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United States v. Mullins

United States District Court, S.D. Ohio, Western Division, Dayton

August 13, 2019




         This case is before the Court on several motions to suppress:

• “Motion to Suppress Evidence & Statements; Request for Hearing” filed by Defendant Patricia Marie Mullins (“Mullins”) (Doc. 37);
• “Motion to Suppress” and “Supplement to Motion to Suppress” filed by Defendant Darrell Jones (“Jones”) (Docs. 32 and 46);
• “Motion to Suppress Defendant's Evidence” and “Motion of Defendant, Dustin James Vanwey, to Modify Motion to Suppress” filed by Defendant Dustin James Vanwey (“Vanwey”) (Docs. 43 and 51); and
• “Motion to Suppress Search and Seizure of items found in the Automobile, Search Warrant regarding the Property (Camper) Franks Hearing, [and] Arrest of Defendant” filed by Defendant Roger Anthony Brassfield (“Brassfield”) (Doc. 44).

         The Court held joint evidentiary hearings for the above-referenced motions to suppress on January 25, March 27, April 8, and May 6, 2019. (Docs. 56, 62, 67, 72.) On June 24, 2019, each of the defendants filed a post-hearing brief in support of his or her motion to suppress.[1] (Docs. 74, 75, 76, 77.) On June 28, 2019, the Government filed a post-hearing brief in opposition to all of the above-referenced motions to suppress and post-hearing briefs filed in support of those motions to suppress. (Doc. 78.) On July 24 or 25, 2019, Brassfield, Vanwey, and Mullins each filed a reply brief in response to the Government's post-hearing brief.[2] (Docs. 79, 80, 81.) The matter is ripe for review.

         As an initial matter, the Court notes that Mullins, Vanwey, and Brassfield each moved, within his or her motion to suppress or post-hearing brief, to join the post-hearing briefs in support of their co-defendants' motions to suppress. (Doc. 51 at PAGEID # 238; Doc. 74 at PAGEID # 642; Doc. 77 at PAGEID # 687-88.) In support, these defendants argue, for example, that they share similar issues relative to law enforcement's searches/seizures and that they are charged together with conspiracy, as set forth more fully below. (See Doc. 74 at PAGEID # 642; Doc. 77 at PAGEID # 687-88.) There is no indication that the Government objects to these requests. The Court grants the requests to join and analyzes the briefing accordingly.

         For the reasons below, the Court determines the following:

Mullins' motion (Doc. 37) is GRANTED.
Jones' motions (Docs. 32 and 46) are DENIED.
Vanweys' motions (Docs. 43 and 51) are GRANTED.
Brassfield's motion (Doc. 44) is DENIED.


         The following findings are made based on the evidence submitted by the parties and the testimony at the January 25, March 27, April 8, and May 6, 2019 hearings for the various motions to suppress.

         On the morning of Saturday, July 28, 2018, Montgomery County Deputy Sheriff Matthew Snyder (“Deputy Snyder”) was on patrol in Harrison Township, Ohio looking for a reported stolen Jeep Wrangler that had fled from law enforcement. At approximately 11:00 a.m., he observed a silver Chrysler 300 automobile (the “Vehicle”), which lacked a front license plate, parked on the wrong side of a public street in front of 5407 Edgewater Drive. He also observed a man (later identified as Jones) sitting in the front passenger seat of the Vehicle smoking what appeared to Deputy Snyder to be “a one-hitter of marijuana.” Based on these observations, Deputy Snyder decided to conduct a traffic stop and approached the Vehicle, which was not running.

         As he approached the Vehicle, Deputy Snyder was able to detect the odor of marijuana. He observed Jones sitting in a contorted manner that, to Deputy Snyder, seemed like Jones was trying to conceal something. Deputy Snyder asked Jones for identification and what he was doing. As he looked into the Vehicle, Deputy Snyder could see what he believed was a firearm magazine between the door and some debris in the seat, as well as a knife under Jones' leg. Based on concerns for his safety, Deputy Snyder then asked Jones to get out of the Vehicle. Deputy Snyder saw the “one-hitter” pipe where Jones had been sitting, as well as a plastic container that appeared to have methamphetamine in it. Deputy Snyder put Jones, unhandcuffed, in the back of his patrol vehicle.

