United States v. Gilchrist

UNITED STATES OF AMERICA, Plaintiff,

v.CARLOS GILCHRIST, Defendant.

CRIMINAL ACTION No. 12-20066-40-KHV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: August 1, 2013

MEMORANDUM AND ORDER

A grand jury charged Carlos Gilchrist and some 50 other defendants with conspiracy to manufacture, to possess with intent to distribute and to distribute 280 grams or more of cocaine base and to possess with intent to distribute and to distribute five kilograms or more of a mixture and substance containing cocaine. See Second Superseding Indictment (Doc. #402), Count 1. The grand jury also charged Gilchrist with three counts of distribution or possession with intent to distribute cocaine base. See id., Counts 36, 38, 39. This matter is before the Court on defendant's Motion To Suppress Evidence (Doc. #764) filed June 10, 2013. On July 17, 2013, the Court held a hearing on the motion. For reasons stated below, the Court overrules defendant's motion.

Factual Background

Based on testimony and exhibits received at the hearing, the Court finds the following facts:

In October of 2010, the United States Drug Enforcement Administration ("DEA") initiated an investigation into the distribution of cocaine by an organization run by Djuane Sykes and his associates, a street gang in Kansas City, Kansas known as "Deuce Deuce." Special Agent Nicholas Wills and Task Force Officer Eric Jones led the investigation which involved the interception of 43 cellular telephones, including multiple roving Title III intercepts on Hector Aguilera. Based onthe initial intercepts of three of Sykes's telephones, officers identified multiple layers of sources of cocaine which was being funneled by various means from Mexico to the Kansas City metropolitan area.

Before August 24, 2011, law enforcement had made numerous controlled purchases of "crack" cocaine from Sykes. In addition, agents had stopped numerous individuals after they had had recent contact with Sykes and found U.S. currency, "crack" cocaine and/or powder cocaine in their possession.

On August 24, 2011, at approximately 3:15 p.m., DEA personnel established surveillance of the 2200 block of Russell, to monitor drug activity in the area. Based upon GPS ping information, agents believed that Sykes was at or near the residence at 2258 Russell. Officer Jones saw individuals (later identified as Steven Easley and Maurice Deloney) arrive in a gold Chevy Malibu. Easley exited the vehicle, briefly met with a black male, appeared to conduct a hand-to-hand transaction with him, got back into the vehicle and drove away with Deloney. Agents followed Easley's vehicle. Shortly thereafter, a police officer for Kansas City, Kansas stopped the vehicle and took Deloney into custody after observing a clear plastic bag containing .64 grams of "crack" cocaine sitting between his feet.

Shortly thereafter, agents observed a green Volkswagen Jetta stop in front of 2258 Russell, then park on the north side of Russell facing west. The Jetta belonged to Daniel Munoz-Rodriguez (a known source of supply for Sykes) and his brother Martin Munoz-Rodriguez was driving it. Agents observed Sykes walk to the passenger door of the Jetta with a red bag on his shoulder.¹ Sykes got into the vehicle. He exited a short time later with the red bag, then walked back toward 2258 Russell. The Jetta left the area.

A short time later, Officer Jones saw a green Cadillac pull in front of 2258 Russell. A black male, later identified as defendant, exited the front passenger door and walked toward 2258 Russell. After a few minutes, defendant walked back, got into the passenger side of the vehicle and left the area. Agents followed the Cadillac to 2008 N. 6th Street, Kansas City, Kansas, where it stopped. Defendant exited the vehicle and started to walk toward 2008 N. 6th, which was later determined to be his residence. Agent Wills and Tim McCue, a special agent with the DEA, approached defendant and identified themselves as police officers.

Agents asked defendant where he was coming from and he replied, "O'Reilly Autoparts." McCue put his hands on defendant and started to turn him around to conduct a pat down search for weapons. As McCue did so, he asked defendant if there was anything on him that they needed to know about. Defendant responded that he had two ounces of cocaine in his pocket. Agents recovered a bag containing .65 grams of cocaine from defendant's right front pants pocket and handcuffed him. Defendant and his wife, who was in the residence, consented to a search of the residence. During the search, Officer Jones found a set of digital scales in the top dresser drawer in the bedroom.

Defendant seeks to suppress his statement and the digital scales which officers recovered from his residence.

