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United States v. Perry

United States District Court, E.D. Michigan, Southern Division

April 7, 2017

D-13 RODEREK PERRY, Defendant.


          Denise Page Hood Chief Judge, United States District Court


         The Government intends to introduce evidence obtained pursuant to the search of Defendant's cell phone in August 2016. Defendant filed a Motion to Suppress [#318], wherein he seeks to exclude the introduction of information and items obtained: (a) during the search of his vehicle (in particular, his cell phone); and (b) pursuant to the search warrant obtained as a result of that search. Defendant contends that the cell phone was seized in violation of his Fourth Amendment rights because: (1) the search was conducted during an unlawful “inventory” search; and (2) the search warrant was issued without probable cause.

         Defendant argued that an evidentiary hearing was necessary to determine the factual issues and credibility of the witnesses regarding the search of the vehicle and to determine the validity of the affidavit in support of the search warrant. See Franks v. Delaware, 438 U.S. 154 (1978); Jackson v. Denno, 378 U.S. 368, 377 (1964); Sims v. Georgia, 385 U.S. 538, 544 (1967). On March 9, 2017, the Court held an evidentiary hearing. The Government called Detroit Police Department (“DPD”) Officer Gregory Robson (“Robson”), and Defendant called Bureau of Alcohol, Tobacco and Firearms (“ATF”) Special Agent Joseph Nether and DPD Officer Treeva Eaton (“Eaton”).


         On August 2, 2016 at about 7:30 a.m., Special Agent Nether set up surveillance at 14917 Parkside, Detroit, Defendant's residence. At 7:55 a.m., Defendant arrived in a silver Chevy Caprice (the “Caprice”), parked across the street from the Parkside address, and entered it. About 8:00 a.m., Defendant and a white female exited the residence and entered the Caprice. Federal law enforcement was aware that Defendant had a court hearing in the Troy District Court for a probation violation and set up surveillance there. About 9:00 a.m., ATF Task Force Officer (“TFO”) Robert Bolden saw the Caprice arrive in the parking lot of the district court and the two occupants entered the courthouse. Shortly thereafter, the female exited the courthouse alone, entered the Caprice, and drove toward Detroit. ATF Special Agent Justin Henry determined from court personnel that Defendant had been taken into custody after being sentenced to jail.

         Law enforcement also had determined that the white female was Leann Marie Rodriguez (“Rodriguez”), who had a valid warrant from the 43rd District Court in Madison Heights. The warrant was for failure to appear for the traffic offense of failure to display. Surveillance of the Caprice was continued from the Troy District Court into Detroit. Once inside the city limits of Detroit, Special Agent Curtis Brunson, the ATF Task Force Supervisor, called Robson to request assistance; specifically, to effectuate a traffic stop of Rodriguez. At around 11:30 a.m., Robson conducted a traffic stop of the Caprice on Conant near Gallagher.

         Robson testified about the events related to the stop of the Caprice at the evidentiary hearing. He indicated that he was assigned to the Traffic Enforcement Unit on August 2, 2016. While at the city wide base at the beginning of his shift, he received a call from Special Agent Brunson. Robson had known Special Agent Brunson for about seven years as the result of working with him on a Comprehensive Violence Reduction Partnership. Robson has maintained contact with Special Agent Brunson through sports and other social activities. Special Agent Brunson requested that Robson stop the Caprice for a traffic violation. Robson was given the location of the Caprice, located the vehicle, and stopped the vehicle for varying the lane of traffic without signaling. Robson testified that the traffic violation was the due to the vehicle going from the curb lane to closer to the middle line without signaling. At that location on Conant Street (near Gallagher Street), the road is one lane in each direction, with a parking lane on each side.

         Once Rodriguez pulled over and stopped, Robson identified himself and requested from her the registration and proof of insurance for the vehicle and for her driver's license. Rodriguez had none of these documents, although Robson recalled that she had some sort of identification. Robson testified there was a temporary license tag in the window and identified it as Exhibit B. Rodriguez was never asked about the temporary license tag. After he ran a LEIN check, Robson told Rodriguez that she was being arrested, directed her out of the vehicle, and detained Rodriguez on the outstanding warrants for failure to appear to pay traffic tickets. Rodriguez was issued citations for failure to signal, no registration and no proof of insurance, all civil infractions. Eaton, who also was assigned to the TFO, testified that she responded to the scene to assist with the arrest of Rodriguez. Other TFO members also responded to the scene.