         Deputy Snyder called for additional law enforcement officers to come to the scene, and he went back to the Vehicle to complete a search of its passenger area. He found and removed a black bag, within which he found what appeared to be fentanyl, mushrooms, LSD, marijuana, and THC gummies. He also found a loaded .45 caliber handgun magazine. Deputy Snyder went back to his patrol vehicle and asked Jones if Jones had a gun. Jones denied that he had a gun, but then volunteered that the gun and “a little bit of ice” were the only things in the Vehicle that belonged to him and that the other items were “Tony's.” Jones said that “Tony” was the driver of the Vehicle, that he did not know “Tony's” last name because he had only recently met “Tony, ” and that “Tony” was somewhere on the property. Deputy Snyder then found a firearm in the Vehicle under some items where Jones' feet had been. The Vehicle was not registered to Jones.

         Given what he had found and Jones' statements, Deputy Snyder wanted to find “Tony.” Deputy Snyder saw a camper on the property at 5407 Edgewater Drive parked to the side of an unpaved driveway (the “Camper”). The Camper had its awnings out, had an air conditioner running, and was located approximately 50 to 100 feet from the Vehicle. A permanent residence (the “House”) was located approximately 50 to 100 feet from the Camper. Deputy Snyder decided to approach the Camper with the aim of locating “Tony.” Due to concerns for his safety, before approaching the Camper, Deputy Snyder waited for other deputies to arrive at the scene. Montgomery County Deputy Sheriff Justin Bone (“Deputy Bone”) arrived, followed by Deputy Sheriff Jesse Walker (“Deputy Walker”), and later Deputy Sheriff Matt McIntosh (“Deputy McIntosh”).

         Deputy Snyder and at least one other deputy approached the front of the Camper. Deputy Snyder knocked on the front door, which had an “Open” sign on it. He also tried opening the door, but the door was locked. He could hear people moving inside the Camper. He kept knocking as loudly as he could and announcing his presence and status as a law enforcement officer, but no one responded or opened the door. Despite Deputy Snyder and other law enforcement sporadically knocking, no one ever responded to the knocking or announcements.

         At some point, at least after an initial set of knocking on the Camper's door, Deputy Snyder walked around the Camper and peered through its windows. Deputy Snyder saw a man lying in a fetal position on the floor partially under the dinette in the Camper; the man was not moving or responding. Deputy Synder testified that he thought that, because he had already found drugs in the nearby Vehicle, the man was probably overdosing. Deputy Snyder also testified that he was very concerned; in his mind, this presented a life-or-death emergency situation. However, Deputy Snyder admitted that he could not tell whether or not the man was breathing, whether or not his skin was bluish- or grayish-colored, or whether or not the man was simply hiding from him.

         Deputy Snyder and Deputy Walker testified that an ambulance or medic was requested over the radio. Deputy Snyder continued calling out to the man lying on the floor of the Camper, but he did not receive a response. At some point, Deputy McIntosh arrived and provided a crowbar, which was used by Deputies Snyder and Bone to pry the door open and enter the Camper. It took some time and effort to get the door pried open; Deputy Bone testified that it took about five to seven minutes.

         Deputy Snyder has been a deputy sheriff with the Montgomery County Sheriff's Office for over 18-½ years. He estimated that, during his law enforcement career, he has responded to at least 200 drug overdose cases and at least 10 drug overdose death situations. He also received training in the use of Narcan. Deputy Bone has been a deputy sheriff with the Montgomery County Sheriff's Office for approximately 14 years. He estimated that, during his law enforcement career, he has responded to at least 100 drug overdose cases and between 10 to 12 drug overdose death situations.

         Deputy Snyder testified that, based on his training, the “time window in which action, treatment needs to occur” in suspected drug overdose situations is “immediate” because “you only have a couple minutes before [the suspected overdoser] either stop[s] breathing or die[s].” It is “[a] potential life-and-death situation.” (Doc. 62 at PAGEID # 379-80.) However, Deputy Snyder also testified that, according to audio-video from his own police cruiser camera, he had communicated to Deputy Walker prior to 11:29 a.m. that he had seen someone inside the Camper that he suspected had overdosed. (Id. at PAGEID # 464-65, 467.) The same audio-video shows that at 11:54 a.m. Deputy Snyder approached his cruiser and said to Jones (who was in Deputy Snyder's cruiser): “Somebody's laying there on the floor and I can't get ‘em to move.” (Def. Exh. O; Doc. 62 at PAGEID # 460, 465-67, 469.)

