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United States v. Lewis

United States District Court, N.D. Indiana, Fort Wayne Division

July 10, 2017




         By way of Indictment, Defendant Dewayne Lewis is charged with knowingly and intentionally possessing with intent to distribute five kilograms or more of cocaine, a violation of 21 U.S.C. § 841(a)(1). In April and May 2015, the Defendant, proceeding pro se, filed various motions seeking to dismiss the indictment and suppress evidence, which this Court consolidated and referred to Magistrate Judge Susan Collins to conduct an evidentiary hearing and issue a report and recommendation. After numerous motions, hearings, and briefs, on May 24, 2017, the Magistrate Judge issued a Report and Recommendation [ECF No. 265], recommending that the Defendant's consolidated Motion [ECF No. 33] be granted. Specifically, the Magistrate Judge recommended that the evidence found in his hotel room and his subsequent statements to police be suppressed. Accordingly, the Magistrate Judge recommended that the Defendant's Motion to Quash Search Warrant [ECF No. 72] be denied, and that his second Motion to Amend Hearing Issues [ECF No. 85] be denied as moot because he already received the requested relief. On May 31, 2017, the Defendant filed a Notice [ECF No. 266] to express his agreement with the Magistrate Judge's recommendation, ask that the Court accept the Report and Recommendation, and request that the Court dismiss the Indictment against him. On June 6, 2017, the Government filed its Objections to Magistrate's Report and Recommendation [ECF No. 267]. On June 13, 2017, the Defendant filed his Response to Government's Objection Regarding Report and Recommendation [ECF No. 268].


         Under 28 U.S.C. § 636(b)(1)(A)-(B), a magistrate judge does not have authority to issue a final order on a motion to suppress evidence in a criminal case. Instead, the magistrate judge submits proposed findings of fact and recommendations to the district court. If a party files a timely objection to the magistrate judge's report and recommendation, § 636(b)(1) provides that

the district judge is to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. The court may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge also may receive further evidence or recommit the matter to the magistrate judge with instructions.

See also Fed. R. Civ. P. 72(b)(3). Portions of a recommendation to which no party objects are reviewed for clear error. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         The Government objects to the Magistrate Judge's finding that a dog sniff conducted outside a motel room violates the Fourth Amendment rights of a person staying inside the room.

         Further, the Government argues that the Court need not reach the Fourth Amendment issue because, even if the search was illegal, the exclusionary rule does not apply to the circumstances of this case. Any one of three independent reasons, according to the Government, counsels against exclusion of the cocaine and money found in the hotel room that the Defendant was occupying on February 3, 2015: (1) the Defendant did not have standing to challenge to the search; (2) the evidence sought to be suppressed would have inevitably been discovered through lawful means, and; (3) the officers conducting the dog sniff acted in good faith reliance on the controlling precedents at the time.

         De novo review does not require a de novo evidentiary hearing. See United States v. Raddatz, 447 U.S. 667, 673-76 (1980). Neither party has requested a hearing, or made any challenges that would render a hearing necessary, and the Court finds that the record before the Magistrate Judge is sufficient to allow this Court to make a de novo determination.


         The Magistrate Judge's findings of fact are based on the testimony of Officer Brian Harshman, Officer Jason York, Deputy Steven Davis, Sergeant Jay Arnold, Officer Gregory Magee, Officer Adalberto Martinez, Special Agent James Keszei, Thomas Koch, Susan Graff, and Mark Hess, and upon the exhibits admitted into evidence. The parties do not dispute the Magistrate Judge's findings of fact, and the Court adopts them in their entirety. For ease of reference, the relevant facts are set forth below, with additional details provided in the analysis section of this Opinion and Order as necessary.

         From 2014 to 2015, an FBI task force, referred to as the Safe Streets Task Force, was investigating a large scale drug conspiracy that centered around Allen Bates. On January 27, 2015, the task force served numerous warrants in Indiana, Ohio, and Texas. Bates, however, evaded arrest and fled to Mexico. Agent James Kezei began focusing his investigative efforts on locating Bates, including obtaining search warrants for text messages on telephones that Bates was using from his location in Mexico to coordinate events in Fort Wayne. One person who Bates continued to communicate with through text messages was a confidential informant who was closely associated with Bates. The informant had been cooperating with the Government for over six months, and had provided numerous details about the drug organization.

         According to the text messages, Bates wanted the confidential informant to come to McAllen, Texas, where Bates would help him cross the Mexican border. Bates told the informant that a man in Indianapolis known as “Nap” or “Wayne” could help by getting the informant cash and a rental car. The informant was aware of Nap, having previously told investigators about meeting him in December 2014 at the residence of Bates's father. The informant had reported that Nap arrived at the house in a black Mercedes SUV and gave Bates about $125, 000. Bates also told the informant that Nap was “a killer” who would “ride dirty, ” which meant that he was not afraid to carry firearms and drugs. (Tr. 214, ECF No. 183 at 67; Tr. 245, ECF No. 183 at 98.)

