Opinion
Case No. 3:12-cr-72
2013-09-24
UNITED STATES OF AMERICA, v. BRITTAN A. GIBSON, et al., Defendants.
Judge Timothy S. Black
DECISION AND ENTRY:
(1) DENYING THE MOTIONS TO SUPPRESS OF
DEFENDANTS BROWN AND MAYBERRY (Docs. 102, 118, 119, 129);
(2) DENYING BRACHES I AND II OF DEFENDANT GIBSON'S
MOTIONS TO SUPPRESS (Docs. 108, 124); AND
(3) ORDERING A LIMITED ADDITIONAL HEARING ON
BRANCH III OF DEFENDANT GIBSON'S
MOTION TO SUPPRESS (Doc. 124)
This criminal case is before the Court on a number of Motions to Suppress filed by Defendants Brittan Gibson, Sherman Brown and Steven Mayberry. (Docs. 102, 108, 119, 124, 129). All of the foregoing Defendants challenge the suggestiveness of a pretrial lineup procedure. In addition, Defendant Gibson challenges an inventory search of a vehicle, and Defendant Brown challenges the evidence derived from global position system ("GPS") monitoring and the warrantless search of his residence. The Court held a number of hearings on Defendants' Motions. The parties have since filed post-hearing briefs arguing their positions. The Motions are now ripe.
I. SUGGESTIVENESS OF IDENTIFICATIONS
This case involves multiple Defendants charged with offenses concerning the trafficking of heroin. The charges resulted from a joint state and federal task force investigation into the workings of a purported Dayton street gang law enforcement identified as "Zone 6." The aforementioned Defendants all challenge the purported suggestiveness of lineups used by law enforcement officers Rick Bergman and Timothy Braun in obtaining identifications of Defendants from certain known drug users.
Bergman, a deputy sheriff with the Montgomery County, Ohio Sheriff's Office, was part of the Federal Bureau of Investigation ("FBI") Safe Streets Task Force and was involved in the investigation of the Zone 6 gang. Braun, a police officer with the city of Dayton Police Department, was assigned to the Community Initiative to Reduce Gun Violence and worked in conjunction with the FBI Safe Streets Task Force where he was also involved in the investigation of Zone 6.
As part of their investigation, Bergman and Braun interviewed drug users who purchased narcotics from Zone 6. The officers discovered the identity of these drug users after reviewing telephone numbers found in cell phones seized from individuals believed to be associated with Zone 6. During the interviews of drug users, the officers asked each witness to review a number of pages, each page containing a single photograph of a person law enforcement believed to be associated with the gang. The officers testified that the pages displayed to witnesses were compiled from the Montgomery County Justice Web and each page contained a single photograph of an African American male depicting that individual's face. Although the photos look similar to "mugshots," none of the photographs depicted police placards or jail attire. Additionally, none of the photographs contained any identifying information or referenced any names.
On June 14, 2012, Bergman and FBI Special Agent Dennis Eng conducted interviews with known heroin users, "Kari" and "Ashley." These interviews occurred at separate times and at separate locations. Bergman and Eng initially met with Ashley and Kari at their separate residences. After identifying themselves as officers and explaining the purpose of their visit, Bergman handed the witnesses photographs one at a time, in no particular order. If the witness positively identified a person as an individual from whom s/he purchased heroin, Bergman would inquire as to the time frame, the number of times they interacted and whether anyone else was present during the transactions. If the witnesses were unable to identify an individual in a photograph, Bergman asked no follow up questions. Kari and Ashley were both able to identify some persons depicted in the photos and were unable to identify others.
On May 14, 2012, Braun and Eng met with a drug user named "Brittany" at her residence. The officers identified themselves and explained the purpose for their visit, i.e., to show her photographs in an effort to see if she could identify any individual as a person from whom she purchased heroin. As Braun flipped through the pages of the binder one at a time, Brittany would indicate whether she recognized someone. If so, Braun asked questions regarding how she knew the individual in the photo. If Brittany was unable to recognize someone, Braun simply moved to the next photograph without asking questions. Braun never commented regarding the accuracy of any identification, nor did he mention any names or nicknames of the individuals in the photos.
