United States v. Gordon, Case No. 17-20636

• Decision Date: 12 September 2018
• Docket Number: Case No. 17-20636
• Parties: UNITED STATES of America, Plaintiff, v. Robert Donald GORDON, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

346 F.Supp.3d 999

UNITED STATES of America, Plaintiff,

v.Robert Donald GORDON, Defendant.

Case No. 17-20636

United States District Court, E.D. Michigan, Southern Division.

Signed September 12, 2018

Jihan M. Williams, U.S. Attorney's Office Eastern District of Michigan, Detroit, MI, for Plaintiff.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO SUPPRESS DERIVATIVE EVIDENCE (Dkt. 25)

TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE

I. Introduction

Defendant Robert Gordon moves to suppress evidence derived from an illegal search as "fruit of the poisonous tree."

In a previous order, this Court suppressed evidence seized on August 27, 2017, when officers from the Southfield Police Department ("SPD") entered Defendant's hotel room without a search warrant while responding to a report that a 16-year-old girl ("MV1 [Minor Victim -1]") was inside the room with Defendant, a 45-year-old man unknown to her parents. The officers knocked on the door several times, but no one answered. Using a key provided to them by the hotel's front desk clerk, the officers entered the room. They found the Defendant and MV-1 inside and seized electronic devices belonging to Defendant. Defendant moved to suppress the evidence found on those devices, and the motion was granted by this Court. See Opinion and Order Granting Defendant's Motion to Suppress, Dkt. 20.

But that was not all of the evidence in this case. Also seized at the time of the illegal entry into the hotel room was the cell phone belonging to MV-1. Further, in the days following the hotel room search, police came into possession of a second cell phone that MV-1 had previously used, as well as additional evidence seized during a subsequent search of defendant's home and vehicle. Defendant moves now to suppress both of MV-1's cell phones, as well as all evidence seized from his home.

For the reasons outlined below, Defendant's motion is GRANTED IN PART and DENIED IN PART .

II. Background

At around 3:00 a.m. in the morning on August 27, 2016, parents of 16-year-old "MV-1" called 911 to inform officers that they received information their daughter was at the Marvin's Garden Inn in Southfield, Michigan. ("Marvin's Garden" or "the hotel"). Although MV-1 told her parents that she would be spending the night at a friend's house, she was actually at the hotel with a 45-to-50 year old man from Indiana named "Robert." Dkt. 14, Pg. ID 32.¹ MV-1's parents had never heard of "Robert" and did not know who he was. According to the government, Marvin's Garden Inn is a hotel "well-known to the officers for sex trafficking, drugs, and violence." Dkt. 17, Pg. ID 62.

Four Southfield Police Officers met MV-1's parents in the hotel parking lot. Dkt. 14, Pg. ID 41; Dkt. 17, Pg. ID 62, 64. Believing MV-1 was with an unknown older man from Indiana, police officers observed an orange Chevrolet HHR with an Indiana license plate parked in the hotel parking lot. After running the license plate in their database, the officers learned that the vehicle belonged to the Defendant, Robert Donald Gordon—a white, 45-year-old male from Logansport, Indiana. Dkt. 17, Pg. ID 64. Based on that information, the officers talked to the hotel clerk and learned that Gordon had checked into room # 103 earlier that afternoon.

Using their steel batons, the officers loudly struck the hotel room's steel front door and the room's glass window for "five to ten minutes" but no one answered. Dkt. 17, Pg. ID 64; see Dkt. 14, Pg. ID 41. They yelled "Southfield Police" and "Open the door," but did not hear any noise whatsoever from within the room. Transcript, Motion to Suppress Hearing, Feb. 20, 2018, Dkt. 22, Pg. ID 154-55.

Getting no answer, the officers went back to the front desk, asked for a room key, and waited for the arrival of their Sergeant. After the Sergeant arrived, they returned to the room and again used their batons to pound on the door while they announced their presence as police officers. Transcript, Motion to Suppress Hearing, Feb. 20, 2018, Dkt. 22, Pg. ID 185–86.When no one answered, they used the key to enter Defendant's room. Id. at Pg. ID 186.

