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United States v. Drummond

February 4, 2009

UNITED STATES OF AMERICA
v.
RAHSEEM DRUMMOND, DEFENDANT



The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania

(Chief Judge Kane)

MEMORANDUM

Before the Court is Defendant Rahseem Drummond's motion to suppress evidence. (Doc. No. 77.) In the motion, Defendant seeks to suppress drugs recovered during the search of an automobile in which he claims an interest, as well as statements he made during his arrest. For the reasons that follow, the motion will be denied.

I. BACKGROUND

On April 14, 2009, a confidential informant working with the DEA ("the Informant") rented a 2009 blueish gray Chevy Impala with Florida license plate number 757LHI. (Doc. No. 121 at 2.) DEA agents marked the car with a tracking device because they intended to have it used for an upcoming drug transaction. (Trans. 25.)

In the evening hours of May 5, 2009, the Informant loaned the marked Impala to Defendant Rahseem Drummond. (Id. 25, 27.) Defendant, accompanied by co-defendants Channel Thomas and Orson Adams, used the Impala to drive to St. Thomas, Pennsylvania, a city west of Chambersburg. (Id. 26.) Defendant, Thomas, and Adams entered a hotel which had been previously identified by the Informant as a "stash location" for marijuana and crack cocaine. (Id. 26.) DEA agents were unable to continue surveillance of Defendant Drummond once he was inside the hotel. (Id. 27.) Defendant later departed the hotel in Thomas' car, relinquishing possession of the Impala to Thomas and Adams. (Id.) It is undisputed that Defendant did not control the Impala for more than forty-five minutes before giving the keys to Thomas. (Id.) Thomas and Adams then drove the Impala to New Jersey to obtain drugs. (Id. 29.)

On May 6, 2009, while Thomas and Adams were in New Jersey procuring additional drugs, DEA Agent Keith Kierzkowski ("Agent Kierzkowski") instructed the Informant to perform a controlled purchase of marijuana from Defendant. (Id. 28.) The Informant successfully purchased a quarter pound of marijuana from Defendant at the aforementioned hotel in St. Thomas. (Id.) The Informant brought the marijuana to Agent Kierzkowski, who was able to verify that it was contraband. (Id.)

Once Adams and Thomas had made their drug purchase in New Jersey, they contacted Defendant to advise him that the drugs were successfully obtained and that they were returning to Pennsylvania. (Id. 23.) Defendant relayed this information to the Informant, who then relayed this information to Agent Kierzkowski by text message or phone call. (Id. 19, 23, 30, 33.) Agent Kierzkowski was able to verify this tip: the GPS tracker had been indicating that the Impala was at a stable location in New Jersey, but, around the time of the call, it began movement toward Pennsylvania. (Id. 29.)

Convinced the Informant's tips were accurate and the drugs had been obtained, Agent Kierzkowski determined that it was time to arrest Defendant, as well as the occupants of the Impala. Rather than disclose the actual basis of his investigation over police airwaves, Agent Kierzkowski, working with Cumberland County and Dauphin County Drug Task Force Officers and Pennsylvania State Police ("PSP") Officers, called for Drummond's arrest on the basis of a warrant issued that day for an outstanding probation violation.*fn1 (Id. at 15, 18; Doc. No. 110.) On the basis of Agent Kierzkowski's announcement that there was an outstanding warrant for a probation violation, a marked PSP patrol car working with Agent Kierzkowski stopped the vehicle in which Defendant was a passenger. (Trans. 18.) There is no indication that the vehicle had committed any traffic violations. (Id.) Because Agent Kierzkowski was not the officer who initiated the stop of Defendant's vehicle, he did not personally take Defendant out of the car or initiate the arrest. (Id. at 18, 20.) Agent Kierzkowski was, however, following behind the marked PSP car that initiated the arrest and was on the scene at the time. (Id. at 20.)

At this point, the facts become contested. Defendant alleges that he was punched in the ribs and groin, not informed of his rights, and interrogated despite having asked for an attorney. (Id. 36-37, 42-43.) Defendant further avers that he made no statements regarding the possibility of drugs in the Impala or on the person of the woman driving him at the time of his arrest. (Id. 44.) The facts that follow are those credited by the Court upon hearing the evidence and testimony presented at the September 3, 2009, suppression hearing.

At the time of arrest on May 6, 2009, Defendant was a passenger in a vehicle traveling south of Harrisburg on Interstate 81. (Id. 11.) After the vehicle was stopped by a marked PSP car, Defendant Drummond was removed from the car and handcuffed at gunpoint because the officers were concerned he was armed.*fn2 (Id. 17, 20.) Defendant Drummond was then taken to Agent Kierzkowski's unmarked Drug Task Force or DEA car, where Agent Kierzkowski advised Defendant that he was being arrested for a parole or probation violation.*fn3 (Id. 12, 20.) Reading from his "DEA 13A card,"*fn4 Agent Kierzkowski informed Defendant of his Miranda rights. (Id. 12.) Upon being informed of his rights, Defendant agreed to talk with Agent Kierzkowski, stating that the female presently accompanying him had marijuana in her possession. (Id. 13.) Agent Kierzkowski then informed Defendant that the Impala driven by Thomas and Adams had also been pulled over and asked Defendant whether he was going to let Thomas take the hit for "what was in the car." (Id. 14.) Defendant responded, "I'll take the hit for the weed, but I'm not going to take the hit for the crack. . . . [I'm] a weed guy," though Agent Kierzkowski had not stated that they had found crack cocaine in the car. (Id. 13.) In fact, the cocaine was on Thomas' person and was not discovered until she arrived at the prison barracks. (Id. 14, 18-19.) Defendant never signed a written waiver of his Miranda rights. (Id. 22.)

Defendant seeks to suppress the evidence found in the Impala as well as the statements he allegedly made to Agent Kierzkowski. He argues that the Government lacked probable cause to search the Impala, lacked probable cause to arrest him, and failed to Mirandize him. The Government contends not only that there was probable cause to search the car and to arrest Defendant, but that Defendant does not have standing to challenge the search of a vehicle he neither owned nor controlled at the time of the search. Moreover, the Government argues that the facts indicate Defendant was properly Mirandized and informed of his rights before choosing to waive them by making statements to Agent Kierzkowski.

II. DISCUSSION

Initially before the Court were two questions. The first question was whether Defendant, who had no ownership or possessory interest in a vehicle at the time of its stop, had a legitimate expectation of privacy in the vehicle based on his earlier control of the vehicle for less than forty-five minutes. At an evidentiary hearing held September 3, 2009, to resolve disputed issues of fact,*fn5 the Court determined that Defendant does not have standing to challenge the evidence found in such a vehicle.*fn6 For this reason, the Court turns to Defendant's remaining claim: that ...


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