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United States v. Green

United States District Court, W.D. North Carolina, Asheville Division

December 1, 2017

UNITED STATES OF AMERICA
v.
JERALD DEANGELO GREEN, Defendant.

          MEMORANDUM AND RECOMMENDATION

          Dennis L. Howell, United States Magistrate Judge

         THIS MATTER is before the Court on Defendant's Motion to Suppress (# 9). On May 23, 2017, the undersigned conducted an evidentiary hearing and heard evidence from both the Government and Defendant. The issues have been fully briefed, and the matter is now ripe for ruling. For the reasons set forth below, it is recommended that Defendant's Motion to Suppress be DENIED.

         I. Procedural Background

         On February 8, 2017, Defendant was charged in a one-count bill of indictment (# 1), which charges that on or about September 21, 2016, in Buncombe County, within the Western District of North Carolina, Defendant did knowingly and intentionally possess with intent to distribute a quantity of cocaine base, more commonly known as “crack cocaine, ” a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1).[1]

         On April 5, 2017, Defendant filed the instant Motion to Suppress (# 9), in which he moves for this Court to suppress all evidence obtained by the Government pursuant to his unlawful arrest on September 21, 2016. On April 26, 2017, the Government filed its Response (# 19) in opposition, arguing that law enforcement had reasonable suspicion to conduct a pat down, which led to Defendant's lawful arrest. In addition, law enforcement acted in good faith when they arrested Defendant on a belief that there was an outstanding warrant for his arrest.

         The Court held an evidentiary hearing on May 23, 2017. On May 24, 2017, the Government filed a Motion to Supplement the Record (# 32) to add Government's Exhibit 13 to the record.[2] Defendant did not object, and the Court granted the motion. On May 30, 2017, Defendant filed an additional brief entitled “Closing Argument” (# 34). The Government filed its additional brief on June 9, 2017 (# 37).

         II. The Government's Evidence

         A. Steve Hendricks

         Steve Hendricks (“Hendricks”), a detective with the Asheville Police Department, is presently assigned to work with the Buncombe County Anti-Crime Task Force (“BCAT”). (Hr'g Tr. 83, May 23, 2017.) The BCAT is a plain-clothes unit assigned to investigate controlled substance violations. (Hr'g Tr. 83, May 23, 2017.) Detective Hendricks was previously assigned to the Asheville Police Department Drug Suppression Unit for a period of approximately seven years. (Hr'g Tr. 83-84, May 23, 2017.) Based on Detective Hendricks' experience, he has typically found that a drug buyer will find a deal via cell phone or other means. (Hr'g Tr. 85, May 23, 2017.) The buyer will then meet the dealer and conduct a brief hand-to-hand transaction for the distribution of illegal narcotics. (Hr'g Tr. 85, May 23, 2017.)

         Detective Hendricks is familiar with an area in Buncombe County known as the Deaverview-Crossroads area. (Hr'g Tr. 87, May 23, 2017.) Detective Hendricks has observed hand-to-hand illegal drug transactions in the area. (Hr'g Tr. 88, May 23, 2017.) Detective Hendricks considers the area to be “an open air drug market.” (Hr'g Tr. 87, May 23, 2017.)

         Detective Hendricks has known Defendant since October of 2015, when Detective Hendricks was the case agent in a drug investigation where Defendant sold crack cocaine on three separate occasions to undercover agents. (Hr'g Tr. 89, 94, 112, May 23, 2017.) In one of the drug transactions, which occurred on November 11, 2015, Defendant made arrangements to sell crack cocaine, and during the delivery, Nikkisha Griffin (“Griffin”) assisted Defendant by actually delivering the crack cocaine to undercover officers. (Hr'g Tr. 93-94, May 23, 2017.)

         On September 21, 2016, Detective Hendricks, other members of the BCAT, and additional law enforcement officers of the SCET team were observing activity at a location where illegal drugs are sold on Deaverview Road. (Hr'g Tr. 95, May 23, 2017.) Detective Hendricks positioned himself in an undercover truck that he parked in the parking lot of the Crossroads Grocery Store. (Hr'g Tr. 96, 100, May 23, 2017.) Detective Hendricks was wearing regular street clothes, and he was using radio and cell phone devices for communication. (Hr'g Tr. 100, May 23, 2017.)

