United States v. Scott

404 F.Supp.3d 1095

UNITED STATES of America, Plaintiff

v.Justin Alan SCOTT, Defendant

CRIMINAL ACTION NO. 19-17-DLB-CJS

United States District Court, E.D. Kentucky, Northern Division at Covington.

Signed August 2, 2019

Jennifer K. Weinhold, AUSA, U.S. Attorney's Office, Ft. Mitchell, KY, for Plaintiff.

MEMORANDUM OPINION AND ORDER

David L. Bunning, United States District Judge

I. INTRODUCTION

This matter is before the Court on Defendant's Motion to Suppress all evidence seized during a search of the Defendant by police on January 2, 2019. (Doc. # 16). In his brief in support of his Motion, Defendant Scott alleges that the police officers lacked a legal basis to search his person. (Doc. # 35 at 9). Scott therefore argues that all evidence seized during the search should be suppressed. (Doc. # 16 at 1).

On May 30, 2019, the Court held an evidentiary hearing on the Motion. (Doc. # 30). Defendant Scott was present at the hearing and represented by attorney James West. Id. The United States was represented by Assistant United States Attorney Jennifer Weinhold. Id. The hearing was recorded by Official Court Reporter Joan Averdick. Following the evidentiary hearing, the parties submitted supplemental briefs as ordered by the Court. (Docs. # 35 and 36). The matter being briefed, and the Court having independently reviewed the entirety of the evidence and heard argument and testimony from each side, the Motion is now ripe for the Court's review. For the reasons set forth herein, Defendant's Motion to Suppress (Doc. # 16) is granted .

II. FINDINGS OF FACT

Three witnesses testified during the evidentiary hearing on behalf of the United States: Drug Enforcement Agency (DEA) Task Force Agent Andy Muse, Federal Bureau of Investigation (FBI) Task Force Agent T.C. Rice, and City of Maysville Officer Jesse Pollitt. One witness testified on behalf of the Defendant: Sean Myrick. Weighing the credibility of the witnesses and reviewing the submitted evidence, the Court makes the following factual findings:

1. On January 2, 2019 Agent Muse was surveilling the Ye Olde Dutch Inn ("Dutch Inn" or "Inn") in Maysville, Kentucky. (Doc. # 34 at 10:22-11:11). Specifically, Agent Muse was monitoring a pole camera directed at the Dutch Inn and its parking lot, via a livestream to his iPad. Id. at 11:9-22; see also Gov't Ex. 1. Agent Muse testified that the Dutch Inn is a location known for drug trafficking. (Doc. # 34 at 20:13-17).

2. During his surveillance, Agent Muse observed Defendant Scott outside the Dutch Inn. (Doc. # 34 at 14:11-20).

3. At some point during the afternoon a maroon vehicle arrived in the Dutch Inn parking lot. Id. at 3:39:46 (time at which camera zooms out so the entire parking lot, including the maroon vehicle, is visible). Police determined that Derick Ziegler was the driver of the maroon vehicle. (Doc. # 34 at 16:9-14, 16:24-17:1). Police involved in the surveillance believed that Ziegler was a convicted drug dealer.¹ Id. at 18:2-7, 31:12-14.

4. At about 4:39 p.m. Agent Muse observed Scott get into the passenger side of the maroon vehicle parked in the Dutch Inn parking lot. Id. at 4:38:44; see also (Doc. # 34 at 16:9-14, 17:12-16). Defendant Scott was in the maroon vehicle with Ziegler for approximately two minutes before exiting and returning to the silver sedan. (Gov't Ex. 1 at 4:38:44-4:41:06); see also (Doc. # 34 at 17:12-16).

5. Agent Muse believed Defendant Scott's actions in relation to Ziegler were indicative of a hand-to-hand drug transaction, (Doc. # 34 at 21:21-22:1), and relayed this information to Agent Rice. Id. at 22:2-8, 35:9-18, 39:21-24, 49:1-10.

6. Upon exiting Ziegler's vehicle, Scott returned to the silver sedan in which he arrived. (Gov't Ex. 4:41:18). The silver sedan carrying Justin Scott then left the parking lot. Id. at 4:41:57. The driver of the sedan attempted to turn left onto a one-way street, but quickly turned back into the Dutch Inn parking lot when a police cruiser was driving the wrong way down the street. Id. at 4:42:12-4:42:22; see also (Doc. # 34 at 19:3-8).

7. In an attempt to coordinate a traffic stop of the vehicle in which Defendant Scott was travelling, Agent Muse provided identifying and location information about the silver sedan to Agent Rice, who was also in the area. Id. at 35:13-36:2. After the silver sedan left the parking lot of the Dutch Inn, it was followed by Agent Rice and two detectives (Detective Conley and Detective Burns) who were in an unmarked car. Id. at 33:6-36:19, 54:19-55:5. During the surveillance of the vehicle, the officers observed the sedan make a left turn into an oncoming turn lane. Id. at 36:24-37:4, 59:14-17. At some point while observing the silver sedan Detective Burns contacted Maysville Police Officer Pollitt, who drove a marked police car, to coordinate an encounter between Officer Pollitt and the Defendant. Id. at 35:24-36:7, 59:7-17. Shortly after, Agent Rice observed the sedan pull into the parking lot of Bubby's Burgers. Id. at 37:17-22.

