United States v. King

1

UNITED STATES OF AMERICA, Plaintiff, v. REGINALD A. KING, Defendant.

No. 21-00263-01-CR-W-HFS

United States District Court, W.D. Missouri, Western Division

July 5, 2023

REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO SUPPRESS

JILL A. MORRIS UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendant's Motion to Suppress Evidence. Defendant moves the Court to suppress all evidence obtained during a car search following his November 11, 2020, arrest. For the following reasons, Defendant's motion should be denied.

I. INTRODUCTION

On November 16, 2021, an Indictment was returned charging Defendant with one count of possession with intent to distribute PCP, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), one count of possession with intent to distribute marijuana, in violation of 21 U.S.C §§ 841(a)(1) and (b)(1)(D), one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

On March 30, 2023, Defendant filed a motion to suppress. (Doc 38) The Government responded on April 20, 2023. (Doc. 45) An evidentiary hearing was held on May 1, 2023, with all parties and counsel appearing in person. The Government appeared by Assistant United States Attorney Ashleigh Ragner. Defendant was present, represented by appointed counsel Carie Allen.

The Government called Kansas City, Missouri Police Department Detective Robert Vivona to testify. Ciara King testified on behalf of Defendant. The following exhibits were admitted into evidence:

Government's Exhibit 1: Google Map of 35th Street & Park Avenue;

Government's Exhibit 2: Google Map of 35th Street & Park Avenue (Satellite View);

Government's Exhibit 3: Kansas City, Missouri Police Department Tow Policy;

Government's Exhibit 4: KCPD Form 36 P.D. (Inventory Form) [KING00013];

Government's Exhibit 5: Citation for Driving without a License [KING00011];

Government's Exhibit 6: Citation for Illegal Parking [KING00012]; and

Government's Exhibit 7: Detective Vivona's Report.

II. FINDINGS OF FACT

On the basis of the evidence presented at the suppression hearing, the undersigned submits the following proposed findings of fact:

1. Detective Robert Vivona has been employed with the Kansas City, Missouri Police Department (“KCPD”) for twenty-two years. (Tr. at 4) In November of 2020, he was assigned to the Fugitive Apprehension Unit. (Tr. at 7)

2. In November of 2020, the KCPD received an anonymous tip through the Crime Stoppers system that Defendant was staying at 3432 Park Avenue, Kansas City, Missouri, and had an outstanding arrest warrant. (Tr. at 8)

3. Upon the KCPD's receipt of this tip, Detective Vivona was assigned Defendant's fugitive apprehension investigation. (Tr. at 8) Detective Vivona first confirmed Defendant had an existing warrant. (Tr. at 8-9) He then ran Defendant's criminal history and learned that Defendant was a convicted felon. (Tr. at 10) Defendant had three or four convictions and more than ten arrests for drug possession or drug distribution. (Tr. at 10) Defendant also had arrests for fleeing or resisting arrest, assault and firearms offenses. (Tr. at 10)

4. Also as part of this investigation, Detective Vivona ran a computer check for information on vehicles associated with Defendant. (Tr. at 11) He learned that Defendant was the secondary owner of a gray 2006 Mercedes Benz with a Colorado license plate; the primary owner of the vehicle was Ciara King, Defendant's wife. (Tr. at 11-13)

5. Detective Vivona's investigation also revealed that Defendant had a historical association with the area of 34th Street and Park Avenue. (Tr. at 13) Detective Vivona knew this was a high narcotics trafficking area that had a lot of violent crime. (Tr. at 14)

6. On November 11, 2020, Detective Vivona received an alert from the KCPD's license plate reading camera system that a vehicle bearing the Colorado license plate associated with Defendant's gray Mercedes had been captured traveling in the area of 35th and Park Avenue. (Tr. at 14-15)

7. After receiving this alert, at approximately 12:30 p.m., Detective Vivona went to the area of 35th and Park Avenue to establish surveillance. (Tr. at 15) The only purpose for doing so was to apprehend Defendant on his outstanding warrant; Detective Vivona was not investigating Defendant for any drug or firearm offenses. (Tr. at 15-16, 36)

8. Detective Vivona was wearing khaki pants, a black shirt with “Police” on the sleeves, and a vest that also had “Police” markings on the front and back. (Tr. at 6) He was driving an unmarked vehicle. (Tr. at 6-7)

