United States v. Harvey

UNITED STATES OF AMERICA, Plaintiff, v. STEVEN D. HARVEY and CHRISTOPHER D. WASHINGTON, Defendants.

No. 5:17-CR-86-DCR-REW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON

September 11, 2017

RECOMMENDED DISPOSITION

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Defendants Steven D. Harvey and Christopher D. Washington each filed a motion to suppress. DE ##18, 20 (Motions). The United States responded in opposition. DE #30 (Response). Harvey replied. DE #31 (Reply). The Court held a joint hearing on September 5, 2017, where it heard the sworn testimony of four witnesses and admitted three exhibits. DE #34 (Minute Entry Order). The matters are ripe for consideration. For the following reasons, the Court RECOMMENDS that the District Judge wholly DENY the dual effort to suppress (DE ##18, 20).

I. FACTUAL BACKGROUND AND THE TESTIMONY¹

The motions center on the events of June 20, 2017, but the relevant background is necessary for full context. Defendant Steven Harvey had long been the target of law enforcement investigation, coordinated among or involving state and federal officials in different districts and states (including in Lexington, Louisville, and Arkansas). As relevant, in late-May 2017, the DEA learned that Harvey was allegedly traffickingcontrolled substances (specifically, heroin) in the Lexington area (continuing similar behavior that law enforcement had investigated in 2016). The source of information told law enforcement that Harvey used Space Center Storage units to house the drugs; he would allegedly make trips to the units, pick up quantities of the substances, and distribute them to individuals throughout Lexington.

To corroborate the provided storage unit information, law enforcement used administrative subpoenas to identify the registered renters of certain storage units, ultimately tagging Mark Byrd (Harvey's father) as the renter of unit R7006 and Shana McCann as the renter of unit R3045. Law enforcement, due to prior investigation, knew the contact telephone number Ms. McCann provided to the storage center to be a number Harvey utilized. Officers conducted video surveillance and monitored use of the unique storage unit site access codes. Further, they deployed Bo, a certified LPD drug detection dog, on the units on two different dates. Bo positively alerted to both units on both occasions. During this investigation, officers placed Harvey physically on site at Space Center Storage, using the R7006 code and entering near R3045. Law enforcement ultimately obtained state search warrants for each storage unit. Upon execution—around 1:17 p.m. on June 20, 2017—officers found a large amount of heroin, bulk currency, and other evidentiary items in R3045, but no items of evidentiary value in R7006. Post-searches, Agent Moore maintained custody over the R3045 lock, but not the R7006 lock. The DEA knew the unit lessee provided the lock for each unit at the storage center.

Using cell location tracking data, around 1:45 p.m. on June 20, law enforcement established surveillance of Harvey, then at Dick's Sporting Goods at Fayette Mall, driving a Yukon. Officers observed Harvey accompanied, at least during parts of theafternoon, by a black man later (likely) identified as Co-Defendant Christopher Washington (although police did not know the man's identity at the time). [Law enforcement could not say with absolute certainty that the black male companion during the afternoon was, in fact, Washington. All Moore said was that he had no reason to believe the companion was not Washington.] After Harvey left Dick's, he went to Zaxby's, returned home on Grayson Lake Drive, drove back to Zaxby's, and then returned home again. Agents affirmatively saw the man later identified as Washington arriving with Harvey at the residence. Officers surveilling the residence observed Harvey and Washington making trips in and out of the Audi parked in the driveway. Around 4:40 p.m., Harvey and Washington exited the residence together, and law enforcement moved into the scene to effectuate a probable-cause arrest of Harvey based on the storage unit heroin.

Lexington Police Department Detective Blake Leathers and a second officer approached Harvey, giving him verbal orders to go to the ground. Harvey complied. Leathers made contact, handcuffed Harvey, and began to stand him back up. When Harvey began to rise, Leathers observed a set of keys with a lanyard underneath his body. The keys, Leathers said, had been on Harvey's person, in his possession, as he was on the ground.

