United States v. Alexander, 2:18-CR-34(13)

UNITED STATES OF AMERICA v. BRANDON LEE ALEXANDER

No. 2:18-CR-34(13)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE

January 22, 2019

ORDER

Before the Court is the Report and Recommendation (the "R&R") of United States Magistrate Judge Clifton Corker filed on December 21, 2018, recommending that this Court deny three of defendant Brandon Lee Alexander's motions to suppress, and grant five of defendant's motions to suppress as moot. [Doc. 356]. On December 31, 2018 defendant filed his objections to the R&R. [Doc. 367]. The government responded. [Doc. 389]. The matter is ripe for review. For the following reasons, the Court ADOPTS the Magistrate Judge's Report, ADOPTS the Recommendation, GRANTS motion to suppress numbers One, Five, Six, Seven and Eight, [Docs. 138, 146. 148, 310, 312], as moot, and DENIES motion to suppress numbers Two, Three and Four. [Docs. 140, 142, 144].

I. Procedural History

On February 13, 2018, a federal grand jury returned an indictment against defendant charging him with possession with intent to distribute five grams or more of methamphetamine, its salts, isomers, and salts of its isomers, in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(B), possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), all arising from an April 24, 2017 traffic stop. [Doc. 3 at 9-10]. Defendant was further charged with possession with the intent to distribute fifty grams or more of methamphetamine, its salts, isomers, and salts of its isomers in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(A) arising from a May 3, 2017 traffic stop. [Id. at 10].

Defendant filed eight motions to suppress. [Docs. 138-149, 310-313]. The Magistrate Judge held evidentiary hearings on December 14, 2018 and December 19, 2018¹. [Doc. 411]. At the outset of the first hearing, the Magistrate Judge acknowledged and the parties agreed that defendant's first, fifth, sixth, seventh, and eighth motions to suppress were moot points, because either no evidence was found as a result of the search or the count was dismissed. [Id. at 4-6].

At the suppression hearing, the government presented Detective Pete Shockley, narcotics and vice detective for the Morristown Police Department ("MPD"), as a witness. [Id. at 16-91]. Defendant called three witnesses: MPD officer Richard Matthew Webb, Detective Shockley, and L.R., defendant's teenage daughter. Defendant also testified on his behalf. [Id. at 103-47].

On December 21, 2018, the Magistrate Judge filed his Report, recommending defendant's remaining motions to dismiss be denied. [Doc. 356]. Defendant filed timely objections to the Magistrate Judge's R&R, and the government responded. [Docs. 367; 389].

II. Background

This case arises from two separate traffic stops, the first on April 24, 2017 and the second on May 3, 2017. Prior to both traffic stops, defendant had been monitored by MPD narcotics and vice division detectives under suspicion for selling methamphetamine as part of an ongoing investigation with a confidential informant. [Doc. 411 at 17-18]. As part of that investigation, MPD Detectives Shockley and Jason Young ran a criminal history check on defendant. [Id. at 19-20]. The criminal history background check revealed that defendant's driver's license wassuspended. The check also provided the law enforcement officers with relevant information regarding defendant's lack of legitimate employment and provided any photographs of defendant on file. [Id.].

April 24, 2017 Traffic Stop

On April 24, 2017, around 8:00 p.m., MPD detectives conducted undercover surveillance of defendant's mother's residence at 712 Baker Street in Morristown, Tennessee, as part of an ongoing narcotics investigation. [Id. at 20, 23, 107]. While watching the property for drug traffic, MPD detectives recognized defendant from the criminal history check photographs and watched him come out of the residence, get in a SUV vehicle and proceed to drive down the road. [Id. at 21-22]. At the evidentiary hearing, defendant stated he was driving to his daughter's residence at 614 Brown Avenue in Morristown with stereo equipment for her car. [Id. at 107, 154].

After following defendant approximately half a mile, MPD Detectives Shockley and Young performed a traffic stop of the 2004 Ford Expedition operated by defendant on Brown Avenue. [Id. at 24, 130]. Defendant stopped and parked the vehicle he was driving facing the wrong direction of the traffic flow in front of a residence partly on gravel between the road andthe yard of 614 Brown Avenue. [Id. at 24-25].

Upon approaching the passenger side of the vehicle, Detective Shockley noticed a First Tennessee Bank leather money bag with a zipper on top in the front passenger seat that appeared to be bulging. From its appearance, Detective Shockley testified it seemed to "have a large quantity of money in it." [Id. at 26, 28; Ex. 2]. Detective Shockley also noticed a "large safe in the back seat behind the passenger's seat" facing the front of the vehicle within arm's reach of the driver. [Doc. 411 at 29-30].