         This indicates that at least 25 minutes elapsed between Deputy Snyder seeing the man lying on the floor (who he believed to be overdosing) and forcing entry into the Camper.[3] In fact, Deputy Snyder agreed that the audio-video at 12:03 p.m. includes him saying “We have one female moving, and she won't open the door, ” indicating at that point-now over 30 minutes since he had communicated to Deputy Walker that he suspected someone had overdosed in the Camper-forced entry still had not been achieved.[4] (Doc. 62 at PAGEID # 479.) During those (at least) 25 minutes, Deputy Snyder and the other deputies are seen on the audio-video rather nonchalantly standing around, sitting in a police vehicle, and wandering around (apparently even fetching Jones some cigarettes from the Vehicle so that he could smoke).[5] (See, e.g., Def. Exh. O at timestamp 11:29:00 to 11:38:12.)

         Upon gaining entry to the Camper by using a crowbar to pry open its door, the deputies saw that a woman (subsequently identified as “J.B.”) was on her hands and knees at the place where the man that Deputy Synder had seen through the window had been. That man was now lying in a bed at the end of the Camper with a dog and two other people: Mullins and Vanwey.[6]The deputies also saw, in plain view, a sawed-off shotgun in the Camper. Deputy Snyder testified that it was obvious someone had been living in the Camper.

         Deputy Synder testified that Brassfield was removed from the Camper, Brassfield's “speech wasn't intelligible, ” and the Harrison Township paramedics-who “had arrived and were waiting”-transported Brassfield to Grandview Medical Center. (Doc. 62 at PAGEID # 403.) Prior to being transported to the hospital, Brassfield was patted down by law enforcement, who found on him keys to the Vehicle, an identification card that did not belong to Brassfield, and $2, 800 in cash. Between approximately 1:15 p.m. and 2:30 p.m., Jones, Mullins, and Vanwey were each separately advised of his or her Miranda rights, acknowledged by signing a “Pre-Interview Form” that contained a waiver of rights. (See Govt. Exhs. 14, 15, 16.) Law enforcement then interviewed them.

         Subsequent to the initial entry into the Camper referenced above, at approximately 3:00 p.m. on that same day, law enforcement obtained a search warrant for the Camper. (See Govt. Exh. 11.) Law enforcement then re-entered the Camper and performed a comprehensive search. This second entry and search resulted in the discovery of, among other things, a variety of illegal narcotics, drug paraphernalia, firearms, and ammunition. (Id.) Law enforcement also impounded, inventoried, and towed from the scene both the Vehicle and the Camper. The Vehicle was not owned by either Brassfield or Jones, and a database search indicated that the Camper was stolen. Additionally, law enforcement obtained a search warrant for Jones' cell phone on July 31, 2018. (Govt. Exh. 12.)

         On August 28, 2018, the Grand Jury returned a six-count indictment in this case. (Doc. 23.) Count 1 charges each of the defendants with conspiracy to possess with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), and 846. (Id.) Count 2 charges Mullins with using and maintaining a place for the purpose of manufacturing, distributing, and using methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 856(a)(1). (Id.) Counts 3 and 4 charge Mullins and Vanwey, respectively, with being felons in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Id.) Counts 5 and 6 charge Jones and Vanwey with possessing a firearm while being an unlawful user of a controlled substance (methamphetamine), in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). (Id.) On September 17, 2018, each of the defendants entered a not guilty plea to each count against him or her. (Docs. 25, 26, 27, and 28.)

         II. ANALYSIS

         The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. “The text of the Amendment thus expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity.” Kentucky v. King, 563 U.S. 452, 459 (2011).

         “It is well settled that in seeking suppression of evidence the burden of proof is upon the defendant to display a violation of some constitutional or statutory right justifying suppression.” United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003); U.S. v. Blakeney, 942 F.2d 1001, 2015 (6th Cir. 1991) (in the context of a motion to suppress, the moving party has the burden of establishing that the evidence was secured by an unlawful search).

         A. Search of the Vehicle

         In his motion to suppress, Brassfield challenges law enforcement's search of the Vehicle. Specifically, he argues that there was no reason to investigate the Vehicle and that the Government is not entitled to an exception to the Fourth Amendment warrant requirement to search the Vehicle and seize items from it.[7] (Doc. 44 at PAGEID # 223-24.)

