STANWOOD R. DUVAL, Jr., District Judge.
Before the Court is Defendant Gie Preston's Motion to Suppress Evidence and Statements. Def.'s Mot. Suppress, R. Doc. 118. The Court held a hearing on Defendant's Motion to Suppress on March 26, 2014. For the reasons set forth hererin, Defendant's Motion to Suppress is hereby DENIED.
On March 22, 2012, the Defendant, Gie Preston, was indicted in a six count indictment with charges related to drug trafficking and firearm possession resulting from two separate arrests. Indictment, R. Doc. 1. Specifically, he faces two counts of possession of cocaine base (crack cocaine) with intent to distribute, two counts of possession of a firearm in furtherance of drug trafficking, and two counts of being a felon in possession of a firearm. Indictment, R. Doc. 1. In addition, a superseding indictment added six co-defendants to the case and three additional charges: conspiracy to possess and distribute 280 grams or more of crack cocaine beginning at a "time unknown until on or about June 6, 2013"; conspiracy to possess firearms in furtherance of drug trafficking; and conspiracy to possess with intent to distribute a quantity of cocaine base on January 11, 2011. Superseding Indictment, R. Doc. 35.
All charges relate to the Defendant's arrests on December 8, 2011 and January 11, 2011. In Defendant's instant Motion to Suppress, the Defendant seeks to suppress any evidence obtained following the arrests and searches of December 8, 2011, and January 11, 2011 and any statements made without the presence of counsel after the December 8, 2011 and January 11, 2011 arrests. Def. Mot. Suppress, R. Doc. 118. The following reflects the factual basis for the Defendant's motion and the Government's version of the facts.
The Defendant was arrested on January 11, 2011, pursuant to an arrest warrant supported by an affidavit submitted by Officer Brian Pollard of the New Orleans Police Department (NOPD). Def.'s Mem. Supp. Mot. Suppress, R. Doc. 118, 2. In the affidavit, Officer Pollard describes a drug transaction that he alleged took place on December 20, 2010 between the Defendant and another individual, Mark Dupas. Id. at 2, Ex. A.
According to Officer Pollard, on December 20, 2010, Officer Pollard was conducting surveillance of the 1300 block of Simon Bolivar Avenue in New Orleans, Louisiana. Id; Govt. Mem. Opp. Def.'s Mot. Suppress, R. Doc. 135, 1. Officer Pollard observed an individual, later identified as Mark Dupas, approach the Defendant on the corner of Simon Bolivar Avenue and witnessed Mr. Dupas hand the Defendant currency for an item that the Defendant removed from his mouth and handed to Mr. Dupas. Govt. Mem. Opp., R. Doc. 135, 1. Officer Pollard then conducted an investigatory stop on Mr. Dupas, who discarded an item to the ground as he approached Officer Pollard's vehicle, which later tested positive for crack cocaine. Id. at 2.
Mr. Dupas's account of the incident varies from Officer Pollard's account, however. Mr. Dupas was interviewed in 2012 by Special Agent Henry Meyer of the Alcohol, Tobacco, Firearms, and Explosives (ATF) Bureau, in the presence of a court appointed attorney, and explained three factual discrepancies in Officer Pollard's account: (1) the transaction took place in the rear of a residence not on Simon Bolivar Avenue; (2) the contraband (crack cocaine) was not in Mr. Dupas' hand (before discarding it) but was secreted in his mouth; and (3) Mr. Dupas was riding a bicycle when approached by Officer Pollard, not walking. Id. at 2, n. 1; Def. Mem. Supp., R. Doc. 118, 3.
On two following occasions, Officer Pollard witnessed the Defendant, Mr. Preston, engage in similar transactions. On December 31, 2010, Officer Pollard was conducting surveillance of the same block of Simon Bolivar. Govt. Mem. Opp., R. Doc. 135, 2. He observed a different individual (later identified as a resident of the Guste Housing Project) approach Mr. Preston, hand Mr. Preston money, and receive something Mr. Preston handed him after taking it out of his mouth. Id. Officer Pollard approached the individual afterward and asked him to hand over whatever he had, which was two pieces of crack cocaine. Id. On January 3, 2011, Officer Pollard was again conducting surveillance of the same block, and observed another resident of the Guste Housing Project approach Mr. Preston. Id. Having witnessed the same type of transaction, Officer Pollard approached the individual and recovered crack cocaine from that individual before arresting that individual. Id.
