U.S. v. Scott
| Decision Date | 10 June 2011 |
| Docket Number | CAUSE NO.: 1:09-CR-98-TLS |
| Parties | UNITED STATES OF AMERICA v. JOHN EDWARD SCOTT |
| Court | U.S. District Court — Northern District of Indiana |
The Defendant seeks to suppress an audio recording of an August 19, 2009, conversation, invalidate a search warrant, and exclude evidence seized during the execution of the search warrant that police obtained to search a residence at a particular address on Heritage Drive in Fort Wayne, Indiana, and statements he made after his arrest and during the recorded conversation. For the reasons set forth in this Opinion and Order, the Court denies his Motion to Suppress [ECF No. 53].
The Defendant is charged in a four-count Indictment with two drug offenses (possessing with intent to distribute cocaine, and managing and controlling a building for the purpose of storing, distributing, and using cocaine, heroin, and marijuana) and two firearm offenses (possessing a firearm in furtherance of a drug trafficking crime, and being a felon in possession of a firearm). On September 17, 2010, the Defendant filed a Motion to Suppress [ECF No. 33], seeking to suppress evidence obtained during the search and any statements he made after his arrest. The Court conducted telephonic conferences with the parties, and the parties filed briefs regarding the Defendant's Motion. On December 6, the Court issued an Opinion and Order [ECF No. 46] denying the Defendant's Motion to Suppress.
On February 3, 2011, the Defendant filed a second Motion to Suppress [ECF No. 53], to which were attached the Search Warrant Affidavit [ECF No. 53-1] and the Search Warrant [ECF No. 53-2]. In his Motion, the Defendant requested a hearing. On February 18, the Government filed a Response [ECF No. 56], in which the Government indicated that the parties could agree on a stipulation regarding the facts. On February 24, the Court conducted a telephonic proceeding with counsel regarding the Motion. Counsel for the Government and the Defendant agreed that a hearing was not necessary and that they would address the facts by way of stipulation. The Court set deadlines for the submission of stipulated facts and briefs. On March 11, the parties filed a joint Stipulation [ECF No. 61]. On April 8, the Defendant filed a Brief in Support [ECF No. 62], and on May 11, the Government filed a Response Brief [ECF No. 63]. On May 13, the Government filed a Notice of Supplemental Authority [ECF No. 64].
The following facts are adopted nearly verbatim from the joint Stipulation1 of the parties.
On August 19, 2009, detectives with the Allen County Drug Task Force used a confidential informant (CI or informant) to make a controlled purchase of heroin from Gerald Reynolds. The Cl's person and vehicle were searched thoroughly by detectives, and no contraband or other evidence was found. The CI was outfitted with an audio recording device on his/her person, and Detective Jack Cain placed an audio recording device in a covert location within the Cl's vehicle. While under constant surveillance by detectives, the CI drove his/hervehicle to the Pine Haven Motel, and the CI entered a particular hotel room in order to meet with Reynolds to coordinate the heroin transaction.
After waiting for a period of time and after Reynolds coordinated a meeting with his suspected supplier over the telephone, both the CI and Reynolds left the hotel room, entered the CI's vehicle, and drove to a gas station parking lot. The CI exited the vehicle at the gas station, and Reynolds alone drove the CI's vehicle to a particular address on Heritage Drive, Fort Wayne, Indiana, where a surveillance detective was positioned. Reynolds parked the CI's vehicle in the driveway of the Heritage Drive residence about half way between the street and the house.
After Reynolds parked in the driveway of the Heritage Drive residence, an individual matching the description of the Defendant exited the residence and approached the driver's side of the vehicle where Reynolds was seated. They were together for about five minutes, and then the individual believed to be the Defendant returned to the house. Reynolds then backed out of the driveway and left the area. Reynolds returned to the gas station and took the CI back to the same hotel room. Once inside, Reynolds provided the heroin to the CI.
While Reynolds was parked in the driveway of the Heritage Drive residence, the audio recording device in the CI's vehicle recorded the conversation between Reynolds who was seated in the vehicle and the Defendant who remained outside the vehicle. During the course of that conversation, they discussed the price of the heroin, and the Defendant mentioned that he was trying to get some "yay," which the detectives believed meant cocaine, and that his supplier was charging him $150 for a "ball," which the detectives believed referred to an eighth of an ounce of cocaine. Reynolds said that he had a guy who was looking for a "quarter," which thedetectives believed to mean a quarter of an ounce of cocaine.
