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United States v. Westbrook

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

July 1, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
LAWRENCE WESTBROOK, III, Defendant.

          REPORT AND RECOMMENDATION

         Matthew A. Stinnett Judge.

         This 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].

         Westbrook 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 Suppress.

         I. FACTUAL BACKGROUND

         Westbrook's motion discusses two, different police encounters. Because the legal issues concerning each encounter are distinct, the Court will address each separately.

         A. June 23, 2018 Traffic Stop

         On June 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.[1] [DE 35-1, Page ID # 111].

         Westbrook 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 signal. [Id.].

         Webster 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 convicted felon.

         B. August 31, 2018 Arrest at Miyako's

         After 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. [Id.].

         While 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].

         Meanwhile, 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.

         From 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 ...


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