United States v. Ewing
| Decision Date | 20 May 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 |
REPORT AND RECOMMENDATION ON MOTION TO SUPPRESS
Before the Court is Defendant Jerome Ewing's Motion to Suppress filed February 25, 2022. (ECF No. 37.) District Judge Jon P McCalla referred the motion to the undersigned for report and recommendation. (ECF No. 38.) The United States responded in opposition on April 12, 2022. (ECF No. 89.)
The Court held a hearing on the motion on May 18, 2022. (ECF No 54.) At the hearing, the United States called two witnesses Probation Officer Jody Poole and Detective Brett Neas, and introduced into evidence four exhibits: a State of Tennessee probation order dated March 5, 2019 (Exhibit 1), a Google Maps image (Exhibit 4), and two photographic exhibits (Exhibits 5 and 6). Ewing testified, calling no other witnesses, and introduced two photographic exhibits (Exhibits 2 and 3).
After careful consideration of the statements of counsel, the testimony of the witnesses, the evidentiary exhibits, and the entire record in this case, this Court recommends that the motion be denied.
The following proposed facts are taken from the sworn testimony presented at the suppression hearing. Where factual conflicts were presented, these facts represent the undersigned's resolution of those conflicts after considering the credibility of the witness and supporting evidence.
Officer Jody Poole has been a probation officer with the Tennessee Department of Corrections (“TDOC”) for three years. (Tr. 3.) Though TDOC covers probation and parole Poole only handles probation cases and acknowledged that parole cases are a little different. (Id. at 11.) She was assigned to supervise Ewing's probation in October 2020. (Id. at 4.) Ewing was convicted of criminal attempt of possession of a controlled substance (heroin) with intent to manufacture, deliver, or sell on March 5, 2019. (Ex. 1.)[1] That supervision was pursuant to the probation order entered as Exhibit 1, signed by Ewing and a judge, which provides, inter alia:
(Id. ¶¶ 6, 7.) Poole testified that those provisions allow for a search of Ewing's residence and car without a warrant and without suspicion. (Tr. 7, 18.)
In April 2021, Poole “got wind” that Ewing was selling drugs from his mother's house, where he was living, at 2693 Beechmont Street. (Id. at 7-8.) An operation was thus planned to investigate the allegations, comprising Poole, her partner Clay, agents from Homeland Security, and officers from the Memphis Police Department Drug Unit. (Id. at 8.) The operation team met before and went to Ewing's residence together. (Id. at 23.) As planned, Poole and Clay drove up to 2693 Beechmont in a marked TDOC car and parked in front, with Poole in the passenger seat, while the other officers took surveillance positions nearby. (Id. at 8-9, 12, 21, 23, 27.)
At the time, Poole was operating under Covid protocols that required her to be careful, maintain distancing, and wear a mask. (Id. at 11-12.) As a result, she would sometimes interview probationers outside, at their front door, without going into their homes. (Id. at 12.) She had previously interviewed Ewing outside. (Id. at 13.) She did not interview probationers in her car. (Id. at 12.)
When Poole and Clay pulled up to the house, they did not see Ewing, so Poole called Ewing's telephone. (Id. at 8, 13.) Ewing answered, and Poole told him she was there. (Id. at 8, 14.) Ewing responded, “I'm here, Officer Poole.” (Id. at 9, 14.) According to Poole, she told Ewing to come outside, and he emerged from the driver's side of a 2017 Dodge Challenger parked in his neighbor's driveway at 2695 Beechmont. (Id.) No one else was in the Challenger. (Id. at 9.) Poole got out of her car and told Ewing to come toward her, which he did, and at that point the rest of the officers came to the house, and Ewing was arrested. (Id. at 9, 14, 17.)
Exhibit 2 depicts an image of 2693 Beechmont, Ewing's home. (Ex. 2; Tr. 15.) The image shows a one-story brick house painted blue, with unpainted red brick on the right corner of the home and a window with red shutters. (Ex. 2.) The house number 2693 is visible on the roofline. (Id.) To the right of the house are two cars parked in a row (the car closest to the house being a dark-colored Mercedes, and only the front bumper of the car behind it visible), to the right of those cars can be seen another parked car, and beyond it, a neighboring house sided in tan fieldstone. (Id.)
