United States v. Ward
| Docket Number | 5:22-CR-50073-JLV-01 |
| Decision Date | 24 January 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY WARD, Defendant. |
| Court | U.S. District Court — District of South Dakota |
REPORT AND RECOMMENDATION ON MOTION TO SUPPRESS EVIDENCE (DOC. 38)
Anthony Ward filed a Motion to Suppress (Doc. 38) and memorandum in support of his Motion to Suppress (Doc. 39). The United States opposed the motion and filed a response. (Doc. 55). An evidentiary hearing was held on Wednesday, November 2, 2022. Ward was personally present and represented by his attorney of record Paul Andrews. The Government was represented by the Assistant United States Attorney Gina Nelson. Four witnesses testified at the hearing, and eleven exhibits were received into evidence. Supplemental briefings were not submitted.[1]Based on a careful consideration of all the evidence, and counsel's written and oral arguments, the Court respectfully makes the following:
RECOMMENDATION
It is respectfully recommended that Ward's Motion to Suppress (Doc. 38) be denied.
Ward is charged in an Indictment with Distribution of a Controlled Substance Resulting in Serious Bodily Injury in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C § 2; and Conspiracy to Distribute a Controlled Substance in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). (Doc. 1). The pending motion was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and United States District Court District of South Dakota's Local Rule (LR) 57.11(B).
In December of 2021, a controlled purchase of heroin between a confidential informant and C.A. occurred at the Motel 6 in Rapid City. (Doc. 84, pp. 6, 67). In January of 2022, a source of information (SOI-1) advised that C.A. had been staying at Motel 6 with two African American males, one by the name of Low; he did not know the other individual's name. Id. at p. 7. SOI-1 also advised that there were “blues,” which are blue pills disguised as oxycodone pills containing fentanyl, and guns in the hotel room. Id. at pp. 21, 44. SOI-1 also advised that C.A. would change rooms often and provided C.A.'s phone number.[2]Id.
In March 2022, Rapid City Police Department responded to a call of K.S. overdosing. Id. at pp. 9-10. K.S.'s girlfriend told law enforcement that K.S. purchased fentanyl from C.A. and showed them Facebook messages between K.S. and C.A. corroborating this. Id. at p. 9, lns. 22-25. K.S. was revived by two doses of Narcan. Id. at p 9, lns. 14-15. K.S. was interviewed and told officers he “went to the Motel 6 and was picked up by C.A. and an African-American male by the name of Low and had smoked the fentanyl in the vehicle before going home and overdosing.” Id. at p. 10, lns. 2-5.
On March 21, 2022, during that same week, C.A. and Darnell Young were involved in a traffic stop and were arrested.[3]Patrick Rose, investigator with Pennington County Sherriff's Office, and Jakob Whittle, special agent for the South Dakota Division of Criminal Investigation, interviewed C.A. and Darnell Young at the Pennington County Jail. The court finds Investigator Rose and Special Agent Whittle to be credible witnesses.
C.A reported that Id. at p. 10, Ins. 19-23 and p. 11, Ins. 1-4.
C.A believed that “Joe” was staying at the Hampton Inn,[5]and he was known to frequently wear a face mask. Id. at p. 57. C.A. also mentioned several other names, one being Maranza Ball. Id. at p. 79. C.A. said he was arrested with “Low” but claimed to not know his real name. Id. at p. 71. C.A. described the possible vehicle that the suspects were driving as a “red Fiesta,” green truck, or jeep. Id. at p. 93.
During Darnell Young's interview, he “advised that a week prior he had come from Denver to Rapid City with C.A. and also with the female with purple hair.” Id. at p. 13, lns. 6-8. Young stated that the woman with purple hair was C.A.'s girlfriend, but he did not provide her name or any physical description, aside from the purple hair. Id. at p. 36, lns. 15-16, 19-20. Young also advised he identified himself as “Joe” and there was no one referred to as “Low.” Id. at p. 48. However, Agent Whittle testified he did not believe[6]Darnell Young's statements as C.A. previously told him that he was arrested with “Low.”[7]Id. at p. 71.
