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United States v. Kennedy

United States District Court, W.D. Pennsylvania

November 13, 2014

UNITED STATES OF AMERICA
v.
BRANDON KENNEDY, Defendant.

MEMORANDUM OPINION

NORA BARRY FISCHER, District Judge.

I. INTRODUCTION

This matter is before the Court on a Motion to Suppress, (Docket No. 22), filed by Defendant Brandon Kennedy ("Mr. Kennedy"). Upon consideration of all of the parties' submissions, the evidence of record, their arguments, and for the following reasons, Defendant's Motion to Suppress (Docket No. 22) is denied.

II. FINDINGS OF FACT

On September 10, 2013, a federal grand jury returned an Indictment charging Defendant with committing three offenses related to the November 26, 2012 robbery of an AT&T store in Greentree, Pennsylvania. (Docket No. 1). Specifically, at Count 1, Defendant is charged with Interference with Commerce by Robbery, in violation of 18 U.S.C. § 1951(a). At Count 2, Defendant is charged with Using and Carrying a Firearm During and In Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). And, at Count 3, Defendant is charged with Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1).[1] ( Id. ). The present motion challenges the constitutionality of a traffic stop and a subsequent search of an automobile in which Kennedy was a passenger and seizure of: bags containing electronics allegedly stolen from the AT&T store; a firearm; an Ohio toll receipt; clothing worn by Brandon Kennedy; and a telephone possessed by Amanda Paige Lang ("Ms. Lang"), the driver of the vehicle, and its phone number. (Docket No. 22 at 2-3)

With that brief background, the Court turns to its findings of fact, based on the credible evidence offered at the July 30, 2013 suppression hearing.[2] The Government presented Officer David Salamas[3] ("Officer Salamas") of the South Rockwood Police Department. Defendant countered with testimony of Brittney Taylor ("Ms. Taylor"), his fiancee, and his own testimony. The Government entered into evidence three exhibits: (1) a copy of Mich. Comp. Laws Ann. § 257.628, (Docket No. 75-2); (2) the Hertz Rental Agreement for the White Chevrolet Aveo, (Docket No. 75-3);[4] and (3) the Towing and Vehicle Inventory Policy of South Rockwood, MI Police Department, (Docket No. 75-4).[5] Based on Officer Salamas' earnest demeanor and his answers to counsel's and the Court's questioning at the suppression hearing, in this Court's estimation, he offered a convincing version of the events that unfolded on the date in question. See United States v. Garcia, 521 F.Appx. 71, 73 (3d Cir. 2013) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985)) ("[w]hen findings are based on determinations regarding the credibility of witnesses... for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.'"). To the extent that Mr. Kennedy's and Ms. Taylor's testimony contradicted Officer Salamas', the Court finds the officer's testimony to be more credible.

On November 5, 2012, Ms. Taylor[6] picked up a Chevrolet Aveo with Tennessee License Plate Number A57932E ("the Aveo") from Hertz Rental Car. (Tr. at 89:20-23); (July 30, 2014 Gov't Ex. 2); (Docket No. 75-3 at 2). She dealt with Hertz in person. (July 30, 2014 Gov't Ex. 2); (Docket No. 75-3). She provided her contact information, including her address. (July 30, 2014 Gov't Ex. 2); (Docket No. 75-3 at 3). She did not inform Hertz that anyone else would be using her vehicle and was the only listed authorized driver. (Tr. at 90:4-6); (July 30, 2014 Gov't Ex. 2); (Docket No. 75-3). She rented the Aveo in her name only and paid for it with her credit card. (Tr. at 89:8-20). Her live-in boyfriend, Mr. Kennedy, [7] did not ask her to rent the Aveo for him, nor did he drive it. (Tr. at 87:1-8, 137:13-14). However, Ms. Taylor testified that Mr. Kennedy helped pay for the car when "it was tooken." (Tr. at 87:12-15). Despite this testimony that Mr. Kennedy reimbursed her for the expenses related to the car's impoundment, which the Court discusses, infra, Mr. Kennedy did not offer any evidence that he directly paid Hertz for the Aveo or that he reimbursed Ms. Taylor.

On November 26, 2012, Mr. Kennedy needed to go somewhere, [8] but he did not have a valid driver's license. (Tr. at 88:6-8, 92:15-18). That day, Ms. Taylor permitted Ms. Lang, her friend, to drive him wherever he needed to go in the Aveo. (Tr. at 91:25, 92:5-7). Ms. Taylor did not know where they went, but she knows that they left that morning, and she did not get the car back that day.[9] (Tr. at 92:18-25).

