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United States v. Smith

United States District Court, E.D. Tennessee, Chattanooga

September 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ZACHARY SMITH, Defendant.

          REPORT & RECOMMENDATION

          SUSAN K. LEE UNITED STATES MAGISTRATE JUDGE.

         Before the Court is an untimely motion to suppress, with supporting memorandum, filed by Defendant Zachary Smith (“Defendant”) [Docs. 116, 117]. Defendant's motion seeks to suppress all evidence obtained as a result of his warrantless arrest, including his own statements and any statements by a co-defendant, Lorenzo Wells (“Wells”) [Doc. 116]. Plaintiff United States of America (“Government”) filed a response in opposition to the motion [Doc. 122]. The motion to suppress was referred for a report and recommendation by standing order pursuant to 28 U.S.C. § 636(b). An evidentiary hearing on the motion was held on September 11, 2019. The Government's post-hearing brief [Doc. 130] has been reviewed. Defendant did not file a post-hearing brief, and the time for doing so has passed. Instead of filing a post-hearing brief, Defendant filed a motion to “withdraw/strike” his motion to suppress [Doc. 133] along with a notice of intent to enter a guilty plea [Doc. 134]. This matter is now ripe.

         For the reason addressed below, I FIND no constitutional violation occurred with respect to all claims raised in Defendant's motion to suppress. Given Defendant's recent filings, I RECOMMEND that Defendant's motion to strike be GRANTED and that his meritless motion to suppress be STRICKEN.

         I. FACTUAL BACKGROUND

         The Government called Chattanooga Police Department (“CPD”) officers Lee Wolff (“Wolff”) and Tim Pickard (“Pickard”) as witnesses. Wolff has extensive experience as a detective in the CPD Narcotics Unit and Pickard has extensive experience as a detective in the CPD Fugitives Unit. Defendant called no witnesses. Various photographs of the scene, a recording of the radio traffic, and two police reports were submitted as exhibits by the parties. The collective evidence credibly establishes the following.

         On September 11, 2018, local and federal law enforcement officers were conducting surveillance at certain Lee Highway area hotels in an effort to arrest Wells, an alleged heroin dealer/indicted fugitive, on outstanding warrants. In connection with a heroin overdose, law enforcement officers had developed information from a confidential source that Wells and Defendant-an associate of Wells-were linked to the overdose and were in the Lee Highway area selling drugs. Law enforcement's target was Wells. However, they also had an interest in talking to Defendant and had obtained a photograph of Defendant from his Facebook account because the confidential source said Defendant sold illegal drugs with, and acted as an enforcer or bodyguard for, Wells.[1]

         Around 2:00 p.m., Wolff and narcotics detective Vernon Kimbrough (“Kimbrough”) observed Defendant leave one nearby area hotel (WoodSpring Suites) and drive a very short distance to another area hotel (America's Best Inn) in a maroon Dodge Durango. The Durango ended up parked near the detectives' uncover vehicle at America's Best Inn. The detectives saw an unidentified woman approach the Durango. Defendant and the woman engaged in a quick hand-to-hand exchange of money for something in the parking lot. Defendant made eye-contact with the nearby undercover detectives, and they became concerned he had spotted them. The Durango then left the parking lot. Based on their extensive law enforcement training and experience, the detectives believed the exchange was consistent with an unlawful drug transaction. The detectives communicated with the rest of the surveillance team that they had observed the Defendant “serve” someone, meaning he engaged in a hand-to-hand drug transfer. The officers did not stop or question the woman involved in this suspected drug transaction with Defendant.

         After reporting the hand-to-hand transaction and that the Durango was leaving, the detectives asked Pickard, via radio communications, whether the Durango should be stopped. Pickard then communicated with another officer in a marked patrol car to “find a reason” to make a traffic stop of the Durango. The Durango, however, immediately returned to the parking lot of the WoodSpring Suites. The detectives then saw what they believe was another hand-to-hand drug transaction between Defendant and a man in the WoodSpring Suites' parking lot, but they were too far away to see cash change hands, unlike the transaction they observed in the America's Best Inn's parking lot. Wolff acknowledged during the hearing that what he witnessed could have been a handshake. However, based on their extensive training and experience, the detectives concluded (and reported via radio) that it was a second drug transaction involving Defendant. Again, the officers did not stop or question the man involved in this suspected drug transaction with Defendant.

         The Durango was parked in a handicap parking space near a non-lobby entrance to America's Best Inn, and Defendant entered the hotel. Pickard made the decision that the officers had enough information to approach Defendant and the officers begin to formulate a plan for stopping or arresting Defendant before he returned to the Durango. Pickard's testimony indicates he believed the officers had both reasonable suspicion for a stop and probable cause to arrest Defendant based on the information from the confidential informant that Wells and Defendant were selling drugs in the area and the detectives' observation of one, and maybe two, hand-to-hand drug transactions. Pickard testified he wanted to approach Defendant and talk to him so they could find Wells. Pickard also agrees his instruction to the other officers via radio communication was to “take him (meaning Defendant) down” and that he thought the officers had enough evidence for an arrest even though he had previously asked the patrol officer to find a reason to stop the Durango.

         As Defendant walked out of the hotel with a woman, officers in police gear approached Defendant in the hotel parking lot. At the same time, officers pulled up to and blocked in the Durango. The officers attempting the stop were in police gear and clothing clearly indicating they were law enforcement. When Defendant and the woman saw the officers approaching, she stayed and he fled on foot. Officers pursued Defendant on foot and in vehicles. After Defendant had run about 100 yards, the officers began to close in and Defendant put his hands up and laid down on the ground.

         Officers then arrested, handcuffed and frisked Defendant. Eventually, heroin, cocaine, ecstasy, and marijuana were discovered on Defendant's person and a loaded pistol and ammunition were found in the Durango. Defendant also made incriminating statements.

         In a multi-defendant, multi-count indictment filed December 17, 2018, Defendant is charged with a single count of conspiracy to distribute 50 grams or more of methamphetamine (actual) or 500 grams or more of a methamphetamine mixture in violation of 21 U.S.C. §§841(a)(1), 841(b)(1)(A) and 846 [Doc. 1]. While the motion to suppress is untimely under the scheduling order, the motion will be considered.

         II. STANDARDS

         The Fourth Amendment guards against, inter alia, unreasonable seizure and searches of a person. U.S. Const. amend. IV. Encounters between police and citizens can be grouped into three types: “(1) consensual encounters in which contact is initiated by a police officer without any articulable reason whatsoever and the citizen is briefly asked questions; (2) a temporary involuntary detention or Terry[2] stop which must be predicated upon reasonable suspicion; and (3) arrests which must be based upon probable cause.” United States v. Jones, 562 F.3d 768, 772 (6th Cir. 2009) (quotation marks omitted) (quoting United States v. Pearce, 531 F.3d 374, 380 ...


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