On May 16, 2012, Braun, accompanied by Detective Fuller, again met with Brittany. During this interview, Braun again provided Brittany with a binder containing the photos displayed at the original interview as well as four additional photographs. A photo of Defendant Gibson appeared in the original set of photos shown to Brittany during the first interview, and the updated binder included an additional, though different, photo of Gibson. Braun showed the photos in the updated binder to Brittany using the same identification procedure used during the first interview. Though Brittany did not identify Gibson during her first interview, she did identify him during the follow-up interview.
Braun and Eng also met with drug user "Brandi" at the residence of her boyfriend, "Jeff." Upon meeting them, the officers introduced themselves and explained the purpose of their visit. Braun asked Brandi, who was seated next to him, to view the photographs and indicate whether she knew any of the individuals. Braun placed the binder on a table and turned the pages one at a time as Brandi reviewed the photos. During this process, Brandi volunteered that Jeff, who was present at the time, should look at the photographs because he also had contact with dealers. As Brandi and Jeff separately viewed the photographs, they were able to identify some, but not all of the individuals. Again, Braun asked follow-up questions for each person Brandi and Jeff were able to identify.
Braun and Eng again met again with Brandi on May 17, 2012, and with Jeff on May 18, 2012, for the purpose of asking specific follow-up questions about the individuals they had identified and to ask them to review the updated binder containing the four additional photographs utilizing the same procedure as before.
On May 23, 2012, Braun, along with FBI Agents Eng and Buzzard, interviewed "Jimi" at her residence. After introducing themselves and informing Jimi of the purpose of their visit, Braun asked Jimi to review the binder and indicate whether or not she was able to identify anyone shown in the photos. Braun showed Jimi the photographs using the same procedures he used before, i.e., by turning the pages in the binder one-by-one. Jimi was able to identify a few photographs, and after displaying all of the photos, Braun asked Jimi follow-up questions concerning each individual she was able to identify. At no time during the interview did Braun comment on Jimi's identifications.
Defendants challenge the identifications made by the foregoing witnesses. Defendants primarily argue that, by using photos of only known or suspected heroin dealers, officers utilized an unduly suggestive procedure because the witnesses could not give a wrong identification. Defendants also argue that officers failed to follow the lineup procedures outlined in Ohio Rev. Code § 2933.83, and, therefore, undue suggestiveness should be presumed.
ANALYSIS
In addition to Sixth Amendment safeguards such as "the right to counsel, compulsory process to obtain defense witnesses, and the opportunity to cross-examine witnesses for the prosecution[,]" the principles of due process provide an additional "check on the admission of eyewitness identification, applicable when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime." Perry v. New Hampshire, --- U.S. --- , 132 S.Ct. 716, 720 (2012). This due process check "requires courts to assess, on a case-by-case basis, whether improper police conduct created a 'substantial likelihood of misidentification." Id. at 724 (citing Neil v. Biggers, 409 U.S. 188 (1972); Manson v. Brathwaite, 432 U.S. 98 (1977)). In determining whether an unacceptable risk of misidentification exists, courts use "a two-step analysis[.]" United States v. McComb, 249 Fed. Appx. 429, 437 (6th Cir. 2007) (citing Ledbetter v. Edwards, 35 F.3d 1062 (6th Cir. 1994)).
Step one of the two-step analysis requires a determination as to "whether the pretrial identification was unduly suggestive," which "is a fact-specific determination[.]" Id. (citing Ledbetter, 35 F.3d at 1070-71). This inquiry probes whether "the procedure itself steered the witness to one suspect or another, independent of the witness's honest recollection." Cornwell v. Bradshaw, 559 F.3d 398, 413 (6th Cir. 2009) (citing Wilson v. Mitchell, 250 F.3d 388, 397 (6th Cir.2001)). In making this determination, "the court may consider 'the size of the [photographic] array, the manner of its presentation by the officers, and the details of the photographs themselves.'" McComb, 249 Fed. Appx. at 437 (citing United States v. Sanchez, 24 F.3d 1259 (10th Cir. 1994)).
