U.S.A. v. Heath

• Decision Date: 06 March 2001
• Docket Number: Nos. 99-6549,s. 99-6549
• Citation: 259 F.3d 522
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Shy Heath (99-6550) and Carmen Horton (99-6549), Defendants-Appellants. /6550 Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 522

259 F.3d 522 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Shy Heath (99-6550) and Carmen Horton (99-6549), Defendants-Appellants.

Nos. 99-6549/6550

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: March 6, 2001

Decided and Filed: August 3, 2001

[Copyrighted Material Omitted]

Terry M. Cushing, Monica Wheatley, Marisa J. Ford, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.

Scott C. Cox, Louisville, Kentucky, for Appellants

Before: KEITH, SILER, and CLAY, Circuit Judges.

OPINION

DAMON J. KEITH, Circuit Judge.

Defendants-Appellants Shy Heath and Carmen Horton ("Defendants") pled guilty to conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The defendants entered their respective plea agreements contingent upon their ability to appeal the district court's denial of their motions to suppress evidence discovered pursuant to a warrantless stop of Heath and subsequent search of Horton's apartment. For the reasons that follow, we REVERSE the district court's order denying the defendants' motions to suppress.

I. BACKGROUND

Officer Rod Seelye, a narcotics investigator for the Louisville Police Department, initially observed Heath in early April of 1998. Officer Seelye testified that his interest in Heath was piqued because he "misidentified [ Heath] and thought he was another person that [he] had been looking at." (J.A. at 85.) Officer Seelye followed Heath and observed him stopping at a location that was reportedly under investigation for drug activity. The officers then followed Heath until he came to a residential apartment building at which time Officer Seelye claimed Heath began to drive suspiciously in that he "circled the block several times... [and] look[ed] in his rearview mirror." (J.A. at 85.) Officer Seelye testified that his "experience and training" indicated that Heath was engaged in behavior "indicative of drug trafficking and looking for a police tail." (J.A. at 85.) The apartment building that Heath entered was "a brick, three-story apartment building with a parking lot. The one common entrance into the building [remains] locked and requires a key." (J.A. at 23.)

Subsequently, through vehicle registration and criminal photo records, Officer Seelye was able to identify the instant defendant as Shy Heath. Officer Seelye also determined that Heath had three misdemeanor convictions and one felony drug conviction. Approximately one week later, Officer Seelye learned from a fellow narcotics officer that Heath was reportedly trafficking large quantities of cocaine. Officer Seelye's counterpart obtained this information from, in that officer's opinion, a "reliable" confidential informant. (J.A. at 87.) Based upon this information, Officer Seelye decided to "continue [his] ... surveillance." (J.A. at 87.)

Officer Seelye surveilled Heath on three other occasions in April. ¹ He noted that "Heath and other individuals [would] arrive at the [apartment] and act suspiciously." (J.A. at 87.) Specifically, Officer Seelye described an occasion when a "subject" arrived at the apartment complex in a brown Lexus. Seelye found this notable because Lexus is an expensive vehicle brand. Heath arrived soon after. He stated that Heath circled the area in his vehicle and then "look[ed] around the parking lot" prior to entering the apartment complex. Officer Seelye testified that after being inside for a "short time," the subject exited the premises in what "seemed like a bigger jacket ... walking and he wasn't moving one of his arms." (J.A. at 88.) Officer Seelye speculated that the subject's lack of extremital movement was consistent with someone who was "sort of holding something." (J.A. at 88). He further testified that the subject departed in Heath's vehicle, leaving the brown Lexus parked outside the apartment complex. As noted above, Officer Seelye characterized this incident as "suspicious[]". He described another incident where Heath engaged in countersurveillance, i.e., looking around the parking lot and driving around before parking. On this occasion, Heath parked his car and looked around before removing a pillowcase with something weighing heavily in the bottom. Heath then entered the apartment complex with the pillowcase and after staying there for a period of time, he departed for his permanent, familial residence. While Heath was inside his family's residence, Officer Seelye testified that he observed "numerous subjects coming and going." (J.A. at 91.) Prior to the day of Heath's arrest, these two events comprise the complete record of suspicious activity reported by Officer Seelye.

