United States v. Fairrow

UNITED STATES OF AMERICA PLAINTIFF v. MICHAEL M. FAIRROW, JR. DEFENDANT

Criminal Action No. 4:20-CR-00013-JHM

United States District Court, W.D. Kentucky, Owensboro Division

November 2, 2021

MEMORANDUM OPINION AND ORDER

Joseph R. McKinley Jr., Senior Judge.

This matter is before the Court on Defendant Michael Fairrow's Motion to Suppress Evidence. [DN 16]. The Court held an evidentiary hearing and the parties submitted post-hearing briefs. For the following reasons, Defendant's Motion to Suppress is GRANTED.

I. Background

On the afternoon of June 25, 2020, emergency dispatchers in McLean County, Kentucky, received a 911 call about an unconscious man in a black vehicle on a rural two-lane highway. [Hearing Transcript, DN 19 at 28:3]. Dispatchers paged out the call on the countywide radio system, asking for a medical wellness check. [Id. at 36:1-2]. The first two responders were Logan Vaught and Coy Murphy, volunteer firefighters for the town of Beech Grove (a small town in McLean County). They were working together on a chicken farm at the time of the call, so they drove to the scene in one vehicle. [Id. at 4:5-9]. When they arrived, Vaught and Murphy spotted a black vehicle parked on the northbound shoulder of the rural road. [Id. at 28:18]. They parked on the southbound shoulder and Murphy, a licensed EMT, approached the black vehicle. [Id. at 10:15-17; 28:24-25 35:9-14]. The individual in the black vehicle was Michael Fairrow, the defendant in this case.

Murphy found Fairrow “alert and oriented” in the black vehicle. [Id. at 29:2-3]. Murphy told Fairrow he was there for a wellness check. Pursuant to his EMT training Murphy then administered an oral medical screening to check Fairrow's cognitive functioning. [Id. at 29:2-4]. He determined Fairrow was fully alert and was not slurring words. [Id. at 29:5-6]. Fairrow told Murphy he felt fine, and he appreciated the medical check. [Id. at 29:7-8]. Murphy had no cause for concern. [Id. at 29:9-11].

While Murphy administered the medical screening, a brigade of other first responders was in route: more volunteer firefighters, an ambulance, and at least three police officers. Murphy was about to call them off after administering the screening because he saw no reason for further action, but he delayed the call when Fairrow, after the completion of the screening, got out of his car and “did a little shuffle” to prove he felt fine. [Id. at 29:9-23]. This struck the first responders as “odd and neurotic.” [Id. at 5:8-11]. So, Murphy asked Fairrow to stick around until the ambulance arrived, so the ambulance could “sign off” on Fairrow's condition and “move[ ] the liability” from Murphy to the ambulance. [Id. at 31:7-14]. Fairrow initially complied. But while they were waiting, Fairrow heard that police officers were also in route. He “got kind of antsy” and wanted to leave. [Id. at 31:15-18].

Around that time, Michael Wahl, another Beech Grove volunteer firefighter, arrived on scene. [Id. at 40:3-9]. Wahl walked across the road to Fairrow's vehicle and talked to Fairrow while they waited for the ambulance. Wahl thought Fairrow “seemed nervous” during their conversation. [Id. at 43:21]. Wahl repeatedly asked Fairrow to wait for the ambulance, which Fairrow initially did. [Id. at 40:8-9]. But the police officers arrived simultaneous with the ambulance, spooking Fairrow. [Id. at 40:10-12]. He started to drive away. [Id. at 40:13].

Fairrow had a clear path in front of his vehicle when he started to drive away, [id. at 24:4- 6; 38:6-8], but there were several firefighters close to the car: Wahl stood near the drivers' side window (in the road), Vaught and Murphy stood near the rear of the car, and a fourth firefighter stood next to the guardrail, near the front passengers' side window. [Id. at 23:24-24:3; 32:15-21]. Fairrow's sudden departure alarmed the firefighters-Vaught and Murphy jumped back, and the fourth firefighter stepped away toward the guardrail. [Id. at 38:9-11; 47:16-17]. Wahl, however, moved forward. As Fairrow began to drive away, Wahl dove headfirst into Fairrow's rolled-down drivers' side window. [Id. at 40:13-14]. Wahl's entire torso entered Fairrow's car, such that only his legs were sticking out the window. He reached across Fairrow's lap and tried to wrestle the gear shift back into park. [Id. at 41:20-23]. He succeeded, but Fairrow succeeded in wrestling the gear shift back to drive. Wahl wrestled it back into park, and they went back and forth a few times. [Id.]. He testified that he did this because he wanted to “stop the car from possibly hitting one of [the firefighters], because at that time I still did not really know the state of [Fairrow's] condition.” [Id. at 41:7-10].

