United States v. Ewing

• Decision Date: 14 July 2022
• Docket Number: 2:21-cr-20198-JPM
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JEROME EWING, Defendant.
• Court: U.S. District Court — Western District of Tennessee

UNITED STATES OF AMERICA, Plaintiff, v. JEROME EWING, Defendant.

No. 2:21-cr-20198-JPM

United States District Court, W.D. Tennessee, Western Division

July 14, 2022

ORDER ADOPTING IN PART AND REVERSING IN PART REPORT AND RECOMMENDATION AND DENYING MOTION TO SUPPRESS

JON P McCALLA, UNITED STATES DISTRICT JUDGE.

Before the Court is the Report and Recommendation on Motion to Suppress of United States Magistrate Annie T. Christoff filed on May 20, 2022 (ECF No. 55) with respect to Defendant Jerome Ewing's Motion to Suppress, filed on February 25 2022 (ECF No. 37). The Magistrate Judge recommends that the Court deny Defendant's Motion. (ECF No. 55 at PageID 95.) Defendant Ewing filed timely objections to the Magistrate Judge's Report on June 16, 2022. (ECF No. 65.) The United States of America (“the Government”) filed a Response to Defendant's Objections on June 23, 2022. (ECF No. 66.)

Upon de novo review, the Court ADOPTS the portion of the Report and Recommendation finding that Defendant was sitting in the Dodge Challenger and had consented in his State of Tennessee Probation Order to the search of the automobile in question. The Court REVERSES the Report and Recommendation insofar as it finds that Defendant does not have standing. Defendant's Motion to Suppress is DENIED.

I. BACKGROUND

On March 5, 2019, Defendant was convicted in Tennessee state court of possession of a controlled substance (heroin) with the intent to manufacture, deliver, or sell. (Probation Order, ECF No. 49-1.) He was sentenced to 6 years of probation. (Id.) The Probation Order, which Defendant acknowledges that he signed, states, “I agree to search, without a warrant, of my person, vehicle, property, or place of residence by any Probation / Parole officer or laws enforcement officer, at any time.” (ECF No. 49-1 ¶ 7; ECF No. 37 at PageID 65.) It further provides, “I have read or have had read to me the Probation Order and the conditions of my Probation. I fully understand them and agree to comply with such conditions during the period of my Probation.” (ECF No. 49-1.) On April 9, 2021,^[1] law enforcement conducted a vehicle search of a 2017 Dodge Challenger parked in Defendant's neighbor's driveway, discussed in detail below, which produced a loaded .40 caliber Taurus pistol, substances later determined to be cocaine and fentanyl, and a black digital scale. (ECF No. 37 at PagelD 66-67.) Based on this evidence, Defendant was charged with, inter alia, possession with intent to distribute a controlled substance (fentanyl and cocaine), in violation of 21 U.S.C. § 841(a)(1); being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and possessing said firearm in furtherance of a drug crime, in violation of 18 U.S.C. § 924(c). (ECF No. 37 at PagelD 67; see also Superseding Indictment, ECF No. 22 at PageID 39-40, Counts 1-4.)

Defendant filed a Motion to Suppress and Incorporated Memorandum of Law on February 25, 2022, arguing that the evidence found in the vehicle “must be suppressed.” (ECF No. 37 at PageID 67.) The Government responded on April 12, 2022. (ECF No. 49.) On May 18, 2022, the Magistrate Judge held a hearing on Defendant's Motion to Suppress. (ECF No. 54; Tr., ECF No. 56.) At the Motion Hearing, Probation Officer Jody Poole and Detective Brett Neas each testified for the Government; Defendant also testified. (See ECF No. 56 at PagelD 115.) The Government introduced four exhibits into evidence: a State of Tennessee Probation Order dated March 5, 2019 (Ex. 1, also docketed as ECF No. 49-1), a Google Maps image (Ex. 4), and two photographs (Ex. 5 and 6). Defendant introduced two photographs into evidence (Ex. 2 and 3).

Probation Officer Jody Poole has been employed by the Tennessee Department of Corrections for three years and was Defendant's Probation Officer from October 2020. (ECF No. 56 at PagelD 120-21.) Her duties with respect to Defendant included “supervising] him, drug screening] him, [and] home visits.” (Id. at PagelD 122.) Officer Poole testified that she and her partner, Officer Clay, went to Ewing's residence at 2693 Beechmont Street in Memphis, Tennessee, on April 9, 2021, as part of an operation, because she had “got[ten] wind” that Ewing may have been selling drugs from the driveway of the home. (Id. at PagelD 124-25, 140.) She stated that they had “six or seven agencies” in various assigned spots for backup and surveillance, including Homeland Security, the Memphis Police Department, and “the drug units.” (Id. at PageID 125, 139, 141.)

