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United States v. Howard

September 11, 2006

UNITED STATES OF AMERICA
v.
WILLARD WAYNE HOWARD



The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge

MEMORANDUM

Chief Judge Curtis L. Collier

In this matter, the Court is being called upon to authorize the appointment of an expert in connection with a suppression hearing. A key issue to be determined at the suppression hearing is whether the drug-detection dog's alert provided probable cause. After considering the specific facts of this case, the arguments of counsel, and the applicable law, the Court will DENY the Defendant's Motion for Reconsideration of Appointment of Expert (Court File No. 91).

I. INTRODUCTION

This matter comes before the Court as a Motion for Reconsideration of Appointment of Expert filed by Defendant Willard Wayne Howard ("Defendant") (Court File No. 91). Defendant is seeking $4,300, pursuant to 18 U.S.C. § 3006A(e), to cover the services and expenses of Mr. Robert Gonzalez, an expert whose "experience with detection canines is extensive and includes five years of service as the Branch Manager of the 37th Security Forces on Lackland Air Force Base in Texas." (Memorandum In Support, Court File No. 92 at 10). Defendant asserts he is in need of an expert to aid in analyzing the records and training of the drug detection dog Titan ("Titan") and Titan's handler, Detective Eduardo Choate of the Bradley County, Tennessee Sheriff's Office. Defendant filed the current motion on June 20, 2006 (Court File No. 91), and the Government timely filed a response on July 13, 2006 (Court File No. 94).

Because the Court has a great number of criminal cases that are initiated by or involve drug detection dog alerts and a general request such as that made here could be made in almost every such case, the Court will examine the request at some length. In light of the particular facts of this case, the specific expertise of the named expert, and the general nature of the request here, the Court is not persuaded the services of Mr. Gonzalez are necessary or would be helpful in the probable cause determination by the judicial official called upon to make the probable cause determination. The Court is concerned that if it approved this request based on the general arguments advanced by Defendant, the Court would be required to approve this request in every case involving an alert by a drug-detection dog. Such a requirement would be unduly burdensome given the frequency with which dog alerts are used as a basis for probable cause. It is conceivable the facts surrounding a particular dog alert would warrant the services of an expert, but no such facts have been identified here. The Court will explain its reasoning in detail.

II. STANDARD OF REVIEW

Defendant makes his request pursuant to 18 U.S.C. § 3006A(e). Section 3006A(e) reads:

1) Upon request. Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.

18 U.S.C. § 3006A(e). Pursuant to 18 U.S.C. § 3006A(e), counsel for an indigent criminal defendant may request the district court to authorize the expenditure of funds for investigative, expert, or other services. See, e.g., United States v. Clark, 385 F.3d 609, 617 (6th Cir. 2004); United States v. Osoba, 213 F.3d 913, 915-16 (6th Cir. 2000). The Court "shall authorize" counsel to obtain such services "[u]pon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary for adequate representation." 18 U.S.C. § 3006A(e)(1).

In the United States Court of Appeals for the Sixth Circuit ("Sixth Circuit"), services requested under 18 U.S.C. § 3006A(e) in the context of a criminal prosecution are "necessary" if a defendant can demonstrate (1) such services are necessary to mount a plausible defense, and (2) without them, the defendant's case would be prejudiced. United States v. Gilmore, 282 F.3d 398, 406 (6th Cir. 2002). The amount of compensation for authorized services is generally not permitted to exceed $1,600 (exclusive of expenses reasonably incurred). 18 U.S.C. § 3006A(e)(3). Funds greater than $1,600 may be obtained only upon the district court's certification that the amount in excess of the limit is "necessary to provide fair compensation for services of an unusual character or duration" and subsequent approval by the Sixth Circuit. Id. If the Court is in doubt, the Court should err in favor of approving the request.

III. FACTUAL AND PROCEDURAL BACKGROUND

In an earlier memorandum (Court File No. 89), the Court set out the facts as developed at the initial suppression hearing before Magistrate Judge Susan K. Lee and from the submissions of the parties. The Court will repeat and supplement those facts.

