United States v. Kormah
| Decision Date | 31 January 2023 |
| Docket Number | CRIMINAL ACTION 21-40012-TSH |
| Parties | UNITED STATES OF AMERICA v. AUGUSTUS (“BOBO”) KORMAH, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
On March 11, 2021, an Indictment issued charging Augustus Kormah (“Bobo” or “Defendant”) with being a felon in possession of ammunition, in violation of 18 U.S.C § 922(g)(1)(Count One) and possession with intent to distribute cocaine in violation of 21 U.S.C. §841(a)(1). The charges arise out of officers' observations of an object bulging from the sock of Fodee Kromah (“Kromah”), an acquaintance of Bobo's, while speaking with Bobo and Kromah after they were stopped for suspected drug activity and various search warrants that followed.
This Order and Memorandum of Decision addresses the following motions to suppress filed by the Defendant: (1) Defendant's Motion To Suppress (Warrantless)(Docket No 51); Defendant's Motion to Suppress (Warrant- 11 Franklin Street Apt. 23)(Docket No. 53); and (3) Defendant's Motion to Suppress (Warrant-Cell Phones)(Docket No 55)(“Mot. Supp. Cellphones”). For the reasons set forth below, these motions are denied.
Facts[1]
Prior to the events of September 11, 2020, Bobo was well known to the WPD as he had multiple prior arrests for drug distribution, possession with intent to distribute possession of a firearm, and violent offenses, including armed robbery. Moreover, prior to September 11, 2020, a confidential source (“CS”) had provided Lt. Hanlon with information that a male individual known to him/her as “Bobo”: (1) was selling large quantities of cocaine, (2) drove a black Jaguar SUV with the license plate number specified by the CS, (3) was on court ordered GPS monitoring, and (4) living with girlfriend outside the City.[2]
On the morning of September 11, 2020, at approximately 6:00 a.m., Lt. Hanlon and a group consisting of 6-7 WPD police officers and state police detectives were conducting surveillance at 11 Franklin. At around 7 a.m., they observed Bobo exit the apartment building with a female (later identified as his girlfriend), enter the Jaguar and drive away. Lt. Hanlon and other officers (including Officer Williams) followed them to the University of Massachusetts Hospital on Lake Avenue, Worcester (“UMass Hospital”) where Bobo dropped the woman off (it was later learned she worked there).
The surveillance team continued to follow Bobo through a nearby neighborhood. Lt. Hanlon and Officer Williams observed Bobo engage in what appeared to countersurveillance techniques; Bobo frequently looked in the rearview mirror and continued to drive around the same neighborhood for about five minutes pulling over multiple times on side streets and allowing cars to pass him. Eventually, Bobo drove to 345 Greenwood Street, Worcester (“345 Greenwood”) an “industrial complex of sorts” consisting of two long rows of buildings separated by a driveway or alleyway (the “alleyway”). There was a parking lot in front of the buildings and a parking lot in back accessed by the alleyway. The parking lot in front of the buildings contains over a hundred lined parking spaces. Behind the buildings is a small parking area in the back of which there is a wooded area (the “woodline”). Although there is room for parking, there are no designated parking spaces. Bobo drove down the alleyway between the two rows of buildings into the back where he reversed the Jaguar, backed-up and parked with the rear of the car near woodline. Bobo remained in the vehicle.
At this time, the surveillance team had pulled into a parking plaza across the street from 345 Greenwood and parked in different locations. Officer Williams had parked in a location which gave him a direct line of sight of Bobo's movements, and he relayed his observations via radio to the other members of the surveillance team, including that a gray Nissan Altima (“Altima”), had driven down the alleyway, turned around, backed up and parked next to Bobo. Officer Williams then observed an individual, later identified as Kromah, get out of the Altima and entered the Jaguar. After being inside less than a minute, Kromah got out of the Jaguar and walked back toward the Altima.