9. At approximately 12:40 p.m., Detective Vivona observed the gray Mercedes pull up in front of the driveway at 3434 Park, which is on the north side of the street. (Tr. at 17, 18, 19, 40) He observed two or three people walk up to the vehicle on separate instances, where the driver appeared to roll down the window and make several hand-to-hand transactions with the individual who walked up to the vehicle before the individual walked away. (Tr. at 18-20) Each exchange lasted less than a minute. (Tr. at 20) Detective Vivona was not able to see what was exchanged. (Tr. at 19, 40) However, based upon his training and experience, Detective Vivona believed he had observed narcotics transactions. (Tr. at 20-21)

10. Detective Vivona was located on the south side of the intersection of 35th Street and Park looking north when he observed these exchanges. (Tr. at 40; See Gvt. Exhs. 1, 2) 11. Defendant was the sole occupant of the Mercedes. (Tr. at 21)

12. At approximately 12:55 p.m., Detective Vivona observed Defendant exit the Mercedes and walk over to the east side of the street where he began speaking with another individual. (Tr. at 19, 21)

13. At this point, law enforcement was able to positively identify Defendant and came up with a plan to effectuate his arrest. (Tr. at 21) Officers knew Defendant's criminal history involved resisting arrest. (Tr. at 21) Since Defendant was in close proximity to a car and also to a house where he was known to live, officers wanted to arrest him outside. (Tr. at 21-22)

14. Law enforcement moved in to arrest Defendant. (Tr. at 22) KCPD Detective Darrin King covered the block behind 34th and Park Avenue in the event of any possible escape attempt; other team members approached Defendant from the front, near the Mercedes. (Tr. at 22, 23, 24)

15. Law enforcement identified themselves to Defendant. (Tr. at 22-23) Defendant began to run. (Tr. at 23) Officers directed Defendant to stop and get on the ground, but Defendant did not comply. (Tr. at 23)

16. Detective Vivona pursued Defendant on foot behind 3432 Park Avenue. (Tr. at 23) Detective King encountered Defendant toward the rear of 3432 Park Avenue and gave Defendant commands to get on the ground; Defendant eventually complied. (Tr. at 23)

17. Defendant was handcuffed and placed under arrest behind 3432 Park. (Tr. at 24) He was then walked to the front of 3434 Park where a search incident to arrest was conducted. (Tr. at 25) Detective Vivona recovered approximately $1,316 from Defendant's left pant pocket and a key fob that was attached to Defendant's belt loop. (Tr. at 26)

18. As Detective Vivona removed items from Defendant's pockets and set them on the trunk of the Mercedes, Defendant spontaneously uttered “This ain't my car.” (Tr. at 25)

19. Based on his training and experience, and what he knew at the time, Detective Vivona believed the $1,316 recovered from Defendant's pant pocket was associated with drug trafficking. (Tr. at 26)

20. Detective Vivona pushed the panic button on the key fob, which caused the alarm on the Mercedes to sound. (Tr. at 27)

21. A computer check revealed that Defendant was not lawfully permitted to drive. (Tr. at 26-27)

22. Detective Vivona decided to tow the Mercedes. (Tr. at 27) This decision was based upon the facts that: the vehicle was illegally parked blocking a driveway; Defendant stated the vehicle was not his, which heightened Detective Vivona's suspicion that there was something inside the vehicle that Defendant did not want officers to find; the Mercedes was unlocked and unsecured, and the area in which it was parked was known for violent crime and property theft; Detective Vivona believed he had observed Defendant making several narcotic sales; and Defendant had been arrested and did not have a valid driver's license. (Tr. at 27-28, 42)

23. No one had asked law enforcement to tow the Mercedes. (Tr. at 29)

24. Defendant did not ask to contact anyone to take custody of the Mercedes. (Tr. At 29)

25. Detective Vivona testified that no more than two minutes elapsed between Defendant's arrest and the time he decided to tow the Mercedes. (Tr. at 28-29)

26. Detective Vivona further testified that he did not recall anyone associated with Defendant standing at or near the Mercedes during this time. (Tr. at 29-30, 37)

27. Detective Vivona testified if any of Defendant's family members had showed up at the scene, it would have been after the decision to tow the Mercedes was made. (Tr. at 30) Even if Defendant's wife would have arrived at the scene and requested the Mercedes, Detective Vivona would not have released it to her. (Tr. at 30, 37)

28. The KCPD's tow policy requires that officers inventory the contents of a vehicle before it is towed and to complete a Form 36PD. (Tr. at 30-32; Gvt. Exhs. 3, 4)

29. As part of the inventory search performed on the Mercedes, law enforcement located a backpack containing a firearm, marijuana, a digital scale, a box of plastic baggies, More cigarettes, and vials of PCP. (Tr. at 32-33)

30. After the inventory was...