On December 12, 2005, Bradley County, Tennessee Sheriff's Office Detectives Joe Renner ("Renner"), Eduardo Choate ("Choate"), and Shane McKee ("McKee") were involved in a traffic stop of Antonio Benitez ("Benitez"). Benitez was pulled over for a minor traffic violation in Bradley County while headed north on Interstate 75. Benitez was driving a Volkswagen Passat, which was not registered to him, without a driver's license. The detectives found five kilograms of cocaine located in a false compartment in the Passat and two cell phones. The detectives seized the items and transported Benitez to the Bradley County Sheriff's Office. While there, one of the cell phones rang. Choate answered the phone and told the unidentified Hispanic male caller he worked for a towing company and the Passat had been wrecked and towed to the wrecker service. He gave the caller Renner's cell phone number as a contact number for the wrecker service.

Later that day, Renner received a telephone call from Benitez's girlfriend, Amy Cornwell ("Cornwell"). Cornwell asked about the condition of the Passat, how much it would cost to get it out of storage, and its location. There is no evidence Cornwell attempted to contact Benitez. Cornwell told Renner she and her stepfather would drive to Cleveland, Tennessee to pick up the Passat on December 14, 2005. No officer or detective attempted to obtain a search or arrest warrant.

On December 14, 2005, Defendant drove a Chevrolet Suburban, with Cornwell as a passenger, from Kentucky to Cleveland, Tennessee to pick up the Passat. Upon arriving at the wrecker service, Cornwell walked into the office while Defendant remained in the Suburban. Renner, acting in an undercover capacity as a wrecker service employee, told Cornwell a secret compartment had been found in the Passat and he would call the police if she did not give him $500. Cornwell told Renner she did not know what he was talking about and he could keep the Passat. Renner then arrested Cornwell.

At about the same time, Choate, McKee, and Bradley County, Tennessee Sheriff's Office Detective Jerry Rogers ("Rogers") ordered Defendant out of the Suburban, arrested him, took him into a small office in the wrecker service, and apprised him of his Miranda rights. Choate then retrieved his drug-detection dog, Titan. Titan walked around the Suburban and responded to the rear door of the Suburban, and Choate interpreted Titan's response as an alert to the presence of illegal drugs. After Titan alerted, Choate went into the office where Defendant was being held and asked him if he had any narcotics, guns, or large amounts of money in the Suburban. Defendant stated there were no drugs or guns in the Suburban. Choate then asked Defendant if he had large amounts of currency in his car. Defendant did not respond so Choate asked again if he had large amounts of money in the Suburban. Defendant responded he did not have any guns or drugs and then said, "You can check it. I don't have that stuff. I don't do that stuff." Afterwards, the Suburban was searched. The search yielded approximately $100,000 in cash.

The current motion comes before the Court in connection with the Motion to Suppress the Search of Defendant's Vehicle, filed on February 16, 2006 (Court File No. 50). Magistrate Judge Lee conducted an evidentiary hearing on the motion to suppress and filed a report and recommendation ("R&R") recommending Defendant's motion be granted on the grounds Defendant's arrest was illegal (Court File No. 78). Based on that recommendation, Magistrate Judge Lee issued an order denying as moot Defendant's initial Motion for Appointment of Expert (Court File No. 50).

In its Memorandum and Order dated June 6, 2006, the Court accepted and adopted the R&R in part, with the exception of the conclusion that the evidence found inside the vehicle should be suppressed (Court File No. 89, 90). In its objections to the R&R, the Government argued if probable cause to arrest Defendant was not present, the evidence obtained from the search of the Suburban would still be admissible under the independent source doctrine if Titan's alert was found to be wholly independent from the illegal arrest (Court File No. 80). The Court raised the related issue of whether the evidence seized from the vehicle would have been inevitably discovered by lawful means (Court File No. 89). These issues were referred to Magistrate Judge Lee to take further evidence and make ...


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