Officer Pollard informed the NOPD Sixth District Narcotics Unit of Mr. Preston's trafficking activities to further the investigation. Id. NOPD Detective Jayson Germann and other officers began conducting surveillance and observed Preston conduct numerous mouth to hand transactions on the same block of Simon Bolivar Avenue. Id. at 3. Though they observed what they believed to be drug transactions, they were unsuccessful in arresting the buyers as the area had heavy foot traffic. Id.
On January 11, 2011, the Sixth District detectives conducted a controlled purchase from Mr. Preston using a confidential informant. Id. The informant was searched prior to the transaction and then given money to purchase the drugs from Preston. Id. Detectives witnessed the informant approach Mr. Preston, purchase drugs from Mr. Preston, and return to the officers relinquishing the contraband (crack cocaine). Id.
Detective Germann then obtained a search warrant for Mr. Preston's automobile and residence. Id. In Detective Germann's affidavit, he included information as to Officer Pollard's arrest of three of Mr. Preston's drug customers, the multiple transactions witnessed by Detective Germann and others, the controlled purchase, Mr. Preston's criminal history, and the fact that Preston would go to his vehicle in between drug transactions and place an object in his mouth. Id. As to his residence, the warrant described it as a "[s]econd floor wooden structure attached to the rear of the brick apartment complex labeled with the municipal address of 1329/1327 St. Phillip, New Orleans, LA." Id.
After obtaining the warrants, on January 11, 2011, the NOPD officers again witnessed Preston conducting the drug sales. Id. at 4. Mr. Preston was arrested and read his Miranda warnings. Id. He was "detained" in anticipation of his arrest pursuant to the arrest warrant. Def. Mem. Supp., Rec. Doc. 118, 5. On his person, in a search incident to arrest, officers found $670 in cash; in his car officers found a .40 caliber handgun under the hood of the car; in his apartment, officers found drug distribution paraphernalia, marijuana, and $2,260 in cash. Id. After, he was questioned about his residence, and told about the search warrants; he denied knowledge of the house address, but after finding his car keys in the search the officers drove the car to his house where they found another key to the apartment. Id.
After bringing Mr. Preston to the Sixth District Police Station, he was again read his Miranda rights and made a statement, which was recorded. Govt. Opp., R. Doc. 135, 4. Detective Germann interrogated Mr. Preston about the gun, to which Mr. Preston denied any knowledge or ownership and offered that a variety of people used the gun and car. Mr. Preston and Detective Germann then had the following exchange:
Govt. Mem. Opp., R. Doc. 135, 5.
Mr. Preston was then charged at Orleans Parish criminal District Court with multiple counts of possession and intent to distribute crack, being a felon in possession of a firearm, and possession of marijuana. Def. Mem. Supp. R. Doc. 118, 6.
On December 8, 2011, NOPD officers Harold Nunnery and Eric Gillard were on patrol in South Saratoga and Thalia Streets. While driving north on Thalia, they saw two men engaged in "verbal and physically threatening conversation." They also saw that one of the men was holding a large screwdriver in a "menacing fashion." Govt. Mem. Opp., R. Doc. 135, 5. "Believing a fight was about to take place," the officers conducted an investigatory stop. Upon exiting their vehicles "with their guns " they asked Preston to drop the screwdriver, but he hesitated. Id. at 4; Def. Mem. Supp., R. Doc. 118, 7. They again ordered him to drop the screwdriver, to which he complied. After that, for safety, they ordered him to lay on the ground and handcuffed him, while the companion, Darrius Williams, was placed in handcuffs near the police car. Govt. Mem. Opp., R. Doc. 135, 4. Once secure, they performed a pat-down of Mr. Preston and discovered a handgun in his waistband. Id. In addition, the officer removed $150 cash from his back pocket and a clear-plastic bag with 20 individually wrapped pieces of "what officers believed to be crack cocaine." Id.