         After sitting in the parking lot for about 20 minutes, Detective Hendricks observed a red sedan drive into the parking lot and back into one of the parking places. (Hr'g Tr. 101-02, 130, May 23, 2017.) The red sedan was driven by Griffin, and Defendant was a passenger. (Hr'g Tr. 102, May 23, 2017.) Griffin got out of the red sedan and went into the Crossroads Grocery Store. (Hr'g Tr. 103, May 23, 2017.) Detective Hendricks called on the radio to other officers and told them Defendant was present in the vehicle and asked them to check for outstanding warrants. (Hr'g Tr. 103, May 23, 2017.) Deputy Jason Lambert (“Lambert”) called back on the radio and stated that there were two outstanding warrants for Defendant's arrest. (Hr'g Tr. 104 145, 154, May 23, 2017.)

         Detective Hendricks then observed a white male walk up to the passenger side of the red sedan and engage in a hand-to-hand transaction with Defendant, who was still seated in the passenger seat of the red sedan. (Hr'g Tr. 105-06, 130-131, May 23, 2017.) Detective Hendricks observed a second white male approach the red sedan, and another hand-to-hand transaction was conducted between Defendant and the second white male. (Hr'g Tr. 107-108, 125, 131, May 23, 2017.) Based on Detective Hendrick's knowledge of Defendant's past criminal history and Detective Hendrick's training and experience, it was his opinion that Defendant sold illegal drugs to the two men. (Hr'g Tr. 108, May 23, 2017.) Detective Hendricks reported over the radio to the other officers that he had witnessed the two hand-to-hand illegal drug transactions. (Hr'g Tr. 107-108, May 23, 2017.)

         Less than five minutes after Defendant arrived at the parking lot of the Crossroads Grocery Store, a second vehicle pulled into the parking lot and backed into a parking space alongside the red sedan where Defendant was riding as a passenger. (Hr'g Tr. 120, May 23, 2017.) The driver of the second vehicle was identified by Detective Hendricks as Kaylun Fullwood (“Fullwood”), and it was determined he did not possess a valid driver's license. (Hr'g Tr. 108-110, May 23, 2017.) A third vehicle pulled into the parking lot and parked beside the second vehicle, which was being operated by Fullwood. (Hr'g Tr. 109, May 23, 2017.) The passenger in the third vehicle, Darius Thomas (“Thomas”), got into the passenger seat of Fullwood's vehicle. (Hr'g Tr. 109-110, 120, May 23, 2017.) Detective Hendricks advised uniformed law enforcement in the area to move in and arrest Defendant on his outstanding warrants and arrest Fullwood for driving without a valid license. (Hr'g Tr. 110-111, May 23, 2017.)

         B. Jason Lambert

         Lambert, a Deputy with the Buncombe County Sheriff's Office, works for the SCET and is also a K-9 handler. (Hr'g Tr. 137, May 23, 2017.) Deputy Lambert has been a law enforcement officer for twelve years. (Hr'g Tr. 137, May 23, 2017.)

         On September 21, 2016, Deputy Lambert was working with the SCET and assisting the BCAT with a surveillance operation in the Deaverview-Crossroads area of Buncombe County. (Hr'g Tr. 138, May 23, 2017.) Deputy Lambert was in a patrol vehicle parked in an apartment complex on Pisgah View Road. (Hr'g Tr. 139, May 23, 2017.) Deputy Lambert knew that Detective Hendricks was sitting in the area of the Crossroads Grocery Store. (Hr'g Tr. 140, May 23, 2017.)

         Deputy Lambert heard Detective Hendricks call on the radio and state that he had seen a vehicle, in which Defendant was riding as a passenger, pull into the Crossroads Grocery Store parking lot, and he had observed Defendant conduct two hand-to-hand drug transactions. (Hr'g Tr. 140, 149-150, May 23, 2017.) Deputy Lambert knew Defendant as a result of an investigation that occurred just about a week prior to September 21, 2016. (Hr'g Tr. 140-41, May 23, 2017.)

         Deputy Lambert used his in-car computer to examine the Records Management System (“RMS”) to see if there were any outstanding warrants for Defendant's arrest. (Hr'g Tr. 141, May 23, 2017.) Deputy Lambert discovered two outstanding warrants, which were based on Grand Jury indictments. (Hr'g Tr. 141, 153-154, May 23, 2017.) Detective Lambert explained that he has used the RMS system for the past 12 years because it has been active since he was hired. (Hr'g Tr. 141-143, May 23, 2017.) Deputy Lambert further explained that he did not check for warrants on the NCAware system because he did not use the system on a daily basis.[3] (Hr'g Tr. 143, May 23, 2017.) Deputy Lambert further explained that the usual operating procedure is after using the RMS to contact communications to verify the information on RMS. (Hr'g Tr. 144-145, May 23, 2017.)

