United States District Court, E.D. Kentucky, Central Division
REPORT AND RECOMMENDATION
A. Stinnett Judge.
matter is before the Court on Defendant Lawrence Westbrook,
III's (“Westbrook”) Supplemental Motion to
Suppress. [DE 65]. The Hon. Danny C. Reeves referred the
initial matter to the undersigned for a Report and
Recommendation. [See DE 35 (Motion to Suppress); DE
8 (Referral Order)]. The United States responded to the
Motion [DE 37], and Westbrook filed a reply. [DE 40]. The
Court held an evidentiary hearing at which the parties
presented witnesses and arguments through counsel. [DE 43].
The Court issued a Report and Recommendation, denying
Westbrook's motion. [DE 47].
was subsequently arraigned on a superseding indictment. [DE
48 (Superseding Indictment); DE 61 (Arraignment)]. As a
result, the District Court denied the original Motion to
Suppress as moot. [DE 54]. Westbrook is now re-submitting
said motion for the Court to consider on the merits. [DE 65].
The superseding indictment did not alter the facts or
analysis of the previously issued Report and Recommendation.
Thus, for the reasons stated below, the Court recommends
again that the District Court deny Westbrook's Motion to
motion discusses two, different police encounters. Because
the legal issues concerning each encounter are distinct, the
Court will address each separately.
June 23, 2018 Traffic Stop
23, 2018, Lexington Police Officer Jacob Webster
(“Webster”) was conducting “proactive
patrols” in an area with recurrent “narcotics
activity.” [DE 35-1, at Page ID # 110]. Around 2:00
a.m., Webster observed a vehicle pull into the Waffle House
parking lot, a female exit the vehicle, enter the Waffle
House, and then return to the vehicle within “a few
minutes.” [Id.]. Given the area and time of
night, Webster suspected possible drug activity.
[Id.]. The vehicle then drove to a Motel 6, the
female exited the vehicle, and the vehicle left quickly
afterwards without the female. Webster claimed this Motel 6
was also a frequent site of narcotic activity, thus raising
his suspicion further. [Id. at Page ID # 111]. At
this point, Webster began to follow the vehicle. While
Webster felt he was “building reasonable suspicion,
” he hoped to find probable cause to investigate his
intuitions. [Transcript at p. 7]. While following the
vehicle, Webster witnessed the driver fail to appropriately
use his turn signal twice in a short distance, and
subsequently activated his overhead lights to conduct a
traffic stop. [DE 35-1, Page ID # 111].
was the sole occupant of the vehicle. Upon approaching
Westbrook, Webster asked if Westbrook “knew why I
pulled you over.” [DE 42, Webster Body Camera, at
0:00-2:30]. Westbrook, while also talking to someone on his
cell phone, said he did not. [Id.]. Westbrook
immediately told him of his two infractions, specifically
identifying the two location where Westbrook failed to use
his turn signal. [Id.]. Upon being told of his
infraction, Westbrook apologized, provided identification,
and blamed the caller for distracting him from using his turn
claimed that he noticed the “plain smell of
marijuana” during this first contact with Westbrook.
[DE 35-1, Page ID # 111]. Once another officer arrived,
Webster confronted Westbrook about the smell. [DE 42, Webster
Body Camera, at 5:45-6:30]. Westbrook claimed he had not
smoked, but it could be “vapor” from someone who
recently used the car. [Id.]. Westbrook was asked to
step out the car so it could be searched. Westbrook agreed
and commented that he also smelled marijuana, but he
maintained he “did not smoke.” [Id. at
10:15-10:30]. Upon the search of Westbrook's vehicle,
Webster found a black bag on the driver's side floorboard
containing a firearm as well as suspected methamphetamine,
suspected marijuana, digital scales, baggies, two cell
phones, and additional firearm magazines. [Id.].
Westbrook was subsequently arrested for suspected drug
trafficking and possession of a firearm as a previously
August 31, 2018 Arrest at Miyako's
his arrest, Westbrook was released on bail, but shortly after
indicted on state charges related to the incident. [DE 37, at
Page ID # 127]. On the above date, officers identified
Westbrook's vehicle and Westbrook at Miyako Sushi &
Grill on Richmond Road in Lexington. [DE 35-2, at Page ID #
120]. Rather than arrest Westbrook inside the restaurant,
Officers chose to make the arrest as Westbrook exited the
restaurant “in hopes of avoiding any kind of violent
encounter.” [Id.]. Leaving the restaurant with
his wife and child, Westbrook was immediately apprehended and
then searched incident to the arrest. [Id.]. Police
found suspected methamphetamine, suspected marijuana, various
pills, and $1, 170.00 in cash on Westbrook's person.
[Id.]. According to Detective Samuel Clements
(“Clements”), officers intended to sweep
Westbrook's vehicle via a narcotics K-9 sniff.
[Transcript at p. 43]. The narcotics found on Westbrook's
persons, however, were inadvertently placed on the vehicle,
making it impossible for the K-9 sniff to differentiate the
scent of any narcotics that might be in the vehicle.
Clements determined his next step, an Officer Terry
(“Terry”) approached Westbrook to request consent
to search the car, asking, “Is there anything in there
that shouldn't be in there?” [DE 42, Davis Body
Camera at 9:45-9:55]. Westbrook refused to respond or provide
consent for Terry to search the vehicle, asking that he just
be taken to jail. [Id. at 9:55-10:30].
Clements proceeded to use a flashlight to do a “plain
view” search of the vehicle. [Id. at
14:30-15:30]. Finding nothing, Clements approached Westbrook
several minutes after Terry finished questioning Westbrook
and acknowledged that Westbrook was not providing consent to
search his car. [Id. at 15:30-16:30]. Clements then
stated that officers will tow his vehicle to a secure
location and apply for a search warrant. [Id.].
Westbrook inquired about whether his wife was going to be
able to drive the car home from the restaurant.
[Id.]. Clements said no. Westbrook then began to ask
whether, if he consented to the search, the officers would
allow Westbrook's wife to drive the vehicle home.
[Id.]. Clements responded that “it just
depends on what is located in the vehicle.”
[Id.]. Clements asked Westbrook if he has been read
his Miranda rights, to which Westbrook respond in
the negative. [Id. at 17:30-17:55]. As Clements
began to recite said rights, Westbrook shook his head,
stating “I know my rights”. [Id.]. This
was the first time in which Westbrook was read his
Miranda rights on video.
here, the prior conversation repeated. Clements explained
that he was going to tow the car and apply for a search
warrant; Westbrook asked, if he consented, if his family
could leave with the car; and Clements confirmed they could
if nothing illegal was found in the vehicle. [Id.].
Westbrook then asked to speak to his wife. [Id. at
22:15-24:00]. As they were ...