Lexington Police Department Detective and DEA TFO Robert Hart, without drawing his weapon, approached Washington (although Hart did not know which person he was approaching at the time) near the front passenger fender of the Audi in the driveway. Hart verbally instructed Washington to the ground; Washington complied. Hart, within moments, was straddled on top of him, applying pressure to his back. Hartcuffed Washington's hands behind his back. During the process, while Washington was on the ground, Hart asked him "if he had any weapons"; Washington advised that he did and asked "if there was anything wrong with that." [Hart testified he had no indication Washington was armed until Washington's statement.] Hart said that the question came "during" the period of time he was cuffing Washington, in a fluid interaction, "as that procedure was going on"; Hart also testified, though, that that he did not think the cuffs were yet applied at the time of the question. Hart stated that he did not give Washington Miranda warnings before inquiring about weapon possession.

Hart said that, at the time, he did not know Washington and did not know his criminal history; he asked the weapon question solely for purposes of officer safety based on, according to his training and experience, a likelihood that associates of a large-scale drug trafficker (Harvey)—whom officers had previously observed armed and who has a criminal history involving firearms offenses—would likely also be armed. Hart affirmed that locating any weapons at Harvey's arrest scene was "absolutely" an officer safety issue. Even with the positive response on weapon possession, though, Hart did not immediately search Washington. He said the response "did not heighten anything" regarding their physical contact; Washington remained compliant with all instructions, and everything seemed to Hart to be under control. Law enforcement subsequently patted Washington down and located a firearm on his person. [This is the Count 2 basis.] Washington also admitted to Lexington Police Detective Danny Page, who further ran a records check of Washington's status, that he is a convicted felon.

Hart described his role as a canine handler for Bo, a USPCA-certified² drug detection dog. He described the applicable training regimen (including controlled deployments in rooms, on cars, and on packages) and the yearly recertification process. Hart called the USPCA the "gold standard" in canine certification. Hart has been Bo's only handler since Bo began the job. TFO Hart described the standard detection procedure he uses for Bo and stated that he is a passive alert dog—Bo sits when he positively alerts for the odor of a controlled substance. Hart testified that Bo's last recertification was in May 2017. His initial certification was in fall 2012; he has had no performance-based lapse in certification. Post-arrests on June 20, Hart deployed Bo on the Audi in the driveway, as well as the Yukon and Caprice parked on the street, parallel with the curb, in front of the home. Bo positively alerted on all three vehicles for the presence of narcotics odor; law enforcement then searched the Caprice and Yukon. Page testified that the Caprice appeared to be mobile, and Harvey had driven the Yukon earlier that very day.

After officers had secured the scene at Grayson Lake Drive, Agent Moore arrived and took possession of the keys previously found underneath Harvey. Moore located a key that fit the R3045 lock and opened the lock. He also called the number associated with the R3045 storage unit, and a phone that had been in Harvey's possession rang. Harvey disclaimed ownership of the keys and the phone. Officers arrested both men on probable cause, initiating the current case.

II. ANALYSIS

A. General Legal Principles

The Fourth Amendment generally prohibits unreasonable searches and seizures. This case implicates several well developed Fourth Amendment doctrines.

As a starting point, the Court recognizes the "basic rule that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." United States v. McCraney, 674 F.3d 614, 618 (6th Cir. 2012) (internal quotation marks removed). One such "recognized exception" is a search incident to arrest. Id. "This exception authorizes the warrantless search of the arrestee's person and the area within his immediate control." Id. at 618-19 (internal quotation marks removed). The search incident to arrest doctrine is "a straightforward rule" that a "lawful arrest . . . establishes the authority to search" and that "a full search of the person is reasonable in the case of a lawful custodial arrest." United States v. Hudgins, 52 F.3d 115, 118 (6th Cir. 1995) (quoting United States v. Robinson, 94 S. Ct. 467, 477 (1973) (rejecting earlier limiting language in Chimel)); see also Robinson, 94 S. Ct. at 474 (referencing "the traditional and unqualified authority of the arresting officer to search the arrestee's person"). The area "within a person's immediate control" includes "the area from within which he might gain possession of a weapon or destructible evidence." Northrop v. Trippett, 265 F.3d 372, 379 (6th Cir. 2001). "However, the right to search an item incident to arrest exists even if that item is no longer accessible to the defendant at the time...