         As an initial matter, Brassfield admits that he “was not the owner of the automobile.” (Doc. 44 at PAGEID # 223.) Additionally, there is no evidence to show that he was an authorized operator who legitimately had possession of the Vehicle. Therefore, Brassfield has not met his burden in showing that he had a legitimate expectation of privacy in the Vehicle to challenge its search. United States v. Davis, 430 F.3d 345, 360 (6th Cir. 2005) (defendant could not establish that the search of a vehicle violated his Fourth Amendment rights because he had no reasonable expectation of privacy in the vehicle or the items seized from the vehicle given that he had neither a property nor possessory interest in them).

         Yet, even if Brassfield was an authorized operator in legitimate possession of the Vehicle, the search of the Vehicle was still lawful. “The Supreme Court has long recognized an exception to the warrant requirement with respect to searches of vehicles.” United States v. Smith, 510 F.3d 641, 647 (6th Cir. 2007). This is true even when a vehicle is not immediately mobile, and the exception does not have a separate exigency requirement. Id. “Under the automobile exception, police officers may conduct a warrantless search of a vehicle if they have probable cause to believe that the vehicle contains evidence of a crime.” Id. (internal quotation marks omitted). “Probable cause is defined as reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.” Id. at 648. The court's “determination of whether probable cause existed at the time of the search is a commonsense, practical question to be judged from the totality-of-the circumstances.” Id. The court “looks at the subjective facts known to the officers at the time of the search.” Id.

         “[S]o long as the officer has probable cause to believe that a traffic violation has occurred or was occurring, the resultant stop is not unlawful and does not violate the Fourth Amendment.” Davis, 430 F.3d at 352 (internal quotation marks omitted). The requirement of probable cause is satisfied where the facts and circumstances within the officer's knowledge and of which he or she had reasonable trustworthy information are sufficient to demonstrate that an offense has been or is being committed. Id. “If the particular officer has probable cause to believe that a traffic offense has occurred, the stop is permissible regardless of whether this was the only basis or merely one basis for the stop.” Id. (emphasis removed). “Once the purpose of the initial traffic stop is completed, an officer cannot further detain the vehicle or its occupants unless something happened during the stop to cause the officer to have a reasonable and articulable suspicion that criminal activity is afoot.” Id. at 353.

         The Sixth Circuit has found that officers have probable cause to search a vehicle without a search warrant when an officer detects the smell of marijuana coming from a vehicle. United States v. Foster, 376 F.3d 577, 588 (6th Cir. 2004) (officers had probable cause to search vehicle so, therefore, marijuana, gun, and PCP recovered from the vehicle were admissible against the defendant).

         Here, Deputy Snyder had probable cause to approach the Vehicle (at least) based on his observation that the Vehicle did not have a front license plate-a traffic violation. See O.R.C. § 4503.21(A)(1) (with exceptions not applicable here, failure to display a license plate on the front of a car violates Ohio's motor vehicle laws). Upon approaching the Vehicle, Deputy Snyder detected the odor of marijuana coming from the Vehicle, which corresponded with his prior belief that the Vehicle's occupant (Jones) was smoking marijuana in the Vehicle. Possessing marijuana (which would include smoking marijuana) is against the law in Ohio. See O.R.C. § 2925.11(A), (C)(3) (possession of less than 100 grams of marijuana is a minor misdemeanor under Ohio law). This, in and of itself, gave Deputy Snyder probable cause to search the Vehicle without a warrant. Foster, 376 F.3d at 588. Deputy Snyder also saw what he believed to be a firearm magazine and a knife as he looked into the Vehicle once he approached it. The totality of the circumstances, as set forth above, certainly established probable cause to search the Vehicle. Therefore, the Court denies Brassfield's motion to suppress with respect to the search of the Vehicle and its contents.

         B. Expectation of Privacy in the Camper

         In their motions to suppress and briefing, Mullins, Vanwey, and Brassfield generally argue that law enforcement's entry into the Camper (and, in the case of Mullins and Vanwey, law enforcement's subsequent search of the Camper) was unconstitutional. (Doc. 37 at PAGEID # 187; Doc. 44 at PAGEID # 224; Doc. 76 at PAGEID # 670; Doc. 79 at PAGEID # 728-29.) However, an initial question arises regarding whether they had a legitimate expectation of privacy in the Camper. The defendant has the burden of showing ...

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