United States v. Gray
| Decision Date | 24 April 2019 |
| Docket Number | No. 5:19-CR-2-RWS-CMC,5:19-CR-2-RWS-CMC |
| Parties | UNITED STATES OF AMERICA v. KENDALL RAY GRAY |
| Court | U.S. District Court — Eastern District of Texas |
The above-entitled and numbered cause of action was referred to the undersigned United States Magistrate Judge for pretrial purposes in accordance with 28 U.S.C. § 636. The following pending motion is before the Court:
Defendant's Motion to Suppress (Docket Entry # 18).
The Court, having reviewed the relevant briefing and hearing arguments of counsel April 11, 2019, recommends the motion be DENIED.
A brief summary of the facts is needed here to put Defendant's motion in context. On or about November 9, 2018, Texarkana, Texas officers were on patrol when they allegedly observed a gray vehicle leave a parking lot and turn into the center lane rather than the nearest available lane. Believing they observed a traffic violation, the officers followed the vehicle but did not activate any lights or sirens. The vehicle drove into a residential area and parked on the side of a public street. The driver exited the vehicle and began to walk away from the vehicle. As the officers activated the lights and approached, the driver ran. An officer ran after the driver, and the driver surrendered to police custody in an alleyway.
The driver, then identified as Defendant Kendall Ray Gray ("Defendant"), was arrested for evading detention and read his Miranda rights. Shortly thereafter, it was learned that Defendant had outstanding Class C warrants as well. Defendant was driven to the location where his vehicle was parked. Police removed the keys to the vehicle and began processing the vehicle for impound. Pursuant to an "inventory" search, officers located what was suspected to be marijuana in the driver's side door and two off-white rocks the officers believed to be narcotics. The officers also located a loaded handgun under the driver's seat.
The search was conducted without a warrant. The encounter was captured on video.
On or about January 17, 2019, the Eastern District of Texas issued an indictment, charging Defendant of one count Felon in Possession of Firearm or Ammunition in violation of 18 U.S.C. § 922(g)(1). Defendant waived arraignment and pled not guilty on January 23, 2019. The current pretrial conference is set for May 7, 2019 with jury selection and trial scheduled May 28, 2019.
On March 22, 2019, Defendant filed his current motion, seeking to suppress evidence obtained as a result of the search of his vehicle. According to Defendant, the search was illegal for two reasons. First, Defendant asserts the vehicle was lawfully parked and should not have been towed in order to conduct an inventory search. Second, Defendant asserts the search of the vehicle was not in compliance with any written inventory search but rather was a pretext to search for anything that could be incriminating.
In its response, the Government asserts the evidence was discovered during a standard inventory of Defendant's car conducted following his arrest on three outstanding warrants and charges of evading detention. According to the Government, Defendant admits he fled from the police and further concedes he had outstanding Class C warrants. The Government argues these concessions alone dispense with much of Defendant's motion "under the attenuation doctrine." Docket Entry # 21 at 1. According to the Government, video recordings show officers properly inventorying Defendant's car pursuant to department policy and discovering the drugs and weapon.
The Government attached the following to its response, which the Court admitted into evidence at the April 11 hearing: (1) videos supplied on DVD (Docket Entry #s 21-1 through 21-5)1; (2) photos (Docket Entry #s 21-6, 21-8 through 21-13); (3) Texarkana, Texas Police Department General Orders Manual (Docket Entry # 21-7); (4) Inventory (Docket Entry # 21-14); (5) copies of three outstanding warrants (Docket Entry # 21-15); and (6) warning citation (Docket Entry # 21-16). The Court will consider these items part of the record, in addition to the evidence introduced at the suppression hearing. The evidence and testimony reveals as follows.
Investigator Joshua Armstrong with the Texarkana, Texas Police Department ("Texarkana, Texas PD") testified at the hearing. Tr. at 5:18-24. Officer Armstrong has been with the Texarkana, Texas PD for six and a half years and is currently assigned to the special investigative unit as a "problem-oriented police officer." ("POP"). Id. at 5:25-6:7. A large portion of his job is handling narcotics. Id. at 6:8-11.
On November 9, 2018, Officer Armstrong was patrolling around Texarkana in a marked police car. He was wearing a uniform and vest marked with "Police" on the front and back. Id. at 7:3-22. Officer Armstrong observed a gray Jeep in the driveway of a "narcotics residence that [the POP team] had been watching." Id. at 7:23-8:5. Officer Armstrong observed a black male exit the driver's side of the vehicle and walk toward the front door of the house. Id. at 8:6-12. Officer Armstrong did not see him exit the house or get back into the vehicle. Id. at 8:19-22.
