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United States v. Wilkerson

United States District Court, S.D. West Virginia, Charleston Division

November 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DON LAMONT WILKERSON, Defendant.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE.

         Pending before the Court are the following motions filed by Defendant Don Lamont Wilkerson (“Defendant”): Motion to Suppress Evidence of Alleged Drug Distributions, (ECF No. 50-1), Motion to Suppress Custodial Statements, (ECF No. 51), and several motions in limine, (ECF Nos. 52, 53, 54, 55, 56, 57, 58, 59).[1] Also before the Court is the United States' Motion in Limine to Exclude Arguments and Evidence Regarding Potential Penalties Facing Defendant. (ECF No. 47.)

         For reasons stated on the record at the pretrial motions hearing held on August 8, 2017, the Court GRANTS Defendant's Motion in Limine to Exclude Witnesses from Courtroom Pursuant to Rule 614, (ECF No. 55), and Motion in Limine to Allow Defendant to Appear at Trial Without Restraints in Presence of Jury, (ECF No. 57); DENIES AS MOOT the Motion in Limine to Prohibit Introduction of Rule 404(b) Evidence of Crimes, Wrongs or Other Acts, (ECF No. 53), Motion in Limine to Prohibit Introduction of Undisclosed Physical Evidence, (ECF No. 54), and Motion in Limine to Prohibit Reference to Supposed Origin of Controlled Substances, (ECF No. 56); and DEFERS until trial a ruling on the Motion in Limine to Prohibit Any Expert Testimony by Investigating Officer, (ECF No. 52), Motion in Limine to Prohibit Introduction of Witness Testimony Characterizing Audio and Video Recordings, (ECF No. 58), and Motion in Limine to Prohibit the Introduction of Undisclosed MDENT Policies and Procedures for Searching Informants and Vehicles, (ECF No. 59).

         For the reasons set forth below, the Court DENIES Defendant's Motion to Suppress Evidence of Alleged Drug Distributions, (ECF No. 50-1), DENIES AS MOOT Defendant's Motion to Suppress Custodial Statements, (ECF No. 51), and GRANTS the United States' Motion in Limine to Exclude Arguments and Evidence Regarding Potential Penalties Facing Defendant, (ECF No. 47).

         I. BACKGROUND

         Defendant is named in a three-count indictment charging him with distribution of a quantity of methamphetamine in violation of 21 U.S.C. § 841(a)(1). (ECF No. 1.) On July 31, 2017, Defendant filed the current motions to suppress all evidence related to three controlled buys allegedly occurring on September 9th, 13th, and 26th of 2016, as well as statements made by Defendant during the execution of a search warrant at his mother's residence on May 5, 2016. The United States responded to Defendant's motions on August 7, 2017. At a pretrial motions hearing held on August 8, 2017, the Court heard arguments from the parties and testimony from Corporal Justin Hackney (“Cpl. Hackney”) and Detective Keven Allen (“Det. Allen”) of the Metropolitan Drug Enforcement Network Team (“MDENT”). The following facts were derived from Defendant's briefs, MDENT records attached to Defendant's motions, and testimony adduced during the hearing. The facts are not in dispute except where indicated.

         The circumstances leading up to the challenged evidence began in April 2016, when Det. Allen received information about suspicious activity at 3714 Virginia Avenue in Charleston, West Virginia. (ECF No. 50-1 at 2-3.) Det. Allen drove to the residence and learned that two vehicles parked outside residence were registered to Donna Wilkerson, who is Defendant's mother. (Id. at 3.) Det. Allen was familiar with Defendant from a previous investigation and federal drug conviction. (Id.) In response, Det. Allen conducted three trash pulls at the residence in April and May during which he found drug paraphernalia and a substance that field-tested positive for marijuana. (See Id. at 3-4.) Det. Allen subsequently applied for and received a search warrant for the residence. (See id.; see also ECF No. 50-2.)

         MDENT detectives conducted the search authorized by the warrant of 3714 Virginia Avenue on May 5, 2016. (ECF No. 50-1 at 5; ECF No. 50-3 at 5.) Defendant was at the residence during the search where he was handcuffed and read his Miranda rights. (ECF No. 50-1 at 5; ECF No. 50-3 at 5 (noting that Defendant's son also was temporarily handcuffed and that Defendant told him, “they are here for me, not you”).) Defendant verbalized his desire to speak to an attorney. (ECF No. 50-1 at 5; ECF No. 5-3 at 5.) While Det. Allen wrote in his report that “[n]o formal questioning took place after this point, ” Det. Allen asked Defendant about his employment status, living situation, and the identity of the residence's tenant. (See ECF No. 50- 3 at 5.) The detectives found approximately $4, 361.00 in Defendant's pocket as well as mechanical scales and partially smoked marijuana roaches inside the residence. (Id.) Further, Det. Allen stated that he learned that three vehicles parked at the residence were in Defendant's possession, and he informed Defendant that he would be seeking a search warrant for those vehicles. (See id.) On one of the vehicles' key rings, Det. Allen noticed a key with “Move'n Store” on it, which he believed was related to a storage unit application found during one of the trash pulls. (Id.)