Mr. Preston was then placed under arrest and advised of his Miranda rights. Id. at 6. Once driven back to the Sixth District Station, the officers again read him his Miranda rights. At that time, detectives from the Crimes Against Person's Unit (Detectives Sergeant Contreras, Rob Barrere, and Tom Sisson) not involved with the narcotics investigation but who had been investigating a series of shootings involving shell casings from the a 5.7 × 28 mm handgun (consistent with Mr. Preston's) were brought in to the room to question Preston about the shootings. Id. Preston allegedly responded "in substance, that while he had the gun in his possession that day, the gun normally was kept under a house for anyone's use and therefore he had no idea who many have had the gun at the time of the shootings and denied his personal involvement." Id.
However, the Defendant offers a different account of the alleged confrontation on Thalia Street, supported by a statement given by Mr. Williams. Def. Mem. Supp. Mot. Suppress, Ex. K. Mr. Williams, in his statement, alleges that as he and Mr. Preston were "about to buy cigarettes" from a man who lives on the 2100 block of Thalia Street, "all of the [sic] sudden, two cops pulled up in their car, jumped out and pulled out their guns." Id. According to Mr. Williams, he and Mr. Preston asked why they were pulling out their guns, and the cops did not answer but told them to get to the ground. Id. Then, Mr. Williams alleges that the cops pushed them to the ground, handcuffed them, and searched Mr. Preston. Id.
An evidentiary hearing was held to determine the factual circumstances surrounding the arrests, searches, and statements.
In his Motion to Suppress, the Defendant seeks to suppress any evidence obtained following the arrests and searches of December 8, 2011, and January 11, 2011 and any statements made without the presence of counsel after the December 8, 2011 and January 11, 2011 arrests. Def. Mot. Suppress, R. Doc. 118. As noted above, the Defendant contends that the evidence gathered in relation to both his January 11, 2011 and December 8, 2011 arrests should be suppressed based on five grounds, four of which are placed at issue before the Court:
The Court will address each of the alleged grounds in seriatim.
The Defendant's motion to suppress asserts that the Government obtained evidence in violation of the Fourth Amendment to the United States' Constitution. The Fourth Amendment plainly requires that a warrant issue only "upon probable cause, supported by oath or affirmation..." U.S. Const. Amendment IV. Though the Fourth Amendment "says nothing about suppressing evidence," the prudential "exclusionary" rule may be used to suppress the evidence where the remedy would deter future Fourth Amendment violations. Davis v. United States, 131 S.Ct. 2419, 2426-27, 180 L.Ed.2d 285 (2011).
Under the exclusionary rule, courts must suppress evidence seized on the basis of a warrant unsupported by probable cause. United States v. Pope, 467 F.3d 912, 916 (5th Cir. 2006). In determining whether to apply the exclusionary rule, the court applies a two-step test: first, the court must ask whether the good-faith exception to the rule applies, and second, the court must ask whether the warrant was supported by probable cause. United States v. Mays, 446 F.3d 335, 342-43 (5th Cir. 2006). If the good-faith exception applies, the court need not inquire whether probable cause existed. Id. at 343.
The "good faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization." Pope, 467 F.3d at 916 (citation and internal quotation marks omitted). In determining whether the officers were in good faith, the court may examine "all of the circumstances surrounding the issuance of the warrant." Id.
The court will uphold officers' good faith reliance on a warrant, unless one of the four exceptions set forth by the Supreme Court applies:
United States v. Gibbs, 421 F.3d 352, 355 (5th Cir. 2005) (quoting United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (internal quotation marks omitted); United States v. Sibley, 448 F.3d 754, 757-58 (5th Cir. 2006).
In this matter, Defendant places the second exception at issue. The Defendant alleges that Officer Pollard falsified information in his affidavit, which supported the arrest warrant and information provided in the search warrants, and that the credibility of the affiant of the search warrant, Detective Germann, was similarly suspect. "There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant." Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L. Ed. 2d 667 (1978); see also United States v. Craig, 861 F.2d 818, 821 (5th Cir. 1988) ("Issuance of a warrant by a magistrate normally suffices to establish good faith on the part of law enforcement officers who conduct a search pursuant to the warrant."). Nevertheless, the Supreme Court has held that if a defendant makes sufficient allegations of reckless disregard, and if, notwithstanding the falsified content, there remains insufficient content in the warrant affidavit to support a finding of probable cause, an evidentiary hearing must be held to determine the verity of the affidavit.
