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United States v. Reed

United States District Court, S.D. Indiana, Evansville Division

June 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
FREDDIE DEMARKA REED, III, (1) Defendant.

          ENTRY ON DEFENDANT'S SECOND MOTION TO SUPPRESS

          RICHARD L. YOUNG, JUDGE

         This case stems from a warrantless search of an automobile. On June 13, 2017, law enforcement officers pulled over a vehicle in which Defendant was a passenger to arrest him on an outstanding warrant for violating his parole. The officers then searched the vehicle and found two firearms near where Defendant was seated. Because the government has not carried its burden of showing that an exception to the general warrant requirement applies, the search violated Defendant's Fourth Amendment rights. Accordingly, Defendant's motion to suppress will be GRANTED.

         I. Background

         A. Facts [1]

         On Friday, March 10, 2017, Katie Hawkins and Breea Galiher traveled from Illinois to Evansville, Indiana to meet up with Defendant and spend the evening gambling at a local casino. However, their luck ran out by the end of the night: Galiher got a flat tire that prevented them from returning home. They could not change the tire because the rim had a locking lug nut, and Galiher left the key back in Illinois. They ended up staying the rest of Friday and Saturday at Defendant's house, though Defendant apparently stayed elsewhere.

         On Sunday, they returned to the casino with Defendant and gambled overnight. On Monday morning, Defendant and Galiher left the casino in a white Nissan Pathfinder to find a can of Fix-A-Flat, hoping to repair Galiher's flat tire. The Pathfinder was owned by Jessica Jackson, who was the mother of Defendant's child, but she frequently let Defendant use it. They first stopped at Defendant's residence, where he was confronted by Jackson, who was upset because he was with another woman. After the two had an argument, Defendant left with Galiher to resume their mission of finding a solution to the flat tire.

         However, they did not get very far. Shortly after they left the house, officers with the Evansville Police Department (“EPD”) pulled them over.[2] Before they came to a complete stop, Defendant attempted to hand Galiher a gun to hide. She rejected his request. Once stopped, Galiher and Defendant exited the vehicle. Galiher told the officers Defendant had attempted to hand her a gun, and it was still in the vehicle. The officers searched the vehicle but did not find anything. They subsequently released Defendant and Galiher without making an arrest.

         Jackson arrived to the scene of the traffic stop to get her vehicle, and then drove Galiher back to the casino to pick up Hawkins. The three of them subsequently returned to Defendant's house. Meanwhile, an unidentified woman picked up Defendant from the traffic stop, and the two of them went to a nearby restaurant. At some point later in the morning, the unidentified woman dropped Defendant off at his house.

         To briefly reset the scene: it is late Monday morning, and Defendant, Galiher, Hawkins, and Jackson are now at Defendant's house. Realizing that Hawkins and Galiher needed to get back to Illinois, Jackson permitted them to use her vehicle. Defendant also joined because he needed a ride to a nearby house, and Hawkins said she could drop him off on the way. The three of them exited the house and entered the Pathfinder: Hawkins as the driver, Galiher as the front-seat passenger, and Defendant as the rear-seat passenger. Hawkins then drove away from the residence. Unbeknownst to them, at this time, Task Force Officers from the United States Marshal's Fugitive Task Force were surveilling the residence because Defendant had an outstanding warrant based on a parole violation.

         Hawkins only made it a few blocks before the officers conducted a traffic stop. Task Force Officer Brian Bishop initiated the stop. He was joined by Troopers Michael Finney and Justin Bean of the Indiana State Police, Detective Sergeant Kurt Althoff of the Vanderburgh County Sheriff's Office, Deputy U.S. Marshal Chris Baldelli, and Deputy U.S. Marshal Jon Albright. Trooper Finney testified that this stop was a felony stop, which is a tactical stop officers use when there is a higher potential of risk to officer safety. In such a scenario, the officers position their vehicles in a manner where, if needed, they can be used as cover. With their firearms drawn, [3] the officers ordered Hawkins, Galiher, and Defendant out of the vehicle. All three were detained without incident.

