762 F.3d 509 (6th Cir. 2014), 13-6056, United States v. Noble

Docket Nº:13-6056, 13-6057, 13-6156
Citation:762 F.3d 509
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. COURTNEY JUNIOR NOBLE (13-6056), MARCUS JESSIE ADKINS (13-6057), and DENA LYNN BROOKS (13-6156), Defendants-Appellants
Attorney:Frederick J. Anderson, Lexington, Kentucky, for Appellant in 13-6056. Charles P. Gore, Lexington, Kentucky, for Appellant in 13-6156. Katherine A. Crytzer, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee. Frederick J. Anderson, Lexington, Kentucky, for Appellant in 13-6056. Cha...
Judge Panel:Before: MOORE and KETHLEDGE, Circuit Judges; TARNOW, District Judge.[*] MOORE, J., delivered the opinion of the court, in which TARNOW, D.J., joined. KETHLEDGE, J. (pg. 24), delivered a separate dissenting opinion. KETHLEDGE, Circuit Judge, dissenting.
Case Date:August 08, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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762 F.3d 509 (6th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

COURTNEY JUNIOR NOBLE (13-6056), MARCUS JESSIE ADKINS (13-6057), and DENA LYNN BROOKS (13-6156), Defendants-Appellants

Nos. 13-6056, 13-6057, 13-6156

United States Court of Appeals, Sixth Circuit

August 8, 2014

Argued: June 25, 2014.

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Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:13-cr-00017--Joseph M. Hood, District Judge.

ARGUED:

Frederick J. Anderson, Lexington, Kentucky, for Appellant in 13-6056. Charles P. Gore, Lexington, Kentucky, for Appellant in 13-6156. Katherine A. Crytzer, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

ON BRIEF:

Frederick J. Anderson, Lexington, Kentucky, for Appellant in 13-6056. Charles P. Gore, Lexington, Kentucky, for Appellant in 13-6156. Adele Burt Brown, Lexington, Kentucky, for Appellant in 13-6057. Charles P. Wisdom, Jr., Robert M. Duncan, Jr., UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

Before: MOORE and KETHLEDGE, Circuit Judges; TARNOW, District Judge.[*] MOORE, J., delivered the opinion of the court, in which TARNOW, D.J., joined. KETHLEDGE, J. (pg. 24), delivered a separate dissenting opinion.

OPINION

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KAREN NELSON MOORE, Circuit Judge.

On the basis of a cooperating defendant's tip, a Drug Enforcement Administration (" DEA" ) task force set up surveillance along an interstate in eastern Kentucky, hoping to intercept members of a methamphetamine-trafficking operation. After fits and starts, a member of the task force located a car suspected of involvement with the operation. That task force member--Detective Robert Hart--trailed the automobile, a Chevrolet Tahoe, in an unmarked car, radioed a local officer, Adam Ray, and asked Officer Ray to initiate a traffic stop on the basis of a traffic violation. Detective Hart told Officer Ray only that the car was suspected of being linked to a DEA drug investigation.

Officer Ray initiated the stop and discovered the Tahoe's driver--Defendant-Appellant, Marcus Jessie Adkins--and one passenger--Defendant-Appellant, Courtney Junior Noble. When Officer Ray approached the Tahoe, he noticed that Noble was very nervous. Once Adkins gave Officer Ray permission to search the car, Officer Ray removed Noble from the Tahoe and frisked him for weapons on the basis of Noble's nervousness, the fact that the Tahoe was suspected in a DEA investigation, and that Officer Ray's training told him that drug traffickers are often armed. Officer Ray found several baggies of methamphetamine, a pipe used for smoking drugs, and a handgun on Noble's person. He arrested Noble and Adkins. In addition, the task force used this evidence to obtain a search warrant for a motel room suspected of being a way station for the traffickers. In the room, the task force found Defendant-Appellant Dena Lynn Brooks, pills, and a scale for weighing drugs. A grand jury indicted all three on charges of possession with intent to sell methamphetamine and conspiracy to sell methamphetamine; it also indicted Noble on a gun charge.

Noble moved to suppress the evidence found as a result of Officer Ray's frisk. Adkins and Brooks joined this motion, which the district court denied in full after holding a hearing. On appeal, we conclude that Officer Ray lacked sufficient particularized and objective indicia to believe that Noble was armed and dangerous. As a result, we REVERSE the district court's

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denial of Noble's motion to suppress, VACATE his conviction, and REMAND for proceedings consistent with this opinion. Because the government never objected to, and explicitly waived an argument related to, Adkins's and Brooks's lack of standing to challenge Officer Ray's frisk of Noble, we must also REVERSE the district court's denial of their motions to suppress, VACATE their convictions, and REMAND for proceedings consistent with this opinion.

I. BACKGROUND

In the fall of 2012, DEA Task Force Officer Scott McIntosh was investigating a methamphetamine-distribution network in Kentucky. Working with a cooperating defendant, he became aware of Brooks's and Adkins's involvement in the drug ring. Specifically, Officer McIntosh learned that Brooks would pick up ounce-level quantities of methamphetamine from her source of supply in Louisville, travel back to Lexington, and then meet with Adkins. In turn, Adkins would take the methamphetamine to Wolfe and Powell Counties in eastern Kentucky where he would distribute it further.

