U.S. v. Jenkins

Decision Date28 January 2005
Docket NumberNo. 03-3989.,03-3989.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Andre JENKINS; Nathaniel S. Thompson, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Samuel A. Yannucci, Assistant United States Attorney, Akron, Ohio, for Appellant.

Thomas S. Hudson, Sarasota, Florida, Roger M. Synenberg, Law Offices of Roger M. Synenberg, Cleveland, Ohio, for Appellees.

Before: MARTIN, COLE, and GIBBONS, Circuit Judges.

GIBBONS, Circuit Judge.

Defendants-appellees Andre Jenkins and Nathaniel Thompson, charged with possession with intent to distribute cocaine, moved to suppress evidence obtained during two searches. The district court granted the defendants-appellees' motions, and the government appeals. The government argues that the district court erred in suppressing the evidence, as the evidence is admissible under the independent source doctrine, under the good faith exception to the warrant requirement, or because it was obtained through a search based on a valid warrant. For the reasons set forth below, we reverse the district court's ruling suppressing the evidence obtained from both searches and remand the case for trial on the merits.

I.

At 10:28 p.m. on February 13, 2003, Andre Jenkins and Nathaniel Thompson entered the Holiday Inn in Beachwood, Ohio. In the course of renting a room, Thompson offered his identification to the front office manager, Robert Jeffries, who made a photocopy of the ID and noted that it identified Thompson as a local resident.1 After paying cash to rent Room 127 for two nights, the two men unloaded what appeared to the office manager to be very heavy bags from their Ford Explorer onto a luggage cart, which they then took to the room. Jeffries found these circumstances to be suspicious, so he contacted John Kornek, a Beachwood police officer and member of the Ohio High Intensity Drug Trafficking Area (HIDTA) Task Force, and reported the activities of the two men as well as the license plate number of the Explorer. Members of the HIDTA Task Force had asked Jeffries to report any suspicious behavior among guests at the hotel, and Jeffries had done so numerous other times over the previous year and a half.

Officer Kornek immediately called Officer Kevin Grisafo, another policeman and member of the HIDTA Task Force, and suggested that he go to the Holiday Inn to follow up on Jeffries's report. Officer Grisafo noted that Room 127 had a do-not-disturb sign on the door, and he ran checks on Thompson and the Explorer. Thompson had been arrested twice for drug-related offenses and had a conviction for carrying a concealed weapon. The Explorer was registered to Bonnie Jones at 11906 Imperial, in Cleveland, who herself had a criminal record (including drug-related offenses).2 Officer Grisafo acquired the room across the hall from Room 127 for surveillance purposes, and he contacted IRS Agent Mark Kahler, who sent three HIDTA Task Force agents to staff the surveillance room. Officer Grisafo parked across the street from the hotel. At approximately 4:25 a.m., he saw a Suburban pull into the hotel parking lot, circle through the lot, exit the lot, and then reenter the lot, dropping off a woman at the lobby. The Suburban again exited the lot and parked across the street at another hotel, even though there was ample parking at the Holiday Inn. The driver walked quickly back to the Holiday Inn and entered through a locked hotel entrance, using a room key. He met the woman he had dropped off in the lobby, and together they entered Room 127. Officer Grisafo ran a check on the Suburban, tracing it to Lacell Torrence, who himself had a number of arrests on his record.3 At about 8:30 a.m. on February 14, a police dog gave a positive indication for the presence of narcotics in the Suburban. Around noon that day, the driver of the Suburban walked out of the room and left the hotel carrying several towels. FBI Agent Kenneth Riolo approached the individual, who identified himself as Andre Jenkins and stated that he had been applying for a job "across the street." Mr. Jenkins denied that he had been in the Holiday Inn with a female, denied that he had any contraband on him, and gave permission for Agent Riolo to search the car. Agent Riolo and other officers searched Mr. Jenkins, who had a small bag of marijuana, $1500 in cash, two cell phones, and a pager on his person. The officers did not search the car. Agent Riolo believed the woman in the room might have seen the search of Mr. Jenkins through the window, so he advised other HIDTA Task Force officers on the scene to secure Room 127 to prevent the destruction of evidence and to further "officer safety."