Defendant contends that the affidavits submitted in support of the December arrest warrant and the January search warrants were "compromised by their inclusion of false information from Detective Pollard." Def.'s Mem. Supp. Mot. Suppress, R. Doc. 118, at 8. Specifically, the Defendant alleges that information in Officer Pollard's account of one particular narcotics transaction was falsified. Id. at 8-9. The affidavit is wholly comprised of Officer Pollard's account of a narcotics transaction involving the Defendant and another individual identified as Mark Dupas. Def. Mot. Suppress, Ex. A As stated above, Officer Pollard's account, which was recorded in his affidavit, differs from that given by Mr. Dupas in his 2012 statement. The Defendant also suggests that Officer Pollard's credibility is suspect, based on a single press article recounting his "several instances of `payroll fraud'" as well as having four citizen complaints."
The Defendant also attacks the constitutionality of the search warrants, by questioning the credibility of the confidential informant mentioned in the affidavit supporting the search warrants; by questioning the credibility of the affiant, Detective Germann; and by noting that the affidavit supporting the warrants included Officer Pollard's allegedly falsified account of the Dupas arrest. The Defendant questions the credibility of Detective Germann, citing another press article concerning the large number of citizen complaints received while he worked the River Garden area detail.
At the hearing, Officer Pollard testified that, over the five years that he acted as the liason officer between the Sixth District and the Housing Authority of New Orleans (HANO) and having his office at the Guste Highrise Development, he witnessed ongoing drug-related activity occur on Simon Bolivar Avenue.
On December 20, 2010, Officer Pollard testified that he again witnessed Preston and another individual standing on the corner of Simon Bolivar Avenue near Clio Street engage in a mouth-to-hand transaction, the same type of transaction Officer Pollard had witnessed Mr. Preston engage on several prior occasions.
In addition, Officer Pollard testified that he would not have had any visual of the area behind a residence on Simon Bolivar Avenue, nor would he have attempted to make a "walled off stop" of a drug customer if he had not witnessed a drug purchase transaction take place.
As to his alleged payroll fraud and negative history, Officer Pollard explained that he received only one count of payroll fraud and was not charged but given a one month suspension. Id. The circumstances reflect a misunderstanding of office protocol regarding logging of hours when Officer Pollard performed another officer's shift as a favor, which resulted in an overlap of four hours. Id. Ultimately, it is the Court's opinion that this prior history does not tarnish Officer Pollard's credible account of the Defendant's drug activity around the Guste highrise and the Dupas arrest.
According to Mr. Dupas, however, Officer Pollard's account is incorrect. In observing Mr. Dupas's demeanor and lack of candor in answering questions asked of him, the Court is not inclined to afford Mr. Dupas's account of the events significant weight.
Ultimately, the Court credits the testimony of Officer Pollard regarding the circumstances surrounding the Dupas arrest on December 20, 2010, and finds that Mr. Dupas's account does not discredit Officer Pollard's account. Thus, the Defendant has failed to show that Officer Pollard's statements exhibit any reckless disregard for the truth, and the good faith exception is applicable as to the arrest warrant.
In the affidavits supporting the search warrants for Mr. Preston's automobile and apartment, Detective Germann provides a summary of Officer Pollard's account of the Dupas arrest, his own observations of Mr. Preston's drug-related activity, and his firsthand account of a controlled purchased involving a confidential informant. Def. Mot. Suppress, Ex. D, E.
Detective Germann testified at the hearing that he began an investigation of Mr. Preston after Officer Pollard informed the Sixth District Narcotics Unit of Mr. Preston's ongoing drug activity that he had been witnessing.
After the controlled purchase, Detective Germann obtained search warrants for Mr. Preston's automobile and apartment.
As to Defendant's claim of his "speculative" account based on a history of citizen complaints, Detective Germann explained the deceiving nature of the article cited by the Defendant.
