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United States v. Barnes

United States District Court, E.D. North Carolina, Western Division

May 28, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH LAMONT BARNES, Defendant.

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on defendant's motion to suppress (DE 21). Pursuant to 28 U.S.C. § 636(b)(1), United States Magistrate Judge James E. Gates issued memorandum and recommendation ("M&R") wherein he recommends that the court deny defendant's motion (DE 37). Defendant timely filed objections to the M&R (DE 36) and the government responded (DE 41). In this posture, issues raised are ripe for ruling. For the following reasons, the court ADOPTS the findings and recommendations of the magistrate judge and DENIES defendant's motion to suppress.

BACKGROUND

Defendant was indicted on May 8, 2013, with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (DE 1). On September 16, 2013, defendant filed the instant motion, seeking to suppress all evidence resulting from a December 27, 2012, search of defendant's person after a vehicle stop.

The magistrate judge conducted an evidentiary hearing on November 13, 2013 (DE 34). At hearing the government presented the testimony of Detectives J. W. Ladd ("Ladd") and W. E. Nordstrom ("Nordstrom"), of the Raleigh Police Department ("RPD"). The government also submitted two exhibits, namely, a CrimeStoppers report dated October 2, 2012, and a October 17, 2012, search warrant issued by a magistrate in Wake County, North Carolina. Defendant did not testify, and an exhibit to his motion to suppress - consisting of the investigative reports of Nordstrom, Ladd, and Robert M. Fleerl[1] - was admitted into evidence.

Except where defendant has filed specific objection, the court adopts and incorporates herein the statement of facts contained in the M&R. Briefly, on October 2, 2012, the RPD received an anonymous tip through its "CrimeStoppers" website. The tipster stated that

Antwon Privette sells crack cocain [sic] in this area, I see him everyday on idlewild. He gets dropped off at a house on idlewild every morning around 7-7:30am by his girlfriend Deirdra Archie who drives the burgundy Cadillac eldarado [sic]. I know this information because I see him on idlewild everyday. He has been selling drugs in that area for a long time.

Resp. Opp'n Mot. to Suppress Ex. 1, CrimeStoppers Tip (DE 26-1). Detective Nordstrom had prior experience with Privette during his over ten years with the RPD. Tr. Suppression Hr'g 29-30. Indeed, Privette had been designated as a target during Detective Nordstrom's time with the RPD's career criminal unit due to his extensive criminal history. Id. at 42.

Idlewild Avenue is a high crime area. Id. at 40. On October 17, 2012, RPD officers conducted a controlled buy of crack cocaine from a dealer on Idlewild Avenue. Id. at 30; Resp. Opp'n Mot. to Suppress Ex. 2, Search Warrant at 6 ("Search Warrant") (DE 26-2). Officers, including Detective Nordstrom, followed the dealer back to 106 Idlewild Avenue. Tr. Suppression Hr'g 30. Detective Nordstrom observed Privette at the residence, and also saw the Burgundy Cadillac Eldorado there. Id. at 31; Search Warrant at 4. Detective Nordstrom also smelled an odor of marijuana coming from behind the house. Search Warrant at 6. He then conducted a "knock-and-talk" at the residence to learn more, and spoke with a woman who stated that she lived there. Id . During this time he smelled a strong odor of marijuana coming from inside the house. Id.

Based on the information he observed, Detective Nordstrom applied for and obtained a search warrant for the residence and vehicles. Tr. Suppression Hr'g 31. When officers executed the warrant, they discovered a small amount of marijuana inside the house. Id. at 33. They also found very ferocious pit bulls chained to dog houses, and were unable to search those dog houses because of the dogs. Id. at 32. Detective Nordstrom had previously seen pit bulls used in this manner by drug dealers to protect their drug supply. Id.

At some point prior to December 27, 2012, Detective Nordstrom received a tip from a confidential source that Privette's residence at 3924 Hylton Drive was a possible stash location for his drugs. Id. at 42-44. This source was not a regular informant and Detective Nordstrom had not relied on this source's information before. Id. at 62-63. Police were, however, able to verify that this source personally knew Privette. Id. at 65.

During the evening hours of December 27, 2012, Detective Nordstrom went in an unmarked vehicle to 3924 Hylton Drive to see if he could observe the burgundy Cadillac Eldorado there. Id. at 44. According to Defendant Nordstrom, Hylton Drive was a high crime area.[2] Detective Nordstrom did not see the Eldorado, but observed a Silver Infiniti ("Infiniti") bearing the registration plate that he had previously seen on the Eldorado drive into the apartment parking lot. Id. at 44-45. In Detective Nordstrom's experience, drug dealers tend to switch vehicles often to avoid detection. Id. at 45. Although Detective Nordstrom could not see the driver, it appeared to him to be a male. Id. at 46-47. Detective Nordstrom believed the driver was Privette, and the driver was, in fact, later identified as Privette. Id. at 53. The Infiniti parked in a parking space right in front of 3924 Hylton. Id. at 47.

The temperature that night was very cold. Id. at 9, 50. However, no one exited the Infiniti. Id. at 47. After approximately twenty (20) minutes, a dark-colored BMW drove into the parking lot and parked crookedly across from the Infiniti. Id. at 48-49. The driver, who was later identified as defendant, exited the BMW leaving the engine running, and the headlights on. Id . Defendant approached the breezeway to 3924 Hylton. Id . At that time, Privette honked his horn, and defendant turned around, walked toward the Infiniti, and entered the Infiniti on the passenger's side. Id. at 49-50.

After less than five minutes, Detective Nordstrom contacted his Sergeant, who in turn instructed him to contact Detectives Ladd and Battle for assistance. Id. at 50. Detective Nordstrom called Detective Ladd and told him that he believed he was observing Privette and another individual conducting a drug deal in the Infiniti, and that he would like to conduct an investigative detention. ...


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