United States v. Duncan

1

UNITED STATES OF AMERICA v. TORY DUNCAN

CRIMINAL ACTION No. 22-76

United States District Court, E.D. Louisiana

March 8, 2023

SECTION “H” (1)

ORDER AND REASONS

JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE

Before the Court is a Motion to Suppress Evidence by Defendant Tory Duncan (Doc. 26). For the following reasons, this Motion is DENIED.

BACKGROUND

On March 24, 2022, New Orleans Police Department officers received an anonymous tip about a man brandishing a firearm.^[1] In response, Officers Slack and Pleasant were dispatched to the St. Thomas Housing Development. Upon arrival, the officers found Duncan carrying a black semi-automatic handgun with an extended magazine in the parking lot. When Duncan saw the officers, he immediately ran and jumped over an adjacent fence. Duncan eventually lost his footing and fell, allowing officers to apprehend him. Duncan was placed under arrest. During the search incident to arrest, the officers seized the firearm, $2,029 in cash, and a key fob for an Infiniti vehicle.^[2] Officer Slack took the key fob and returned to the parking lot where the officers had originally encountered Duncan and then called Officer Pleasant to join him. The officers clicked the “lock” and “unlock” buttons on the key fob, enabling them to locate the car to which it corresponded, a gray Infiniti sedan. The vehicle was running with no occupants, had a stolen Louisiana license plate, an obstructed VIN number, and darkly tinted windows. Officer Pleasant looked through the windshield and saw a plastic bag with a white substance in the cupholder that he believed to be illegal narcotics. The officers then drafted and submitted a search warrant for the car which an Orleans Parish magistrate granted.^[3] Upon opening the vehicle, officers observed that a clear plastic bag was sitting in the cupholder. Laboratory testing revealed the substance was fentanyl.^[4]

Defendant Tory Duncan was indicted on April 22, 2022, on charges of (1) possession with intent to distribute fentanyl methamphetamine, and oxycodone; (2) possession of a firearm in furtherance of a drug trafficking crime; and (3) possession of a firearm by a convicted felon.^[5] He was arraigned and pleaded not guilty to these charges on June 13 2022.^[6]

Now before the Court is Defendant's Motion to Suppress Evidence. An evidentiary hearing was conducted on December 1, 2022. Defendant requests that the Court suppress the evidence from the search of the gray Infiniti based on three grounds: (1) that the clicking of the fob to locate the car constituted a search for which the officers did not have probable cause, (2) that Officer Pleasant's positioning on the windshield of the car to peer inside was a search for which he did not have probable cause, and (3) that the search warrant contained material misstatements without which the warrant would not have been granted.^[7] The Government opposes.^[8]

LEGAL STANDARD

“The Fourth Amendment protects the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,' but ‘contains no provision expressly precluding the use of evidence obtained in violation of its commands.'”^[9] Nonetheless, Supreme Court precedent has “establish[ed] an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial.”^[10] “This rule-the exclusionary rule-is a ‘prudential doctrine' . . . created by this Court ‘to compel respect for the constitutional guaranty.'”^[11] The purpose of the exclusionary rule is “to safeguard Fourth Amendment rights . . . through its deterrent effect.”^[12]

“Generally, on a motion to suppress, the defendant has the burden of proving, by a preponderance of the evidence, that the evidence in question was obtained in violation of her constitutional rights.”^[13] When the Government performs a warrantless search or seizure, however, the burden shifts to the Government to prove by a preponderance of the evidence that the search or seizure was constitutional.^[14]

LAW AND ANALYSIS

As a preliminary matter, the Court first considers whether Duncan has standing to challenge the search of the vehicle under the Fourth Amendment. To establish standing, a defendant must show that he had a “'legitimate interest of privacy' in the area searched.”^[15] “A defendant has the burden of establishing his right to contest a search or seizure of a person or property.”^[16]Duncan must, therefore, show that he had a legitimate interest of privacy in the vehicle.