The Supreme Court of the United States has illustrated "numerous instances of suggestive procedures," such as:
that all in the lineup but the suspect were known to the identifying witness, that the other participants in a lineup were grossly dissimilar in appearance to the suspect, that only the suspect was required to wear distinctive clothing which the culprit allegedly wore, that the witness is told by the police that they have caught the culprit after which the defendant is brought before the witness alone or is viewed in jail, that the suspect is pointed out before or during a lineup, and that the participants in the lineup are asked to try on an article of clothing which fits only the suspect.United States v. Wade, 388 U.S. 218, 232-33 (1967). If the Court finds that "the first step of the requisite analysis ends in the government's favor, [the court] need not address whether, under the totality of the circumstances, the photographic identifications were nevertheless reliable." United States v. Stamper, 91 Fed. Appx. 445, 462 (6th Cir. 2004) (citing Ledbetter, 35 F.3d at 1071).
Here, the lineup procedures used were not unduly suggestive simply because officers used only photos of suspected drug dealers associated with Zone 6. While the procedures used were, perhaps, unconventional, and contrary to modern lineup procedures, the procedures did not direct undue attention to any particular person and the procedures used did not make it any more likely that any of the witnesses would identify any one person over any other person depicted.
Further, failure to follow the identification procedures set forth in Ohio Rev. Code § 2933.83 does not warrant suppression, or even a finding that the lineup procedures were unduly suggestive. Even assuming Ohio Rev. Code § 2933.83 applied to this federal case involving a federal investigation, the failure to comply with Ohio Rev. Code § 2933.83 does not result in suppression of the resulting identification nor even the presumption that the procedures used were impermissibly suggestive. See State v. Simpson, No. 25069, 2013 WL 1189227, *15 (Ohio App. Mar. 22, 2013).
Accordingly, finding that the lineup procedures used were not unduly suggestive, the Court DENIES the Motions to Suppress filed by Defendants Mayberry and Brown testimony.
However, insofar as officers presented a lineup that included two separate photos of Defendant Gibson, namely, to witness Brittany, that lineup was unduly suggestive as to Gibson and the Court finds that the reliability of any identification of Gibson resulting from witnesses viewing a lineup containing two photographs of him must be demonstrated by the government at a separate hearing.
II. INVENTORY SEARCH
During the early morning of March 19, 2012, Dayton Police Department ("DPD") Detective Mike Fuller and his partner were conducting surveillance near Vex Nightclub in Dayton, Ohio. Shortly before 1:00 a.m., Detective Fuller and his partner noticed a black 2008 Dodge Charger cross the intersection in front of them and ultimately park in a parking lot near the nightclub. Based on prior surveillance, Detective Fuller knew that Defendant Gibson, then a suspect in an ongoing drug investigation, drove a similar vehicle. Upon viewing the Charger's license plate, Detective Fuller confirmed the vehicle was, in fact, the vehicle that he previously saw Gibson driving.
As Detective Fuller turned his car into the parking lot, officers saw Gibson exit the automobile. Knowing that Gibson had an outstanding state arrest warrant for failure to appear, Detective Fuller and other officers approached Gibson, advised him that he was under arrest on the state warrant, and searched Gibson incident to the arrest. Officers searching Gibson's person recovered $5,605 from his front left jean pocket. Based on his training and experience, including his eleven years as a DPD officer, Detective Fuller knew that drug dealers often carried large amounts of money with them given the cash-intensive nature of their business.
Consistent with this understanding, Detective Fuller and other officers had received information from several confidential and reliable informants that Gibson sold heroin. These informants also indicated that Gibson sold heroin from his own car to persons in other vehicles, i.e., "vehicle to vehicle." This information was recent, having been received "almost all the way up to the time of the arrest." Based on his experience, Detective Fuller also knew that drug dealers often kept items frequently used in the sale of drugs within their vehicles. Based on the totality of these circumstances, Detective Fuller believed that he had sufficient probable cause to search Gibson's car.
