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United States v. Powell

July 13, 2006


The opinion of the court was delivered by: District Judge Susan J. Dlott


This matter comes before the Court on Defendant Vernon Powell's Motion to Suppress (doc. #27). This Court held a hearing on the Motion on June 22, 2006. At the hearing, this Court advised Defendant that it was going to deny his Motion in an opinion to follow. For the foregoing reasons, Defendant's Motion to Suppress is DENIED (doc. #27).


As of March 7, 2006, there were warrants outstanding for Powell's arrest. On that day, members of the Regional Narcotics Unit ("RENU") were conducting surveillance of Powell, who was the target of an on-going drug investigation initiated by Agent Kyle Ingram. At about three, Powell was at a residence on Harrison in Cincinnati, Ohio, with his friend, Mycola Pearson. Powell and Pearson drove downtown and parked in the alley named Shillito's Place. Powell got out of the car and went to Tri-State Jewelry, located across from Shillito Place on Race Street.

Lieutenant Brad Winall saw Powell get out of the passenger side of a car (later identified as Mycola Pearson's car) and enter Tri State Jewelry. Lieutenant Winall decided to arrest Powell on the outstanding warrants, so he called for backup. Cincinnati Police Officer James Bolt, among others, responded to the backup call. Officer Bolt and another officer approached the front door of Tri State Jewelry as Powell was exiting the store. Officer Bolt asked Powell to identify himself, and after Powell did so, Officer Bolt arrested him pursuant to the outstanding warrants. Officer Bolt then conducted a search of Powell's person. Officer Bolt found a loaded Bersa .40 caliber semi-automatic firearm in Powell's waistband, three cell phones, $3,460.00 in Powell's pocket, and 100.01 grams of powder cocaine in Powell's coat pocket.

After Powell was in custody, Lieutenant Winall and other officers went to search the car in which Powell had been riding, which was still parked in the Shillito's Place alley. Lieutenant Winall removed the driver, Mycola Pearson, Powell's girlfriend at the time, and her toddler, from the car. He then searched the car and found 3.9 kilograms of powder cocaine in two plastic bags on the passenger side of the car.

The officers then took Powell to the Cincinnati Police Department Criminal Investigation Section ("CIS"). Powell testified at the hearing that the officers told him that Pearson was also being questioned at CIS. He also thought that his sister, Ms. McCloud, had been arrested. At CIS, Agent Ingram and Sergeant Gregory Morgan interviewed Powell. Agent Ingram entered the interview room first.*fn2 Sergeant Morgan then entered the interview room, and Agent Ingram read Powell his Miranda warnings. Powell then signed a form entitled "Notification of Rights" ("Notice") that described his Miranda rights. (See doc. #29, ex.2 (also Govt. Ex.6 at the hearing.))

Agent Ingram and Sergeant Morgan then interviewed Powell. Agent Ingram testified that Powell stated that all the cocaine discovered in the car was his, gave the name of his cocaine supplier, and told the officers that they could find more evidence at two other residences on Vine Street and Lowell Avenue. Law enforcement officers later used the information to obtain search warrants on several properties, including Powell's residence. During these searches, the officers found additional guns, drugs, and drug paraphernalia.


Defendant Powell has moved to suppress both his statement to the police and the evidence discovered in the search of the car in which he was riding just prior to his arrest.

A. Search of Pearson's Car, in Which Powell Had Been a Passenger

Powell contends that the evidence collected from the search of Pearson's car is inadmissible because the officers could not lawfully search the car. Powell argues that the police could not lawfully search the car because he never gave them permission to do so and they had no probable cause to search the car. Powell argues that the police did not have probable cause to search the car because 1) he was taken into custody more than 300 feet from the car; and 2) "the vehicle was legally parked and there was no indicia of any type of criminal activity in or about said vehicle." (Doc. #27 at 4-5.) The Government counters that Powell does not have standing to challenge the search of Pearson's car. (Doc. #29 at 3.) Following Powell's presentation of evidence at the hearing, the Court held that Powell did not have standing to challenge the search. The reasons for that ruling follow.

The question of standing is a preliminary inquiry, and Powell has the burden of establishing that he has standing to challenge the search. See U.S. v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir. 1988) (citing Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978)). "The right to be free from unreasonable searches and seizures is a personal right which may not be vicariously asserted. Accordingly, a defendant may only seek to suppress evidence under the exclusionary rule where that defendant's legitimate privacy interest under the Fourth Amendment has been violated," or, as the parties have described it, the defendant has standing.*fn3 U.S. v. Dycus, Nos. 04-5975, 04-5976, 2005 WL 2757618, at **2 (6th Cir. Oct. 25, 2005) (citations omitted).

Although he did not so testify at the hearing, Powell previously made a statement (which he now seeks to suppress) that the cocaine found in Pearson's car was his. While "property ownership is clearly a factor to be considered in determining whether an individual's Fourth Amendment rights have been violated [by seizure of their property]. . . property rights are neither the beginning nor the end of this Court's inquiry." U.S. v. Salvucci, 448 U.S. 83, 91 (1980). Rather, the pertinent question in determining whether a search violated the rights of a defendant is whether that defendant had "a legitimate expectation of privacy in the invaded space." Id. at 92. Generally, passengers do not have standing to challenge -- or, more accurately, do not have a protectable privacy interest ...

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