As stated above, the Court finds that Officer Pollard's account of the Dupas arrest is accurate. Likewise, the Court finds that Detective Germann did not falsify any information in the affidavits supporting the search warrants. Detective Germann gave a non-speculative account of the activity he witnessed, including the activity surrounding the controlled purchase, regardless of the confidential informant's own credibility; at issue is "[t]he deliberate falsity or reckless disregard . . . [of] only . . . the affiant, not of any nongovernmental informant." Franks, 438 U.S. at 438. Given that no exception to a finding that the officer's relied on the search warrants and arrest warrant in good faith applies, the Court examines the good faith of the officers in enforcing the warrants.
Given the circumstances surrounding the issuance of each warrant, the Court finds that the officers were in good faith in executing the warrants. All officers had taken part in conducting an ongoing investigation and used reliable sources to establish probable cause in each affidavit supporting the warrants. The officers were therefore objectively reasonable in relying on and executing the warrants issued by the magistrate.
Defendant contends that "any interrogation of Mr. Preston in the absence of counsel, including his January 11, 2011 arrest and December 8, 2011 interrogation[]," including post-arrest statements regarding his alleged possession of a gun in the course of alleged drug activities made to Detective Germann on January 11, should be suppressed. Def. Mem., R. Doc. 118, at 12, 14. Supporting this assertion, Defendant claims that because Mr. Preston was represented by counsel at the time of this conversation in other pending cases involving drug related charges, that the "right to counsel had attached in each case," and that at that time he should be considered represented by counsel as to the instant arrest.
Defendant stated that he was charged with: (1) distribution of marijuana following an August 15, 2011 arrest in Orleans Parish District Court, (2) conspiracy to distribute cocaine following a June 18, 2009 arrest in Orleans Parish District Court, and (3) felon in possession of a firearm following a March 24, 2009 arrest in Orleans Parish District Court. Def. Mem. Supp., R. Doc. 118, 12. In addition, Defendant also states that Counts 1 and 2 of the Government's indictment in this case, alleging conspiracy to distribute crack cocaine and to possess firearms for drug trafficking dating back to "a time unknown," are also "related to the charges alleged following the January 11, 2011 arrest." Def. Mem. Supp., R. Doc. 118, 13. In other words, Defendant alleges that the Government's indictment "make[s] clear that Mr. Preston is charged with being a drug dealer who possessed guns to further his drug activity over the course of his life, relating almost any alleged prior criminal activity to the current conspiracy charges." Id. Defendant alleges that the "fact that Mr. Preston had these ongoing criminal cases was clearly known to the officers involved in this arrest" given the Sixth District Narcotics Unit's familiarity with Mr. Preston and due to Officer Pollard's involvement. Id.
Defendant cites Supreme Court case law in arguing that the fact that the charges are "related" therefore "extends the attachment of Mr. Preston's Sixth Amendment rights with respect to the earlier charges to the subsequent charges, including the January 11 and December 8 charges." Def. Mem. Supp., R. Doc. 118, 13. The Supreme Court in McNeil v. Wisconsin stated:
McNeil v. Wisconsin, 501 U.S. 171, 175-76, 111 S.Ct. 2204, 2207-08, 115 L. Ed. 2d 158 (1991) (citation and internal quotation marks omitted) (emphasis added). By contrast, the right to counsel under the Fifth Amendment is "not offense specific: Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present." Id. at 177 (quoting Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988)). Yet, the Supreme Court does not conflate the two rights, and it rejected the Petitioner's argument in McNeil attempting to do just that:
Id. Likewise, Defendant is attempting to assert that his Sixth Amendment rights, which attached to the earlier charges, extend to the subsequent charges simply because they are "related":
Def. Mem. Supp. Mot. Suppress, R. Doc. 118, at 14. This argument fails not only because the Sixth Amendment right to counsel is offense specific, but also because it cannot be used to invoke the non-offense specific Fifth Amendment right to counsel.