Because Bobo and Kromah had parked behind the buildings out of view (when there were plenty of parking spaces out front) and given what he knew of Bobo's past history as a drug dealer, his evasive action while driving through the Grafton/Hamilton Street neighborhoods on the way to 345 Greenwood, and Kromah's actions of momentarily getting into Bobo's car then leaving, Officer Williams believed that a drug transaction had taken place. The decision was then made that the surveillance team would pull into the rear of 345 Greenwood and stop Bobo and Kromah. At this point, 5-6 law enforcement vehicles drove down the alleyway to the rear of the buildings. As Lt. Hanlon pulled down the alleyway, he observed Kromah standing between the Altima and Bobo's Jaguar. Lt. Hanlon pulled up near Kromah, got out of his unmarked vehicle and identified himself as a police officer. Kromah then started to backpedal away from Lt. Hanlon who instructed him to stop (he did). As Lt. Hanlon was detaining Kromah other officers were detaining Bobo who was sitting in the driver's side of the Altima. All the officers were armed-- Lt. Hanlon did not have his weapon drawn and was not aware of any other officer having a weapon drawn. Sergeant Scott indicated in his report that he approached the vehicles with his weapon drawn, but that he holstered the weapon once Bobo was placed in handcuffs.
Lt. Hanlon spoke briefly with Kromah to inform him why he was being stopped. He then went over to speak with Bobo. After Lt. Hanlon read him his rights, Bobo stated he understood and agreed to speak with him. In response to Lt. Hanlon's questions, Bobo stated that he had come from his house and had dropped his girlfriend off at work. In response to questions regarding the whereabouts of his residence and his earlier evasive driving maneuvers, Bobo told Lt. Hanlon that they (law enforcement) already knew where he lives and that he knew he was being followed-he correctly identified three of the surveillance cars that he believed were following him. When asked why Kromah had gotten in and out of the vehicle, Bobo stated that he and Kromah were cousins, however, he later stated that Kromah got in and out of his vehicle because he left his phone in the car. Bobo also told Lt. Hanlon that a set of keys in the Altima belonged to him.
After concluding his conversation with Bobo, Lt. Hanlon returned to Kromah to further question him. However, after being read his Miranda rights, Kromah indicated that he wanted to speak with a lawyer and all questioning stopped. While Lt. Hanlon was advising Kromah of his rights, he noticed that Kromah would not make eye contact with him-instead, Kromah kept looking over at Bobo and around the parking lot. Lt. Hanlon testified that he thought Kromah seemed nervous and appeared to be fearful about telling him anything in front of Bobo. Lt. Hanlon also observed Kromah fidgeting with one of his shoes that was only partially on and Kromah kept moving his foot like he was attempting to slide his shoe on all the way. Lt. Hanlon then looked closer at Kromah's foot and observed a knot protruding from his sock which was a little larger than a golf ball. Lt. Hanlon retrieved the item which looked to be about an ounce of crack cocaine.[3]Lt. Hanlon then placed Kromah under arrest. Bobo was also placed under arrest. Additionally, both vehicles were searched and then transported to the WPD. In accordance with standard WPD policy, Bobo and Kromah were searched prior to being placed on the police transport vehicle. A pat frisk of Bobo turned up $2,557 found in various pockets of his pants.
Lt. Hanlon and other members of the surveillance team then left the scene and proceeded to West Boylston to secure 11 Franklin while Officer Williams returned to the police station to obtain a search warrant for the residence. Lt. Hanlon used the set of keys recovered from the Altima and found that one of the keys unlocked the door to the apartment. Lt. Hanlon did not open the door and did not enter the apartment. Lt. Hanlon and other members of the team returned to the police department to assist Officer Williams in obtaining the search warrant. Several officers remained at 11 Franklin to secure the residence.
In the affidavit he prepared in support of a search warrant for 11 Franklin, Officer Williams indicated that law enforcement had received corroborated information from a CS that Bobo lived outside of Worcester with his girlfriend (the CS had not provided a specific address).
Officer Williams indicated that that the CS had provided reliable information in the past-- he described one instance in which the CS had provided information about a subject distributing drugs from an apartment in Worcester and thereafter, the CS made controlled buys from the subject. The CS's information led to a search of that apartment where officers discovered drugs and arrested the subject. Officer Williams did not include any specific details regarding the CS's prior assistance (like names or dates).
Once a search warrant was obtained, Lt. Hanlon and Officer Williams returned to 11 Franklin. Upon entering the apartment the officers observed and seized envelopes and paperwork with Bobo's name (Augustus Kormah) on it, and a black bag which appeared to contain rolls of money. Additionally sticking out of the left side of the black bag was an extended magazine attached to a firearm-the firearm was at least partially loaded. The firearm, which did not have a locking mechanism, as would be required since...
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