United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. BUNNING UNITED STATES DISTRICT JUDGE.
matter is currently before the Court upon Defendant Rodney
Lawrence Jackson's Motion to Suppress evidence seized
from his person during a traffic stop on October 4, 2017.
(Doc. # 15). The Court conducted an evidentiary hearing on
May 3, 2018. (Doc. # 44). Defendant was present for the
hearing and was represented by Attorney F. Dennis Alerding.
The Government was represented by Assistant United States
Attorney Anthony Bracke. At the conclusion of the hearing,
the Court allowed Defendant additional time to supplement the
record with the personnel file of the officer who conducted
the search at issue (Doc. # 58), and to submit supplemental
memoranda.(Doc. # 44). Following supplemental
briefing, the Court took the Motion under submission. The
Motion is now fully briefed (Docs. # 15, 18, 47, 50, 54, 55,
and 59), and is ripe for the Court's review. For the
reasons set forth herein, Defendant's Motion to Suppress
December 14, 2017, a federal grand jury returned an
Indictment, charging the Defendant with possession of a
mixture or substance containing methamphetamine, with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1).
(Doc. # 1). A Superseding Indictment was returned against the
Defendant on March 22, 2018. (Doc. # 20). The Defendant then
filed a Motion to Suppress on February 22, 2018, seeking
suppression of the evidence-namely, twenty-six grams of
methamphetamine-seized during his arrest on October 4, 2017,
and located in his underwear during the officer's search
of his person. In his Motion, Defendant states that he was
stopped for a routine traffic stop, a drug dog was brought in
for no reason, and a strip search was conducted in public in
front of a large group of people, all in violation of the
U.S. Constitution. (Doc. # 15). Specifically, he claims that
(1) the initial stop was improper, because Defendant did not
commit a traffic offense and the stop was motivated by racial
animus; (2) the officers lacked probable cause to initiate
the search of Defendant's person; and (3) the search of
Defendant's person exceeded the scope of permissible
searches under the Fourth Amendment, because in the course of
searching Defendant's underwear at the scene of the
traffic stop, the officers violated the rules regarding strip
searches. (Doc. # 47).
response, the Government argues that the evidence was seized
in accordance with the Fourth Amendment because the
officer's investigation of a lawful traffic stop
reasonably gave rise to further investigation of drug-related
activity based upon Defendant's behavior and his claim
that he was working as an informant to buy drugs. (Doc. #
18). Based upon the suggestion of drug activity, a reasonable
canine sniff of the vehicle was conducted. Id.
(citing United States v. Garcia, 496 F.3d 495, 504
(6th Cir. 2007)). The Government concludes that, based upon
the detection of a controlled substance in the vehicle by the
dog sniff, the officers then were permitted to conduct the
search of his person. Id. The Government further
contends that the basis of the search of Defendant's
person is bolstered by the inevitable discovery doctrine, as,
after the dog alerted to the presence of controlled
substances, the police searched the Defendant's vehicle
and found marijuana. Id. (citing United States
v. Berry, 90 F.3d 148, 153 (6th Cir. 1994)).
FINDINGS OF FACT
the evidentiary hearing held on May 3, 2018, the Court heard
testimony from six witnesses. The Government called Officers
Douglas Ullrich, Tyler Tipton, and Taylor Lusardi. Defendant
called Michael Bryant and Jarmaine Rice, and Defendant also
testified on his own behalf. Following the hearing, Defendant
supplemented the record with the personnel file of Officer
Ullrich who conducted the search at issue. Weighing the
credibility of the witnesses, and considering the exhibits
admitted during the hearing as well as the supplemental
material submitted by Defendant after the hearing, the Court
makes the following factual findings:
October 4, 2017, at approximately 1:24 a.m., Officer Douglas
Ullrich, a Police Specialist with the Covington Police
Department, observed Defendant parked in an SUV in a
high-crime area. Ullrich observed a look of alarm when
Defendant spotted the marked police cruiser; Defendant pulled
off the curb and turned right onto 13th Street without
signaling. (Doc. # 46 at 11). Ullrich turned his vehicle
around to follow Defendant. After catching up and following
Defendant's vehicle a short distance, Ullrich observed
Defendant pull into a parking lane at the corner of 13th
Street and Wheeler, again without signaling. Id. at
13. Officer Ullrich activated his emergency lights and
conducted the stop. Id. at 15. At that time, Ullrich
learned from dispatch that Defendant's license plate was
expired. Id. at 15-16.
Ullrich approached Defendant's vehicle on foot and
identified himself as a Covington Police Officer; Ullrich
also informed Defendant that the reason for the stop was
Defendant's failure to use a signal when he turned onto
13th Street. (Govt. Ex. 1 at 05:24:31). Defendant responded,
“I apologize.” Id. at 05:24:41. Ullrich
requested Defendant's registration and proof of insurance
in addition to the license Defendant had provided. (Doc. # 46
at 17). Defendant began paging through paperwork, but was
unable to produce either the vehicle registration or proof of
insurance. Id. See also Govt. Ex. 1 at 05:27:18).
Defendant stated that he was in the area because he was
driving for Uber. (Govt. Ex. 1 at 05:24:49-05:25:07).