         Trooper Finney and Officer Bishop began searching the vehicle immediately. Trooper Finney testified that he did not speak to any of the occupants of the vehicle before conducting the search, and he had not been briefed by any other officer. Ultimately, Trooper Finney found two firearms located in a compartment under the middle seat, in the rear of the vehicle. At that point, the officers contacted Task Force Officers Joshua Patterson, who is a narcotics detective for Vanderburgh County Sheriff's Office, and Douglas Francis, who is an Indiana State Trooper assigned to assist ATF, to come to the scene and further investigate. TFO Patterson arrived to the scene and began taking photographs and collecting evidence. TFO Francis arrived and interviewed Galiher and Hawkins. TFO Francis then drove to the Vanderburgh County Sheriff Department's Command Post, where Defendant had been transported, and interviewed Defendant. During the interview, Defendant admitted to possessing the two firearms.

         B. Procedure

         On June 29, 2017, Defendant was indicted on one count of unlawful possession of a firearm. (Filing No. 1). On August 23, 2017, he filed his first motion to suppress. (Filing No. 19). The government responded on August 31, 2017, and on October 17, 2017, the court conducted a suppression hearing. (Filing Nos. 20 and 25).

         At the suppression hearing, Sergeant Althoff testified for the government.[4] With respect to the timing of the search of the vehicle, Sergeant Althoff testified that the officers talked to Hawkins and Galiher before the officers searched the vehicle. (Suppression Hr'g Tr. at 20:9 - 13). The following exchange took place between the government and Sergeant Althoff:

Q: When you spoke to [Hawkins and Galiher], were they -- were they willing to speak with you?
A: They were. They were cooperative.
Q: And what did you learn when you spoke to them?
A: Well, we asked them what was going on during the stop because as I mentioned before, I was in the very back but we had radio contact with everybody, and they were saying that [Defendant] was moving all around in the back seat. So we kind of talked to them about that, what was going on; and as I mentioned, the girls were very cooperative. They said that during the stop, Mr. Reed was trying to have them stash items or hide items.

(Id. at 30:2 - 12). The “items, ” Sergeant Althoff explained, were two methamphetamine pipes, a bag of marijuana, and a handgun. (Id. at 30:16 - 25). Sergeant Althoff reiterated that the search occurred after the conversation with Hawkins and Galiher:

Q: When you learned this information from these two passengers, had a search of the vehicle been conducted yet?
A: No.

(Id. at 31:7 - 9). Based on Sergeant Althoff's testimony, the court denied Defendant's motion to suppress. (See Filing No. 28, Order Denying Motion to Suppress). The court found that the officers had probable cause to search the vehicle:

Officer Althoff testified that Defendant's parole agent advised officers, prior to the arrest, that Defendant was known to carry firearms. After talking with Hawkins and Galiher, the officers were aware that Defendant had attempted to conceal methamphetamine pipes and marijuana, both of which were found, and also a firearm, which had not yet been located. The officers were mindful too of Defendant's suspicious movements while the vehicle was being pulled over. Armed with all of this knowledge, the officers had enough information to believe that a firearm would be found in the vehicle.

(Id. at 6).

         With his motion to suppress denied and having failed to reach a plea agreement with the government, on March 12, 2018, Defendant proceeded to trial. After testimony from three of the government's witnesses (Hawkins, Jackson, and Galiher), Defendant renewed his motion to suppress. (See Filing No. 57, Transcript of Jury Trial - Day 1 (“Day 1 Tr.”) at 219 - 222). The court took the motion under advisement and proceeded with evidence. (Id. at 222). For reasons not important here, the trial ultimately ended in a mistrial. (See Filing No. 47).

         On March 29, 2018, Defendant filed a second motion to suppress-the present motion before the court. (Filing No. 52). On April 4, 2018, the government responded. (Filing No. 54).

         II. Discussion

         Before going forward, the court must first address a procedural hurdle: the consideration of a second motion to suppress having already denied Defendant's first one. With this out of the way, the court then ...


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