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United States v. Mikell

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

May 28, 2019



          David A. Faber, Senior United States District Judge.

         Defendant D'Alfonza V. Mikell is charged in a three-count indictment with possession with intent to distribute methamphetamine and heroin, in violation of 21 U.S.C. § 841(a)(1), (Count One); carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), (Count Two); and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), (Count Three).

         Pending before the court is defendant's motion to suppress evidence. (ECF No. 31). Specifically, defendant moves to “suppress all evidence that was seized incident to [his] arrest” because his arrest “without a warrant was not supported by probable cause.” Id. at p. 7. On May 6, 2019, the court conducted an evidentiary hearing on defendant's motion. Present at that hearing were Louie Alexander Hamner, Assistant United States Attorney, on behalf of the United States; and defendant, who appeared in person and by his counsel, Roger L. Lambert. Detectives Seth Johnson and Matthew Petty testified at the hearing.

         For reasons expressed more fully below, the motion to suppress is DENIED. In support of its ruling, the court makes the following findings of fact and conclusions of law.

         I. Findings of Fact

         On the evening of January 8, 2019, Detective Eric Seth Johnson with the Charleston Police Department (“CPD”) and assigned to the Metro Drug Unit Network Team (“MDENT”)[1] received information from a confidential source[2] (“CS1") that two individuals from Ohio were selling drugs in the Charleston area. CS1 described the two individuals as a smaller black male who went by the name Diablo and a larger black male going by the name of “B”. CS1 advised Detective Johnson that he or she had seen both Diablo and B with large quantities of methamphetamine and heroin in Charleston and that he believed B was the “enforcer” and often carried a firearm.[3] CS1 also informed Detective Johnson that he or she would let him know when Diablo and B were to return to the area.

         The next evening, January 9, 2019, Detective Johnson received information from another confidential source (“CS2") regarding drug dealers from Ohio. Upon being arrested, CS2 had asked to speak with MDENT in order to provide information in an attempt to help his or her significant other. CS2 informed Detective Johnson of two black males, going by the names of Diablo and B, from Columbus, Ohio who were providing drugs to his or her significant other. CS2 told Detective Johnson that his or her significant other, who was battling addiction, obtained drugs from Diablo and B to sell in the Charleston area. According to CS2, B was the larger of the two men and he often carried a firearm. CS2 advised that he or she had been in the house with Diablo and B when they were supplying his or her significant other with drugs although CS2 was often told to leave the room. CS2 stated that he or she had observed Diablo and B with large quantities of methamphetamine.

         Detective Johnson testified that he did not inform CS1 and CS2 about each other and that, to his knowledge, they were not aware that the other had spoken to him or that they even knew each other.

         On the morning of January 10, 2019, at approximately 10:45 a.m., CS1 contacted Detective Johnson to inform him of an upcoming drug transaction between someone CS1 knew and Diablo and B. According to CS1, the transaction was to occur at the McDonald's located in the east end of Charleston. Detective Johnson then received another call from CS1 at approximately 11:51 a.m., informing him that the drug deal was to happen in the next 15 minutes. Detective Johnson advised other law enforcement officers, including Detective Matthew Petty, [4] of the information he received from CS1.

         Detective Johnson proceeded to the McDonald's and Detective Petty did the same. Detective Petty was in an unmarked MDENT van with approximately five or six other MDENT officers and the van was parked in a location where Detective Petty and the other officers could conduct visual surveillance of the McDonald's parking lot. Detective Johnson, who was in a police cruiser, waited in a location not in direct view of the McDonald's.

         Within five minutes of receiving the second call from CS1, a white rental truck with an Ohio license plate pulled into the McDonald's parking lot. Detective Petty observed two black males in the front of the truck matching the description provided by CS1 and CS2. After parking, the occupants in the truck did not get out. According to Detectives Johnson and Petty, in their experience as law enforcement officers, this is consistent with drug dealing activity. Detective Petty testified that drug dealers often choose to meet in public places so that they can blend in. Detective Johnson also noted that these deals frequently are carried out in cars because the persons involved feel it is safer. The fact the suspects did not exit the vehicle was further indicative of drug dealing activity according to Detective Petty because it suggests they were not there for a lawful purpose. Detective Petty then saw CS1, whom he recognized, walk up to the truck on the passenger side and reach inside the window. CS1 then walked away as the truck remained parked with the two black males inside.