On April 27, 1998, the date of Heath's arrest, Officer Seelye testified that he began surveilling the apartment complex at approximately 12:30 p.m. (J.A. at 92.) After "several hours," Heath arrived in a vehicle that was known to belong to Michael Spaulding. (J.A. at 92.) Spaulding was alleged to have been "a large-scale drug trafficker ... [with] prior drug arrests." (J.A. at 92.) After parking the vehicle, Heath "look[ed] around the lot ... retrieved a brown bag from the vehicle" and entered the apartment building. (J.A. at 93.) Heath remained inside for approximately one hour. When he departed the building, Heath was reportedly carrying a "darker colored bag." (J.A. at 95.) Based upon the afore described events, Officer Seelye requested additional officers to report to the area and he proceeded to follow Heath.

According to the testimony of Officer Seelye, Heath demonstrated the behavior of a person "looking for a tail." (J.A. at 96). Heath began "making a lot of turns..driv[ing] faster than the speed limit ... and then he would slow down and drive slowly." Officer Seelye also testified that he thought Heath "turned on to a dead-end street." (J.A. at 96.) After following him for fifteen minutes, the officers decided to conduct an "investigative stop" of Heath. Heath drove into a fast food restaurant parking lot, at which point a squad car blocked his passage and Officer Seelye stopped his car behind Heath's vehicle. The officers approached Heath's car with their guns drawn. Officer Seelye testified that upon reaching the driver's side door of Heath's vehicle, he "pulled Mr. Heath from the vehicle and put him up on the side." (J.A. at 98.) He further testified that he wedged Heath between the car door and the body of the car enabling him to "close the door[] on [Heath] if [he] had to." (J.A. at 99.) Despite this tactic, Officer Seelye testified that he feared that Heath "might want to run," thus, he handcuffed him. (J.A. at 99.) He further testified that he instructed Heath that he was "not under arrest." (J.A. at 99.)

Officer Seelye informed Heath that he was conducting a narcotics investigation and proceeded to question Heath about his whereabouts immediately preceding the instant encounter. Heath indicated that he was visiting Michael Spaulding. Officer Seelye then asked Heath if he had been to the aforementioned apartment building; he responded that "he hadn't." (J.A. at 100.) The officers searched Heath and the entire vehicle; nothing of an illegal nature was found. Officer Seelye testified that during the patdown search he "noticed that there were keys in [Heath's] pocket." (J.A. at 101.) Officer Seelye then attempted to elicit information from Heath regarding the apartment that the keys were used to unlock. ² In response to Heath's assertion that the keys and pants belonged to his brother, Officer Seelye asked if Heath would "mind if [he] got them since they're not your keys." (J.A. at 101.) Heath responded "no" and Officer Seelye removed the keys from his pocket.

At this point, the officers decided to take the keys and gain entry to the apartment building. Having anticipated this issue arising, Officer Seelye and his supervisor then paged a prosecutor who had researched the issue of whether it would "be the equivalent of a search if [the officers took the] key and tr[ied] to ascertain which door that key goes to." ³ (J.A. at 102.) Officer Seelye testified that they waited for the prosecutor to return their page and then discussed their plan, i.e., to "take the key and go back to the ... apartment and use the key to test the doors." (J.A. at 103.) Upon receiving the prosecutor's consent, the officers placed Heath in a police vehicle and proceeded to transport him to the apartment building. At this point, Officer Seelye estimates that Heath had been detained for "thirty to forty-five minutes." (J.A. at 103.)

Upon arriving at the apartment building, the officers used one of the two keys on the key ring to access the entryway to the common areas of the apartment building. They then attempted to unlock each door on the first floor with the remaining key. After their effort on the first floor proved unfruitful, the officers proceeded to the second floor. After attempting several doors on the second floor, a female resident entered the hallway and queried the officers regarding their actions. Upon identifying themselves, the officers asked the resident "if she knew Mr. Heath"; she responded in the negative. (J.A. at 106.) The officers then asked the resident "if she knew which floor the guys that always show up in the new rental cars and Expeditions, real nice vehicles, what floor do they go to." (J.A. at 106.) The resident directed them to the third floor where they resumed their door-to-door effort. Officer Seelye testified that they attempted more than half of the doors on the third floor before finding the corresponding lock. This apartment was leased to Carmen Horton. Throughout these events, Heath remained guarded, handcuffed and detained in a police vehicle.

After a brief discussion to determine how they would proceed, the officers decided "to obtain a consent [to search the apartment] from [the] occupant[s]." (J....