United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE
Teddy Hawkins, through counsel, filed a motion to suppress
evidence of an arrest and evidence obtained during a search
incident to arrest. [DE 64, Motion to Suppress]. Hawkins
claims that law enforcement officials had insufficient
evidence, based on unverified information from a cooperating
informant, to establish probable cause and that, as a result,
the arrest and search that occurred on May 10, 2018, violated
Hawkins's Fourth Amendment right against unreasonable
search and seizure. [DE 64; DE 121, Reply in Support of
Motion to Suppress].
opposition, the government argues that there was sufficient
evidence, including recorded phone conversations, a direct
identification, and flight, that established probable cause
to effectuate an arrest. [DE 89, Government's Response in
Opposition]. The government was also granted leave to file a
surreply [DE 130, Order; DE 133, Surreply].
evidentiary hearing was held on January 23, 2019, where
Officer Blake Leathers with the Lexington Police Department
(“LPD”) Narcotics Division and Special Agent
Jason Moore with the Drug Enforcement Administration
(“DEA”) testified. As a result, this matter is
ripe for review.
the government has established that probable cause existed
for officers to arrest Hawkins without a warrant and then
subsequently search Hawkins incident to arrest. As a result,
the seizure and subsequent search of Hawkins was valid and
Hawkins's motion to suppress evidence of the arrest and
evidence obtained from the search incident to arrest [DE 64]
10, 2018, officers with the LPD were investigating a
suspected drug overdose death. [DE 1-1 at 3, Pg ID 4]. The
decedent was found near drug paraphernalia and two cell
phones. [Id.]. Officers accessed one of the
victim's cell phones, which was not password protected,
and discovered that the victim had been communicating with a
contact named “Banks” about purchasing controlled
substances on the night of May 9, 2018. [Id. at 3-4,
Pg ID 4-5].
Blake Leathers, unaware of the identity of Banks, testified
that he began texting Banks on the morning of May 10, 2018,
to set up a drug buy and establish Banks's identity.
Acting as the decedent, Leathers contacted Banks via text
message, asking “how mch [sic] 4 a whole one.”
Leathers testified that this meant that he wanted to purchase
a gram or ounce of illegal drugs. Banks, not suspecting that
he was talking an LPD officer, responded “130.”
[Id. at 4, Pg ID 5]. Leathers, still posing as the
decedent and real owner of the phone, responded and indicated
that he would have “130” in room 46 at the
Day's Motor Lodge in Lexington, Kentucky. [Id.
at 4-5, Pg ID 5-6]. Later, Banks sent a text message to the
decedent's phone saying, “I'm outside.”
[Id. at 5, Pg Id. 6].
while, LPD officers had the area around the Day's Motel
under surveillance. [Id.]. While Leathers was
communicating with Banks on the decedent's cell phone,
officers observed a Nissan Altima with a Tennessee license
plate drive into the parking lot of the Day's Motel and
park “in the space most readily accessible to the room
number 46.” [Id.]. At the same time as the
Altima pulled into the Day's Motel lot, Banks was calling
the decedent's cell phone. [Id.].
that Banks was the driver of the Altima, LPD officers
detained the driver and identified him as Robert P. McGowan.
[Id.]. Officers discovered that McGowan had $1, 700
in cash on his person and a total of two grams of a substance
believed to be heroin in McGowan's socks. [Id.].
Additionally, when officers called the number in the
decedent's phone for “Banks, ” the cell phone
that was found in McGowan's hand rang. [Id.].
testimony at the evidentiary hearing, Detective Leathers
acknowledged that McGowan was initially deceptive with
officers, lying about his real name, where he lived, and why
he was at the Day's Motel. Additionally, Detective
Leathers testified that he eventually indicated to McGowan
that McGowan would be solely responsible for the drug
overdose death if he did not cooperate with police.
