Opinion
Case No. 1:07-CR-73-001.
June 27, 2008
ORDER
This matter is before the Court on Defendant Albert Ward's motion to suppress (Doc. No. 33). Defendant moves to suppress evidence seized by the Middletown, Ohio police following the warrantless search of his hotel room on June 2, 2007. The principal issue raised in Defendant's motion is whether he voluntarily consented to the search. The Court held an evidentiary hearing on Defendant's motion on June 4, 2008. Doc. No. 80. For the reasons that follow, Defendant's motion to suppress is not well-taken and is DENIED.
Much of the background leading up to the search of Defendant's hotel room is described in the Court's order of February 26, 2008 (Doc. No. 74) denying co-Defendant Kyron Thomas's motion to suppress. Essentially what occurred is that a 911 call indicated that an assault was taking place in the parking lot of the Putt-Putt Golf Center. Middletown police officer Stephen Winters arrived at the scene, near the intersection of Commerce Drive and State Route 122, just as an argument between co-Defendants Kyron Thomas and Brandon Davis, and Tosia Clemons was breaking up. Winters followed Davis and Thomas as they exited the parking lot of the Putt-Putt and drove to a nearby hotel. There, Winters conducted a Terry search of Thomas because his movements within the interior of the vehicle indicated that he was either hiding or retrieving a weapon. Winters found 2.8 grams of crack cocaine in Thomas's pants pockets. A subsequent search of the interior of the vehicle led to the discovery of a .38 caliber Smith Wesson revolver and a .32 caliber revolver of unknown make and model. See Doc. No. 74, at 2-5.
In the meantime, according to his testimony at Defendant Ward's evidentiary hearing, Middletown police officer Wayne Birch was dispatched to the hotel and arrived with Tosia Clemons, the victim of the purported assault, in tow. Birch had stopped to pick up Clemons on instructions from Officer Winters. Once there, Birch learned from the desk clerk that Clemons, Davis and Thomas had just checked out of the room they had stayed in overnight, but had just checked into another room. The clerk advised Birch that he could search the vacant room if he wished.
According to Officer Birch, a member of the hotel staff intended to escort him to Room 224, the former room, but inadvertently took him to Room 220, the new room. Without looking at the room number, Birch knocked on the door. To his surprise, Defendant Ward answered the door. Birch asked Ward if he knew co-Defendant Brandon Davis, to which Ward answered "no." Ward then abruptly shut the door. Birch then radioed the other officers on the scene and advised them that there was a third male subject. In response, the officers informed Birch that Clemons had just told them that there was possibly another gun in Ward's room.
Clemons denied that she told Officer Winters about there possibly being a third gun involved in this incident. Clemons, however, was not a credible witness because of her admitted daily marijuana use at the time of the Defendant's arrest. Additionally, Clemons' volatile and hysterical personality renders her perception and recollection of the unfolding events unreliable. Accordingly, the Court credits Officer Birch's testimony over Clemons' testimony.
As Birch waited for backup officers to arrive, Ward exited the room. Birch stopped and held Ward at gunpoint until the covering officers arrived to handcuff him. Birch told Ward that the police had stopped two people in the parking lot with guns and crack cocaine, that these people had advised him that there was possibly another gun in the room, and that the police would like to search his room. At that point, according to Officer Birch, Defendant gave consent to search his room. Although Birch did not advise Ward of his Miranda rights, he was given and signed a form entitled "CONSENT TO SEARCH WITHOUT A WARRANT." The form states:
I, ALBERT WARD, having been Informed [sic] of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant, and of my right to refuse consent to such a search, hereby authorize Ptl. W. Birch and Ptl. R. Stone, C. Kelly, Police Officers of the City of Middletown, Ohio, County of Butler, State of Ohio to conduct a search of:
Best Value Inn, 3510 Commerce Dr., Rm. 220.
These Officers are authorized by me to take from my residence, building or vehicle, of which I am the lawful occupant or owner, any letters, papers, materials or other property which is contraband or may be used as evidence in a criminal proceeding.
This written permission is being given by me to the above mentioned officers voluntarily and without threats or promise of any kind.
Gov't Ex. 2. Upon searching the room, the officers discovered some 792 grams of cocaine base which had been stashed in the refrigerator.
The grand jury later returned an indictment charging Ward with conspiracy to possess with intent to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. § 846, possession with intent to distribute in excess of 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) (b)(1)(A), and maintaining a place for distribution of a controlled substance, in violation of 21 U.S.C. § 856.
Wards' written motion argues that the evidence from his hotel room should be suppressed because his consent was not freely given. Ward also moves to suppress unidentified statements on the grounds that they were given without having first been advised of his Miranda rights. During closing arguments of the evidentiary hearing, trial counsel for Ward also suggested that the police lacked reasonable suspicion to seize him in the hallway of the hotel.
The Court first concludes that the record demonstrates that Ward's consent to search his hotel room was freely given. The police may conduct a warrantless search of a person's residence if the defendant freely and voluntarily consents to the search.United States v. Ivy, 165 F.3d 397, 401 (6th Cir. 1998). The government bears the burden of proving that the defendant's consent was free and voluntary through clear and positive testimony. Id. at 402. Consent is voluntary when it is "unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion." Id. (quoting United States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977)). Voluntariness is judged by the totality of the circumstances. Id. In deciding whether consent to search was voluntary, the district court should consider several factors:
First, a court should examine the characteristics of the accused, including the age, intelligence, and education of the individual; whether the individual understands the right to refuse to consent; and whether the individual understands his or her constitutional rights. Second, a court should consider the details of the detention, including the length and nature of detention; the use of coercive or punishing conduct by the police, and indications of more subtle forms of coercion that might flaw an individual's judgment.Id. (internal citations, brackets, and quotation marks omitted). In this case, these factors all indicate that Ward's consent to search was voluntarily given.