         Concluding that a drug transaction had just occurred, Detective Petty made the decision to approach the truck and, according to Detective Johnson, advised the other officers to “pull in” or “move in” or words to that effect. Detective Petty and the other five or six officers in the MDENT van approached the truck with their weapons drawn and wearing their police vests. Announcing themselves as law enforcement, the occupants of the truck were advised to “show their hands” or “put their hands up” or words to that effect.[5] Detective Johnson arrived at the scene as Detective Petty and the other officers were approaching the white truck.

         Detective Petty approached the driver's side of the truck and removed the driver. Defendant was sitting in the front seat on the passenger side of the truck.[6] As defendant was being removed from the truck and secured by Detective Aldridge, Detective Petty noticed a firearm on the passenger's seat under defendant's leg and alerted the other officers of the existence of the firearm. Detective Dennison secured the firearm.

         Two women were in the back of the truck. All four occupants of the truck were placed in handcuffs for officer safety. Detective Aldridge searched defendant and discovered a bag of suspected methamphetamine, a bag of suspected heroin, and a large sum of United States currency. At this point, defendant was placed under arrest.

         Incident to defendant's arrest, officers searched the vehicle. Large quantities of suspected methamphetamine and heroin were recovered from the truck's center console as well as a scale of the type often used in narcotics trafficking. All narcotics recovered were field tested and the results of those tests were positive. The officers later learned that no drug transaction had occurred between CS1 and defendant.

         The court found the testimony of both witnesses testifying at the hearing to be entirely credible. Furthermore, their testimony was consistent with Detective Johnson's Case Report prepared on January 10, 2019. See ECF No. 33-1.

         II. Conclusions of Law and Analysis

         The Fourth Amendment provides “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. The defendant bears the burden of demonstrating a Fourth Amendment violation, Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978), and, on appeal, the court reviews the evidence in the light most favorable to the party prevailing below. See United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). The factual findings underlying a motion to suppress, including credibility determinations, are reviewed for clear error, while the legal determinations are reviewed de novo. See Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v. Murray, 65 F.3d 1161, 1169 (4th Cir. 1995); United States v. Rusher, 966 F.2d 868, 873 (4th Cir.), cert. denied, 506 U.S. 926 (1992).

         Not every encounter between a private citizen and law enforcement implicates the Fourth Amendment. See United States v. Stover, 808 F.3d 991, 995 (4th Cir. 2015) (“[The Fourth Amendment], however, does not extend to all police-citizen encounters.”); see also United States v. McCoy, 513 F.3d 405, 411 (4th Cir. 2008) (“Of course, the protections of the Fourth Amendment do not bear on every encounter between a police officer and a member of the public; it is only when a `search' or `seizure' has occurred that the Fourth Amendment comes into play.”).

The Supreme Court has recognized three distinct types of police-citizen interactions: (1) arrest, which must be supported by probable cause; (2) brief investigatory stops, which must be supported by reasonable suspicion; and (3) brief encounters between police and citizens, which require no objective justification.

United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002) (internal citations omitted).

         The probable cause standard governing arrests is “an objective one; it exists when, `at the time the arrest occurs, the facts and circumstances within the officer's knowledge would warrant the belief of a prudent person that the arrestee had committed or was committing an offense.'” United States v. Johnson, 599 F.3d 339, 346 (4th Cir. 2010) (quoting United Statesv. Manbeck, 744 F.2d 360, 376 (4th Cir. 1984)); see also Smith v. Munday, 848 F.3d 248, 253 (4th Cir. 2017) (“Probable cause is determined by a totality-of-the circumstances approach. . . . It is an objective standard of probability that reasonable and prudent persons apply in everyday life.”) (internal citations and quotations omitted). “The probable-cause inquiry turns on two factors: `the suspect's conduct as known to ...

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