The argument that the past charges or "offenses" are "related" was addressed by the Supreme Court in Texas v. Cobb, where the Supreme Court rather clearly stated:
Texas v. Cobb, 532 U.S. 162, 168, 121 S.Ct. 1335, 1340-41, 149 L. Ed. 2d 321 (2001). Instead, the Court held that the Sixth Amendment applies to those "offenses" even if not formally charged that would be considered the "same offense" under the Blockburger test: "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Cobb, 532 U.S. 162, 173, 121 S.Ct. 1335, 1343, 149 L. Ed. 2d 321 (2001) (citation and internal quotation marks omitted). Thus, the fact that the prior charges are factually "related" is not sufficient to extend the Sixth Amendment right to counsel. Defendant's argument that a federal conspiracy charge somehow "relates" to all prior drug charges or possession of firearms in his lifetime is inapposite: the very fact that the Government must prove the element of conspiracy distinguishes the charge from any other past charge involving drug activity.
In sum, the Court agrees with the Government that the legal theory advanced by the Defendant "has no basis in law" and finds that the Defendant's right to counsel did not extend to the January 11, 2011 and December 8, 2011 post-arrest statements and any statements made need not be suppressed.
Defendant claims that the search warrant for his apartment contained an unconstitutionally vague description of his apartment. Def. Mem. Supp., R. Doc. 118, 14-15. For a warrant to comply with the Fourth Amendment, "the warrant can be issued only upon probable cause, supported by affidavit, particularly describing the property and place to be searched." Steele v. United States, 267 U.S. 498, 501, 45 S.Ct. 414, 415, 69 L. Ed. 757 (1925). To be constitutionally sufficient, "[i]t is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended." Id. at 503, 45 S.Ct. 414, 416, 69 L. Ed. 757 (1925). The search warrant in this matter described the building to be searched as a "[s]econd floor wooden structure attached to the rear of the brick apartment complex labeled with the municipal address of 1329/1327 St. Phillip St., New Orleans, LA." Def. Mot. Suppress, Ex. E. The Defendant asserts that the apartment was rather "an unattached building approximately ten feet behind 1327-29 St. Phillip Street." Def. Mem. Supp., R. Doc. 118, 14.
The Defendant fails to cite any Fifth Circuit case law supporting the contention that the "attached" wooden building which was apparently "unattached" is not sufficiently particular. On the contrary, Fifth Circuit jurisprudence supports the opposite conclusion. In United States v. Avarello, the Fifth Circuit stated:
592 F.2d 1339, 1344 (5th Cir. 1979). Yet the Avarello court did not find the incorrect city named in the warrant to defeat the reasonableness of the search. Id. In another case, the Fifth Circuit held that even with the wrong street address, the warrant might be valid:
United States v. Darensbourg, 520 F.2d 985, 987 (5th Cir. 1975).
As applied to the instant matter, the officers had no difficulties in identifying the premises. Whether "attached" or "unattached," only one "wooden" structure in the complex was behind the brick building, and it was connected to the brick structure by stairs or a walkway.
Finally, Defendant contends that the statements and evidence in relation to the December 8, 2011 arrest should be suppressed for two reasons: (1) the police report fails to articulate any basis for reasonable suspicion to stop the Defendant and Mr. Darius Williams, and (2) the "seizure" of the Defendant and Mr. Darius Williams was an arrest rather than an investigatory stop. Def. Mem. Supp., R. Doc. 118, 17-18. First established in Terry v. Ohio, "it is now axiomatic that the police are allowed to stop and briefly detain persons for investigative purposes if the police have a reasonable suspicion supported by articulable facts that criminal activity `may be afoot.'" United States v. Sanders, 994 F.2d 200, 203 (5th Cir. 1993)(citations omitted). Reasonable suspicion exists when an officer can objectively "point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant" a stop and frisk. Terry v. Ohio, 392 U.S. 1, 20-21 (1968); see United States v. Martinez, 808 F.2d 1050, 1054 (5th Cir. 1987). "Whether a detention is an arrest or merely a Terry-stop depends on the `reasonableness' of the intrusion under all the facts." United States v. Martinez, 808 F.2d 1050, 1053 (5th Cir. 1987) (citation omitted).