8. Agent Rice and Detective Burns approached the silver sedan in the parking lot of Bubby's Burgers and ordered the occupants out of the car. Id. at 38:8-24. Agent Rice first spoke with the driver of the car, who indicated that the car was not hers and did not give consent for the car to be searched. Id. at 38:25-39:9, 45:2-4. Agent Rice subsequently spoke with Defendant Scott who refused to give consent for the car to be searched. Id. at 39:10-14. At some point during this time Detective Conley and Officer Pollitt also arrived on the scene. Id. at 39:2-4.

9. Within five to ten minutes of arriving on the scene, Agent Rice, having learned that no officer had patted down Defendant Scott and having reason to believe that Defendant Scott was engaged in criminal conduct, conducted a pat-down of the Defendant and discovered a gun in the waistband of Defendant Scott's pants. Id. at 39:10-20, 40:13-16, 49:1-10, 57:2-9.

10. Officer Pollitt subsequently searched Defendant's person and found a pill bottle containing contraband, including crack cocaine, Xanax, and marijuana. Id. at 40:19-41:8, 57:18-22, 58:6-11.

11. At some point after the gun was found, the Defendant was handcuffed and arrested for carrying a concealed weapon. Id. at 41:11-15, 57:14-58:4.

In adjudicating the Motion to Suppress, the Court took great care to review the entirety of the surveillance video provided by the Government, rather than merely relying on the testimony and short segment of the video played during the evidentiary hearing. In its review, the Court found several inconsistencies between Agent Muse's testimony and what actually occurred on January 2, 2019 in the Dutch Inn parking lot. The Court makes the following specific findings based on this review:

12. Agent Muse testified that he observed "Mr. Ziegler [ ] do drug transactions with at least three or four people prior to Mr. Scott." Id. at 20:18-19. He specifically testified that "[t]hey were doing the exact same thing ... [Ziegler] would meet with them, and they would jump in the vehicle with him, in the passenger side, be in there for a short period of time, and then exit the vehicle and leave." Id. at 20:22-25. Agent Muse also testified that he "observe[d] one individual walk up to [Ziegler's] driver's side window and approach him and do a transaction there." Id. at 21:1-3.

13. Agent Muse's testimony does not comport, however, with the entirety of the surveillance footage that the Court reviewed. Only two other individuals were in Ziegler's car that afternoon, and each spent significant time in the maroon vehicle; this is inconsistent with Agent Muse's suggestion that three or four people got into the passenger-side of Ziegler's car for a short time. Agent Muse's recollection of an individual coming up to Ziegler's driver-side window, however, is consistent with the video. Having reviewed the video, the Court finds the following regarding other individuals who interacted with Ziegler when he was in the maroon vehicle on January 2, 2019 at the Dutch Inn:

a. Ziegler and another individual (Person 1) got into the maroon vehicle at approximately 3:53 p.m.—Ziegler was in the front driver seat and Person 1 was in the passenger-side back seat. (Gov't Ex. 1 at 3:53:44-3:53:55). Ziegler left the vehicle at approximately 3:54 p.m., returned less than a minute later, and opened the front driver-side window. Id. at 3:54:53-3:55:29. A second individual (Person 2) went to the passenger-side front door of the maroon vehicle at 3:57 p.m. Id. at 3:57:23. Person 2 appears to get into the maroon vehicle's passenger seat for about one minute. Id. at 3:57:23-3:58:23. Person 2 gets out of the vehicle for less than two minutes, and then gets back into the front passenger seat at 4:00 p.m. Id. at 3:58:23-4:00:16. Ziegler and Person 2 eventually exit the maroon vehicle at 4:30 p.m. and Ziegler got back in the front seat of his vehicle one minute later. Id. at 4:30:24-4:31:32. In reviewing the video it does not appear to the Court that Person 1 ever exited the maroon vehicle.

b. While the above is going on, a white car appeared in the parking lot next to the maroon vehicle. Id. at 3:55:18. A woman exited the white car, briefly walked over to the front of the Dutch Inn, and then walked back to her car. Id. at 3:55:20-3:55:58. She walked up to the open front window of Ziegler's maroon vehicle at approximately 3:56 p.m. and had some type of interaction with Ziegler; part of the time she was standing next to the maroon vehicle's open front driver-side window, and for the remainder of the interaction she was standing by the front driver-side door of her white car. Id. at 3:56:14-4:01:37. By 4:01 p.m. she was back in her car and leaving the scene. Id. at 4:01:37; see also (Doc. # 34 at 21:1-3).

14. Agent Muse also testified that he never saw Scott go into the Dutch Inn. Id. at 19:24-20:1. The surveillance-video footage shows, however, that Scott went into the establishment three times that afternoon. Defendant Scott...