United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. BUNNING UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Suppress all evidence seized during a search of the Defendant
by police on January 2, 2019. (Doc. # 16). In his brief in
support of his Motion, Defendant Scott alleges that the
police officers lacked a legal basis to search his person.
(Doc. # 35 at 9). Scott therefore argues that all evidence
seized during the search should be suppressed. (Doc. # 16 at
30, 2019, the Court held an evidentiary hearing on the
Motion. (Doc. # 30). Defendant Scott was present at the
hearing and represented by attorney James West. Id.
The United States was represented by Assistant United States
Attorney Jennifer Weinhold. Id. The hearing was
recorded by Official Court Reporter Joan Averdick. Following
the evidentiary hearing, the parties submitted supplemental
briefs as ordered by the Court. (Docs. # 35 and 36). The
matter being briefed, and the Court having independently
reviewed the entirety of the evidence and heard argument and
testimony from each side, the Motion is now ripe for the
Court's review. For the reasons set forth herein,
Defendant's Motion to Suppress (Doc. # 16) is
FINDINGS OF FACT
witnesses testified during the evidentiary hearing on behalf
of the United States: Drug Enforcement Agency (DEA) Task
Force Agent Andy Muse, Federal Bureau of Investigation (FBI)
Task Force Agent T.C. Rice, and City of Maysville Officer
Jesse Pollitt. One witness testified on behalf of the
Defendant: Sean Myrick. Weighing the credibility of the
witnesses and reviewing the submitted evidence, the Court
makes the following factual findings:
January 2, 2019 Agent Muse was surveilling the Ye Olde Dutch
Inn (“Dutch Inn” or “Inn”) in
Maysville, Kentucky. (Doc. # 34 at 10:22-11:11).
Specifically, Agent Muse was monitoring a pole camera
directed at the Dutch Inn and its parking lot, via a
livestream to his iPad. Id. at 11:9-22; see
also Gov't Ex. 1. Agent Muse testified that the
Dutch Inn is a location known for drug trafficking. (Doc. #
34 at 20:13-17).
During his surveillance, Agent Muse observed Defendant Scott
outside the Dutch Inn. (Doc. # 34 at 14:11-20).
some point during the afternoon a maroon vehicle arrived in
the Dutch Inn parking lot. Id. at 3:39:46 (time at
which camera zooms out so the entire parking lot, including
the maroon vehicle, is visible). Police determined that
Derick Ziegler was the driver of the maroon vehicle. (Doc. #
34 at 16:9-14, 16:24-17:1). Police involved in the
surveillance believed that Ziegler was a convicted drug
dealer. Id. at 18:2-7, 31:12-14.
about 4:39 p.m. Agent Muse observed Scott get into the
passenger side of the maroon vehicle parked in the Dutch Inn
parking lot. Id. at 4:38:44; see also (Doc.
# 34 at 16:9-14, 17:12-16). Defendant Scott was in the maroon
vehicle with Ziegler for approximately two minutes before
exiting and returning to the silver sedan. (Gov't Ex. 1
at 4:38:44-4:41:06); see also (Doc. # 34 at
Agent Muse believed Defendant Scott's actions in relation
to Ziegler were indicative of a hand-to-hand drug
transaction, (Doc. # 34 at 21:21-22:1), and relayed this
information to Agent Rice. Id. at 22:2-8, 35:9-18,
exiting Ziegler's vehicle, Scott returned to the silver
sedan in which he arrived. (Gov't Ex. 4:41:18). The
silver sedan carrying Justin Scott then left the parking lot.
Id. at 4:41:57. The driver of the sedan attempted to
turn left onto a one-way street, but quickly turned back into
the Dutch Inn parking lot when a police cruiser was driving
the wrong way down the street. Id. at
4:42:12-4:42:22; see also (Doc. # 34 at 19:3-8).
an attempt to coordinate a traffic stop of the vehicle in
which Defendant Scott was travelling, Agent Muse provided
identifying and location information about the silver sedan
to Agent Rice, who was also in the area. Id. at
35:13-36:2. After the silver sedan left the parking lot of
the Dutch Inn, it was followed by Agent Rice and two
detectives (Detective Conley and Detective Burns) who were in
an unmarked car. Id. at 33:6-36:19, 54:19-55:5.
During the surveillance of the vehicle, the officers observed
the sedan make a left turn into an oncoming turn lane.
Id. at 36:24-37:4, 59:14-17. At some point while
observing the silver sedan Detective Burns contacted
Maysville Police Officer Pollitt, who drove a marked police
car, to coordinate an encounter between Officer Pollitt and
the Defendant. Id. at 35:24-36:7, 59:7-17. Shortly
after, Agent Rice observed the sedan pull into the parking
lot of Bubby's Burgers. Id. at 37:17-22.
Agent Rice and Detective Burns approached the silver sedan in
the parking lot of Bubby's Burgers and ordered the
occupants out of the car. Id. at 38:8-24. Agent Rice
first spoke with the driver of the car, who indicated that
the car was not hers and did not give consent for the car to
be searched. Id. at 38:25-39:9, 45:2-4. Agent Rice
subsequently spoke with Defendant Scott who refused to give
consent for the car to be searched. Id. at 39:10-14.
At some point during this time Detective Conley and Officer
Pollitt also arrived on the scene. Id. at 39:2-4.
Within five to ten minutes of arriving on the scene, Agent
Rice, having learned that no officer had patted down
Defendant Scott and having reason to believe that Defendant
Scott was engaged in criminal conduct, conducted a pat-down
of the Defendant and discovered a gun in the waistband of
Defendant Scott's pants. Id. at 39:10-20,
40:13-16, 49:1-10, 57:2-9.
Officer Pollitt subsequently searched Defendant's person
and found a pill bottle containing contraband, including
crack cocaine, Xanax, and marijuana. Id. at
40:19-41:8, 57:18-22, 58:6-11.
some point after the gun was found, the Defendant was
handcuffed and arrested for carrying a concealed weapon.
Id. at 41:11-15, 57:14-58:4.
adjudicating the Motion to Suppress, the Court took great
care to review the entirety of the surveillance video
provided by the Government, rather than merely relying on the
testimony and short segment of the video played during the
evidentiary hearing. In its review, the Court found several
inconsistencies between Agent Muse's testimony and what
actually occurred on January 2, 2019 in the Dutch Inn parking
lot. The Court makes the following specific findings based on
Agent Muse testified that he observed “Mr. Ziegler [ ]
do drug transactions with at least three or four people prior
to Mr. Scott.” Id. at 20:18-19. He
specifically testified that “[t]hey were doing the
exact same thing . . . [Ziegler] would meet with them, and
they would jump in the vehicle with him, in the passenger
side, be in there for a short period of time, and then exit
the vehicle and leave.” Id. at 20:22-25. Agent
Muse also testified that he “observe[d] ...