Detective Fuller also intended to remove Gibson's car from the parking lot pursuant to the DPD tow policy. This written tow policy authorized any DPD officer to tow a vehicle from public or private property if, among other things, its driver had been arrested thereby leaving the vehicle unattended. The policy similarly permitted officers to tow a vehicle if the driver, like Gibson, lacked a valid driver's license. Upon electing to tow a car, the tow policy requires officers to conduct an inventory of its contents to secure and note the car's contents, to note any damage to the vehicle, and to ensure the safety of officers and others who may come into contact with the vehicle in the process of towing and storing the vehicle.
Detective Fuller opened the door to the Charger to begin the inventory and, in doing so, immediately noticed the handle of a firearm protruding from underneath the driver's seat. Upon entering the car, Detective Fuller continued the inventory and discovered a large amount of money in the center console, heroin in a Gucci baggy hanging from the console, a Gucci bag full of money on the front floor board, a digital scale, and sandwich bags. In the trunk of the Charger, Detective Fuller located clothing and a vacuum cleaner.
Although officers are instructed to list the items inventoried onto a computer in a police cruiser, Detective Fuller was driving an unmarked car at the time. Detective Fuller did ultimately document the contraband recovered from the Charger in a police report, and all items were booked into DPD property room. As for the personal property recovered from the car, including clothing and a vacuum cleaner, officers took those items to a secure building that belonged to the DPD Narcotics Bureau, and ultimately delivered those items to the office of Gibson's attorney.
Defendant Gibson moves to suppress the evidence discovered during the search of his person and the subsequent search of the car. Gibson argues that the Fourth Amendment required that officers obtain a warrant before searching the car. The government contends that officers were permitted to conduct a warrantless search of his person incident to Gibson's arrest on the outstanding state warrant, and that the discovery of a large quantity of cash on Gibson's person, combined with the officers' knowledge of Gibson's alleged drug activity, provided sufficient probable cause to search the car pursuant to the automobile exception. Even in the absence of probable cause, the government contends that officers properly conducted an inventory search of the car.
ANALYSIS
Initially, the Court finds no merit to any contention that Gibson's arrest was unlawful. Gibson had an outstanding warrant from Washington Township and he was also seen driving a vehicle without a license, which itself is an arrestable offense in Ohio. See State v. Taylor, No. 25169, 2013 WL 871509, *6-7 (Ohio App. Mar. 8, 2013) (concluding that officers driving without a license is an arrestable offense and, upon arresting an individual for such an offense, officers "could lawfully conduct a warrantless search incident to the arrest"). Id. at *7.
In searching Gibson's person incident to the lawful arrest, officers discovered $5,605 in Gibson's front left jean pocket. Trained officers in similar situations generally associate large quantities of cash with the narcotics trade. Discovery of the large amount of cash on Gibson's person corroborated information Detective Fuller obtained from confidential informants that Gibson was engaged in selling narcotics. Based on this information, Detective Fuller had probable cause to believe that Gibson was dealing narcotics and that the vehicle contained further evidence of drug trafficking.
Police may search a vehicle where "it is reasonable to believe the vehicle contains evidence of the offense of arrest." Arizona v. Gant, 556 U.S. 332, 335 (2009). Thus, even in the absence of a warrant, police can "search of any area of the vehicle in which the evidence might be found" in situations where officers have "probable cause to believe a vehicle contains evidence of criminal activity[.]" Id. at 347 (citing United States v. Ross, 456 U.S. 798 (1982)). Based on the foregoing, the search of Gibson's car in the absence of a warrant was proper.