Detective Shockley inquired why defendant was driving with a suspended license. [Id. at 32, 112]. Defendant testified that he replied that his driver's license was not suspended and stated he was going to see his daughter. [Id. at 32; 112]. The detectives ordered defendant out of the vehicle. [Id. at 32, 113].

Detective Shockley then asked defendant if the detectives could search the vehicle. [Id. at 33]. Defendant replied that the officers could not search the vehicle, because "it wasn't in [his] name." [Id. at 33, 113, 117-18]. Detective Shockley told defendant he could call for a canine unit, to which defendant replied that the officers could go ahead and search the vehicle. [Id. at 33].

The detectives placed defendant in custody for driving on a suspended license and subsequently searched and impounded the vehicle defendant was driving. [Id. at 113]. While handcuffing defendant, Detective Shockley asked if defendant had any contraband on his person. [Id. at 36]. Although defendant initially stated he did not have any illegal substances on his person, defendant then motioned to his waistband, where Detective Shockley found approximately thirty-six grams of methamphetamine in a clear plastic bag. [Id. at 36-38]. At the hearing, defendant contested this account, and denied motioning to his waistband. Defendant also disputes the quantity stating that he had about twenty-one grams of methamphetamine on his person for his own use instead of the thirty-six grams as alleged by law enforcement. [Id. at 114, 133]. Defendant was subsequently arrested and transported to Hamblen County Jail. [Id. at 44].

The vehicle defendant was driving was parked facing oncoming traffic on a public roadway in front of 614 Baker Street. [Id. at 39]. Defendant denies that the parked vehicle was interfering with traffic and contends the vehicle was entirely parked in the front gravel parking lot of the residence. [Id. at 115, 117]. Defendant's daughter corroborated Detective Shockley's testimony that the vehicle could not entirely fit on the gravel shoulder and was also blocking part of the road.[Id. at 167]. In impounding defendant's vehicle, Detective Shockley testified he was following MPD's Standard Operating Procedure requiring officers to tow unattended vehicles that could present a traffic hazard. [Id.].

Before towing the vehicle, Detective Shockley testified he was following MPD standard operating procedure by inventorying the contents of value in the vehicle and ensuring there were no weapons or explosive devices. [Id. at 39-41]. Detectives Shockley and Young proceeded to search the vehicle starting from the cab and continuing to the trunk. [Id. at 34, 41]. During the search the officers found in the glove compartment a small plastic bag with methamphetamine residue and a set of digital scales that had methamphetamine residue all over them. [Id. at 34-35; 41]. As part of the search, the detectives looked inside the money bag and discovered $11,560.00 in cash. [Id. at 35]. Detective Shockley then asked defendant the combination to the safe in the backseat. [Id.]. Defendant replied that he did not know the combination and denied ownership of the safe. [Id. at 36, 134]. The detectives took the safe as evidence and it was placed in a secure evidence locker in MPD custody. [Id. at 46].

The same day, Detectives Shockley and Young prepared the Vehicle Impoundment Form for defendant's vehicle. [Ex. 3]. The Vehicle Impoundment Form lists all the "[a]rticles in vehicle" under the appropriate section. [Id.]. The articles listed include: a Samsung flip phone, a "union safe," tools, and various stereo equipment. [Id.].

On April 25, 2017, Detective Shockley swore an affidavit in state court for a search warrant for the keypad union safe found in the vehicle. [Ex. 4; Doc. 411 at 81]. Detective Shockley, as affiant, stated that during the course of the April 24, 2017 traffic stop MPD detectives found a black union keypad safe, which defendant denied ownership of and denied knowing the number combination to open it. [Ex. 4 ¶ 3]. Detective Shockley further stated MPD detectives "discovered$11,560.00 in U.S. currency . . . 35 grams of crystal meth . . . digital scales and some pills" inside the vehicle and on defendant during the traffic stop. [Ex. 4 ¶ 2]. Detective Shockley specified that based on his experience, training and the above information, he "believe[d] the aforementioned facts give probable cause to believe that drugs, U.S. currency, weapons, and/or drug paraphernalia of an unlawful nature [were] located inside the safe[.]" [Ex. 4 ¶ 4]. Based on the proofs presented by Detective Shockley, Hamblen County General Sessions Judge Doug Collins found probable cause, and signed the search warrant ordering the search of the interior and the contents...