That night, Officer Salamas was in uniform and on duty in his fully-marked police vehicle. (Tr. at 10:12-13, 13:8-18). He was positioned in the area of northbound Interstate 75 and South Huron River Drive, [10] where he was conducting speed enforcement with RADAR.[11] (Tr. at 13:20-25, 14:2-4). He is familiar with this stretch of the Interstate where the speed limit is 70 miles per hour. (Tr. at 11:10-18, 12:18-13:7); (Docket No. 75-2). In addition to his own experience and training detecting speeding violations, (Tr. at 11:12-21), he is a speed measurement operator and instructor who trains other officers to operate RADAR and LIDAR.[12] (Tr. at 11:23-25, 13:1-2). These devices are approved methods in Michigan to detect speeding violations. (Tr. at 15-17).

Around 11:40 p.m., Officer Salamas observed the Aveo traveling northbound on Interstate 75. (Tr. at 13:19-21, 14:5-16). He believed it was traveling in excess of 70 miles per hour. (Tr. at 14:7-16). In fact, he used RADAR to determine that the vehicle's speed was 81 miles per hour. (Tr. at 19-21). Based on that reading, he activated his lights and initiated a traffic stop. (Tr. at 14:24-25, 34:8-9). The Aveo pulled over onto the shoulder of the highway. (Tr. at 19:23-24). Then, he ran the license plate and determined that the Aveo was a rental vehicle. (Tr. at 17:17-23, 36:7-10). The Court notes that, at this point, Officer Salamas was unaware of the robbery of the AT&T store in the Pittsburgh area. (Tr. at 24:5-7).

Officer Salamas exited his police cruiser and approached the driver's side of the Aveo. (Tr. at 15:4-9, 33:19-24). He observed two individuals in the vehicle: the driver, Ms. Lang, and Mr. Kennedy, the passenger. (Tr. at 15:10-19). Mr. Kennedy was unable to produce a valid form of identification, but provided Officer Salamas with his correct name and date of birth. (Tr. at 63:18-64:6). He then informed Officer Salamas that his girlfriend, Ms. Taylor, rented the vehicle, but that Ms. Lang was not his girlfriend. (Tr. at 18:3, 18:14-15, 111:20-21). Neither Ms. Lang nor Mr. Kennedy could provide a rental agreement for the vehicle. (Tr. at 18:16-18).

Standing at the driver's side, Officer Salamas smelled the odor of marijuana emanating from the driver's window. (Tr. at 16:3-4). Based on his experience and training, he ascertained that it was burnt marijuana, not fresh marijuana. (Tr. at 15:22-23, 16:7-11). The smell became stronger as he approached. (Tr. at 16:14-17). Officer Salamas found that Ms. Lang had bloodshot, glassy eyes, and her speech was a little slurred. (Tr. at 16:20-21). She informed him that, approximately two and a half hours earlier, she smoked half a blunt.[13] (Tr. at 16:25-17:2). Smoking and possessing marijuana and driving while under the influence of same are illegal in Michigan. (Tr. at 17:13-15); Mich. Comp. Laws Ann. § 257.625 (West); Mich. Comp. Laws Ann. § 333.7212 (West). Accordingly, Officer Salamas ordered Ms. Lang to be removed from the car so that he could conduct field sobriety tests, for which he is trained. (Tr. at 43:20-24). She failed those tests and was arrested for operating a vehicle under the influence of narcotics. (Tr. at 22:14-16, 43:14-20, 43:25-44:1). Ms. Lang was next patted down, handcuffed, taken into custody, told she was under arrest, and placed in the officer's vehicle. (Tr. at 44:2-15). No contraband or marijuana was found on her person. (Tr. at 24:8-10).

Meanwhile, Mr. Kennedy remained in the Aveo. (Tr. at 45:3-4). While Officer Salamas was conducting the traffic stop, a border patrol car arrived to assist him and provide officer safety, since the Aveo was stopped around midnight on a dark stretch of the highway with multiple occupants. (Tr. at 43:4-10). Despite the involvement of the border patrol officer, Officer Salamas had all of the interactions with Mr. Kennedy and Ms. Lang. (Tr. at 43:11-13).

After securing Ms. Lang in his vehicle, Officer Salamas proceeded to determine if either Ms. Lang or Mr. Kennedy had any outstanding warrants.[14] (Tr. at 44:20-45:2). He learned that Mr. Kennedy had three warrants. (Tr. at 36:11-37:7). One warrant was from Westland, and it had a "50-mile pickup, " which means that within a 50-mile radius of the police department, that department will "pick up" the individual.[15] (Tr. at 37:8-17). (Westland, MI is approximately 27 miles away from South Rockwood.). At 12:13 a.m., Officer Salamas was advised that Westland wanted to pick up Mr. Kennedy. (Tr. at 41:25-42:10). As a result, Mr. Kennedy was arrested, searched, and patted down.[16] (Tr. at 22:17-20, 24:8-10). He was then placed in the border patrol vehicle. (Tr. at 46:10-13).