Even in the absence of the automobile exception, "[i]t is settled law that the police may conduct an inventory search of an automobile that is being impounded without running afoul of the Fourth Amendment." United States v. Jackson, 682 F.3d 448, 455 (6th Cir. 2012) (citing United States v. Smith, 510 F.3d 641, 650 (6th Cir. 2007)). "In order to be deemed valid, an inventory search may not be undertaken for purposes of investigation, and it must be conducted according to standard police procedures." Id. (quoting Smith, 510 F.3d at 651). "A general written inventory policy does not grant officers carte blanche when conducting a search; rather, it must be sufficiently tailored to only produce an inventory." Id. (citing United States v. Tackett, 486 F.3d 230, 232 (6th Cir. 2007)).
Pursuant to the DPD General Order regarding Towing Motor Vehicles (hereinafter "tow policy"), "[v]ehicles operated by drivers without an operator's license . . . should preferably be towed from where they were stopped, including private property." When the officer elects to have the vehicle towed, "[p]rior to towing," the policy directs officers to "conduct an inventory of the vehicle's contents and note the information on the MCT screen or complete a Tow-In/ Liability Waiver Card F-472." Based on the foregoing, the tow policy supported Detective Fuller's decision to tow the car from the parking lot.
To effectuate the towing of the vehicle, the tow policy directs the officer to conduct an inventory of the vehicle. In compliance with that policy, Fuller opened the door of the vehicle and, immediately upon doing so, saw the handle of a gun protruding from underneath the driver's side seat. At the latest, upon opening the door and seeing the gun, in addition to the officers' knowledge of Gibson's involvement in drug trafficking and finding a large sum of cash in Gibson's jeans pocket, Detective Fuller had probable cause to believe that the vehicle contained further evidence of criminal activity, namely, evidence of drug trafficking. Michigan v. Thomas, 458 U.S. 259, 261-62 (1982) (concluding that officers had probable cause to search entire vehicle where officers discovered contraband while conducting an inventory search of the glove compartment).
Based on the foregoing, the Court concludes that Gibson's arrest was lawful, and that officers did not violate Gibson's Fourth Amendment rights by searching the car. Accordingly, based on the foregoing, the Court DENIES Defendant Gibson's Motion to Suppress evidence seized as a result of a search of the motor vehicle.
III. GPS MONITORING
From the late 2000s through March 2013, Defendant Sherman Brown was a parolee under the supervision of the Ohio Adult Parole Authority ("APA"). Throughout this time, the state placed certain requirements on him, including a condition that permitted warrantless searches of Brown or his property if the APA had reasonable grounds to believe that he had violated the law or a term of his supervision.
Brown performed poorly on parole, receiving multiple sanctions for violating the terms of his release. In May 2011, Gibson was sanctioned for breaking the rules of his supervision and the APA placed him on GPS monitoring - a common sanction for violation behavior. On January 25, 2012, detectives contacted the APA and advised that Brown was a suspect in a homicide, information that prompted an APA supervisor to suggest that Brown again should be placed on GPS monitoring. Around this same time, Brown, who lacked a valid driver's license, attempted to flee from a car in which police discovered a large quantity of drugs. During early March 2012, Brown failed to attend a scheduled meeting with the APA.
Based on these cumulative violations, Brown's parole officer sanctioned him, again placing him on GPS monitoring for 90 days. Before doing so, however, the parole officer and sought approval from her unit supervisor and a regional APA administrator to apply this sanction. In seeking this permission, the parole officer detailed a portion of Brown's behavior, including the incident in which he fled from a car carrying a substantial quantity of heroin and crack cocaine. Both supervisors agreed with the parole officer's decision and approved placing Brown on GPS monitoring.
At the direction of the APA, an organization known as Volunteers of America installed GPS on Brown and monitored his whereabouts from approximately May 2012 until his arrest on a federal warrant during June 2012. Neither the APA nor Volunteers of America exercised any discretion concerning the type of GPS monitoring on which Brown was placed; these entities only had one form of this monitoring technology available to them - namely, realtime or active GPS.