         After completing the search of the residence, the law enforcement officers split up-several stayed in front of the Virginia Avenue house with the vehicles and others went to Capitol Mini-Storage in South Charleston, West Virginia. (See Id. at 5-6.) Meanwhile, Det. Allen applied for and received search warrants for the three vehicles parked outside the residence and Defendant's storage unit at Capitol Mini-Storage. (Id. at 6; see also ECF Nos. 50-4, 50-5.) Multiple bags of suspected marijuana were located in one of the vehicles while four sets of digital scales, mail and legal documents addressed to Defendant, and a large amount of suspected methamphetamine and small amount of suspected heroin-both yielding positive field tests-were discovered in the storage unit. (See ECF No. 50-3 at 6.) Consequently, the three vehicles were seized, and the items from the storage unit were transported to MDENT's office along with previously discovered evidence. (Id.)

         Over four months later, on September 8, 2016, Cpl. Hackney met with a confidential informant (“CI #1”) who gave him information about Defendant based on two-and-a-half to three years of association during which CI #1 purchased large quantities of methamphetamine from Defendant. (See Id. at 9.) The next day, Cpl. Hackney met with CI #1 and another confidential informant (“CI #2”) to get CI #1 to place a recorded call to Defendant and set up a controlled buy of crystal methamphetamine. (Id.) Several MDENT officers, including Det. Allen, assisted Cpl. Hackney with a controlled buy on September 9, 2016, in a Kroger parking lot in Charleston. (Id.) CI #1 completed the controlled buy with Defendant, who drove a silver Ford Expedition registered to his mother, Donna Wilkerson. (Id.) CI #1 and CI #2 met with Cpl. Hackney after the buy and turned over to him a bag of suspected methamphetamine acquired during the transaction, which field-tested positive. (Id. at 10.) That same afternoon, Cpl. Hackney completed a search warrant for a GPS device applied to the vehicle Defendant was driving in an attempt to locate larger quantities of methamphetamine that CI #1 informed law enforcement was in Defendant's possession. (See id.) Evidence from this first controlled buy includes “recorded telephone calls, audio and video . . ., alleged statements by defendant, observations of law enforcement and their two confidential informants, and a quantity of suspected methamphetamine . . . .” (ECF No. 50-1 at 9.)

         On September 13, 2016, CI #1 and CI #2 met with Cpl. Hackney, and CI #1 called Defendant to arrange another buy. (ECF No. 50-3 at 10.) Defendant agreed to meet with CI #1 at the same Kroger parking lot as the first buy. (Id.) Defendant arrived at the parking lot in a silver Mercedes similarly registered in his mother's name, and CI #1 purchased with pre-recorded buy money another ounce of suspected methamphetamine, which field-tested positive. (Id. at 11.) Evidence from this buy includes recorded telephone calls, audio and video surveillance, Defendant's statements, observations of the detectives and the two confidential informants, and the purchased methamphetamine. (ECF No. 50-1 at 12.) While CI #1 and CI #2 met with Cpl.

         Hackney after the buy, other detectives followed Defendant in the silver Mercedes he was driving in an unsuccessful attempt to apply a GPS device to the vehicle. (ECF No. 50-3 at 11.)

         A third controlled buy took place on September 26, 2016. (See Id. at 11-12.) CI #1 arrived at MDENT offices that day and placed a phone call to Defendant to arrange a buy. (Id. at 11.) The two agreed to meet at the same Kroger parking lot where the first two controlled buys took place. (See id.) Defendant called CI #1 over an hour after they were supposed to meet to inform him[2] that “he had to pick the methamphetamine up” and requested that CI #1 meet him instead at a Gabriel Brothers (“Gabe's”) store. (See Id. at 12.) After CI #1 approached Defendant's car in the Gabe's parking lot and spoke with him for “a short period of time, ” CI #1 walked away from the vehicle. (Id.) Then, the U.S. Marshal Service and MDENT detectives moved toward Defendant's car and arrested him. (Id.; see ECF No. 50-1 at 13-14.) CI #1 met with Cpl. Hackney after the buy and turned over the recording device and methamphetamine, which field-tested positive. (ECF No. 50-3 at 12-13.) Evidence from this controlled buy includes “recorded telephone calls, audio and video allegedly depicting a methamphetamine distribution, alleged statements by defendant, observations of law enforcement and [CI #1], a quantity of suspected methamphetamine . . ., [and] United States currency . . . .” (ECF No. 50-1 at 14.)

         II. LEGAL STANDARD

         “The burden of proof is on the party who seeks to suppress the evidence.” United States v. Hunter, 63 F.Supp.3d 614, 619 (E.D. Va. 2104) (citing United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981)). If the defendant provides a basis for the motion to suppress, the burden shifts to the prosecution to prove the challenged evidence's admissibility by a preponderance of the evidence. See id.; see also United States v. Matlock, 415 U.S. 164, 177 n.14 (1974). During a pretrial hearing on a motion to suppress, “the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge.” Hunter, 63 F.Supp.3d at 619 (quoting United States v. McKneely, 6 F.3d 1447, 1452-53 (10th Cir. 1993)) (internal citation omitted); see also Columbus-Am. Disc. Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995) (“[I]n the usual case, the factfinder is in a better position to make judgments about the reliability of some forms of evidence than a reviewing body acting solely on the basis of a written record of that evidence. Evaluation of the credibility of a live witness is the most obvious example.” (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 623 (1993))).

