United States v. Brown

1

UNITED STATES OF AMERICA, Plaintiff, v. MORICE ARMANI BROWN, and MARKLYN ANTONIO FORRESTER, Defendants.

No. 3:22-CR-33-TAV-DCP

United States District Court, E.D. Tennessee, Knoxville

October 18, 2023

REPORT AND RECOMMENDATION

Debra C. Poplin United States Magistrate Judge

This case is before the undersigned for report and recommendation on motions to suppress evidence stemming from a vehicle stop by Defendants Marklyn Forrester [Doc. 87] and Morice Brown [Doc. 89], both filed on June 30, 2023. See 28 U.S.C. § 636(b). Defendants are charged with conspiring to commit mail fraud by perpetrating a lottery scheme and with identity theft and aggravated identity theft [Doc. 82]. They challenge the stop of their vehicle and their arrest on October 22, 2021, on Fourth Amendment grounds [Docs. 87 &amp 89].

In late September 2021, the Lenoir City Police Department (“LCPD”) began investigating a scheme to defraud an elderly Lenoir City resident S.C., who was told she had won a lottery but must pay various fees and taxes to receive her winnings. S.C. paid out over $672,000 to her contacts “Richard” and “Lucky Graham” by mailing or wiring funds and, on one occasion in August 2021 delivering funds to a courier in the Walmart parking lot in Lenoir City. The LCPD formed a plan to catch the perpetrators by having S.C. arrange for a second meeting for a courier to pick up cash in the Walmart parking lot on October 22, 2021. On that morning, undercover officers surveilling the parking lot observed a RAV4 driving slowly through the parking lot leaving just before an attempt by “Richard” to change the meeting location, and returning after S.C. declined the change. A young black male collected the money from S.C., and when officers attempted to stop him, he fled in a Nissan Altima driven by another black male. Once the courier fled, the RAV4 also attempted to leave but collided with a truck. Officers arrested Defendants Forrester and Brown, the driver and passenger of the RAV4, and seized three cellular telephones.

Defendants seek to suppress all evidence seized from their vehicle and from their persons incident to their arrest, arguing law enforcement gained this evidence in violation of their Fourth Amendment rights. Specifically, they contend that officers lacked reasonable suspicion to stop their vehicle in the parking lot and probable cause to arrest them.

For the reasons discussed below, the Court finds that officers had reasonable suspicion to conduct an investigatory stop of Defendants' vehicle and probable cause to arrest Defendants for financial exploitation of an elder. The Court also finds that the cellphones were properly seized from the Defendants' vehicle incident to their arrest. Accordingly, the Court respectfully recommends that the Defendants' motions to suppress evidence [Docs. 87 & 89] be denied.

I. BACKGROUND

Defendants Forrester and Brown are charged, along with Codefendants Tessa Hines (“Hines”) and Jahmarley McFarlane (“McFarlane”), with conspiring to commit mail fraud from January 1, 2020, through December 10, 2021, in violation of 18 U.S.C. § 1341 (Count One) [Doc. 82 pp. 1-6].^[1]The Superseding Indictment describes a scheme to obtain money from an elderly person S.C. by sending a letter to S.C. representing that she won $3.5 million in a lottery but must pay fees and taxes to get her winnings [Id. at 3]. Over a six-month period, Defendants are alleged to have sent other correspondence to S.C. and called her, posing as “Richard” and “Lucky Graham,” to secure payments, causing S.C. to send them a total of $672,000 [Id. at 3-4]. Posing as “couriers,” McFarlane and Jamali Ramsay (“Ramsay”) accepted $80,000 from S.C. in person in her hometown of Lenoir City, Tennessee, on August 17, 2023 [Id. at 4]. Richard and Lucky Graham sought a second payment of $150,000, which S.C., who at this point had contacted the LCPD, insisted be made in person [Id. at 4-5]. Richard and Lucky Graham agreed to have couriers pick up the payment from S.C. on the morning of October 22, 2021, in the parking lot of the Lenoir City Walmart [Id. at 5].

Count One further alleges that Hines and Defendant Brown traveled from Jamaica to Florida on October 20, 2021, where they rented a car, picked up Defendant Forrester, and then together drove to Lenoir City arriving in the late evening of October 21, 2021, and staying in a hotel [Id.]. On October 21, 2021, McFarlane and Ramsay also drove from Florida to Lenoir City, arriving in the early morning of October 22, 2021 [Id.]. On the morning of October 22, 2021, McFarlane and Ramsay drove to the Lenoir City Walmart to meet with S.C. [Id.]. Defendants Brown and Forrester also drove to the Lenoir City Walmart, leaving Defendant Hines at the hotel [Id.]. Cellular telephone records reveal that Defendant Brown and McFarlane were communicating with each other and other coconspirators that morning by electronic message [Id. at 5-6]. McFarlane approached S.C.'s vehicle in the Walmart parking lot, accepted a package purported to contain $150,000, and fled in a car with Ramsay [Id. at 6]. Police stopped and arrested all four Defendants as they attempted to flee the parking area in their respective vehicles [Id.]. Hines was later arrested in the airport in Newark, New Jersey, as she was boarding a flight to Jamaica [Id.].

