United States v. Gibbins

1

UNITED STATES OF AMERICA, Plaintiff, v. JACK F. GIBBINS, III, Defendant.

Criminal No. 1:22-CR-59

United States District Court, N.D. West Virginia

March 2, 2023

REPORT AND RECOMMENDATION RECOMMENDING THAT DEFENDANT'S MOTION TO SUPPRESS, ECF NO. 32, BE DENIED

MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE

Presently pending before the undersigned Magistrate Judge is Defendant Jack F. Gibbins, III's Motion to Suppress Physical Evidence, ECF No. 32, filed on January 13, 2023. By Order entered on January 17, 2023, ECF No. 33, United States District Judge Thomas S. Kleeh referred the motion to the undersigned to enter a report and recommendation as to disposition of the motion.

The undersigned also is in receipt of the Government's Response to the Defendant's Motion to Suppress Evidence filed on January 23, 2023, ECF No. 39, as well as the parties supplemental briefings, ECF Nos. 46, 48. The undersigned conducted a hearing on Defendant's motion on February 7 2023, at which the Court heard witness testimony and accepted exhibits into evidence, and on February 10, 2023, at which the Court heard oral arguments from counsel.

Based on a detailed review of Defendant's motion, ECF No. 32 the Government's response, ECF No. 39, the supplemental briefings, ECF Nos. 46, 48, the evidence, oral arguments, and testimony introduced, the undersigned RECOMMENDS that Defendant's motion, ECF No. 32, be DENIED as set forth herein.

I. FACTUAL BACKGROUND

Defendant Jack F. Gibbins, III, (“Defendant”) stands accused in a one-count Indictment which a Grand Jury returned against him on September 7, 2022. ECF No. 1. Defendant is charged in the sole count with the offense of Possession with Intent to Distribute 5 Grams or More of Methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B)(viii). Both the Indictment and the subject Motion to Suppress arise from an attempted traffic stop, police pursuit, and resulting hospital visit that occurred on July 13, 2021.

On July 13, 2021, Officer Cameron Turner of the Bridgeport Police Department was nearing the end of his afternoon shift and driving home when he observed a motorcycle run the red light located at the bottom of the exit ramp off Mile Marker 121 of I-79 North. Officer Turner initiated his emergency lights to conduct a traffic stop based upon the observed traffic violation. The motorcycle continued to drive away. Officer Turner initiated his siren, and the motorcycle increased its speed, seemingly in an attempt to flee.

Officer Turner called the pursuit into Harrison County 9-1-1, and Officer Turner continued to follow the motorcycle in and around the Meadowbrook Road area onto I-79 Southbound then off the Anmoore exit. Harrison County law enforcement officers joined the pursuit as Officer Turner and the motorcycle exited the Anmoore exit, then proceeded onto Route 58. Thereafter, Harrison County law enforcement officers took lead in the pursuit.

Eventually, the driver of the motorcycle (later identified as Defendant Jack F. Gibbins, III) laid down or wrecked his motorcycle in a local street, sustaining numerous injuries, including, but not limited to, a broken leg, a deep laceration on his arm, two broken ribs, fractured C2 vertebra, and a shoulder separation. Gibbins then attempted to “flee” or “get out of the road” on foot.

More law enforcement officers arrived on scene; a canine was deployed and officers, including the K9 officer, pursued the in-flight, but injured Gibbins. Gibbins was eventually detained and placed in handcuffs. Officers called for emergency medical services (“EMS”) based on Gibbins' apparent injuries. A search of Gibbins' pockets was performed while he was lying on the ground awaiting the arrival EMS. His possessions were placed into a brown paper bag, along with his motorcycle helmet, and transported with him in the ambulance. Gibbins was transported to the Emergency Department at United Hospital Center (“UHC”) in Bridgeport, West Virginia. Officer Turner drove separately in his police cruiser to the hospital.

Upon arriving at the hospital, Officer Turner was quickly relieved by Officer Issac Thomas of the Bridgeport Police Department who would soon be beginning his “midnight” work shift. Officer Turner returned to the Bridgeport Police Department to begin drafting his incident report, while Officer Issac Thomas spoke to hospital staff to get a update on Gibbins' status. Officer Issac Thomas recalls asking one of the nurses, though he did not recall their name, if they could smell alcohol or drugs on Gibbins. The nurse responded that she didn't smell any alcohol and all tests indicated he did not have anything in his system. The nurse went on to tell Officer Thomas that they had “recovered” or “saw” that there were “drugs” or controlled substances in Defendant Gibbins' pants.