Based on the information learned during the interviews, Investigator Rose and other law enforcement officers went to the Hampton Inn and spoke to hotel staff. Id. at p. 14. Staff “advised that there was -- there was only one black male and a female with purple hair that had been staying at the Hampton Inn, advised the black male had a phone number from Colorado, and provided the name of the female with the purple hair[8]and what vehicle she was driving.”[9]Id. at p. 14, lns. 20-24. Staff also advised that the guests in question always parked on the south side of the hotel. Id. at p. 56. Staff also said that the black male “was usually masked up and either had a hoodie or something over his head.” Id. at p. 15, lns. 23-25.
Agent Whittle, Investigator Rose, and other law enforcement officers conducted surveillance of the hotel parking lot and observed a red car pull into the southwest parking lot. Id. at pp. 15, 56. A female with purple hair was in the driver's seat. “The vehicle sat there for a little bit”, and then law enforcement observed the subject, “a large black male wearing a face mask and durag” “walk out of the hotel and get into the passenger seat and leave.” Id. at p. 15, ln. 10-12 and p. 80. Officers attempted to follow the vehicle, but they “lost the car, so then the surveillance was terminated.” Id. at p. 91.
Agent Whittle testified that three facts made him think the individual he saw exit the hotel and enter the vehicle was the person suspected of trafficking drugs with Darnell Young. Id. at p. 78. First, hotel management said that they could only think of one African American male staying at the hotel and he was known to wear a facemask and something over his head. The individual he saw walk out of the hotel was a “larger African-American male wearing a facemask . . . and durag.” Id. at p. 57, Ins. 24-25 and p. 84, In. 1. Second, the hotel room was registered under the name Brittany Brazile,[10]who had purple hair. Id. at p. 78. Third, the individual had a Colorado phone number. Id.
Investigator Rose testified that the information C.A. provided during the March 21, 2022, interview was corroborated in several ways. Id. at p. 44. C.A. spoke about the Hampton Inn and a red car; a red car was found in the Hampton parking lot. Id. at p. 44, lns. 3-6. Furthermore, C.A. spoke of a female with purple hair and an African American male, and people matching that description were located at the Hampton Inn. Id. at p. 44, lns. 7-9.
The next morning, on March 23rd, an operational briefing was held at the DCI office where the officers involved[11]were brought “up to speed on the entire investigation....give[n] a brief description of the investigation and how [they] got up to this point and then the plans or the goals of the operation.” Id. at p. 59, lns. 3-5. The identity of the black male was unknown; however, officers knew he went by “Joe,” and he “was a source of supply for a nonfatal overdose in the Rapid City area.” Id. at pp. 105, 133. It was also known that “Joe” was frequently with a female with purple hair. Officers were also shown surveillance photos from the day before of the black male suspect and informed he might be distributing drugs using a red car. Id. at pp. 105, 135. There was also mention of a firearm during the operational brief. Id. at p. 150. Investigator Rose testified that the intent was to stop the vehicle regardless of whether a traffic violation occurred.[12]Id. at pp. 16-17.
Law enforcement officers were stationed in different locations near the hotel. Everyone involved in this operation was in communication via radio. Id. at p. 18. Agent Whittle was stationed in the Hampton Inn parking lot. When he arrived, the red car was not there. Agent Whittle went into the hotel and spoke with management who told him that they believed the suspects were still in the room, even though their vehicle was not there. Id. at p. 60.
The officers conducted surveillance for approximately an hour. At that point, Agent Whittle went into the Hampton Inn and “created a ruse” to get suspect to exit the hotel room. Id. at p. 61, lns. 2-4. Hotel staff called the room, and nobody answered. Staff then called the phone number listed on the registration and spoke with a male. Staff told the male that since they were not registered for the room for the next night, the room needed to be rebooked. Id. Approximately a half hour later, the red car pulled into the parking lot. Id.
Agent Whittle testified that he saw the red car pull up in front of him. The vehicle was occupied by two females, with the purple haired female being the driver. Agent Whittle believed it was clear that they were “obviously waiting for somebody.” Id. at p. 61, Ins. 23-24. Agent Whittle then observed the African American male, wearing the same face covering and same durag as the day before, walk out of the hotel carrying two bags. ...
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