In December 2012, Officer McIntosh interviewed Brooks. For some reason, she confirmed that Adkins distributed methamphetamine in Wolfe and Powell Counties. Brooks also told Officer McIntosh that " one of [Adkins's] customers . . . or one of the people that he supplied was . . . Noble." R. 50 at 9:23-25 (Suppression Hr'g Tr.) (Page ID #223).

In January 2013, the cooperating defendant provided Officer McIntosh with a tip that Brooks would be traveling to Louisville on January 28 to purchase methamphetamine. The cooperating defendant indicated that Brooks would drive a white Jeep Cherokee, gave the automobile's license plate number, and told Officer McIntosh that Brooks had to return to Lexington by 5:00 p.m. On the 28th, Officer McIntosh and the DEA Task Force " established surveillance along the [Interstate] 75 corridor--or [Interstate] 64 corridor . . . going towards Louisville in an attempt to locate the white Jeep Cherokee . . . ." Id. at 12:21-23 (Page ID #226). The afternoon came and went without a sighting of the target vehicle.

At approximately 5:00 p.m., Officer McIntosh received a phone call from the cooperating defendant, and Officer McIntosh informed him that the Task Force had not located the white Jeep Cherokee. The cooperating defendant told Officer McIntosh that Brooks might have used Adkins's dark-colored Chevrolet Tahoe instead of Brooks's Cherokee. When Officer McIntosh asked the cooperating defendant where Adkins and Brooks might be near Lexington, the cooperating defendant disclosed that he had visited Brooks at a motel room near Exit 115 off Interstate 75 and that he knew that Brooks and Adkins had utilized the motel as a way station on route to Wolfe and Powell Counties. The cooperating defendant believed that Adkins and Brooks might have stopped at the motel again.

With this information in hand, Officer McIntosh contacted Detective Hart, a Lexington police officer detailed to the DEA Task Force, and requested that he investigate whether the white Cherokee or the dark-colored Tahoe were at a motel near Exit 115. Detective Hart located the two automobiles in the parking lot behind a La Quinta Inn and set up surveillance in another parking lot adjacent to the motel. Shortly thereafter, the Tahoe left the motel parking lot and started traveling toward the interstate. Detective Hart followed, " maintained surveillance" in his unmarked automobile, and " attempt[ed] to reach a uniformed officer to

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conduct a traffic stop." 1 Id. at 32:13-15 (Page ID #246).

Detective Hart eventually reached Officer Ray, a " [p]atrol officer with the Lexington Fayette Urban County Government Division of Police." Id. at 55:14-15 (Page ID #269). According to Detective Hart, he " relayed to [Officer Ray] that [the DEA Task Force was] involved in conducting surveillance on a group that was involved in distributing methamphetamine and that [Detective Hart] didn't know who was in the vehicle, didn't know anything about any weapons but basically the group was involved in meth." Id. at 33:2-7 (Page ID #247); see also id. at 57:16-58:2 (Page ID #271-72) (Officer Ray confirming Detective Hart's statement).

Officer Ray caught up with the Tahoe as it was traveling eastbound on Interstate 64. He " evened [his] front bumper with the rear bumper of the Tahoe, and immediately [up]on doing that, the Tahoe hit his brake lights to slow down; and [Officer Ray] watched [the Tahoe] cross from the center lane briefly into the right lane [without using his turn signal]." Id. at 59:4-8 (Page ID #273). In addition, Officer Ray " looked in the driver's window and observed that the front window tints appeared to be excessively dark[,] and [he] was unable to see the driver at that time." Id. at 59:14-18 (Page ID #273). Based on these two observations, Officer Ray " activated [his] emergency equipment and pulled the vehicle over." Id. at 59:20-22 (Page ID #273). A few moments later, Detective Hart pulled over fifty yards behind Officer Ray's patrol car.

Officer Ray approached the Tahoe " from the passenger side . . . to catch [the vehicle occupants] off guard." Id. at 62:8-9 (Page ID #276). Officer Ray informed the driver, who the police eventually learned was Adkins, that he had stopped the Tahoe for crossing lanes without signaling and for having excessive window tinting. While standing at the passenger-side window, Officer Ray noticed that the passenger, who turned out to be Noble, was " extremely nervous." Id. at 61:19 (Page ID #275). In his right hand, the passenger had a can of Ale-8-One, a soft drink popular in eastern Kentucky, and " it was shaking a lot more than [Officer Ray thought] it should have been . . . ." Id. at 61:15-16 (Page ID #275). Even though Officer Ray thought the passenger's behavior strange, as " there is really no reason for someone to be that nervous based on the traffic stop unless something else is going on," he continued with the traffic stop, taking Adkins's driver's license and vehicle registration and returning to his cruiser. Id. at 61:13-25 (Page ID #275).

Officer Ray then grabbed his tint meter and tested the Tahoe's...

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