McGowan indicated to officers that a black male that he knew
only as “Teddy” supplied him with heroin. [DE 1-1
at 6, Pg ID 7]. McGowan indicated that he had saved
Teddy's contact information in his cell phone as
“Unc2.” [Id.]. Detective Leathers
testified that McGowan described Teddy or Unc2 as a black
male who was shorter. When authorities pressed McGowan for a
more detailed description, Leathers testified that McGowan
initially resisted, but when asked specifically McGowan said
that Teddy did not have dreads, did not have a fro, and was
sort of clean cut.
agreed to cooperate with authorities by contacting his
supplier, Teddy or Unc2, to set up a drug buy. Thus, McGowan
sent Unc2, whose exact identity was still unknown to police,
a text message from his cell phone saying, “I got 6,
” apparently indicating that he had $600 to purchase
heroin from Un2. [Id. at 7, Pg ID 8]. Unc2, unaware
that McGowan was cooperating with police, replied “Wya,
” meaning “Where you at?” [Id.].
Officers directed McGowan to tell Hawkins that he was at the
Cambridge Park Apartments, a location where McGowan indicated
he had previously engaged in drug transactions with Teddy.
[Id.]. After some additional conversation, Unc2
agreed to meet McGowan at Cambridge Park Apartments.
meantime, the LPD narcotics enforcement unit contacted the
DEA around mid-day for assistance with surveillance during
the potential drug buy bust. The authorities, communicating
with each other over the radio, put the area around the
Cambridge Park Apartments under surveillance.
the next couple hours, McGowan had multiple telephone
conversations with a caller, who authorities assert was Unc2,
about setting up a drug transaction while sitting in an LPD
vehicle with other officers. Some of the conversations were
overheard on an officer's body camera footage while
McGowan used speaker phone. For instance, Unc2 is heard
saying to McGowan, “I got to put your shit together
bro, but I got to tell you, you all ain't gonna want it.
It's good, it's fire.” [Gov't Exh. A, LPD
Body Camera Footage, Clip 144 at 0:09-0:14]. Then, on another
clip, Unc2 calls to confirm the location for the meeting at
Cambridge Park Apartments and McGowan tells officers after
the phone call that Unc2 will be driving a suburban.
[Gov't Exh. A, Clip 1, 0:07-1:09].
subsequent call, only McGowan is heard talking to Unc2 but
does not use speaker phone. [Gov't Exh. A, Clip 2]. After
ending the call, McGowan informs officers that Unc2 had his
kids with him and said that he wanted to meet at the park.
[Id. at 0:29-0:39]. Officers asked, “What
park? This park?” [Id. at 0:40-0:41]. To which
McGowan responded, “Yea.” [Id. at
0:41-0:42]. Officers testified that Valley Park is located
adjacent to the Cambridge Park Apartments and that they
understood from the information provided by McGowan that Unc2
wanted to meet at Valley Park for the transaction.
Agent Moore testified that he and other agents had been
surveilling the area around the Cambridge Park Apartments.
But once the location of the transaction was switched to the
park, Agent Moore testified that he turned his attention to
the park, which he stated he could see through foliage from
the parking lot of the Cambridge Park Apartments. Both
Leathers and Moore testified that there were only four people
in Valley Park while the park was under surveillance, a black
male, later identified as Hawkins, a female, later identified
as Essence Collins, and two children.
Unc2 called McGowan and portions of the conversation may be
overheard on speaker phone through the body camera footage.
[Gov't Exh. A, Clip 3]. McGowan answers by saying,
“What up Unc?” [Id. at 0:13-0:14]. After
some inaudible conversation, Unc2 says, “I'm in the
park.” [Id. at 0:19-0:20]. Then, after ending
the conversation, McGowan asks the officers to drive him past
the park so that he may try to identify Unc2. [Id.
at 0:26-0:33]. Then, conversation on the police radio is
overheard, where an unidentified officer says,
“I've got a white Tahoe with black rims.”
[Id. at 0:40-0:45]. Overhearing the police radio
conversation, McGowan says, “That's what,
that's him, that's him, that's him.”
[Id. at 0:46-0:48].
the authorities assert that they drove McGowan past Valley
Park to determine if Unc2 was at the park. On body camera
footage, the vehicle McGowan is riding in moves, and then the