United States v. Gregory
| Citation | 497 F.Supp.3d 243 |
| Decision Date | 28 October 2020 |
| Docket Number | Criminal Action No. 6:19-CR-028-CHB |
| Parties | UNITED STATES of America, Plaintiff, v. Joshua GREGORY, Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
Gregory Rosenberg, AUSA, U.S. Attorney's Office, Lexington, KY, Andrew H. Trimble, AUSA, U.S. Attorney's Office, London, KY, for Plaintiff.
G. George Bertram, Jamestown, KY, David S. Hoskins, Hoskins, Hill & Hill, PLLC, Corbin, KY, for Defendant.
This matter is before the Court on Defendant Joshua Gregory's Motion to Reconsider, Amend and Vacate Order Adopting Magistrate's Recommended Disposition ("Motion to Reconsider") [R. 61]. That Order [R. 60] addressed Defendant's Motion to Suppress [R. 31] in which he sought to exclude evidence obtained during a "trash pull" at his property and from the subsequent search of his home, conducted pursuant to a search warrant supported in part by the trash pull evidence. Magistrate Judge Edward Atkins held an evidentiary hearing on Gregory's suppression motion on October 7, 2019. [R.48] Afterwards, Magistrate Judge Atkins issued his Recommended Disposition denying the Motion to Suppress, [R. 55], and this Court adopted the Recommended Disposition [R. 60]. Gregory then filed this Motion to Reconsider, and the United States responded in opposition [R. 62]. The Court held a second evidentiary hearing on June 19, 2020. [R. 76] The parties filed post-hearing briefs [R. 83; 84]. For the reasons stated herein, Defendant's Motion to Reconsider is granted, and the evidence is ordered suppressed.
Deputy Cody Neal with the Wayne County Sheriff's Department approached Danny Flynn, the owner of Cardinal Sanitation, about conducting a trash pull at Defendant Joshua Gregory's residence on November 28, 2018. [R. 81, p. 11–12] Cardinal Sanitation had been collecting the trash at Gregory's residence for at least twelve years, every Wednesday typically between 10:00 a.m. and 11:00 a.m. Id. at 8–9, 12. Officer Neal directed Flynn to drive an empty garbage truck to Gregory's house around 8:28 that morning, passing up all other stops along the rural route, to collect the trash. Id. at 13–14, 69. Officer Neal also directed that he would accompany Flynn in the garbage truck during the trash pickup, and Flynn agreed. Id. at 11–13.
So at approximately 8:30 that morning, Flynn and Officer Neal drove an empty garbage collection truck to Gregory's residence and backed up the driveway approximately 100 feet, stopping within fifteen feet of Gregory's house. Id. at 14–15, 64; Pl.'s Ex. 1 (Stipulation), June 19, 2020. Flynn exited the truck and picked up six or seven bags of trash from the trash cans located by a light pole near the top of Gregory's gravel driveway, placing them in the empty truck. [R. 81, p. 15–16, 66] The light pole was located to the right of Gregory's house (looking up from the road), just a few feet to the right of his driveway and about twenty-seven feet from the house. Id. at 82, 89; Pl.'s Ex. 1 (Stipulation), June 19, 2020. The property had no fence or gate [R. 81, pp. 36, 44–45], but the undisputed testimony from the hearings demonstrated that Gregory's property was posted with several "No Trespassing," "Private Property," and "Beware of Dog" signs (referring to Gregory's vicious dog named "Baxter"). Id. at 22–23; see also R. 48 (first evidentiary hearing); Def.'s Ex. 4 (photograph), Oct. 7, 2019.
Flynn explained that most customers place their garbage beside the road where his company collects it. However, they will enter a customer's property to collect trash if the customer specifically requests it. [R. 81, pp. 10–11] While he had no record of Gregory (or his grandmother, Jo Carol Koger, the actual property owner) making such a request for Gregory's residence, his company would not enter Gregory's property absent a request. Id. Further, he had never received any complaint about entering Gregory's property and picking up the garbage from its location up the driveway beside the light pole. Id. at 11.
