United States v. Perkins

• Citation: 258 F.Supp.3d 868
• Decision Date: 05 July 2017
• Docket Number: Case No. 4:16-cr-20.
• Parties: UNITED STATES of America, Plaintiff, v. William Floyd PERKINS, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

258 F.Supp.3d 868

UNITED STATES of America, Plaintiff,

v.William Floyd PERKINS, Defendant.

Case No. 4:16-cr-20.

United States District Court, E.D. Tennessee, Winchester Division.

Signed July 5, 2017

Terra Bay, US Department of Justice, Chattanooga, TN, for Plaintiff.

ORDER

HARRY S. MATTICE, JR., UNITED STATES DISTRICT JUDGE

On April 20, 2017, United States Magistrate Judge Susan K. Lee filed a Report and Recommendation (Doc. 42) pursuant 28 U.S.C. § 636(b)(1), in which she recommends that the Motion to Suppress (Doc. 16) filed by Defendant William Floyd Perkins be denied. The Court has conducted a de novo review of the record as it relates to Defendant's objections, and for the reasons stated hereafter, will SUSTAIN IN PART Defendant's objections to the Report and Recommendation, REJECT IN PART the legal conclusions in the Report and Recommendation, and GRANT Defendant's Motion to Suppress.

I. STANDARD OF REVIEW

This Court must conduct a de novo review of those portions of the Report and Recommendation to which an objection is made and may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1)(C).

II. BACKGROUND

On November 22, 2016, Defendant William Floyd Perkins was indicted on one count of possessing with the intent to distribute fifty grams or more of methamphetamine (actual) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). (Doc. 1). On February 21, 2017, Defendant filed the instant motion, in which he contests the February 9, 2016, search of a parcel addressed to him as well as the execution of a search warrant for his home that subsequently issued. (Doc. 16). The Court referred the Motion to Magistrate Judge Lee the next day. (Doc. 17). Magistrate Judge Lee held an evidentiary hearing on March 14, 2017. (Doc. 22). Rutherford County Sheriff's Department Detective Curtis Brinkley and United States Drug Enforcement Agency Officer Kyle Brewer appeared as witnesses for the Government. Jennifer Sons appeared as a witness for Defendant. (Id. ).

Neither party objects to Magistrate Judge Lee's recitation of the underlying facts, and for ease of reference, the Court will recount them here:

Brinkley has ten years of law enforcement experience, and on the day at issue he was assigned to "parcel interdiction," which takes place one or two times a week at the FedEx shipping center in Murfreesboro, Tennessee. On February 9, 2016, Brinkley conducted a parcel interdiction or routine inspection at the Murfreesboro FedEx Center.

To summarize "parcel interdiction," Brinkley looks for what he considers to be a suspicious parcel that may contain contraband, specifically drugs. Once a suspicious parcel is found, a drug detection canine is deployed to conduct an "air sniff" around the suspicious parcel and at least two additional drug-free "control" parcels. If the dog alerts on the suspicious parcel, then the package is taken to a FedEx manager so that he or she can be informed of the dog alert to the parcel. Brinkley testified that he always tells the FedEx manager that it is up to him or her whether to open the parcel and not to open it for the police. At that point, the manager makes a decision about whether to open the parcel based on the interests of FedEx, according to Brinkley. Brinkley testified that sometimes the manager opens the parcel and sometimes the manager does not. In situations where the manager decides not to open the parcel, Brinkley completes paperwork related to taking custody of the parcel from FedEx and seeks a search warrant to open the parcel. Brinkley testified that he has always been able to obtain a search warrant for a parcel when there is a positive dog alert, as in this case.

On the day at issue, Brinkley noticed a parcel (the "package") with a large amount of taping along the seams that was shipped from California, a "known source state" for illegal drugs. He was suspicious of the package because it was shipped form California with excessive tapping, so he decided to investigate it further by using the "TLO database" to look up the shipper and recipient information listed on the shipping label. The shipping label was entered as government's Exhibit 1. Using the TLO database, Brinkley concluded the shipper's name and address could not be verified as connected to a legitimate person. Brinkley testified he also could not verify the recipient information, which was listed as "B. Perkins" at "5831 Rowe Gap Rd, Belvidere TN 37306" using the TLO database. The lack of verification via the TLO database added to Brinkley's suspicions.