Later, Officer Armstrong was driving down Milam Street and observed the same vehicle. He then observed the same vehicle on 7th Street, which is about four blocks south, and it "made four left-hand turns, making a circle, and then pulled into a parking lot." Id. at 8:24-9:9. Officer Armstrong parked down the street and "watched and waited to see if that vehicle left." Id. at 9:19-22.
Officer Armstrong observed the vehicle exit the parking lot by making a wide right turn into the center lane, which is an "arrestable offense under Texas law." Id. at 11:12-12:2. Officer Armstrong attempted to catch up to the vehicle to initiate a traffic stop, but he did not turn on his lights because of public safety. Id. at 12:5-24. Officer Armstrong observed the vehicle turn north on Whitaker Street and then turn left (or west) on 9th Street without signaling a hundred feet prior to the turn. Id. at 13:10-16; Ex. 1A (Lewis Dash Cam. at 0:14-2:06). Officer Armstrong waited on several cars to pass through the intersection, and he then turned onto 9th Street. Tr. at 13:25-14:9.
The vehicle drove into a residential area and parked along a public street. Ex. 1A (Lewis Dash Cam. at 0:14-2:06). Officer Armstrong caught up with the vehicle, and after he passed through a stop sign, Officer Armstrong activated the lights on the patrol car. Tr. at 14:12-15:16. Defendant exited the vehicle. Id. at 15:18-19. According to Officer Armstrong, the lights were on at that point; Defendant saw the officers and knew they were there; and he started running northbound on the side of a house. Id. at 15:19-22. Officer Armstrong stopped the patrol car. Id. at 16:19-20.
Officer Jeremy Sutton, who was riding in the passenger seat, ran after Defendant. Id. at 16:20-24; Ex. 1B (Armstrong Body Cam. 0:01-4:04). The word "POLICE" was written in big, white letters across Officer Sutton's chest; his badge was strapped to his belt; and a badge emblem on his uniform identified him as a police officer. Id. Officer Armstrong drove a "circle around" Defendant, "cutting him off in the front." Tr. at 17:2-6. Officer Armstrong called on the radio for responding officers, letting them know to go to 9th Street and secure the vehicle. Id. at 18:1-11.
After leading Officer Sutton into an alleyway, Defendant surrendered to police custody. Ex. 1B (Armstrong Body Cam. 0:01-4:04). He was arrested for evading detention and read his Miranda rights. Id. Defendant had an Arkansas identification card rather than a driver's license. Tr. at 19:11-20:7. Officer Armstrong called into dispatch to see if Defendant had a valid driver's license and any active warrants for his arrest. Id. at 20:15-20. Within minutes of Defendant's arrest, dispatch located three outstanding misdemeanor traffic warrants for Kendall Gray. Ex 1C (Armstrong Body Cam. 6:10-9:12); Ex. 15.
Officer Armstrong transported Defendant half a block to where his vehicle was parked. Tr. at 21:8-12. Defendant was screaming Id. at 21:13-14. According to Officer Armstrong, Mr. Blood is a known narcotic dealer in Texarkana. Id. at 21:20-23.
Officer Kim Weaver, a field training officer, and Officer Dustin Johnson, who was in training at the time, arrived to help impound Defendant's vehicle. Id. at 22:3-9. Officer Armstrong called in an impound with Bubba Green's Towing. Id. at 25:13-18. Officer Armstrong explained Texarkana has a written policy with respect to impounding a vehicle when the driver of the vehicle is arrested, and the policy is designed to protect the vehicle and any belongings in the vehicle as well as the Texarkana, Texas PD from liability. Id. at 23:24-25:5; Ex. 7 (Texarkana, Texas Police Department General Orders Manual at 3).
Defendant "boisterously protested" by yelling, beating a police car, and insisting the officers could not legally search the parked vehicle. Docket Entry # 18 at 2; Ex. 1E (Rear Video, 12:15-13:53). However, pursuant to Texarkana policy, officers began processing Defendant's vehicle for impound incident to arrest.
Upon opening the front driver's door, officers found small bags containing suspected marijuana, methamphetamine, and cocaine in plain view. A loaded handgun with a chambered round was positioned under the driver's side seat. Ex. 1F (Weaver Body Cam. at 16:00-16:20). Officer Armstrong used an electronic ticket writer to impound the vehicle and to create an Inventory Report. Tr. at 26:10-27:13. In addition to making the written record, Officer Armstrong recorded the officers' making the inventory as well. Id. at 27:14-20. Defendant was then transported by Texarkana, Texas PD officers. Id. at...
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