         After discovering two outstanding warrants for Defendant's arrest, Deputy Lambert advised the officers on the BCAT channel about the active warrants. (Hr'g Tr. 145, 154, May 23, 2017.) A short time later, Deputy Lambert received instructions from Detective Hendricks to make an encounter with Defendant and Fullwood, which would be based on the hand-to-hand transactions, warrants for Defendant's arrest, and Fullwood operating a motor vehicle without a valid license. (Hr'g Tr. 152-153, 155, May 23, 2017.)

         In accordance with Detective Hendricks' instructions, Deputy Lambert traveled to the Crossroads Grocery Store parking lot and pulled his patrol vehicle in front of the red sedan where Defendant was sitting as a passenger. (Hr'g Tr. 146, May 23, 2017.) As Deputy Lambert exited his patrol vehicle, he saw Deputies Nathan Ball (“Ball”) and Roger Warren (“Warren”) encountering Defendant. (Hr'g Tr. 146, May 23, 2017.) Deputy Lambert went to the vehicle where Fullwood was located. (Hr'g Tr. 146-147, May 23, 2017.) Before Defendant was arrested, Deputy Warren called communications to confirm that the warrants for Defendant's arrest remained outstanding. (Hr'g Tr. 156, May 23, 2017.)

         C. Roger Warren[4]

         Deputy Warren, employed with the Buncombe County Sheriff's Office since 2006, works on the SCET and is also a K-9 supervisor. (Hr'g Tr. 160, May 23, 2017.) On September 21, 2016, Deputy Warren was in the Deaverview Community in a vehicle with Deputy Ball assisting officers with the BCAT. (Hr'g Tr. 161-162, May 23, 2017.) The SCET is a uniformed branch connected to the BCAT team, which performs law enforcement services for BCAT. (Hr'g Tr. 161-62, May 23, 2017.)

         While in his patrol vehicle, Deputy Warren heard a call on the radio from Detective Hendricks, who stated that he was located in the parking lot of the Crossroads Grocery Store and had observed what appeared to be hand-to-hand drug transactions. (Hr'g Tr. 164, May 23, 2017.) Detective Hendricks also provided Defendant's name. (Hr'g Tr. 163-164, 190, May 23, 2017.) Deputy Warren heard Deputy Lambert on the radio state that there were two outstanding warrants for Defendant's arrest. (Hr'g Tr. 163-164, 190, May 23, 2017.) Deputy Warren also heard Detective Hendricks state that Fullwood was in the area. (Hr'g Tr. 164, May 23, 2017.) While Deputy Warren was driving, Deputy Ball used the patrol vehicle's computer and determined that Fullwood's driver's license was suspended. (Hr'g Tr. 164, May 23, 2017.)

         Deputy Warren knew that the Crossroads area was a high-crime area. (Hr'g Tr. 165, May 23, 2017.) Just two weeks prior to September 21, 2016, Deputy Warren made two felony arrests, which included a foot chase in that parking lot and an assault. (Hr'g Tr. 165, May 23, 2017.) Deputy Warren knew that Fullwood and Defendant were violent offenders on the “DCI, ” which is a violent criminal offender program. (Hr'g Tr. 166-167, May 23, 2017.)

         When Deputies Warren and Ball arrived at the Crossroads Grocery Store parking lot, Deputy Warren parked his patrol vehicle, a Chevrolet Tahoe, in front of the red sedan in which Defendant was riding as a passenger. (Hr'g Tr. 168-169, May 23, 2017.) Deputy Warren then exited his patrol vehicle and started toward Defendant. (Hr'g Tr. 169, May 23, 2017.) Deputy Warren saw Defendant reach behind his body, and Deputy Warren feared Defendant was reaching for a weapon. (Hr'g Tr. 169-170, 180, May 23, 2017; Gov.'s Exs. 8A, 8B.) Deputy Warren pulled his weapon. (Hr'g Tr. 169, May 23, 2017.) Deputy Warren told Defendant to bring his hands out and quit reaching behind his body. (Hr'g Tr. 169-170, May 23, 2017.) After Defendant brought his hands out from behind his back, Deputy Warren holstered his weapon, told Defendant to keep his hands up, and handcuffed Defendant while inside the vehicle. (Hr'g Tr. 170, May 23, 2017.)