“One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it.”^[17] The more difficult question is defining “the legitimate expectations of privacy of others.”^[18] The Supreme Court has explained that this inquiry focuses on the concept of lawful possession explaining that “no matter the degree of possession and control, the car thief would not have a reasonable expectation of privacy in a stolen car.”^[19] The Government argues that Duncan did not lawfully possess the car and therefore, could not have a legitimate interest of privacy.^[20] During the suppression hearing, the Government showed that there was mail found in the vehicle addressed to Duncan and that the vehicle was ultimately released to Duncan's family by the police officers, evidencing that Duncan possessed the vehicle. The Government, however, also provided evidence that the vehicle is not titled to Duncan and had a stolen license plate, arguing that these facts in conjunction establish that while Duncan possessed the vehicle, there is nothing to suggest he did so lawfully.^[21] Duncan provided no evidence or argument in response. Although the evidence presented regarding the ownership of the vehicle and Duncan's lawful possession is muddled, Duncan failed to carry his burden of showing that he was in lawful possession of the car at the time of the search. The Court therefore finds that the Defendant does not have standing to challenge the search. Assuming arguendo, that Duncan does have standing to contest the search, the Court ultimately finds that there was no Fourth Amendment violation.

Defendant requests that the Court suppress evidence from the search of the car for three reasons: (1) that clicking the key fob to locate the car constituted a search for which the officers did not have probable cause, (2) that Officer Pleasant's positioning on the windshield to peer inside was a search for which he did not have probable cause, and (3) that the search warrant contained material misstatements without which the warrant would not have been granted. The Government responds that neither the use of the key fob nor the positioning on the windshield constituted a search under the Fourth Amendment, and that the mistake of fact within the warrant was immaterial and innocuous.

i. Whether Using the Key Fob to Identify the Infiniti was a Search Subject to Fourth Amendment Protections

Duncan first asserts that the use of the key fob constituted a search under the Fourth Amendment. To ascertain whether a Fourth Amendment violation occurred, the Court must first decide whether there was a search within the meaning of the Fourth Amendment and second, whether that search was reasonable.^[22] In United States v. Richmond, the Fifth Circuit confirmed two separate approaches to determining whether the government's conduct is a search within the meaning of the Fourth Amendment, the Jones common law trespassory test and the Katz reasonable expectation of privacy test.^[23] The common law trespassory test requires that “a trespass ‘must be conjoined' with ‘an attempt to find something or obtain information.'”^[24] Mere physical touching is not enough, it must be “physically occup[ying] private property for the purpose of obtaining information.”^[25]

The second approach, the Katz “reasonable expectation of privacy” test, first asks whether “the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that ‘he [sought] to preserve [something] as private.'”^[26] Second, the court must determine whether “the individual's expectation of privacy is ‘one that society is prepared to recognize as reasonable.'”^[27] The two tests work together, as “property concepts” are useful in “determining the presence of absence of the privacy interests protected by [the Fourth] Amendment.”^[28]

Duncan argues that Officers Pleasant and Slack's use of the key fob to identify the vehicle constituted a search under the common law trespassory test. Duncan's brief does not, however, address whether the conduct amounted to a search under the Katz test. In Jones, the Supreme Court addressed concerns that the adoption of the common law trespassory test would present “‘particularly vexing problems' in cases that do not involve physical contact, such as those that involve the transmission of electronic signals,” by stating that “situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.”^[29] Because this appears to be the type of “particularly vexing problem” the Supreme Court was referring to, the Court finds that regardless of whether Duncan raised the issue, it must decide whether there was a search under both the Katz reasonable expectation of privacy test and the common law trespassory test. The Court holds that under these circumstances, when the police apprehend a fleeing defendant with a gun, a substantial amount of cash, and a key fob in his pocket, that the use of the key fob to identify the vehicle to which it corresponds is not a search under either test.

The Katz test first asks whether the defendant had a reasonable expectation of...