U.S. v. Carney
| Decision Date | 01 October 2009 |
| Docket Number | Case No. 3:09-CR-00012-TBR. |
| Parties | UNITED STATES of America, Plaintiff v. Jesse CARNEY, Jr., Defendant. |
| Court | U.S. District Court — Western District of Kentucky |
Bryan R. Calhoun, U.S. Attorney Office, Louisville, KY, for Plaintiff.
Patrick J. Bouldin, Western Kentucky Federal Community Defender, Inc., Louisville, KY, for Defendant.
This matter comes before the Court upon Defendant, Jesse Carney, Jr.'s, Motion to Suppress All Physical and Testimonial Evidence Obtained as a Result of Unlawful Police Actions and Request for a Hearing (Docket # 40). The Government has filed a response (Docket # 41). A hearing was held on September 2, 2009. This matter is now ripe for adjudication. For the reasons that follow, Defendant's Motion to Suppress is GRANTED.
On November 21, 2008, investigators received information from Aaron Williams that an individual had used counterfeit currency to purchase a Nintendo Wii. Williams stated that the vehicle driven by the individual was a white Chevy SUV. On December 2, 2008, Williams' mother contacted investigators and told them that the vehicle had been located parked in front of 4902 Saddlebrook Court and the license plate number was 871-JKC. Williams and his mother were both shown a photo-pack line up which did not include Carney. Both identified Jerry King. At the hearing, there was testimony that no witness saw an individual with a Wii enter this apartment building.
On November 28, 2008, an individual attempted to pass counterfeit currency at a Circle K convenience store. The manager of the store, Amy Forsythe, told United States Secret Service Special Agent Ken McNaughton that she was made aware that an individual tried to pass a counterfeit bill after the clerk, William Thompson, noticed the bill and called her to the counter. Forsythe told investigators on December 3, 2008, that the individual took, or snatched, the bill from her to conceal the evidence of the counterfeit money and fled the store. Testimony at the hearing revealed that the bill was not retained as evidence, nor was the serial number recorded. Forsythe stated that once the individual left the store he drove away in a white Chevy full-size SUV with license plate number 871-JKC. Forsythe pulled the video surveillance of the transaction and provided it to the investigators. On that same date, both Forsythe and Thompson were shown a photo-pack line up with Carney's photo included but without a photo of King. Forsythe identified Carney but Thompson did not.
According to testimony at the hearing, Special Agent McNaughton reviewed the surveillance video from the Circle K and determined that an individual that fit Carney's description was captured on the video. The video showed Thompson and Forsythe interacting with the individual. The video reflects the individual giving the counterfeit twenty dollar bill to the clerk and then taking it back after he is told it is counterfeit. He pays with another bill, immediately leaves the store and drives away in a white Chevy SUV.
Investigators determined the vehicle was registered to Jenny McQuillen who lived at 4902 Saddlebrook Court # 1, Louisville, KY 40216. Special Agent McNaughton conducted surveillance of the vehicle and followed it to the Jefferson County Probation and Parole Office. Special Agent McNaughton then confirmed with the Kentucky Department of Probation and Parole that Jesse Carney was driving the white SUV and had stated his residence as 4902 Saddlebrook Court # 1, Louisville, KY 40216. The registration of the apartment was not determined.
On December 8, 2008, Special Agent McNaughton, LMPD Detective Steve Glauber and two other officers drove to 4902 Saddlebrook Court # 1 and knocked on the door. Carney answered the door. The officers asked for consent to search the home and the vehicle which was denied. The officers asked Carney questions concerning the transactions which he refused to answer. Carney was placed under arrest on state charges for possession of a forged instrument and tampering with physical evidence. Detective Glauber and Special Agent McNaughton left the scene of the arrest to transport Carney to the Jefferson County Detention Center. Two Secret Service officers were left at the scene to secure the apartment.