As the Fifth Circuit explained in Martinez, to pass constitutional muster: (1) "the [the officers'] suspicion must have been based on specific and articulable facts and not mere hunches"; (2) "[the court] must gauge those facts not individually, but in their totality and as seen and interpreted by officers of [equivalent] experience"; and (3) "the suspicion must justify the scope of the intrusion on privacy that results from the stop." 808 F.2d at 1054; see Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 676, 145 L. Ed. 2d 570 (2000) ("The officer must be able to articulate more than an `inchoate and unparticularized suspicion' or `hunch' of criminal activity.").
Defendant contends that the police report does not state facts sufficient to establish a reasonable suspicion, which is further supported by Mr. Williams's statement. Def. Mem. Supp., R. Doc. 118, 17-18. The Government alleges that the circumstances surrounding the stop were sufficient for the officers to establish a reasonable suspicion: it occurred in a high crime area, the men appeared to be on the verge of violent behavior, one man was armed with a screwdriver, and that man refused to cooperate upon being given commands to drop his weapon.
The Thalia Street area where the Defendant and Mr. Williams were at the time the officers observed them is a known high-crime area.
Being in a high-crime area may be one factor in the totality of circumstances that may support a reasonable suspicion; however, standing alone, it is not sufficient. Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L. Ed. 2d 570 (2000). In addition, "cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." Id. Yet "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Taken together, however, these factors may give rise to reasonable suspicion.
Indeed, the Fifth Circuit has found reasonable suspicion existed in cases that are "less provocative" than the facts at hand. For example, in United States v. Wilson, the Fifth Circuit found reasonable suspicion for a Terry stop to existed where:
342 F. App'x 46, 47 (5th Cir. 2009). Further, in United States v. Wiley, the Fifth Circuit upheld a Terry stop and frisk where the police officer conducted a traffic stop of a vehicle for the driver's failure to wear a seatbelt, ordered the driver to exit the vehicle, and performed a pat-down after noticing a pocket knife on the driver's person. United States v. Wiley, 493 Fed.Appx. 481 (5th Cir. 2012). In addition, the stop took place in a high crime neighborhood. Id. The Fifth Circuit noted that the "officer had reason to suspect that Wiley might be armed" after discovering the knife.
Ultimately, Officers Gillard and Nunnery point to several specific facts supporting their reasonable suspicion: that the Defendant and Mr. Williams appeared to be engaged in an argument that could have turned violent, that the Defendant was carrying a large screwdriver that could be used as a weapon, that they were in a highcrime area of the city, and that the Defendant refused to comply with Officer Gillard's command to drop the screwdriver several times. The reasonable inferences from these facts, taken together, support the conclusion that the officers had reasonable suspicion that justified their stop and frisk.
When conducting the stop and frisk, in addition to the governmental interest in investigating crime, "there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him." Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968). The Fifth Circuit has explained:
United States v. Sanders, 994 F.2d 200, 204 (5th Cir. 1993) (citing United States v. Sharpe, 470 U.S. 675, 687, 105 S.Ct. at 1576. (internal quotations and citations omitted). Indeed, "this court [has] observed that using some force on a suspect, pointing a weapon at a suspect, ordering a suspect to lie on the ground, and handcuffing a suspect—whether singly or in combination—do not automatically convert an investigatory detention into an arrest requiring probable cause." United States v. Campbell, 178 F.3d 345, 349 (5th Cir. 1999) (internal citation and quotation marks omitted). In United States v. Campbell, the Fifth Circuit held that it was not unreasonable for a police officer to draw his weapon, order the suspect to lie on the ground, handcuff the suspect, and frisk the suspect in the course of an investigatory stop—even when the suspect had complied with the officer's orders. Id. The Campbell court explained that ordering a subject to lie down on the ground and handcuffing of a subject may be appropriate:
Id. at 349. In Campbell, the defendant had complied with the officer's order to lie down, yet the Fifth Circuit noted that that "would not have precluded his reaching for a weapon" which justified handcuffing the suspect. Id. The Fifth Circuit found that "it was not unreasonable for Gentry to take the precaution of handcuffing Campbell and frisking him, [n]or was it unreasonable, as Campbell alleges, to handcuff him before frisking him." Id.
