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United States v. Westbrook

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

July 22, 2019

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

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge

         Following indictment, Defendant Lawrence Westbrook filed a motion to suppress evidence discovered after a traffic stop on June 23, 201');">18, and to suppress all statements made to law enforcement and evidence found on his vehicle following his arrest on August 31');">1, 201');">18. [Record No. 35] The motion was referred to United States Magistrate Judge Matthew Stinnett for issuance of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1');">1)(B). Magistrate Judge Stinnett conducted an evidentiary hearing and issued an opinion, recommending that the motion to suppress be denied. [Record No. 47');">47]

         A superseding indictment was returned before the initial Report and Recommendation was ripe for review. As a result, Westbrook's motion to suppress was denied as moot. [Record No. 54] Westbrook then renewed his motion. [Record No. 65] Magistrate Judge Stinnett filed a second Report and Recommendation on July 2, 201');">19, again recommending that Westbrook's motion to suppress be denied. [Record No. 66]

         On July 1');">16, 201');">19, Westbrook filed two objections to the magistrate judge's Report and Recommendation. [Record No. 70');">70] First, he claims that the traffic stop occurring on June 23, 201');">18, was an unconstitutional pretextual stop and that the government failed to meet its burden to establish that it and the resulting seizure of evidence were lawful. [Record No. 70');">70, p. 5');">p. 5] Second, he asserts that the magistrate judge erroneously concluded that Detective Clements' comments to him were not questioning or the functional equivalent of questioning for purposes of Miranda. [Record No. 70');">70, p. 8');">p. 8] After considering the full record and the magistrate judge's Report and recommendation, the Court will deny Westbrook's motion to suppress.

         I.

         This Court makes de novo determinations regarding those portions of the magistrate judge's recommendations to which objections are made. 28 U.S.C. § 636(b)(1');">1)(C); Thomas v. Arn, 47');">474 U.S. 1');">140');">47');">474 U.S. 1');">140, 1');">150 (1');">1985). “When a magistrate's findings and recommendations rest upon the evaluation of the credibility of a witness, the district court is not required to rehear the testimony in order to conduct a de novo determination of the issues.” United States v. Woodruff, 830 F.Supp.2d 390, 396 (E.D. Tenn. 201');">11');">1) (citing United States v. Bermudez, No. 99-6097, 2000 U.S. App. LEXIS 331');">159, at *8-9 (6th Cir. Dec. 1');">11');">1, 2000)). Further, “credibility determinations of the magistrate judge who personally listened to the testimony . . . should be accepted unless in its de novo review of the record the district court finds a reason to question the magistrate judge's assessment.” Woodruff, 830 F.Supp.2d at 396 (internal citations and quotations omitted).

         II.

         The motion to suppress involves two encounters with law enforcement. The first (a traffic stop) occurred on June 23, 201');">18. The second involved the defendant's arrest and the related search of his vehicle outside of a local restaurant on August 31');">1, 201');">18.

         A. The June 23, 201');">18 Encounter

         On June 23, 201');">18, Officer Jacob Webster was patrolling the Elkhorn neighborhood of Lexington, Kentucky, an area known for drug activity, when he noticed a vehicle driving by a Waffle House restaurant located at 2340 Buena Vista Road. This observation occurred around 2:00 a.m. [Record No. 35-1');">1, p. 5');">p. 5] The vehicle pulled into the restaurant's parking lot, and a female exited the vehicle and entered the premises. She remained there for a couple of minutes before quickly returning to the vehicle. [Id.] The vehicle then entered a Motel 6 parking lot, stayed for a brief period, and left the female at the motel. [Id. at 6.] Officer Webster followed the vehicle based on what he determined to be suspicious behavior. He then observed the driver fail to use a turn signal on two occasions. [Id.] Officer Webster stopped the vehicle following the second failure. [Id.]

         Webster noticed that the defendant was the only occupant and smelled marijuana as he approached the vehicle. [Id.] He asked the defendant if he (Westbrook) knew why he had been pulled over. However, Westbrook stated that he did not know the reason. [Webster Body Cam at 0:00-2:30] The officer then explained that the defendant failed to use a turn signal on two occasions. [Id.] The defendant apologized but blamed a person with whom he was speaking over his phone as the cause for his distraction and the resulting traffic violations. [Id.] As backup arrived, Webster asked Westbrook to step out of the vehicle and advosed the defendant that he intended to search it. [Record No. 35-1');">1, p. 6] Westbrook conceded that he also could smell marijuana, but denied smoking the substance. [Id.] During the resulting search, Officer Webster located methamphetamine, a loaded .45 caliber handgun, marijuana, digital scales, baggies, three cell phones, and an additional firearm magazine. [Id.] The officer also found $1');">1, 741');">1.00 on Westbrook's person, and he placed him under arrest. [Id. At 7] Westbrook was charged with multiple state felony offenses based on the June 23, 201');">18 encounter, but posted bond and was released from custody. He was later indicted by a grand jury and an arrest warrant was issued.

         B. The August 30, 201');">18 Encounter

         On August 30, 201');">18, officers observed the defendant's vehicle parked at a restaurant in Lexington, Kentucky, and confirmed his license plate number. [Record No. 35-2, p. 6-7] Thereafter, they executed an arrest warrant, taking Westbrook into custody as he exited the restaurant. [Id. at 7] Officers searched the defendant following his arrest and recovered approximately seven grams of methamphetamine, marijuana, pills, and $1');">1, 1');">170');">70.00. [Id.] The officers planned to conduct a K-9 sniff of the vehicle, but inadvertently placed the narcotics found on Westbrook's person on top of the car, making the sniff impossible. [Record No. 46');">46');">46');">46, pp. 5');">p. 56-57]

         Officer Jeremiah Terry requested that Westbrook give consent for the search his vehicle and asked, “[i]s there anything in there that shouldn't be in there?” [See Record No. 46');">46');">46');">46, pp. 62, 81');">1.] Westbrook did not respond and instead asked to be taken to jail. [Davis Body Cam at 9:55-1');">10:30] Detective Clements later spoke to the defendant, acknowledging that Westbrook had not provided consent to search his car. [Record No. 46');">46');">46');">46, p. 62] Clements informed Westbrook that law enforcement would tow the vehicle and apply for a search warrant. [Id.] Westbrook responded by asking whether his wife could drive the car ...


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