While on monitoring, Brown's performance remained poor. As is common practice, during 2012, the DPD periodically contacted the APA concerning Brown. For instance, during April 2012, DPD Detective Fuller called the APA inquiring when it intended to place Brown on GPS; he also requested that the APA use "realtime GPS" and provide him with a CD of Brown's whereabouts, and by that time, the APA already had initiated the process of placing Brown on active GPS.
During late June 2012, federal authorities contacted parole officer Crystal Langer and advised that they had a warrant for Brown's arrest. Officer Langer ultimately accompanied agents to Brown's residence, where federal authorities arrested him on the federal warrant. Once Brown was arrested, Officer Langer authorized a parole search of Brown's home and car believing that the federal arrest warrant provided sufficient reason to believe that Brown violated conditions of supervision.
ANALYSIS
Brown's suppression arguments focus on a "stalking horse" theory suggesting that a probation officer's search is unconstitutional under the Fourth Amendment when the search is conducted at the request of police as a way of avoiding the warrant requirement. The Sixth Circuit has summarized the "stalking horse" theory as "police [using] the state parole officer as a means of carrying out a seizure which the police [have] no investigatory authority to perform." United States v. Penson, 141 Fed. Appx. 406, 410 n2 (6th Cir. 2005).
However, "in determining the constitutionality of a search of a probationer 'there is no basis for examining [the] official purpose' of the search." Id. at 410 n2 (citing United States v. Knights, 534 U.S. 112 (2001)). Some courts hold that, as a result of the Supreme Court's holding and reasoning in Knights, the stalking horse theory no longer exists. See United States v. Williams, 417 F.3d 373, 377-78 (3rd Cir. 2005); United States v. Tucker, 305 F.3d 1193, 1199-2000 (10th Cir. 2002); United States v. Stokes, 292 F.3d 964, 967 (9th Cir. 2002) (concluding that, based on Knights, "cases holding searches of probationers invalid on the ground that they were subterfuges for criminal investigations is, in that respect, no longer good law"); United States v. Brown, 346 F.3d 808, 810-11 (8th Cir. 2003).
While the Sixth Circuit has questioned the continued viability of the stalking horse theory, it has not specifically addressed whether is survives post-Knights. Id. (questioning "whether the 'stalking horse' theory is even a cognizable argument following [Knights]"); United States v. Goliday, 145 Fed. Appx. 502, 505-06 (6th Cir. 2005) (noting only that "[s]earches conducted by probation officers who act as 'stalking horse[s]' for police, in effect abusing their authority and circumventing the warrant requirement of the Fourth Amendment, may be unlawful" (emphasis added)); see also United States v. Hemphill, No. 1:10-cr-053, 2010 WL 3366137, *7 n4 (S.D. Ohio Aug. 20, 2010).
Although the Sixth Circuit has not specifically addressed the continued viability of the stalking horse theory, this Court cannot ignore the Supreme Court's clear conclusion and rationale. Knights, 534 U.S. at 120-121. "When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable" under the Fourth Amendment. Id. at 121. Under the Fourth Amendment, "there is no basis for examining official purpose" because, generally, the Supreme Court has "'been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers.'" Id. (citing Whren v. United States, 517 U.S. 806 (1996)).
Here, because probation possessed reasonable suspicion that Defendant Brown was engaged in criminal activity based upon the issuance of a federal arrest warrant, the searches challenged survive Fourth Amendment scrutiny. Finding no legal basis to apply the stalking horse theory advanced by Defendant Brown, his Motions to Suppress (Docs. 118, 119) must be DENIED.
IV. CONCLUSION
Based on all of the foregoing, the Court DENIES the Motions to Suppress filed by Defendants Brown and Mayberry. (Docs. 102, 118, 119, 129). The Court also DENIES Branches I and II of Defendant Gibson's Motions to Suppress (Docs. 108, 124) and ORDERS that a further hearing be held on Branch III of Gibson's Motion (Doc. 124) to determine the reliability of identifications of Gibson resulting from the unduly suggestive procedure which occurred upon the showing of two photographs of Gibson among the array.
IT IS SO ORDERED.
___________________
Timothy S. Black
United States District Judge