Because he found the package suspicious for the above noted reasons, Brinkley requested a drug dog air sniff of the package. The package was presented along with other control parcels to a drug detection dog team. The dog handler reported that the dog alerted to the presence of the odor of narcotics in the package. Brinkley then took the package to the FedEx manager and explained his suspicions including the positive dog alert. Prior to Brinkley's contact with the manager, she was unaware of the package and no suspicions had been raised by FedEx about the package. The FedEx manager opened the package, and found a plastic bag of what looked to Brinkley to be crystal methamphetamine. Brinkley told the manager to drop the plastic bag and he took custody of the package, which was resealed with the suspected methamphetamine in it.

Because the delivery address was several counties away, another agency was contacted to determine if it wanted to conduct a controlled delivery of the package. Brewer agreed to make an undercover controlled delivery of the package and began preparations to do so. At the same time, another DEA Task Force Officer, Daniel Warren ("Warren"), prepared an affidavit to obtain an anticipatory search warrant upon delivery of the package. The warrant and incorporated affidavit were entered as government's Exhibit 2.

Warren obtained what the parties agree is an anticipatory search warrant.

The search warrant itself does not contain the triggering event for execution of the warrant, but Warren's incorporated affidavit states the warrant will be executed upon hand delivery of the package to Defendant at the address listed on the shipping label [Exhibit 2 at ¶¶ 21, 22, 26, and 27].

Brewer, dressed as a FedEx delivery man, made a controlled delivery of the package to the destination address while other officers waited in a van disguised as a FedEx delivery vehicle. Brewer did not personally read the warrant, but he was informed that the triggering event to execute the warrant was delivery of the package to the noted address. He was not aware of any requirement that the package be hand delivered to Defendant. Brewer knocked on the door of the residence, a single-wide trailer, and Sons opened the door. Brewer told Sons that he had a package for delivery. Brewer asked Sons, "Are you expecting a package?" He testified that Sons replied, "Yes, we are."

In his role as a FedEx delivery man, Brewer did not ask for Defendant so he did not know if Defendant was home at the time of delivery. Brewer testified he gave the package to Sons because she said "we" are expecting a package and the package did not require a signature. Brewer then returned to the van, and other agents began the execution of the warrant. Brewer joined the search once he was back in clothing that identified himself as being with law enforcement. Upon execution of the warrant, the unopened package was found in the bedroom of the residence with Sons. Defendant was not home, but arrived around one hour later.

(Doc. 26 at 2–4).

Following the hearing and supplemental briefing by the parties, Magistrate Judge Lee recommended that the Motion to Suppress be denied. She found that the FedEx Manager was not acting as an agent of the government when he opened the parcel, thus exempting the search from the protections of the Fourth Amendment. (Doc. 26 at 8–13). Specifically, Magistrate Judge Lee found that Defendant had failed to prove that the FedEx Manager acted with the intent to assist law enforcement. (Id. ). As to the execution of the search warrant, Magistrate Judge Lee found that the triggering event was satisfied when the parcel was accepted and taken into the residence by Sons, even though the triggering event required "hand delivery" to Defendant. (Id. at 13–15).

On May 4, 2017, Defendant filed his objections to the Report and Recommendation. (Doc. 27). On May 15, 2017, the United States filed a Response. (Doc. 29). The Court, having reviewed the parties' submissions, finds that the issues are fully briefed and ready for disposition.

III. ANALYSIS

Defendant makes the following objections: (1) that under binding Sixth Circuit precedent, he has made the necessary showing that the FedEx Manager acted with the intent to assist law enforcement, rendering her an agent of the government; (2) that the triggering event set forth in the warrant's supporting affidavit did not occur; and (3) that the officers' improper execution of the warrant is not saved by the good faith exception.

A. Search of the Parcel on February 9, 2016

"[The] Fourth Amendment proscribes only governmental action and does not apply to a search or seizure, even an unreasonable one, conducted by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official." United States v. Lambert , 771 F.2d 83, 89 (6th Cir. 1985). The parties do not contest that Defendant bears the burden of proving by a preponderance of the evidence that an agency relationship exists between the government and a private individual executing a search. See, e.g., United States v. Freeland, 562 F.2d 383, 385 (6th Cir.1977) ; United States v. Coleman, 628 F.2d 961, 965 (6th Cir.1980). The parties also agree that in order to establish agency in this context, a defendant must show: (1) "the police must have instigated, encouraged, or participated in the search;" an...