Officer Thomas then went into the trauma room where Gibbins receiving treatment, and, on a counter to his left, Officer Thomas saw all the suspect's belongings, including a pair of brown jeans. Officer Thomas went over to the jeans, went inside the pocket of Gibbins' jeans, and pulled out the drugs.

Officer Thomas notified Officer Turner, the arresting officer of the discovered drugs. Once Gibbins was medically cleared, Officer Thomas transported him to Bridgeport Police Department. Officer Thomas gave the drugs to Officer Turner to process and put into evidence at the Bridgeport Police Department. Officer Thomas searched Gibbins and then transported Gibbins from the station to North Central Regional Jail for intake.

There is a significant factual dispute among the parties regarding the clothing worn by Gibbins at the time of his release from UHC. The Government suggests he was wearing the same brown pants, or jeans, that he was wearing at the time of his arrest - Officer Thomas could not recall what Gibbins was wearing upon release, and CCO Hutson testified that, based upon how hospital clothing is generally handled at intake by NCRJ, he reads the Inmate Personal Property Sheet completed for Jack F. Gibbins, III upon intake on July 13, 2021 to mean he was wearing his personal pants and not hospital garb upon admission. Defendant Jack F. Gibbins testified he never saw his July 13, 2021 personal outwear again after it was removed by hospital staff and maintains that he was released from UHC in a pair of stock blue hospital scrub pants, cut to accommodate his splint.

II. PROCEDURAL BACKGROUND

On January 13, 2023, Defendant Jack F. Gibbins, III, by counsel, filed a Motion to Suppress Physical Evidence, wherein, he argues, inter alia, that the warrantless search and seizure of his pants at the hospital was in violation of his Fourth Amendment rights. ECF No. 32 at 4. Gibbins specifically argues, relying upon precedent from the United States Court of Appeals for the Fifth Circuit, United States v. Neely, 345 F.3d 366, 369 (5th Cir. 2003), and other miscellaneous courts, United States v. Davis, 657 F.Supp.2d 630, 637 (D. Md. 2009), and Jones v. State, 648 So.2d 669 (Fla. 1994), that hospital patients have a reasonable expectation of privacy in their personal clothing, and police may not seize those clothes without a warrant. ECF No. 32 at 4-6.

In Response, filed with leave^[1] from the Court on January 23, 2023, the Government initially argued that the Fourth Amendment does not apply to the search where a nurse, Registered Nurse JoCee Tucker, performed the search of Gibbins' pants. ECF No. 39 at 4. The Government asserted that numerous “courts have declined to exclude evidence in criminal cases when obtained by private citizens.” Id. (quoting United States v. Winbush, 428 F.2d 357, 359 (6th Cir. 1970)). The Government additionally argues that law enforcement would have inevitably discovered the drugs in Gibbins' pants, regardless of any searches performed at the hospital. ECF No. 39 at 4-7. The Government asserts that both the Bridgeport Police Department (“BPD”) and West Virginia Division of Corrections and Rehabilitation (“WVDOCR”) have written search policies, supporting the notion that the search and discovery of the controlled substances was inevitable, regardless of any actions by Officer Thomas or RN Tucker. The Government further asserts that these inventory searches by BPD and WVDOCR are incidental administrative steps which may constitute a legitimate, inevitable search and allow for the admission of evidence which might otherwise be excluded. ECF No. 39 at 6 (citing United States v. Banks, 482 F.3d 733, 739 (4th Cir. 2007)).

On February 6, 2023, Defendant Gibbins, by counsel, electronically filed an Exhibit on CM/ECF, ECF No. 41, an Inmate Personal Property Sheet for Jack F. Gibbins, which was later submitted and admitted into evidence as Government's Exhibit D, ECF No. 44-4.

On February 7, 2023, a suppression hearing was held, at which time the Court hearing sworn testimony and received numerous exhibits into evidence. Due to time constraints, the suppression hearing was continued to February 10, 2023, and the parties were directed to file supplemental briefings prior to the resumed hearing as to whether there is a reasonable expectation of privacy when an individual has been arrested but is receiving emergency medical treatment in a hospital setting. ECF No. 42.

On February 9, 2023, the Government, filed its supplemental brief, citing to two cases from the United States Court of Appeals for the Ninth Circuit, United States v Chukwubike, 956 F.2d 209 (9th Cir. 1992), and United States v. George, 987 F.2d 1428 (9th Cir. 1993). The Government argues in the supplemental brief that Defendant Gibbins did not have a reasonable expectation to privacy because he was admitted to the hospital under police supervision following...