         III. DISCUSSION

         Defendant advances a myriad of arguments in the suppression motion and post-hearing brief in support of his position that the evidence obtained from the three controlled drug buys occurring on the 9th, 13th, and 21st of September 2016 should be inadmissible at trial. First, Defendant argues that this evidence is the fruit of multiple searches that all violated his Fourth Amendment rights-those being the search at 3714 Virginia Avenue, the search of the vehicles parked at that residence, and the search of Defendant's storage unit, which all occurred on May 5, 2016. (See ECF No. 50-1 at 14-25; ECF No. 83 at 2-6.) Further, Defendant argues that because a GPS tracking device was placed on the vehicle he drove to the first controlled buy before a search warrant was signed, an unreasonable search occurred requiring suppression of all evidence from the controlled buys. (See ECF No. 50-1 at 25-29; ECF No. 83 at 6-12.)

         Defendant also argues that suppression is the appropriate remedy for law enforcement's refusal to timely arrest him after the issuance of a state warrant on August 18, 2016, which Defendant avers is a violation of his Fifth Amendment rights. (See ECF No. 50-1 at 30-32; ECF No. 83 at 12-15.) Defendant further states that law enforcement “permitt[ed] and/or incit[ed] a confidential informant to violate the law” in two respects: (1) by allowing CI #1 to drive to the controlled buys without a valid license, (see ECF No. 50-1 at 32-33; ECF No. 83 at 15-24), and (2) by utilizing CI #1 when he “was a fugitive from justice” at the time of the third controlled buy, (see ECF No. 83 at 24-28 (raising this second argument only in the post-hearing brief)). Defendant claims that because law enforcement knew that a confidential informant was acting unlawfully during the course of the controlled buys, the evidence resulting from the buys must be suppressed. Additionally, Defendant avers that law enforcement violated West Virginia Code § 62-1D-13 in failing to register the electronic recording devices with the state's public safety department, rendering recordings made with the devices inadmissible. (See ECF No. 50-1 at 33; ECF No. 83 at 28-34.) Finally, Defendant argues that even if these individual instances do not violate his constitutional rights on their own, when assessed holistically, the evidence resulting from the controlled buys must be suppressed and the indictment against him must be dismissed. (See ECF No. 50-1 at 33-34; ECF No. 83 at 34-36.)

         In his separately filed Motion to Suppress Custodial Statements, Defendant avers that during the search of 3714 Virginia Avenue on May 5, 2016, Defendant was handcuffed and read his Miranda rights, “at which time [he] stated that he wanted to speak to an attorney.” (ECF No. 51 at 1.) Defendant states that while in handcuffs and after requesting to speak to an attorney, Det. Allen asked Defendant at least three questions that Defendant allegedly answered. (Id.)

         Further, Det. Allen wrote in his warrant application to search the three vehicles parked in front of the residence that after asking for Defendant's consent to search them, “[Defendant] became very hyper and started yelling at me that he wanted a lawyer.” (Id. at 2.) Because Defendant allegedly did not initiate any further communication or conversation with the officers after he verbalized a desire to speak with an attorney, he argues that these alleged statements were made in violation of his Fifth Amendment rights and are inadmissible at trial. (See id.)

         In the United States' response to Defendant's motions, it first argues that the three controlled buys were significantly attenuated from the three searches occurring in May 2016, rendering the legality of the searches irrelevant. (See ECF No. 64 at 6-8 (citing Utah v. Strieff, 136 S.Ct. 2056, 2064 (2016); Brown v. Illinois, 422 U.S. 590, 603-04 (1975)); ECF No. 84 at 1- 3.) It also argues that the independent source doctrine provides a separate basis for rejecting Defendant's “fruit of the poisonous tree” argument. (ECF No. 64 at 8-9 (citing Murray v. United States, 487 U.S. 533 (1988)).) The United States further argues that the legality of the GPS tracker's placement on the car Defendant drove to the first controlled buy is irrelevant because the United States does not plan on producing any evidence resulting from the GPS tracker in its casein-chief. (See ECF No. 64 at 9-10; ECF No. 84 at 3.) The United States maintains that there is no basis in law to suppress evidence from the controlled buys under Defendant's remaining four arguments: (1) law enforcement did not promptly arrest Defendant after a state warrant was issued in August 2016, (2) CI #1 drove to the controlled buys without a valid license, (3) CI #1 was on probation and was a fugitive as of the day of the third controlled buy, [3] and (4) the recording devices used during the buys were not registered in accordance with state law. (See ECF No. 64 at 10-12; ECF No. 84 at 3-7.) Lastly, the United States argues that because no misconduct by law ...


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