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United States v. Jackson

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

September 18, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
RODNEY LAWRENCE JACKSON DEFENDANT

          MEMORANDUM OPINION AND ORDER

          DAVID L. BUNNING UNITED STATES DISTRICT JUDGE.

         This 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.[1](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 is denied.

         I. ISSUES RAISED

         On 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.[2] (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).

         In 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)).

         II. FINDINGS OF FACT

         During 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:

         On 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.

         Officer 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).

         Once 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.

         Officer 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.

         Upon 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.[3] (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).

         After 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).

         The 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).

         III. ...


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