Analysis

Defendant argues that (1) officers did not have reasonable suspicion that he was involved in criminal activity to justify an investigatory stop, (2) officers should not have conducted a patdown search because they did not have evidence that he was armed and (3) officers exceeded the scope of a pat down search for weapons when they asked a general exploratory question whether he had anything on him they needed to know about.

I. Investigatory Detention

The Fourth Amendment of the United States Constitution protects persons and their houses, papers and effects against unreasonable searches and seizures. See U.S. Const. amend. IV. The Tenth Circuit has defined three categories of police/citizen encounters: (1) voluntary cooperation in response to non-coercive questioning; (2) investigatory; and (3) arrest. United States v. Muldrow, 19 F.3d 1332, 1335 (10th Cir.) (citing United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.), cert. denied, 467 U.S. 1255 (1984)), cert. denied, 513 U.S. 862 (1994); see Terry v. Ohio, 392 U.S. 1 (1968). This case involves the second category: an investigatory or Terry stop. See United States v. Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005) (traffic stops are seizures analogous to investigative detentions).

A stop constitutes a seizure for purposes of the Fourth Amendment "even though the purpose of the stop is limited and the resulting detention quite brief." Brendlin v. California, 551 U.S 249, 255 (2007) (quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979)). In deciding whether an investigatory detention is permissible, the Court must determine both "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20. Law enforcement officers may stop and briefly detain a person for investigative reasons if the officer has a reasonable suspicion that criminal activity may be afoot. United States v. Sokolow, 490 U.S. 1, 7 (1989). Reasonable suspicion requires a "particularized and objective basis for suspecting the particularperson stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981). After an officer resolves the concern that justified the initial stop, any further detention must be supported by a reasonable suspicion of criminal activity. See United States v. Alarcon-Gonzalez, 73 F.3d 289, 292-93 (10th Cir. 1996). Thus, "reasonable suspicion must exist at all stages of the detention, although it need not be based on the same facts throughout." United States v. Soto-Cervantes, 138 F.3d 1319, 1322 (10th Cir.), cert. denied, 525 U.S. 853 (1998). "Specific and articulable facts" are necessary to support a finding of reasonable suspicion; an inchoate and unparticularized suspicion or hunch is inadequate. Terry, 392 U.S. at 21. In determining whether reasonable suspicion existed, the Court considers the totality of the circumstances, Sokolow, 490 U.S. at 8, including the collective knowledge of those officers involved in the investigation, United States v. Hinojos, 107 F.3d 765, 768 (10th Cir. 1997). The Court evaluates the officers' conduct "in light of common sense and ordinary human experience," deferring to "the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions." United States v. Stephenson, 452 F.3d 1173, 1176 (10th Cir. 2006) (internal quotation marks and citations omitted). The government bears the burden of proving the reasonableness of the officers' suspicion. United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998); see also United States v. Lutz, 207 F. Supp.2d 1247, 1255 (D. Kan. 2002) (government must show traffic stop justified by reasonable articulable suspicion of illegal activity).

Agents had reasonable suspicion that defendant was involved in purchasing or distributing cocaine based on (1) intercepted phone calls about the distribution of cocaine by Sykes and his associates, (2) numerous controlled purchases of crack cocaine from Sykes and his associates including purchases from various residences in the 2200 block of Russell, (3) the GPS pinginformation which indicated that Sykes was at or near 2258 Russell the afternoon of August 24, 2011, (4) surveillance which indicated that around 3:15 p.m. on August 24, 2011, two individuals made a brief stop in the area of 2258 Russell and when officers pulled them over shortly thereafter, they had .64 grams of crack cocaine, (5) surveillance which indicated that shortly after 3:15 p.m., a vehicle which belonged to a known source of supply for Sykes stopped in front of 2258 Russell, (6) Sykes carried a red bag from the residence and got into the vehicle and then exited the vehicle with the red bag (which he had used on prior occasions to carry a brick of cocaine) and walked back toward 2258 Russell, and (7) the circumstances of defendant's brief stop a short time thereafter in front of 2258 Russell.

Even though a short stop at the residence of a suspected narcotics dealer might have an innocent explanation, officers may detain individuals to resolve the ambiguity, particularly where the stop at the residence follows...