         On January 29, 2015, Bates gave the informant 317-507-8010 as the telephone number to contact Nap. An FBI analyst determined that the phone number belonged to a person named Dewayne Lewis. The investigation, as well as the area code of the target phone number, suggested that the Dewayne Lewis they were looking for had ties to Indianapolis. The pre-paid phone had no billing address, but the analyst searched the Indianapolis 317 area code and found a person named Dewayne Lewis born in 1977 with a prior drug-related conviction. He was wanted on an outstanding probation violation warrant. The FBI agents showed a picture of this Dewayne Lewis to the informant, who identified the person in the photograph as Nap. The informant turned out to be mistaken about the photograph identification. The 317-507-8010 number was actually assigned to a different Dewayne Lewis with a birth year of 1974-the Defendant in this case.

         FBI agents passed the information about the Indianapolis Dewayne Lewis to the United States Marshal's Violent Fugitive Task Force in Indianapolis. On January 30, 2015, FBI Task Force Officer Brian Harshman obtained a search warrant to track the location of the 317-507- 8010 phone on grounds that it would help investigators locate Dewayne Lewis, who had become a suspect in the drug conspiracy. Investigators hoped to arrest Lewis on the warrant and then interview him about his involvement in the drug conspiracy. In accordance with the warrant, Sprint began providing location information to investigators on February 3, 2015. They learned that the phone was, in essence, located within a 2/3 mile radius of a cell tower located in Greenwood, Indiana, which is a southern suburb of Indianapolis. After 11:34 a.m., the phone was no longer capable of being traced, likely meaning that it was powered off or connected to a Wi-Fi network. For the locate to work, the telephone had to be powered up and on the Sprint network at the precise snapshot in time of the locate effort, which was typically done in 15-minute intervals.

         Knowing only the general location of the phone, eight to ten Marshals from the Task Force spread out across Greenwood attempting to locate Dewayne Lewis. They searched the parking lots of hotels, apartments, restaurants, bars, and shopping centers for a black Mercedes SUV. They asked hotel desk clerks if a Dewayne Lewis or black male driving a black Mercedes had recently checked in. Task Force Officer Jason York took the initiative to run Dewayne Lewis's name through the local police database, and he discovered that a Dewayne Lewis born in 1974 lived in Greenwood. The two cars registered to him were a black Mercedes and a white Cadillac Escalade.

         Based on the discrepancy between the 1977 birth date for the Indianapolis Dewayne Lewis that Officer Harshman had been tasked to locate, and the 1974 birth date for the Greenwood Dewayne Lewis, at around 2:30 p.m., Officer Harshman emailed Fort Wayne FBI Task Force Officer Adalberto Martinez a BMV photograph of Lewis and asked if he was the person the FBI was trying to find. Officer Harshman relayed that they had obtained information regarding a Dewayne Lewis with a different date of birth who drove a vehicle like the one investigators were looking for. Martinez relayed that the date of birth could have been reported incorrectly in the database, but he was certain about the vehicle description. Therefore, the FBI asked the Marshals to locate the Greenwood Lewis. Officers were also alerted to be looking for a white Cadillac Escalade.

         Officer York learned that a black male who identified himself as Michael Jackson from Evansville had, around 10:00 o'clock that morning, checked into Room 211 of the Greenwood Red Roof Inn. Shortly thereafter, a Deputy Marshal who was conducting surveillance at the Red Roof Inn saw a woman, who resembled the BMV photograph of the Greenwood Lewis's wife, arrive in a white Cadillac Escalade. She carried a medium-sized duffle bag to Room 211, looked around for a bit, and then entered the room. The woman stayed in the room for less than five minutes. When she left, she was no longer carrying the bag. Officer York confirmed through records that the license plate on the Cadillac was registered to the Dewayne Lewis that Officer York had located in the Greenwood database. Less than twenty minutes later, officers knocked on the door to Room 211, but they received no answer.

         Officers then walked a trained drug detection dog up the exterior staircase of the motel to the second floor, and along the open air walkway that ran the length of the hotel for access to the guest rooms. The dog alerted outside of Room 211. A Greenwood sergeant applied for, and obtained, a search warrant for Room 211. Officers executed the warrant at 5:05 p.m. Inside Room 211, officers found the Defendant, over $2 million cash, and 40 kilograms of cocaine.

         In a recorded interview the following day, the Defendant confessed that he was running drugs for Bates and that the cocaine in the hotel room had previously been stored by the Bates organization in Butler, Indiana. The drugs had been missed by the January 27 search warrants.


         A. The Dog Sniff Did Not Violate the Defendant's ...

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