As Flynn drove the garbage truck to Gregory's residence, Officer Neal activated his cell phone video recorder. Id. at 22; Pl.'s Ex. 2 (Video), June 19, 2020. While Flynn collected Gregory's trash, Officer Neal recorded areas on the front and side of Gregory's residence, within several feet of Gregory's house. [R. 81, p. 22] Officer Neal testified that he believed it was imperative for him to record the activities to document that he did not exit the vehicle and to preserve the "chain of custody" for the trash bags. Id. at 40–42. He further testified that he did not believe the trash pull could be accomplished without taking an empty truck with no other garbage to avoid contamination. Id. at 40–41, 46–47, 62–63. Officer Neal acknowledged that his sole purpose in entering Gregory's property was to further his criminal investigation of Gregory, who he suspected was a drug dealer, and at no time did he emerge from the trash truck to walk to the front door for a "knock and talk." Id. at 50, 64.
After collecting the garbage that morning, Officer Neal instructed Flynn to drive to a nearby church and hand the trash over to law enforcement. Id. at 67–68. Officer Neal removed the trash from the trash truck. Id. at 24. The trash contained some tin cans with drug residue on them and other items associated with drug use. [R. 31-2] This evidence was used to secure a search warrant later that day for Gregory's residence, id. , where additional evidence of drug trafficking was found.
Flynn's testimony at the two hearings revealed some significant differences in the way Gregory's trash was collected on November 28, 2018 from its usual, routine collection.1 First, the garbage was collected around 8:30 that morning, around one-and-a-half to two-and-a-half hours earlier than the customary 10:00 a.m. to 11:00 a.m. pickup time. [R. 81, pp. 27, 30] Flynn testified that he only drove a trash truck or helped with collection when one of his employees missed work, but no employees had missed work that day. Id. at 19. Rather, he drove a separate garbage truck at the request of Officer Neal. Id. at 18–19. He also testified that the empty truck was a spare; the regular truck that collected trash from Gregory's residence had already left that morning to collect garbage along the route that included Gregory's home. Id. According to Flynn, those collection trucks typically carry three crew members: one driver and two passengers. In the spare truck used to pick up Gregory's trash that morning, Flynn drove and Officer Neal was the only passenger. Id. at 19–20. Furthermore, Flynn testified that no business purpose was served by assisting Officer Neal:
Gregory testified at the first evidentiary hearing. He claimed that the trash was sitting on a metal bench on the back patio of the house on the morning of the trash pull, outside an exterior doorway. He explained that in past years he had placed his garbage in cans by the light pole for collection, but by November 2018, his practice was to place his garbage cans by the side of the road about 120 feet from his house, near the entrance to his driveway. Before taking the trash to the road, it was his habit to screen his trash for mail with personal information that thieves might steal and needles (as he admitted to being an intravenous drug user at the time and says he wanted to hide this fact). Gregory testified that, on the day of the trash pull, he had not yet screened the trash, so he had not moved it to its normal pickup location by the side of the road. This testimony conflicted with Flynn's testimony that the trash was always placed by the light pole. The Court credits the testimony of Flynn over that of Gregory on this issue.
Gregory, his grandmother, Jo Carol Koger, and Flynn described the landscape surrounding the home. The mobile home was placed on part of a larger 600-acre tract of land Koger owns that she described as slanted and rolling, and it was down a rural road, Kelley Lane Road, with no shoulder. Id. at 73–75. Flynn testified likewise that Kelley Lane Road was a narrow road with barely enough room for two cars to pass. Id. at 33–35, 75. To place Gregory's mobile home there, the family cleared approximately one acre of the land and cut an "L" shape into the hillside. Id. at 74–76. To reach the home from the road, you must travel up a steep driveway, approximately 120 feet long. Trees surround the residence on three sides. Id. at 36. There is no back yard, but there is a small back patio area, not visible from the roadway. Gregory testified that he would sometimes sit out in the patio area and occasionally grill out there. A boat was stored on the land directly in front of the home. Id. at 90. The area to the right of the home past the light pole (but even closer to the road) held a swing set and a storage building. Id. at 82–84. At one point the area also had a garden and a rabbit cage. Koger testified that all of the outdoor activities happened in this area (to the right of the house, driveway, and light pole) and on the small back patio because there was no other flat place on the property suitable for such items and outdoor activities.2 Id. at 83–84. Based on the photos, the rear of the parked trash truck and the light pole were located behind the front perimeter of Gregory's front porch and behind the front perimeter of the swing set and storage building. See Def.'s Ex. 1–6 (Drawings and Photographs), June 19, 2020.
After the first evidentiary hearing, Magistrate Judge Atkins issued his Recommended Disposition, finding that the trash pull...
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