Simultaneously, the police officers (whose arrival spooked Fairrow) exited their car and walked toward Fairrow's vehicle. [Id. at 52:2-4]. They heard the commotion and looked up- they saw Wahl's feet hanging out the window and the vehicle jerking back and forth. [Id. at 52:5- 10]. Recognizing the emergency, the officers sprang into action. They ran back to their police car and pulled it horizontally across the two-lane road to block Fairrow's vehicle from leaving. [Id. at 53:19-21; 80:21-24]. They then exited the police car and ran toward Fairrow's vehicle: one officer opened Fairrow's passenger door and jumped in the passenger seat to turn off the engine. [Id. at 80:25-81:2]. The other officer went to the driver's side to assist Wahl out of the window and get Fairrow out of the vehicle. [Id. at 81:3]. Both officers immediately smelled marijuana.

[Id. at 54:10-12; 81:5-6 (one officer stating that “the odor of marijuana just almost hit me in the face” as soon as they got Fairrow out of the vehicle)].

Once the situation subsided and Fairrow had exited, the officers searched the vehicle. The officers determined the marijuana smell gave them probable cause to search the vehicle. [Id. at 84:16-17]. The search revealed five bags of methamphetamine and a loaded nine-millimeter handgun in a backpack in the back seat. [Id. at 84:20-23; 85:9-15; 85:21-24]. The officers immediately placed Fairrow under arrest. [Id. at 86:13-16].

A federal grand jury indicted Fairrow for possession with intent to distribute methamphetamine, unlawful possession of a firearm, and possession of a firearm in furtherance of a drug trafficking crime. [DN 1]. Ahead of trial, Fairrow moved to suppress all evidence gathered at the scene that day. [DN 16]. The Court held an evidentiary hearing on May 12, 2021 [DN 19], and the parties filed post-hearing briefs. [DN 21, 22, 23]. After considering the post-hearing briefs, the Court ordered additional briefing on whether suppression is the appropriate remedy in this case if the Court were to find a Fourth Amendment violation. [DN 24]. The parties filed the additional briefs. [DN 28, DN 29, DN 30, DN 31].

II. Standard of Review

The Fourth Amendment to the United States Constitution guarantees “[t]he 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. Evidence obtained in violation of a defendant's constitutional rights bars the use of that evidence against him at trial. Mapp v. Ohio, 367 U.S. 643 (1961). A person who claims to have been aggrieved by an unlawful search or seizure bears the initial burden of production and persuasion to suppress evidence. United States v. Smith, 783 F.2d 648, 650 (6th Cir. 1986). Once the defendant has made a prima facie showing, the government then has the burden of demonstrating by a preponderance of the evidence that the search or seizure was not a constitutional violation. United States v. Bradley, 163 Fed.Appx. 353, 357 (6th Cir. 2005).

III. Discussion

This case hinges on a single moment: the moment when Firefighter Wahl dove headfirst into Fairrow's moving car to prevent Fairrow from leaving the scene. For the reasons explained below, that action violated the Fourth Amendment.

A. State Action & Seizure

The Court begins with two undisputed premises. First, the volunteer firefighters, including Firefighter Wahl, were state actors subject to the Fourth Amendment. Michigan v. Tyler, 436 U.S. 499, 504-06 (1978) (“[T]here is no diminution in a person's reasonable expectation of privacy nor in the protection of the Fourth Amendment simply because the official conducting the search wears the uniform of a firefighter rather than a policeman . . . .”). Second, Wahl seized Fairrow when Wahl dove headfirst into the vehicle and wrestled to put it in park. See U.S. Const. amend. IV (guaranteeing the right of an individual to be free from “unreasonable . . . seizures”); Brendlin v. California, 551 U.S. 249, 254 (2007) (“A person is seized . . . when the officer, ‘by means of physical force or show of authority,' terminates or restrains his freedom of movement.”); United States v. Jones, 562 F.3d 768, 772-73, 773 n.2 (6th Cir. 2009) (police officers seized a person when they blocked in the person's car because “the officers' conduct communicated to a reasonable occupant of the [car] that he or she was not free to drive away”).

Because Wahl was a state actor who seized Fairrow, the seizure violates the Fourth Amendment if it was not “reasonable.” See United States v. Arvizu, 534 U.S. 266, 273 (2002) (“The Fourth Amendment prohibits unreasonable searches and seizures by the Government . . . .”)

(quotation omitted). A seizure is presumptively unreasonable unless accompanied by a warrant and probable cause of a criminal violation. See Jones, 562 F.3d at...