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United States v. Hawkins

United States District Court, E.D. Kentucky, Central Division, Lexington

January 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TEDDY S. HAWKINS, Defendant.

          MEMORANDUM OPINION AND ORDER

          JOSEPH M. HOOD SENIOR U.S. DISTRICT JUDGE

         Defendant 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].

         In 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].

         An 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.

         Ultimately, 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] is DENIED.

         I. Factual Background[1]

         On May 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].

         Detective 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].

         All the 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.].

         Suspecting 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.].

         During 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.

         Eventually, 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.

         McGowan 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. [Id.].

         In the 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.

         Over 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].

         In a 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.

         Additionally, 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.

         Again, 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].

         Next, 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 ...


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