United States v. Coleman

UNITED STATES OF AMERICA v. RAKIM COLEMAN, DAVID YEAKEY and ARTHUR BOYD, Defendants.

CRIMINAL CASE NO. 1:18-CR-00484-ELR-JFK

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

January 14, 2020

REPORT AND RECOMMENDATION

Pending before the court are Defendant Rakim Coleman's motion [Doc. 59] to suppress cell phone evidence; motion [Doc. 60] to suppress evidence seized pursuant to federal order for Facebook data; motion [Doc. 61] to suppress evidence seized pursuant to search warrant for Facebook account; motion [Doc. 62] to suppress cell site location information; and motion [Doc. 66] to suppress evidence seized from 5812 Coppock Lane. Also pending before the court are Defendant David Yeakey's motion [Doc. 63] to suppress information for Facebook account without a search warrant and motion [Doc. 65] to suppress evidence obtained pursuant to a warrantless vehicle search. With respect to Defendant Coleman's motion [Doc. 61] to suppress evidence from his Facebook account, the Government has informed the court and Defendant that, without conceding the merits of the motion, it will not use any of the private communications or private content from Defendant's Facebook account at trial but reserves the right to use any public content that Defendant posted to his publicly available Facebook page and asserts that the motion can be denied as moot. Defendant has not provided any response to the Government's notice. Accordingly, the court will recommend that Defendant's motion [Doc. 61] be DENIED as MOOT.

Defendant Yeakey's Motion to Suppress Evidence - Vehicle Search

Defendant seeks to suppress evidence, a firearm and controlled substances seized without a search warrant from a Chevy Suburban on March 1, 2018. [Doc. 65]. An evidentiary hearing was held on the motion to suppress on November 5, 2019. [Doc. 79].¹ The Government first contends that Defendant, who had been driving the vehicle but was not the registered owner of the vehicle, lacks a reasonable expectation of privacy in the vehicle and cannot challenge the search. Alternatively, the Government argues that the Chevy Suburban was lawfully searched pursuant to the impound and inventory policy introduced into evidence. [Doc. 81]. In response and in support of his motion to suppress, Defendant argues that, based on the evidence introduced at the hearing, he established a reasonable expectation of privacy in thevehicle and that the Government did not establish that the vehicle was lawfully impounded and that, therefore, the inventory search was unlawful. [Doc. 84]. After consideration of the totality of the circumstances, the court will recommend that the motion [Doc. 65] to suppress be denied.

I. Facts

On March 1, 2018, Special Agents with the Federal Bureau of Investigation ("FBI") and members of the Indianapolis Metropolitan Police Department ("IMPD") effected the arrest of Defendant Yeakey based on arrest warrants for armed robbery issued by Bibb County and Bartow County, in Georgia. (Tr. at 4). According to Agent Leonard Rothermich, FBI, Defendant was located by his cellular telephone being "pinged" as authorized by a search warrant. (Tr. at 5). Defendant was first observed, on March 1, 2018, at a single, family residence located at 745 Arnolda Avenue, Indianapolis. (Tr. at 5-6). Around 11:00 to 11:30 a.m., agents and officers conducting surveillance at the residence observed two black males exit the residence, enter a black 1994 Chevy Suburban and leave the residence; the driver of the vehicle was later determined to be Defendant Yeakey.² (Tr. at 5-8). The passenger was later determinedto be Sheridan Kennedy. (Tr. at 8). The Chevy had a valid temporary tag and was registered to a Kevlynn Maddox. (Tr. at 8).

The Chevy Suburban was followed to a strip mall where it parked in front of the VIP Wireless store and both males exited and entered the store.³ (Tr. at 5, 7, 11). Agent Rothermich stated that, once he entered the store, he determined that the black male driving the Chevy was Defendant Yeakey, which was confirmed when Defendant identified himself. The agent placed Defendant under arrest. The keys for the Chevy were in Defendant's possession. (Tr. at 7-8, 10, 17). Kennedy, seventeen years old with a valid driver's license, was briefly detained to confirm his identity and then released. (Tr. at 8-9). Defendant was not asked for consent to search the Chevy. (Tr. at 10, 13).

IMPD Detective/FBI Task Force Officer ("TFO") Daniel Cherry made the decision to impound the vehicle pursuant to police department policy.⁴ (Tr. at 20-21). Kennedy was not allowed to drive the vehicle because he was not the registered owner. (Tr. at 14, 21-22). TFO Cherry also stated that officers were unable to make contact with the registered owner. (Tr. at 22). No one employed by the VIP Wireless store requested that the Chevy be towed. (Tr. at 17-18). TFO Cherry identified the IMPD impound policy which specifies in pertinent part as follows. (Tr. at 20-21; Gov't Exhibit 2).