In consideration of the first factor, the Defendant is 29 years old and, according to the Pretrial Services Officer, has a GED degree. The Defendant has undergone treatment for psychiatric problems in the past, but the mental health assessment prepared by the Bureau of Prisons in this case indicates that the Defendant is competent to assist with his defense. Although the Defendant scored at the low end of intellectual range on the Wechsler test, the report also indicates the results may underestimate his true level of cognitive functioning. Therefore, the Defendant's age, education, and intelligence indicate that his consent was freely given. Additionally, the Defendant has many prior arrests and convictions, which also supports the conclusion that his consent was voluntary. See, e.g., United States v. Watson, 423 U.S. 411, 424-25 (1976) ("[T]here is no indication in this record that Watson was a newcomer to the law, mentally deficient, or unable in the face of a custodial arrest to exercise a free choice.") (internal footnote omitted). Accordingly, the first factor leads to the conclusion that the Defendant's consent was voluntary.
With regard to the second factor, although the Defendant was in custody at the time he gave consent, this fact is not dispositive of the issue of voluntariness. United States v. Blakeney, 942 F.2d 1001, 1016 (6th Cir. 1991) ("[T]he fact of custody alone is not enough to demonstrate that the consent was coerced."). The police advised Ward of his constitutional right to refuse to consent to the search, which supports a finding that his consent was voluntary. See United States v. Nappier, 155 Fed. Appx. 859, 867 (6th Cir. 2005). During the evidentiary hearing, police officers testified that Ward indicated that he understood that he could refuse to consent to the search. Also, the interval between the Defendant's detention and his consent to search was brief, which supports a finding of voluntariness because it indicates that the police did not overbear the Defendant's will. Ivy, 165 F.3d at 402 (stating that the prolonged length of defendant's detention was particularly significant when determining the consensual nature of the search). There is no evidence that the police used threats, promises or other forms of coercion to obtain the Defendant's consent. Therefore, the second factor also indicates that the Defendant's consent was voluntary.
Accordingly, the Court concludes that under all of the circumstances of this case, the Defendant's consent was freely and voluntarily given and that the police did not violate his right under the Fourth Amendment to be free from unreasonable searches. Accordingly, Defendant's motion to suppress evidence seized from his hotel room is not well-taken and is DENIED.
The only issue that gives pause is whether Officer Birch had a reasonable suspicion to seize the Defendant based on information provided by Tosia Clemons concerning another gun possibly being involved in the case. If consent is given after an illegal seizure, that prior illegality taints the consent to search.Florida v. Royer, 460 U.S. 491, 507-08 (1983).
A brief investigative stop, or Terry stop, by an officer who is able to point to "`specific and articulable facts'" justifying his or her reasonable suspicion that the suspect has been or is about to be involved in criminal activity is not an unreasonable seizure. United States v. Sokolow, 490 U.S. 1, 12 (1989) (quotingTerry v. Ohio, 392 U.S. 1, 21 (1968)). While "the Fourth Amendment requires that the decision to stop the individual be based on something `more substantial than inarticulate hunches[,]' . . . `the totality of the circumstances — the whole picture — must be taken into account'" in determining the validity of a challenged stop. United States v. Roberts, 986 F.2d 1026, 1029 (6th Cir. 1993) (quoting Terry, 392 U.S. at 22). Additionally the police may conduct a Terry stop in order to "permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." United States v. Foster, 376 F.3d 577, 585 (6th Cir. 2004). In examining the totality of the circumstances, an officer's reasonable suspicion need not arise exclusively from his own direct observations. Rather, it can be derived from such sources as informant tips, dispatch information, and directions from other officers. Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008). "A seizure conducted in reliance on a flyer or dispatch does not violate the Fourth Amendment if the law enforcement officer who issued the information possessed the necessary reasonable suspicion." Smoak v. Hall, 460 F.3d 768, 779 (6th Cir. 2006).
Under the totality of the circumstances of this case, the Court finds that Officer Birch had reason to believe that the Defendant was armed and dangerous. Therefore, Officer Birch's stop and seizure of the Defendant was justified under the Fourth Amendment. Consequently, the Defendant's consent to search his room was not vitiated by an illegal stop and seizure. When Officer Birch stopped the Defendant, he was continuing the investigation from the traffic stop in the hotel parking lot in which crack cocaine and two guns were recovered. The Defendant's presence at the hotel room was a surprise to Officer Birch because he expected the room to be unoccupied when he arrived to look through it. The Defendant's unexpected appearance introduced a level of uncertainty into the situation. Then, Officer Birch learned from the other officers, via Tosia Clemons, that there was possibly a third gun involved in the crime and that it was in the Defendant's room. Clemons was obviously in a good position to provide this information because she had informed the officers that she spent the night in the hotel room with co-Defendants Thomas and Davis. Therefore, because of the guns and drugs already recovered, it was reasonable for Officer Birch to believe that the Defendant had possession of or ready access to another gun. Indeed, given that the officers found two guns with two of the suspects, it would be reasonable to believe that the third person that was apparently involved could be armed as well. Given these circumstances, therefore, it was reasonable for Officer Birch to stop and seize the Defendant when he exited the hotel room in order to protect his safety and that of the other officers at the scene. Therefore, the Defendant's consent to the search was not tainted by an illegal stop and seizure.
Accordingly, for the reasons stated, the Defendant's motion to suppress evidence seized from his hotel room is not well-taken and is DENIED. Defendant's motion also moves to suppress statements given by him in violation of his Miranda rights. Defendant, however, fails to identify any statements he made prior to being Mirandized. Therefore, Defendant's motion to suppress statements is not well-taken and is DENIED.