Officer Poole testified that due to Covid protocols at the time, she would sometimes interview probationers outside their homes or by telephone and had previously interviewed Ewing outside. (Id. at PagelD 129-30.) She testified that she had never interviewed anyone from her car. (Id. at PageID 130.)

Upon arriving at Defendant's address, Officer Poole called Defendant “to ensure that he was home” and “told him to . . . step outside.” (Id. at PageID 126.) She then saw him exit from the driver's seat of a black 2017 Dodge Challenger that was “in the neighbor's driveway to the right of the house,” at 2695 Beechmont Street; no one else was in the vehicle. (Id. at PagelD 126127, 131-32.) Officer Poole testified that she then “told him to come towards [her]” and “started talk[ing] to him,” at which “time the other agencies came in.” (Id. at PageID 126.)

Officer Poole testified that on April 9, 2021, she did not know to whom the Challenger was registered. (Id. at PageID 140.) She testified that this did not matter, however, as Defendant was a probationer and “was in the driver's seat of [the Challenger],” which “[gave] [her] authority to enter the vehicle under the Probation Order conditions. (Id. at PageID 136, 140.) Officer Poole did not, however, personally search the vehicle.” (Id. at PageID 134.)

Detective Brett Neas is a detective with the Shelby County Sheriff's Office PSN division; in April 2021, he was assigned to the Multi-Agency Gang Unit NIBIN division and had been a law enforcement officer for approximately 14 years. (Id. at PageID 143-44.) Detective Neas was a part of the operation involving Defendant described above. (Id. at PageID 144.) He “was informed that [they] would be doing a probation check on Mr. Ewing at his residence,” and his role on that date was to conduct surveillance by “discr[eet][ly] . . . observ[ing] the residence [(at 2693 Beechmont Street)] as officers approached and watch[ing] what happened to the point of officers making contact at the residence.” (Id. at PageID 145, 159.) He testified that he was parked on Lynnwood Avenue, “just east of Overton Crossing.” (Id. at PageID 146.) He testified that “from [his] vantage point, [he] was able to see a clear line of sight to 2693 Beechmont Street.” (Id.; see also id. at PageID 150.) Exhibit 4 is a Google Maps aerial image of the intersections of Beechmont Street, Overton Crossing Street, and Lynnwood Avenue and the surrounding area. A red marker on Exhibit 4 designates 2963 Beechmont Street. Detective Neas testified that this image “truly and accurately depict[ed]” his location and the house's location on April 9, 2021. (Id. at PageID 146.)

Detective Neas testified that, using binoculars, he “first saw Mr. Ewing immediately after the probation officers pulled up in front of the residence” and that Defendant “exited a vehicle that was parked in the driveway of 2695 Beechmont Street,” that is, the 2017 Dodge Challenger. (Id. at PagelD 151-52.) After observing Defendant “approach the probation officers” and special agents arrive on the scene, Detective Neas made the scene at Defendant's residence and assisted in the recovery of evidence from the vehicle. (Id. at PagelD 153.)

Detective Neas testified that Exhibits 5 and 6 were photographs that he took of 2693 and 2695 Beechmont on a later date. (Id. at PagelD 155-59, 162-63.) He testified that Exhibit 5 “was the view that [he] had on April 9[], 2021.” (Id. at PageID 146-47.) He also testified that Exhibit 6, taken through the back window of his undercover vehicle, “truly and accurately depict[ed]” his vantage point on that date. (Id. at PageID 147.) He stated that while currently painted gray in the photograph, 2695 Beechmont Street was brown at the time of the April 2021 events, so the photographs depict the same two houses. (Id. at PageID 157-58, 163, 165.)

Detective Neas testified that he did not recall if he ran the temporary tag on the Challenger to see who it belonged to, but he recalled that “the vehicle was found to belong to a female,” whose name he did not recall. (Id. at PageID 162.)

Ewing testified that he was in the house when Officer Poole called, not in the Challenger. (Id. at PageID 166-67.) He stated that he exited the house and went down the driveway to Officer Poole, who was in her car, and that it was unusual for him to talk with her in her car. (Id. at PageID 167.) Defendant testified that the Challenger was owned by his sister, Tenetria Ewing, but that he did not know the person to whom it was registered, Shamarian Jackson. (Id. at PageID 169.) He denied ever having driven it and stated that he did not know who parked it in the driveway. (Id. at PageID 168-169.) He testified that he did not know to whom the evidence recovered from the vehicle belonged. (Id. at PageID 170.)

On May 20, 2022, the Magistrate Judge filed a Report and Recommendation as to Defendant's Motion. (ECF No. 55.) Defendant filed timely objections on June 16, 2022 (ECF No. 65), and the Government responded to those objections on June 23, 2022 (ECF No. 66).

Defendant objects to various findings of fact in the Report and Recommendation, as discussed below. The findings of fact to which he does not specifically object are reviewed for clear...