DEFINITIONS

Public Nuisance - Section 611-203 . . . provides that a vehicle may be declared a public nuisance if any of the following circumstances exist:

• Any vehicle the operator of which is unable to move such vehicle by reason of his incapacity from injury or arrest; . . .

• Any vehicle upon which there is a police force hold; . . . .

Vehicle Inventory Search - An administrative, routine, and warrantless search of the passenger area (including the glove compartment), trunk, and closed containers, prior to lawfully towing a vehicle.

PROCEDURE

1. Authority to Tow

A. Officers have authority to tow and impound vehicles when authorized by city ordinance or state statute, or as part of the officers' community caretaking function. . . .

C. Community Caretaking Function

1. For a tow to be valid under this rationale, the following must be shown:

a. The vehicle poses some threat or harm to the community, or is itself in danger; and

b. Impoundment of the vehicle is in accordance with established department policy.

2. In accessing whether a particular vehicle constitutes a hazard or is itself in danger, officers should consider:

a. The degree to which the property upon which the vehicle is situated is under the control of the vehicle owner/operator; and

b. The length of time the officer reasonably believes the impounded car would be left unattended.

II. Vehicles Which May be Towed

Assuming proper authority exists under Section I. above, the following vehicles may be towed and impounded:

I. Placed in a detective or forfeiture hold status:

K. Owned or operated by a person under custodial arrest for any charge.

(Gov't Exhibit 2).

TFO Cherry testified that the Chevy was impounded for safekeeping of the vehicle and its contents because the vehicle operator, Defendant Yeakey, was under arrest and the vehicle could not be left sitting on the private property of a third party. (Tr. at 22, 24). The vehicle was impounded, and an inventory search was conducted to protect the valuables that might be in the vehicle. (Tr. at 22). The TFO acknowledged that, at that point, the Chevy had been secured and that he had the keys. (Tr. at 24). TFO Cherry also stated that a "detective hold" was placed on the Chevy to allow detectives seventy-two hours to conduct further investigation and, for example, to obtain a search warrant for the Chevy before it was released to the owner. (Tr. at 23; Gov't Exhibit 2, ¶ V. Vehicle Holds). TFO Cherry conducted the inventory search and located a Glock firearm in the center console and, in a backpack found on the backseat, a quantity of suspected marijuana, narcotic pills and a scale. (Tr. at 16-17, 22-23).

Additional facts will be set forth as necessary during discussion of the motion to suppress.

II. Discussion

Defendant contends that the items seized from the Chevy Suburban on March 1, 2018, should be suppressed because the agents and officers lacked lawful authority to search the vehicle. [Doc. 84].

a. Legitimate Expectation of Privacy

Prior to discussion of Defendant's challenge to the search of the Chevy Suburban, Defendant must establish that he had a legitimate expectation of privacy in the Chevy at the time of the search. Defendant contends that circumstantial evidence establishes that he had borrowed the Chevy with the owner's permission. [Id. at 1-2]. The Government disagrees. [Doc. 4-7]. For the following reasons, the court finds that Defendant has not established a legitimate expectation of privacy in the Chevy.

To determine whether an individual may challenge a search, the court must decide "whether the individual maintains a legitimate expectation of privacy in the object of the search." United States v. Hastamorir, 881 F.2d 1551, 1559 (11^th Cir. 1989). It is Defendant's burden to prove that he has a legitimate expectation of privacy in the object of the search, that is, the Chevy on March 1, 2018. See United States v.Cooper, 203 F.3d 1279, 1283-84 (11^th Cir. 2000). Making this determination involves a two-part inquiry: (1) "whether the individual has manifested 'a subjective expectation of privacy in the object of the challenged search[,]' . . . [and (2)] whether society is willing to recognize the individual's expectation of privacy as legitimate." Hastamorir, 881 F.2d at 1559 (citation omitted). In this regard, "[t]he Supreme Court has held that '[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.'" United States v. Brown, 743 F.2d 1505, 1506 (11^th Cir. 1984) (quoting Rakas v. Illinois, 99 S. Ct. 421, 425 (1978)). Thus, "'in order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable. . . .'" United States v. Chaves, 169 F.3d 687, 690 (11^th Cir. 1999) (citation omitted). In...