         Deputy Warren told Defendant to exit the vehicle, and as Defendant did so, Deputy Warren noticed that Defendant was not wearing a shirt and was wearing his pants much lower on his body than Defendant's boxer shorts. (Hr'g Tr. 171-172, May 23, 2017.) Deputy Warren could see a bulge in the rear of Defendant's boxer shorts and could also see a plastic baggy sticking out of the boxer shorts at Defendant's buttocks. (Hr'g Tr. 172-173, 191-192, May 23, 2017.) Based on Deputy Warren's training and experience, he believed that the baggy was of the type used to hold narcotics. (Hr'g Tr. 173, May 23, 2017.)

         Deputy Warren brought Defendant to the front of the red sedan and conducted what is referred to as a “pat down.” (Hr'g Tr. 173, May 23, 2017.) Deputy Warren could see the bag inside Defendant's underwear, and when Deputy Warren tried to roll the bag out of Defendant's underwear, the bag fell down into Defendant's pants.[5] (Hr'g Tr. 173-174, May 23, 2017.) It appeared that the bag contained crack cocaine. (Hr'g Tr. 174, May 23, 2017.)

         After Deputy Warren attempted to remove the bag from Defendant's boxer shorts, he called for Deputy Ball to stay with Defendant. (Hr'g Tr. 177, May 23, 2017.) Deputy Warren went to his vehicle to obtain gloves. (Hr'g Tr. 177, May 23, 2017.) At that time, Thomas fled from the scene, and Deputy Warren pursued him. (Hr'g Tr. 177-178, May 23, 2017.) While Deputy Warren was gone, Deputy Ball retrieved the plastic baggy out of Defendant's pants. (Hr'g Tr. 193-194, May 23, 2017.)

         After Defendant was placed in custody, Deputy Warren called on his radio to verify the two outstanding warrants for Defendant's arrest. (Hr'g Tr. 194-195, May 23, 2017; Gov.'s Ex. 3 at 6.) Deputy Warren received a call back from communications, which confirmed that the two warrants for arrest were outstanding. (Hr'g Tr. 194-196, May 23, 2017; Gov.'s Ex. 3.)

         D. Nathan Ball

         Ball, employed by the Buncombe County Sheriff's office since October of 2014, has been a member of the SCET for two years. (Hr'g Tr. 200, May 23, 2017.) Deputy Ball has 18 years of experience in law enforcement. (Hr'g Tr. 201, May 23, 2017.)

         Prior to September 21, 2016, Deputy Ball did not know Defendant, but he did know Fullwood. (Hr'g Tr. 201, May 23, 2017.) Deputy Ball knew Fullwood was a “VCI offender, ” was on federal probation for a firearms offense, and had been involved in a shooting at Erwin High School. (Hr'g Tr. 201-202, May 23, 2017.)

         On September 21, 2016, Deputy Ball was riding with Deputy Warren near the Crossroads Grocery Store in the Deaverview community. (Hr'g Tr. 202, May 23, 2017.) Deputies Ball and Warren were assisting the BCAT with an ongoing investigation they had. (Hr'g Tr. 202, May 23, 2017.) While traveling to the Crossroads area, Deputy Ball heard Deputy Lambert state that there were outstanding warrants for Defendant's arrest. (Hr'g Tr. 203-204, May 23, 2017.) Deputy Ball knew that Deputy Lambert had checked on Defendant through Deputy Lambert's in-car computer system and had used RMS. (Hr'g Tr. 204, May 23, 2017.)

         Deputy Ball heard that Defendant was located in the parking lot of the Crossroads Grocery Store and Detective Hendricks had radioed that he had witnessed what he believed to be two hand-to-hand drug transactions. (Hr'g Tr. 204-205, 221-223, May 23, 2017.) Deputy Ball heard Detective Hendricks state over the radio that a vehicle operated by Fullwood had pulled into the parking lot. (Hr'g Tr. 205, 221-223, May 23, 2017.) Deputy Ball proceeded to check on the in-car computer and determined that Fullwood's driver's license was suspended. (Hr'g Tr. 205, May ...


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