         The Caprice was registered to Defendant, but Rodriguez was the only occupant of the vehicle. Robson noted it is DPD policy to “ticket and tow” a vehicle when it is stopped without a licensed driver, indicating that he was required to impound the vehicle. He contacted the zone dispatcher and gave the last 6 numbers of the vehicle VIN number. He also searched the vehicle for contraband and for the purposes of securing property to avoid liability. Two cell phones were found. One was possessed by Rodriguez, and one was on the front seat. The one on the front seat was a white Samsung cell phone, Model SMG360TI, FCC ID: A3LSMG360T (hereinafter, “the cell phone”). This information was contacted to Special Agent Brunson, who was sitting in the Government attorney's office. Robson testified that Special Agent told Robson that Special Agent Brunson was going to call a number and wanted Robson to see if the cell phone started ringing. About that time, the cell phone began ringing, which was communicated to Special Agent Brunson. The cell phone was given to Eaton at the scene, as were mail and other documents with Defendant's name on them that were recovered from the Caprice.

         Robson testified he waited for the tow truck and prepared paperwork, including two impound cards, one for the tow company and one he was to turn in to the base at the end of his tour. Robson testified he turned the DPD copy of the impound card into a basket at his base at the end of his tour. That impound card, although reportedly searched for by Robson, is no longer available. After the Caprice was towed, Robson and Eaton transported Rodriguez to the detention facility. After Madison Heights authorities refused to pick Rodriguez up for her warrant, Robson and Eaton took Rodriguez to her home.

         Eaton testified that she did not seize any evidence from the Caprice, nor did she see a search of the vehicle. She testified that she received Defendant's documents and the cell phone at the scene, all of which she handed over to Special Agent Nether at the Redford base for the Task Force. Eaton stated that she saw the Caprice get towed and she transported Rodriguez with Robson.

         On August 4, 216, two days after the seizure of the cell phone, an application for a search warrant to search the cell phone was submitted to and approved by Magistrate Judge Mona K. Majzoub. See Dkt. No. 318, Ex. B. Special Agent Nether then searched the phone and found messages between Defendant and other Rollin 60s Crips members discussing the sale of illegal drugs, along with pictures of Defendant and illegal drugs.


         Defendant contends that the seizure of the cell phone and documents were the result of an invalid inventory search and that any evidence stemming from those items should be suppressed. He contends that the Government initiated a traffic stop of Defendant's vehicle as a pretext to search his vehicle. Defendant acknowledges that a valid inventory search conducted without a warrant does not violate the Fourth Amendment and is recognized as a well-defined exception to the warrant requirement. Colorado v. Bertine, 479 U.S. 367, 371-74 (1987); South Dakota v. Opperman, 428 U.S. 364, 372 (1976). The justification for a valid inventory search is that it “serve[s] to protect an owner's property while it is in the custody of police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.” Bertine, 479 U.S. at 372; United States v. Smith, 510 F.3d 641, 650-51 (6th Cir. 2007).

         A warrantless inventory search may be conducted only when the police have “lawfully tak[en] custody of the vehicle.” Hockenberry, 730 F.3d at 658; Smith, 510 F.3d at 651 (quoting United States v. Lumpkin, 159 F.3d 983, 987 (6th Cir. 1998) (citing Florida v. Wells, 495 U.S. 1, 5 (1990))). The Government has the burden of proof to justify a warrantless inventory search. Coolidge v. New Hampshire, 403 U.S. 443, 445 (1971); United States v. Haynes, 301 F.3d 669 (6th Cir. 2002). The inventory search must be conducted “according to standard police procedures” and be “sufficiently tailored to only produce an inventory.” United States v. Jackson, 682 F.3d 448, 455 (6th Cir. 2012); Lumpkin, 159 F.3d at 987; Bertine, 479 U.S. at 375-76. The search must be conducted in good faith and must not be undertaken as a pretext for a criminal investigation and to discover evidence of criminal activity. Opperman, 428 U.S. at 376; Jackson, 682 F.3d at 455; United States v. Tackett, 486 F.3d 230, 232 (6th Cir. 2007). In conducting an inventory search, officers must follow the applicable policy, Wells, 495 U.S. at 4, but the presence of an investigative purpose or their suspicion that they may find contraband during the search does not invalidate an otherwise proper inventory search. Lumpkin, 159 F.3d at 987.

         Defendant argues that the DPD never lawfully took custody of the Caprice, as the DPD turned the vehicle over to the TFO agents and did not follow DPD procedures for impounding vehicles. See Dkt. No. 318, Ex. B (DPD Manual, Directive 204.4 - Impounding of Vehicles). Defendant states that DPD officers did not: (1) fill out any documents for impoundment, specifically the Impounded Vehicle Card; (2) notify Telephone Crime Reporting; (3) contact the dispatcher to request a tow company; (4) remain with the vehicle until the tower completed the impounding; or (5) conduct an ...

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