With Mr. Kennedy and Ms. Lang secured in police vehicles, Officer Salamas searched the passenger compartment of the Aveo for evidence of controlled substances, but he did not find any contraband there. (Tr. at 46:16-47:16). A second border patrol agent arrived. (Tr. at 48:3-5).[17] This patrol agent was a K9 officer, and Officer Salamas testified that his dog was a "drug dog." (Tr. at 48:6-12). The K9 officer's dog made a couple of passes around the vehicle (Tr. at 48:14-15). Then, the handler informed Salamas that the dog "indicated" the exterior of the vehicle for the presence of narcotics. (Tr. at 48:20-23, 66:21-67:3). Next, the dog was placed in the front and back seats of the vehicle. (Tr. at 48:17-21). This dog search did not reveal any contraband in the passenger compartment of the vehicle. (Tr. 49:10-14).

At approximately 12:00 midnight, Officer Salamas called for a tow truck over his radio. (Tr. at 41:3-11). He said that the driver of the vehicle, Ms. Lang, was being arrested for operating a vehicle under the influence of a controlled substance and that Mr. Kennedy was being taken into custody for outstanding warrants. (Tr. at 41:3-24). He conducted an inventory search pursuant to the standard procedure and routine practice that was in place at the time of the arrest, the purpose of which was to protect him, the department, and any valuables found in the vehicle. (Tr. at 25:2-11, 25:16-19). Apart from those motivations, Officer Salamas also was motivated to find evidence of a crime during the search of the vehicle, based on the smell of burnt marijuana emanating from the driver's side. (Tr. at 70:8-14). He credibly testified that he conducted the inventory search of the Aveo pursuant to his experience and training, not the written policy of the police department, which he admitted was subsequently changed. (Tr. at 26:23-27:2, 27:10-12) ("Q: So, were you searching based on your training and your experience or based on the policy? A: My training and experience."). He also credibly testified that searching bags found in a trunk would be routine in every inventory search. (Tr. at 26:5-9). To that end, Officer Salamas searched the trunk of the vehicle, where he found two blue nylon bags secured by drawstrings. (Tr. at 55:4-11). He opened the bags, which contained 12 Apple iPads, 14 Apple iPhones, 1 Samsung phone, and a blue piggy bank with $176.01 in United States currency. (Docket No. 24 at 4-5).

The Court also heard testimony on the issue of South Rockwood's Towing and Vehicle Inventory Policy in place at the time of the inventory search in this case, and a copy of same was entered into evidence without objection from Defendant. (July 30, 2014 Gov't Ex. 3); (Docket No. 75-4). Said policy had been changed to acknowledge its deviation from the law, because the written policy had stated that one of the purposes of an inventory search was to seize contraband or evidence contained within the vehicle. (Tr. at 26:20-27:4, 51:4-23). Officer Salamas testified that this specific portion of the policy was found to be in violation of the Constitution. (Tr. at 51:4-13). As a result, South Rockwood officers were provided a legal update on same. (Tr. at 76:1-10). Officer Salamas received the legal update as well as inventory search training. (Tr. at 25:20-22, 76:5-9). He noted he had performed similar inventory searches in other cases. (Tr. at 25:23-25). Following the inventory search, the Aveo was towed.

Officer Salamas outlined the reasons for having it towed as follows. He did not know to whom the vehicle belonged. (Tr. at 69:17). Hence, he needed to take it for safekeeping to make sure nothing happened to it and to protect him and the department from possible claims of loss. (Tr. at 69:14-19). Per § 26.3b of the South Rockwood Police Department Towing & Vehicle Inventory Policy, it is standard procedure to tow a vehicle from the scene on Interstate 75 if no one is present at the conclusion of the traffic stop to take the vehicle. (Tr. at 69:20-23); (July 30, 2014 Gov't Ex. 3); (Docket No. 75-4 at 2). The vehicle was parked on the highway, which is a tow-away zone if it is not removed within a specific time period. (Tr. at 52:24-53:8); See also Mich. Comp. Law Ann. §§ 257.252d(1)(b) and (c).[18] Further, Mr. Kennedy did not have a valid driver's license at the time of the arrest, so he was unable to lawfully drive the vehicle away from the scene. (Tr. at 22:21-23, 70:3-7). Likewise, Ms. Lang was unable to drive, as she was arrested for operating a vehicle under the influence of narcotics.[19] (Tr. at 22:14-16). Ms. Taylor, the vehicle's actual renter, was not present, nor was there anyone present on behalf of Mr. Kennedy or Ms. Lang who could have driven the vehicle.[20] (Tr. at 23:5-9).