While at the scene the officers heard a voice inside the apartment. When asked, Carney stated that there was no one in the apartment and no one had permission to enter the apartment. The officers entered the apartment and arrested the co-defendant, Michael Dewitt. Dewitt was detained on the couch, interviewed, checked for weapons and then released. The officers did not search the apartment at that time.
Detective Glauber wrote the affidavit in order to obtain the search warrant. He used information provided through his own investigation of the Wii situation, as well as information provided to him by Special Agent McNaughton. After the search warrant was obtained it was executed. According to testimony, during the search the officers found a gun in the tank of the toilet in the bathroom, but did not find the counterfeit money. The apartment manager later found the money in the plunger in the bathroom. All of the bills had the same serial number.
On July 21, 2009, Carney moved to exclude this evidence as unlawfully obtained in violation of Fourth Amendment and requested an evidentiary hearing. The United States filed an objection to the motion. A hearing was held on September 2, 2009, where both Special Agent McNaughton and Detective Glauber testified.
Carney asserts that: the arrest was unlawful; the statements in the affidavit for the search warrant were deliberately false or stated with reckless disregard for the truth; and there is no probable cause nexus linking Carney, the vehicle, and the apartment. As a direct result, Carney moves for all evidence obtained from the search of the apartment and the vehicle be excluded. The Court finds the arrest was lawful, the statements in the affidavit for the search warrant were not deliberately false or given with reckless disregard for the truth, and that there was not a probable cause nexus linking Carney, the vehicle, and the apartment. Additionally, the exclusionary rule does apply to this situation and the evidence obtained as a result of the search of the vehicle and apartment should be excluded.
The Fourth Amendment was established to protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV; see also Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). An arrest is reasonable under the Fourth Amendment if there has been execution of an arrest warrant or there is probable cause that the defendant has committed a crime. Devenpeck, 543 U.S. at 152, 125 S.Ct. 588. No warrant is required to arrest a suspected felon in a public place if there is probable cause. U.S. v. Watson, 423 U.S. 411, 421-24, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). While the arresting officer need not have sufficient evidence in hand to convict the defendant, an arrest without a warrant "must stand on firmer ground that mere suspicion." Wong Sun v. U.S., 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (citing Henry v. U.S., 361 U.S. 98, 101, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)). The Supreme Court in Wong Sun explained, "[t]he quantum of information which constitutes probable cause—evidence which would `warrant a man of reasonable caution in the belief' that a felony has been committed,—must be measured by the facts of the particular case." Id. (citing Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). Stated another way, "[w]hether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest." Devenpeck, 543 U.S. at 152, 125 S.Ct. 588 (citing Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003)).
Carney moves to exclude all evidence obtained as a result of his arrest on the basis that the arrest was unlawful due to lack of probable cause. Carney argues that the charge of possession of a forged instrument requires the element of knowing possession. Carney states that the government did not have possession of the bill at issue and had no evidence that there had been knowing possession on the part of Carney. Carney reasons that, due to the unlawfulness of the arrest, any subsequent search of the apartment or vehicle is unlawful and the evidence obtained should be excluded. For this proposition, Carney cites Steagald v. U.S., where police had an arrest warrant but went to the home of a third party to make the arrest. 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). While at the home of the third-party the officers found incriminating evidence and prosecuted the third-party. Id. at 215, 101 S.Ct. 1642. The Court in Steagald held that a search of a third-party's home pursuant to an arrest warrant is as improper as a warrantless search. Id. The Court stated in dicta that officers should obtain search warrants when they obtain arrest warrants; but did not hold that an unlawful arrest precludes a later search pursuant to a valid search warrant. Id. at 221-22, 101 S.Ct. 1642.
In this case, Detective Glauber and Special Agent McNaughton arrested Carney outside of his apartment in a hallway that had public access. This hallway was a public place negating the requirement of an arrest warrant to effectuate a valid arrest as long as there was probable cause. Special Agent McNaughton testified that the arrest was based on the following evidence: the testimony of Amy Forsythe; the surveillance video; the photo-pack line up from which Forsythe identified Carney; and the testimony of...
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