections” are “tantamount to a complete failure to object.” Cole v. Yukins, 7 Fed.Appx. 354, 356 (6th Cir. 2001) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)). Therefore, “an ‘objection' that does nothing more than state a disagreement with a magistrate judge's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.” United States v. Vanover, No. 2:10-cr-14-DLB, 2017 WL 1356328, *1 (E.D. Ky. Apr. 11, 2017) (quoting VanDiver v. Martin, 304 F.Supp.3d 934, 938 (E.D. Mich. 2004)).

         The Defendant has raised multiple objections to Magistrate Judge Smith's R&R. (Docs. # 37 and 40). The Defendant's first four objections center around Judge Smith's finding that the officers had probable cause to search the Defendant's vehicle. (Doc. # 37 at 1-4). First, the Defendant objects to Judge Smith's finding that Officer Shepard and Officer Adkisson actually smelled marijuana emanating from the Defendant's vehicle. Id. at 1. Second, the Defendant objects to the evidence Judge Smith used to support the finding that Officer Shepard and Officer Adkisson smelled marijuana. Id. at 2. Third, the Defendant objects to Judge Smith's credibility determination, which concluded that Officer Shepard's and Officer Adkisson's testimony was more credible than the testimony of Tiffany Estes, a witness-and the Defendant's sister-who was also at the scene. Id. at 3. And fourth, the Defendant objects to Judge Smith's finding that the officer's had “no incentive to lie, ” arguing that “there could be negative consequences to their careers in law enforcement if they were untruthful.” Id. at 4.

         The Defendant's fifth, sixth, and seventh objections focus on Judge Smith's recommendation that the Court decline to suppress evidence seized during the frisk of the Defendant's person, despite having found that the frisk was unconstitutional. Id. Specifically, Judge Smith recommended that suppression of such evidence was unwarranted because the evidence inevitably would have been discovered. Id. The Defendant objects to Judge Smith's conclusion, arguing that because the officers did not actually smell marijuana, the search of the car was unconstitutional, and thus there would not have been an inevitable discovery of the items on the Defendant's person pursuant to a search incident to arrest. Id. The Defendant further objects to Judge Smith's alleged failure determine whether the officers exceeded the permissible scope of a search for weapons. Id. at 5.

         The Defendant's eighth and ninth objections concern the validity of the search warrant for the Defendant's five cellular phones, which were seized during the search of the vehicle. Id. In addition to contesting Judge Smith's finding that the search warrant was sufficiently particular, the Defendant also takes issue with Judge Smith's finding that “a reasonably well-trained officer would not have known that the search of his cell ...


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