Unprompted, Defendant also assured the officer that he should
not worry because there were no “illicit drugs”
in the vehicle. Id. at 05:25:44. Defendant also
mentioned that he worked for “the Feds” and the
DEA, but that it was classified and that he was not “at
liberty” to talk about it; Defendant was unable to
provide contact information for the federal agent with whom
he claimed to be working. (Doc. # 46 at 17-18). See
also Govt. Ex. 1 at 05:25:45-05:27-02).
Ullrich confirmed that Defendant was unable to produce the
insurance or registration, he returned to his patrol car to
run Defendant's information. (Doc. # 46 at 20; Govt. Ex.
1 at 05:27:18-05:29:32). Ullrich checked Defendant's
prior history through Kentucky CourtNet and found that
Defendant had multiple arrests and convictions for drug
trafficking in Kenton County; furthermore, Ullrich determined
that Defendant was also on federal supervision at that time.
(Doc. # 46 at 20-21). Based upon Defendant's statements
related to drug activity and the other suspicious
circumstances, Ullrich called for a K-9 unit to conduct a
brief sweep of Defendant's vehicle.
Michael Lusardi arrived at the scene within approximately
nine minutes after the stop was initiated. Id. at
20. Lusardi was accompanied by a dog specially trained to
detect controlled substances, including methamphetamine.
Id. at 57. Officer Lusardi asked Defendant to step
out of the vehicle, explaining that the sweep could not be
performed safely with Defendant inside. (Govt. Ex. 2 at
05:34:38). Defendant complied with Officer Lusardi's
request and stepped out of the vehicle. Officer Lusardi
conducted a frisk of Defendant's person, and Defendant
was directed to sit on the curb a short distance away.
Officer Lusardi then retrieved the dog and conducted a brief
sweep of the vehicle. (Govt. Ex. 2 at 05:35:57-05:36:36). The
sweep lasted approximately twenty seconds. Id. at
05:36:16-05:36:36. The dog indicated on the driver's
door. (Doc. # 46 at 58). Officer Lusardi informed Ullrich
that the dog had indicated on the presence of narcotics in or
about the vehicle. Id. at 22.
the positive indication by the dog, Ullrich then conducted a
search of Defendant's person for controlled substances
while Lusardi conducted a search of the vehicle. Id.
at 24, 36, 47. Ullrich asked the Defendant to stand and
spread his feet apart in order to conduct the search.
Id. at 24. See also (Govt. Ex. 1 at
05:37:51-05:39:32). Despite multiple requests to spread his
feet wider, Defendant only spread his feet shoulder-width
apart. Id. Ullrich believed that Defendant's
failure to spread his legs was indicative of possession of
contraband or an intent to flee or fight; accordingly,
Ullrich detained Defendant in handcuffs at that point and
continued his search. (Govt. Ex. 3 at 05:37:30). Ullrich
asked Defendant again to spread his feet apart, but Defendant
indicated that was as far as his feet went. (Doc. # 46 at 24;
Govt. Ex. 1 at 05:39:32). Ullrich searched up through
Defendant's groin area on the outside of Defendant's
pants and located a large bulge that was clearly not part of
Defendant's person. (Doc. # 46 at 24). Ullrich unfastened
Defendant's belt and unzipped the zipper on his pants.
Id. at 25, 52. Defendant's pants were
lowered. (Govt. Ex. 1 at 05:39:59). Ullrich used
his right hand to pull Defendant's pants straight out
from his body, look in Defendant's pants, and then stuck
his hand into Defendant's groin area, retrieving the item
within approximately five seconds. (Doc. # 46 at 25, 78, 82;
Govt. Ex. 1 at 05:39:20-05:39:54; Govt. Ex. 3 at 05:39:40).
During Ullrich's retrieval of the item, Defendant's
buttocks was exposed for a few seconds, but mostly covered by
his long shirt. (Doc. # 46 at 71-72, 79; Govt. Ex. 1 at
05:39:59). Pubic hair was also briefly visible, but his
genitals were not exposed to view. (Doc. # 46 at 25, 52,
71-72, 91-92; Govt. Ex. 3 at 05:39:40-05:41:00). There were
approximately four people watching fifty or sixty feet away
at the time the search of Defendant's person was
conducted. (Doc. # 46 at 24, 51). See also generally
(Govt. Ex. 3). Additionally, two individuals looked out of
their windows onto the scene. (Doc. # 46 at 44).
retrieving the item, Ullrich pulled Defendant's pants up
and finished searching Defendant's person. (Govt. Ex. 1
at 05:40:08). Ullrich informed Defendant that he was under
arrest at that time, and further informed Defendant of his
Miranda rights. (Doc. # 46 at 26-27; Govt. Ex. 1 at
05:40:40; Govt. Ex. 3 at 05:40:40). After the search arrest,
Ullrich walked Defendant approximately ten feet to the police
cruiser, and secured Defendant inside. (Doc. # 46 at 26).
item retrieved from Defendant's person was a latex glove
containing two bags of methamphetamine. Id. at 52.
Additionally, in Officer Lusardi's contemporaneous search
of the vehicle, he located loose marijuana on the
driver's side floor. (Doc. # 46 at 27, 36, 60; Govt. Ex.
2 at 05:43:19-05:46:59). The officers also recovered the lid
to a digital scale from underneath the driver's seat.
(Doc. # 46 at 27).