Once in the room, the officers encountered Defendant sitting on the bed. Defendant informed the officers that MV-1 was in the bathroom. Dkt. 14, Pg. ID 42. The officers found and escorted MV-1 out of Defendant's hotel room. Id. ; see also Dkt. 17, Pg. ID 65. The officers did not arrest Defendant, but they did provide him with Miranda warnings. Dkt. 17, Pg. ID 65. Defendant told the officers that he wanted to "cooperate 100 percent." Id. He allegedly gave law enforcement permission to search the room and all of his belongings. Id. Law enforcement searched the room and seized a number of pieces of personal electronic property belonging to defendant, and a pink and white Samsung phone that belonged to MV-1. Dkt. 14, Pg. ID 42.²

The next day, MV-1's father contacted police and informed them that he found an old cell phone that belonged to MV-1 when she was 15 years old. Officers took this device and its passcode from MV-1's father, and obtained a search warrant the following day to examine its contents. Id. The affidavit for the search warrants to examine the contents of both of MV-1's phones rested solely on evidence gathered from within the hotel room. See Sealed Exh., Dkt. 31, Pg. ID 328–36.³

Two days later, Defendant was arrested at his place of work for alleged violations of 18 U.S.C. §§ 2251(a), 2422(b), and 2252A(a)(5)(B). See United States v. Gordon , 17-mj-30443-DUTY, Dkt. 1 (sealed). He was later charged in a seven-count indictment alleging four counts of production of child pornography, one count of coercion and enticement of a minor, one count of interstate travel with the intent to engage in a sexual act with a minor, and one count of possession of child pornography. See Dkt. 14, Pg. ID 37. After being arrested, defendant was advised of his Miranda rights, signed a waiver of those rights, and also signed a form giving police consent to search his home and vehicle. Unbeknownst to him at the time, police had already obtained a warrant to search his home. It is unknown whether the search was actually being conducted pursuant to the warrant before, or after, Defendant gave his consent. As with the affidavits regarding MV-1's cell phones, the affidavit supporting the application for a warrant to search defendant's home and vehicle rested solely on evidence obtained in the hotel search—evidence which the court later found was illegally seized.

Defendant moves to suppress derivative evidence, challenging both of MV-1's cell phones and any evidence seized during the search of Defendant's home, as "fruit of the poisonous tree"—that is, stemming from the unconstitutional search and seizure at the hotel. See id. Defendant argues that all of the evidence obtained by police should be suppressed, and also that the arrest of defendant was illegal for lack of probable cause. The government responds that not only was the evidence collected in the days after the illegal entry (MV-1's old cell phone, and the items from the home search) admissible under the independent source and inevitable discovery doctrines, but also that MV-1's cell phone collected at the hotel was not suppressed by this court's first order, because it was handed over voluntarily outside of the hotel room.

III. Standard of Review

Having already decided that the hotel room search violated defendant's Fourth Amendment rights and that evidence seized in that hotel search must be excluded, the Court now considers the question of what to do with evidence not necessarily seized during the illegal search of the hotel room, but acquired later by police.

Not everything acquired in the subsequent investigation by the police is automatically considered "fruit of the poisonous tree". Later-acquired evidence may be admissible under the independent source doctrine, the inevitable discovery doctrine, the defendant's later knowing and voluntary consent to a search of his home, or some other reason. In addition, the government contends that MV-1's cell phone seized on the night of the illegal search was located on her person and handed voluntarily to police in the parking lot of the hotel, as opposed to seized inside of the hotel room, and therefore should not be suppressed. We discuss each of these questions.

A. The Fourth Amendment

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause ... describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend IV. The "chief evil" against which the Fourth Amendment protects is the "physical entry of the home." Payton v. New York , 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). It is a "basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton , 445 U.S. at 586, 100 S.Ct. 1371. The Fourth Amendment's full complement of protections also applies to hotel rooms. See United States v. Riley , 858 F.3d 1012, 1018 (6th Cir. 2017) (citing Hoffa v. United States , 385 U.S. 293, 301, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) ).

This Court's prior order examined the possible exceptions to the 4^th Amendment's warrant requirement and found none present in this case. Therefore, all of the evidence seized in the illegal search of the hotel room was suppressed.

B. Fruit of the Poisonous Tree

The defendant argues that all evidence obtained subsequent to the illegal search of the hotel is tainted by that illegality, and should also be suppressed. If evidence is derived⁴ from information that was illegally obtained, that piece of evidence is inadmissible in court under the "fruit of the poisonous tree" doctrine. See Utah v. Strieff , ––– U.S. ––––, 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016) (...