Defendants Brown and Forrester are charged in Count Two with identity theft of C.R. and in Count Three with aggravated identity theft of unspecified others [Id. at 7-8]. These offenses are alleged to have occurred from January 1, 2020, through October 22, 2021, which overlaps with the conspiracy alleged in Count One [Id. at pp. 1, 7-8]. Counts Two and Three both involve theft of social security numbers [Id.]. Count Three states that the stolen personal identifiers were used during a conspiracy to commit mail fraud. [Id. at 8].

On June 30, 2023, Defendant Forrester [Doc. 87] and Defendant Brown [Doc. 89] both filed Motions to Suppress, seeking to suppress all evidence seized from the stop of their vehicle, including the contents of their cellular phones. The Government responded in opposition on July 17, 2023 [Doc. 93]. On July 27, 2023, the Court held an evidentiary hearing on the motions [Doc. 97, Minutes]. During the hearing, the Court asked the parties to file post-hearing briefs to define the issues and to address Defendants' standing to contest the stop and search of a rental vehicle rented by a third party. Defendant Brown filed a post-hearing brief on August 23, 2023 [Doc. 107], and Defendant Forrester filed a post-hearing brief on August 24, 2023 [Doc. 108]. The Government filed a responding post-hearing brief on September 15, 2023 [Doc. 118]. On September 22, 2023, Defendant Brown timely filed a reply brief [Doc. 121], after which the Court took the motions under advisement.

II. SUMMARY OF THE EVIDENCE

At the July 27, 2023 evidentiary hearing, the Government presented seven exhibits (some with multiple subparts) and the testimony of LCPD Sergeant Lynette Ladd. The Court summarizes the evidence as follows:

Sergeant Ladd testified she is an investigator with the LCPD, where she has worked for twenty-six years. She served as the lead investigator of a lottery scheme resulting in the charges to Defendants Forrester and Brown. According to Sergeant Ladd, on September 24, 2023, Sandra Cruze, then age seventy-six and a resident of Lenoir City, filed a police report. Sergeant Ladd said Ms. Cruze reported receiving information that she had won the Golden Casket lottery. Ms. Cruze stated she had been mailing cash payments and wiring money to others at the direction of two men who identified themselves as “Richard” and “Lucky Graham.” Ms. Cruze reported that she had paid approximately $672,000 from her checking account and by liquidating insurance policies and bonds. Sergeant Ladd stated that Ms. Cruze told her she made these payments in response to letters requiring fees and taxes necessary to release the lottery funds. Ms. Cruze reported that she met a courier at the Walmart in Lenoir City who collected $80,000 in cash from her. In response to information from Ms. Cruze that Richard and Lucky Graham were still trying to collect cash from her, Sergeant Ladd provided Ms. Cruze with a recording device to record calls from them.

Sergeant Ladd testified that Ms. Cruze recorded two telephone conversations. The Government submitted these audio recordings as Exhibits 1.1 and 1.2 and played them. On October 20, 2021, Ms. Cruze called Richard at 3:47 p.m. [Exh. 1.1]. They discussed that Ms. Cruze owed $150,000, that she was getting the money from a friend, and that Richard would arrange to pick it up the following day [Id.]. Richard told Ms. Cruze to separate the $150,000 into two packages of $75,000 each [Id.]. When Richard suggested that the meeting could be delayed until the following Saturday, Ms. Cruze protested that she did not want to keep the money in her house over several days [Id.]. Richard pointed out that she had previously had the $80,000 at her home [Id.]. Ms. Cruze ended the call when someone came to her door [Id.]. Sergeant Ladd testified that the reference to $80,000 was to money that Ms. Cruze had previously provided to a courier.

The Government next played Exhibit 1.2, a recording of a call from Ms. Cruze to Richard on that same day, October 20, 2021, at 4:11 p.m. Ms. Cruze told Richard that her friend called and has the money [Exh. 1.2]. She told Richard that she would pick up the money later that night and arrange it as directed [Id.]. Richard said he would call her tomorrow with the meeting time [Id.]. Sergeant Ladd testified that Richard later called Ms. Cruze and changed the date for the couriers to pick up the money from October 21 to October 22.

Sergeant Ladd said...