Exhibit 3 depicts an image of the right side of 2693 Beechmont, with its unpainted red brick corner and side, and the neighboring tan stone house at 2695 Beechmont. (Ex. 3; Tr. 16.) Two parallel, concrete driveways fill the space between the homes, with a narrow strip of grass separating the driveways. (Ex. 3.) In the driveway on the left, belonging to 2693, the image shows the dark-colored Mercedes, parked in front of a white, two-door car, parked in front of another car, only the front wheel of which is visible. (Id.) In the driveway on the right, belonging to 2695, the image shows a dark-colored SUV parked near the house and behind it, in the foreground, the black Challenger, with the driver's side door open. (Id.) The house number 2695 is visible above the tan house's front door, which is covered by a gabled portico supported by two brown posts. (Id.) The photograph in Exhibit 3 was taken after Ewing's arrest. (Tr. 17.)
Following Ewing's arrest, some of the officers searched the Challenger and located narcotics and a weapon. (Id. at 35.) Poole testified that the probation order gave her authority to search the Challenger because Ewing was in the driver's seat. (Id. at 18.) Poole agreed on cross examination that she had to have some reason to believe the car was Ewing's or that he regularly drove it. (Id. at 19.) She did not know who the Challenger was registered to but said it did not matter because Ewing was in the driver's seat. (Id. at 22.) She did not participate in the search of the Challenger. (Id. at 17.)
Detective Brett Neas was, at the time, a detective with the Shelby County Sheriff's Office, assigned to the Multi-Agency Gang Unit's (“MGU”) NIBIN unit.[2] (Id. at 25.) The role of the MGU is to address violent crime, working jointly with several federal agencies. (Id. at 25-26.)
Neas had been in law enforcement for fourteen years in 2021 and had attended the police academy and received on-the-job training. (Id. at 26.)
Neas was asked to participate in a probation check on Ewing on April 9, 2021. (Id. at 26.) He attended the meeting before the operation, where different officers were assigned different roles, and he was assigned to surveillance. (Id. at 26-27.) His job was to conduct discreet observation of the residence at 2693 Beechmont to gather as much information as possible. (Id. at 27.) Neas was given a photograph of Ewing so that he would know who to look for. (Id. at 30-31.) During the operation, Neas was parked in an undercover car on Lynwood Avenue, east of Overton Crossing Street, with a clear line of sight of 2693 Beechmont. (Id. at 28.)
Exhibit 4 depicts an aerial image from Google Maps of 2693 Beechmont and the surrounding neighborhood, which Neas described as an older neighborhood with a lot of trees. (Ex. 4; Tr. 28, 36.) The location of 2693 Beechmont is identified with a red marker. (Ex. 4.) The home is near the termination of Beechmont into Overton Crossing; it appears that 2693 is the second home on Beechmont off Overton Crossing. (Id.) During the hearing, Neas indicated on Exhibit 4 where he was parked; the location was on the curved part of Lynwood, the next street over and across from Beechmont, just before it terminates into Overton Crossing. (Tr. 3132, 36; Ex. 4.) The block between Beechmont, which terminates into the left of Overton Crossing, and Lynwood, which terminates into the right of Overton Crossing, appears to have two houses on each side of Overton Crossing. (Ex. 4.) Exhibit 4 supports Neas's testimony that his view of 2693 Beechmont was unimpeded from his location on Lynwood, based on the curvature of Beechmont and Lynwood and on the lack of trees or structures in the block between. (Id.)
Exhibits 5 and 6 depict images taken by Neas to demonstrate his view of 2693 Beechmont. (Tr. 28-29.) Neas did not take the photographs the day of the operation-he took them “more recently”-but he took the photographs from approximately the same location where he conducted surveillance on April 9, 2021. (Id. at 33, 44.) The images show 2693 and 2695 Beechmont through the rear window of Neas's car. (Id. at 34.) Exhibit 6 demonstrates that Neas's line of sight to 2693 and 2695 Beechmont is unobstructed. (Ex. 6.) Exhibit 5 appears to be a magnified version of Exhibit 6 and shows the blue brick 2693 Beechmont on the left, with its red brick right corner and red shutters on the windows. (Ex. 5.) The driveways between 2693 and 2695 are visible as well. (Id.) The home to the right of the driveways, identified...
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