Similarly, when Officers Gillard and Nunnery observed Mr. Preston's screwdriver, which he initially refused to drop, they were reasonable in taking measures to ensure that Mr. Preston would not use the screwdriver against them or Mr. Williams. In ordering Mr. Preston and Mr. Williams to lie on the ground, handcuffing them, and frisking them for weapons, the officers acted reasonably, ensuring that the subjects did not have other weapons with which they could cause potential harm. Indeed, the reasonable frisk led to the discovery of a rare and highly dangerous weapon. Once the weapon was discovered, Mr. Preston was read his Miranda warnings and was under arrest; the search of his person and the evidence recovered thereafter falls within the scope of a search pursuant to his arrest. Therefore, the evidence recovered pursuant to the December 8, 2011 arrest shall not be suppressed.
The Defendant contends that the statements made to three detectives after his December 8, 2011 arrest should be suppressed because the Defendant had not been advised of his Fifth Amendment rights under Miranda prior to giving any statements to the detectives. R. Doc. 141, 1. Additionally, the Defendant contends that, under Rule 16 of the Federal Rules of Criminal Procedure, the Government should be prohibited from using the statement at trial in light of that fact that the existence and substance of the statement was not disclosed until March 11, 2014, nearly two years after the statement was made. R. Doc. 141, 3.
Officer Nunnery testified at the hearing that he read Mr. Preston his Miranda rights following his arrest, while Mr. Preston was standing by the police vehicle after Officer Gillard conducted a frisk, and again once the officers arrived at the police station.
The report included with the Defendant's Motion to Suppress as Exhibit F, is New Orleans Police Department Incident L-11959-11, which states in pertinent part: "While at the Sixth District Station Preston was interviewed by the Sixth District Detectives Sgt. S. Contreras, Rob Barrere, and Tom Sison." While Defendant's counsel may not have been aware of the substance of the statements made by Mr. Preston until March of 2014, the Court presumes that counsel was aware that this interview occurred after Mr. Preston's December arrest.
Defendant asserts that, even if the officers testify to the fact that Mr. Preston was given his Miranda warnings prior to the interview, "any representation by the arresting officers that they provided Miranda warnings is false." Def. Supplemental Mem. Supp. Mot. Suppress, Rec. Doc. 141, 2. In addition, Defendant contends that Mr. Preston did not waive his rights and his waiver cannot be presumed when making statements to officers who did not warn him of his Miranda rights—a premise for which, again, Defendant cites no law. Id.
After witnessing testimony at the suppression hearing and reviewing the police report detailing the same, it is clear that Officer Nunnery read Mr. Preston his Miranda rights. It is also clear that by agreeing to speak with and by making statements to the ATF Detectives, Mr. Preston knowingly waived his Miranda rights. To be valid, the waiver must be made knowingly, intelligently, and voluntarily. United States v. Oliver, 630 F.3d 397, 409-10 (5th Cir. 2011); see also Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir. 2002)("In order for a criminal suspect to validly waive his Miranda rights, two elements are necessary: (1) the relinquishment of the right must be voluntary in the sense that it was the product of a free and deliberate choice; and (2) the waiver must be made with full awareness of the right being abandoned and the consequences of doing so.")(citation and internal quotation marks omitted).
The Fifth Circuit in Soffar found that despite receiving multiple Miranda warnings, the defendant, Soffar, "continued to talk to the police, waiving his right to remain silent and his right to have an attorney present." 300 F.3d at 592. For example, in that case, "shortly after Officer Raymond Willoughby arrested Soffar and read him his Miranda rights from a card, Soffar waived his Miranda rights by spontaneously volunteering incriminating statements about his involvement in the bowling alley murders." Id. Then, after receiving Miranda warnings first from a magistrate "and then from Clawson at the police station, Soffar stated that he understood his rights and waived them again by voluntarily telling the police about a potential accomplice." Id.
Here, as Officer Nunnery testified at the hearing, Mr. Preston was advised of his rights and asked whether he would speak with ATF Detectives by Officer Nunnery. Mr. Preston has provided no evidence that he did not knowingly or voluntarily speak with the Detectives. Thus, the Court does not find that Mr. Preston's Fifth Amendment rights were violated in this instance. Accordingly,