III. PROCEDURAL HISTORY

On September 10, 2013, the Government filed an Indictment charging Kennedy with one count of Interference with Commerce by Robbery for conduct occurring on November 26, 2012, in violation of 18 U.S.C. § 1951(a); one count of Using and Carrying a Firearm During and In Relation to a Crime of Violence, for conduct occurring on November 26, 2012, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and one count of Felon in Possession of a Firearm, for conduct occurring on November 26, 2012, in violation of 18 U.S.C. § 922(g)(1). On December 23, 2013, Defendant filed the instant Motion to Suppress Evidence, (Docket No. 22), to which the Government responded on December 30, 2013. (Docket No. 24).

Based upon his contention that the law of the United States Court of Appeals for the Sixth Circuit is more favorable to his Fourth Amendment challenges, Defendant moved to transfer venue to the Eastern District of Michigan. (Docket No. 28). The Government filed a Response, (Docket No. 35), to which Defendant replied, (Docket No. 37). Accordingly, a hearing was held on February 6, 2014. (Docket No. 39). The Court denied Defendant's Venue Motion but ruled that Sixth Circuit law would apply to the issue of whether Defendant had a reasonable expectation of privacy in the rented automobile. (Docket No. 41). In applying the lex loci approach, the Court reasoned that police officers are held to a good faith standard, and therefore, "logic requires that their conduct be consistently held to the law as applied within their own circuits." (Docket No. 41 at 11) (citing Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2426 (2011); Perry v. State, 741 A.2d 1162, 1196-99 (Md. 1999); and United States v. Restrepo, 890 F.Supp. 180, 191 (E.D.N.Y. 1995). Therefore, Officer Salamas' conduct in the instant action shall be evaluated in accordance with Michigan and Sixth Circuit law, to the extent that it differs from Third Circuit law.

On March 24, 2014, Defendant filed a "Motion for Notice of Appearance, " (Docket No. 46), which the Court construed as a Motion to Terminate Counsel and Proceed Pro Se. [21] (Docket No. 52). Thomas Livingston, Esquire, Defendant's then counsel, also filed a Motion to Withdraw as Counsel for Defendant, (Docket No. 47). The Court heard the positions of counsel and the Defendant during a Hearing held on March 27, 2014. (Docket No. 51). Following same, the Court granted Defendant's Motions, (Docket Nos. 46, 47), permitted Defendant to proceed pro se, and appointed stand-by counsel, Brian D. Aston, Esq. (Docket No. 62).

On June 24, 2014, Defendant moved to have Mr. Aston appointed as CJA counsel. (Docket No. 61). The Court granted his Motion on June 25, 2014, (Docket Nos. 62, 63), and Mr. Aston has remained in that role to date.

A hearing on the Motion to Suppress was convened on July 30, 2014, at which time the Government and Defendant presented their evidence and deferred argument for briefing. (Docket No. 75). Following the hearing, the Court ordered preparation of the transcript and filing of the parties' Proposed Findings of Fact and Conclusions of Law and any supplemental briefing by October 1, 2014, with responses to same due by October 15, 2014. (Docket No. 77). The Government timely filed its Proposed Findings of Fact and Conclusions of Law on October 1, 2014. (Docket No. 80). Likewise, Defendant timely filed a Brief in Support of his Motion to Suppress. (Docket No. 81). No responses were filed, although they would have been due on October 15, 2014. Thus, the Court took this matter under advisement on October 16, 2014. As the instant matter has been fully heard, briefed, and argued, it is now ripe for disposition.

IV. OVERVIEW OF THE ARGUMENTS

In his Motion, Mr. Kennedy contests the constitutionality of the traffic stop and the search and seizure of the automobile. (Docket No. 22). He maintains that he has standing to contest the search of the rental car, in which he was a passenger. (Docket No. 81). He further argues that the police lacked reasonable suspicion or probable cause to believe that either Ms. Lang or he had committed a crime. (Docket No. 22). He avers that the drug-sniffing canine failed to positively alert to the presence of narcotics after several attempts and, therefore, argues that there was no reasonable suspicion to search the vehicle without a warrant. (Docket No. 81). Defendant also contends that the police should have allowed him to make arrangements to return the vehicle to Ms. Taylor. ( Id. ). Consequently, he asserts that the following evidence must be suppressed:

• Most (though not all) of the items that were allegedly stolen from the AT&T store, including ...

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