On August 24, 2009, the CI performed a second controlled buy. During this buy, a similar series of events occurred; however, upon Reynolds's arrival at the residence on Heritage Drive, he exited the CI's vehicle and approached the residence. There was, therefore, no audio recording of any conversation between the Defendant and Reynolds on this occasion.
With Reynolds under investigation, Reynolds was not told about the recording device in the CI's vehicle. The Defendant would testify that he also did not know about the recording device in the vehicle, and the Defendant would testify that he was the person who talked with Reynolds in the driveway of the residence on Heritage Drive on August 19, 2009. The Defendant would further testify that he had a subjective belief regarding an expectation of privacy in the conversation taking place in the driveway and that he was residing at the particular address on Heritage Drive at that time.
On August 26, 2009, Allen County Police Department (ACPD) Detective Jack Cain, Deputy Prosecuting Attorney Jeffrey A. Stineburg, and Allen Superior Court Judge Kenneth R. Scheibenberger signed the Search Warrant Affidavit. The first paragraph of the Affidavit states:
Detective Jack Cain of the Allen County Police Department swears that he believes and has Probable Cause to believe that certain evidence of drug activity including Heroin and derivatives thereof, controlled substances, United States Currency, firearms and/or weapons, records of drug transactions and/or financial information, which constitutes evidence of alleged drug transactions and illegal possession of said controlled substances, are concealed on or about the following property, to wit: [providing a detailed description of the Heritage Drive residence including a physical description of the building and the street address].
(Aff. 1.) The first sentence of the second paragraph of the Affidavit states: "In support of youraffiant's assertion of Probable Cause, the following facts are within your affiant's personal knowledge, to wit." (Aff. 1.)
In the remainder of the second paragraph, Detective Cain described the procedures police use in controlled drug buys with confidential informants (CIs). In controlled buys, police search CIs thoroughly prior to buys to ensure that CIs are not holding or hiding any contraband. Police outfit the CIs with audio recording devices, and constant surveillance of the CIs is maintained as the CIs travel to meeting locations and until the CIs complete the transactions and meet detectives after the deals. After the CIs hand over the drugs purchased, the CIs are again searched to ensure that no contraband items are present. If transactions occur inside residences, law enforcement officers maintain surveillance as the CIs enter and exit the residences, keeping all entrances and exits under surveillance while the CIs are inside.
The third paragraph indicates that police used a particular CI in this investigation. The Affidavit states that this CI had proven credible and reliable, that this CI had provided information and/or assisted law enforcement in the past that had resulted in the seizure of illegal narcotics, and that police had been able to corroborate information provided by this CI.
According to the fourth paragraph, on August 19 and August 24, 2009, police utilized this CI to perform two controlled buys of heroin. Police used the controlled-buy procedures outlined above. None of the pre-buy and post-buy searches of the CI produced any contraband. After each transaction, Detective Cain field tested the items purchased by the CI, and those items field tested positive for heroin, with approximate weights of 1.7 grams and 1.74 grams for the respective buys.
In the fifth paragraph, the Affidavit provides details about the controlled buys. With eachbuy, the CI met with a suspect at a Bluffton Road address, and they traveled to a nearby gas station. While the CI waited at the gas station, the suspect drove the CI's vehicle to where he purchased the heroin. On both occasions, this suspect drove to a particular address on Heritage Drive, Fort Wayne, Indiana, and obtained the heroin. The suspect then returned to the gas station, and the suspect and the CI returned to the Bluffton Road address. Detectives maintained surveillance on this suspect and the CI during these events. Surveillance detectives observed the suspect arrive and leave the driveway of the residence on Heritage Drive. During the controlled buy on August 19, a detective observed an individual exit the Heritage Drive residence and approach the driver's side of the vehicle that the suspect was driving. A covert recording device captured a conversation between the individual who had exited the residence and the suspect that concerned the exchange of buy money for the heroin. On August 24, surveillance detectives...
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