Throughout the morning and during this time, Officer Grisafo had been passing on information to IRS Agent Mark Kahler at the HIDTA Task Force office so that Kahler could prepare an affidavit for a search warrant covering the Suburban and Room 127. Meanwhile, after Jenkins was searched, officers entered Room 127, although witness accounts of their entry differ. Officers Grisafo and Kornek testified that they, along with another officer, knocked on the door, and the woman, who identified herself a few minutes later as Joyce Bell, let them in after being informed the police were in the process of getting a search warrant and wanted to secure the room. Bell, however, testified that a female housekeeper, who she saw through the door's peephole, knocked on the door instead of the officers. Bell stated that she cracked open the door to retrieve towels from the housekeeper, but the officers then "busted in the room," knocking her onto the floor of the closet with the door. She also testified that a gun was pointed at her.

Regardless, all witnesses agreed that Bell was only partially clothed, and Officer Kornek took her to a chair in the back of the room so that she could get dressed. He checked the chair and her clothes for weapons and asked if she would consent to a search of the room, including three bags of luggage stacked against the wall and an apparently empty bag lying beside them. Bell agreed, indicating that neither the hotel room nor the bags were hers. Bell and Kornek both testified that at the time of the officers' entry into Room 127, the bags were stacked against the wall (where one could not see inside them), and neither Bell nor Kornek touched the bags or saw any of the other officers touch them. Nevertheless, when Officer Grisafo, who had remained by the doorway inside the room while Bell gave consent to search the room, entered the room, he saw one of the bags on the bed, "wide open," "unzipped enough where it was pulling apart," with "brick-type items in there wrapped in cellophane." Officer Kornek agreed that at some point one of the bags was moved to the bed, where it lay partially open, but he did not know how the bag was moved.

The only witness to testify that he touched the bags was Agent Riolo, who entered the room about five minutes after the officers' initial entry. After being told that Bell consented to a search of the room and its contents, and noting that the room key sat on the counter between the beds, he announced that the officers should wait for a warrant to search the room.4 Riolo also testified that when he entered the room, at least one of the bags lay on the bed, with the zipper partially open, exposing some orange brick-shaped items. Riolo proceeded to pick up all of the bags and feel them, noting that they were full (of "bricks") and very heavy. On cross-examination he explained his decision to touch the bags before the warrant was issued: "I just felt I should touch them and see what there was inside. If it was soft and it was clothes, or maybe I just wanted to feel them and see how heavy they were and get that information back to Mr. Kahler," the agent preparing the warrant affidavit.

When Agent Riolo entered the room, Officer Grisafo left to meet Agent Kahler at the HIDTA Task Force office to review the affidavit (which Kahler had evidently completed) for accuracy. Before Grisafo arrived, Kahler was informed that there were bricks in the bags,5 but Kahler decided to exclude this information and the information provided by the confidential informant (Jeffries) from the affidavit, both to protect the identity of the source and because the affidavit was "more than sufficient" without that information. On the way to the Cuyahoga County courthouse to have a magistrate sign the warrant, Kahler conferred by phone with an Assistant County Prosecutor, who advised him to make sure that the judge was aware that the officers had already secured Room 127. When Kahler and Grisafo met with Judge Brian Corrigan, Kahler "informed him of the probable cause within the warrant as well as probable cause not in the warrant." In other words, Kahler and Grisafo orally informed the judge about the brick-shaped packages in the open bag on the bed, as well as about the manner in which Jenkins and Thompson checked into the hotel, even though this information was not in the affidavit. Kahler also told the judge that officers had secured Room 127. When asked at trial whether he thought the oral information affected the judge's decision to issue the warrant, Agent Kahler stated:

A: Well, to the best of my ability, I felt the warrant stood on its own. Did it affect his decision? I felt going through the probable cause of what we had in the warrant affected his decision.

Q: Including the fact that you told him orally that there were brick-shaped objects?

A: Yes, but I first went over what's in the warrant and then I went over here's what's not in the warrant....[I]f I thought it affected his decision as much as occurred in the past, he would have instructed me to add a paragraph.

At about 1:30 p.m., the judge "swore [Officer Grisafo] to the information that had been provided and signed the warrants."6 Officer...

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