United States v. Kelvin Lewis

615 F. App'x 332
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 17, 2015
Docket13-6651
StatusUnpublished
Cited by1 cases

This text of 615 F. App'x 332 (United States v. Kelvin Lewis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kelvin Lewis, 615 F. App'x 332 (6th Cir. 2015).

Opinion

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Defendant Kelvin Lewis pleaded guilty to conspiring to both distribute oxycodone and commit money-laundering and was sentenced to concurrent prison terms of 192 months. In his plea agreement, he reserved the right to appeal the district court’s denial of motions to suppress he had filed. Lewis now asserts: (1) that his arrest was not supported by probable cause; (2) that the warrantless search of information on his cell phones violated his rights under the Fourth Amendment; (3) that the police had no probable cause to conduct a warrantless search of an automobile in which he had been a passenger; (4) that an initial warrantless search of his hotel room was improper; and (5) that the affidavit submitted in support of the application for a warrant to search the hotel room failed to establish probable cause to *334 justify the intrusion on his privacy rights. We find no reversible error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Based upon evidence obtained in controlled drug buys by a confidential informant, Lexington (Kentucky) police officers arrested Jerry Clemons in August 2011, for distribution of oxycodone. Clemons, claiming to be a relatively small-time drug dealer, offered to cooperate with the police and attempt to lure his suppliers into the net set up by the law enforcement officials. With Clemons’s permission, the police used Clemons’s own cell phone to text his suppliers, Keli Nicholson and Gregory Weisbrodt, and request a new supply of oxycodone pills. Nicholson and Weisbrodt agreed to meet Clemons at his residence, and when they arrived, the police arrested them and confiscated “several hundred ox-ycodone 30-milligram pills” and “some” 15-milligram pills from Nicholson and Weisbrodt.

Nicholson and Weisbrodt in turn volunteered to cooperate with the police in an effort to snare their supplier, defendant Lewis, an individual they described as “a male black subject in his 20s or 30s ... from the Florida area” and known to them as “Keshon.” They indicated that they typically communicated with Lewis through text messages and showed the police some of those communications that had been saved on their phones. Lexington police detective Jared Curtsinger testified at the suppression hearing that:

[Nicholson and Weisbrodt] had been supplied a large portion of those pills [by Lewis] just within like an hour before [they were] arrested ... and that they were due to bring back — I can’t remember how much it was, I believe it was $2,600 in cash to pay him back for the pills that they had out, and that he would be waiting for that money in return.

Because Lewis would be waiting for Nicholson and Weisbrodt to return to him with the proceeds of the sale of the oxyco-done pills Lewis had provided to them, the police confiscated the couple’s cell phones but drove with them back to the Best Western motel in Lexington where they were registered as guests. Once Nicholson and Weisbrodt were back in their own motel room, Curtsinger sent a text message to Lewis from Nicholson’s phone saying “that they had the money and were ready to get another ... large supply of oxycodone pills.” Lewis responded with a text message saying, “I’ll be there in 15.” When Lewis did not arrive within that timeframe, Curtsinger, on behalf of Nicholson, sent a second text message asking Lewis where he was, to which Lewis text-ed back, “Five minutes.”

Nicholson informed Curtsinger that when she received pills from Lewis for the previous sale, “Keshon and another female subject were driving a dark-colored passenger car, possibly a Nissan.” Consequently, she suggested that the police should be on the lookout for the approach of such a vehicle to' the Best Western motel. According to Curtsinger, he also said that “within the last few weeks one of these transactions ... occurred where another large male black subject was around during the transactions, as well. And that they thought that there was more people involved in this ring, which is consistent with pill traffickers.”

After being told that Lewis was five minutes away, Nicholson, Weisbrodt, and police officers waited in Nicholson and Weisbrodt’s motel room for “the next five to ten minutes” until a “gray passenger car arrived and parked right beside Weis-brodt and Nicholson’s passenger car, which at that point made them about the *335 only two passenger cars in the parking lot.” As Lewis exited from the passenger side of the car and approached Nicholson and Weisbrodt’s door, Nicholson confirmed to Detective Curtsinger that Lewis was indeed the individual who had supplied them with oxycodone pills. Thus, when Lewis knocked on the motel room door, the officers opened the door and placed him under arrest. A search of the defendant incident to that arrest yielded an empty prescription pill bottle — a prescription for 140 oxycodone pills that had been written in Lewis’s name less than a week earlier. Police also seized from Lewis three or four cell phones — one of which contained text messages sent by Nicholson — and $1,500 in cash, mostly in $20 bills, but no oxycodone pills.

While Lewis was being arrested and searched inside the Best Western motel room, other officers approached the female driver of the car in which Lewis had arrived and arrested her. During that process, Detective Keith Ford walked to the passenger side of the vehicle and, from his “position outside the vehicle,” observed a disassembled cell phone on the passenger-side floorboard, a hotel-room key card, and a deposit slip from an automatic teller machine. Ford gave the key card to Curt-singer, but Curtsinger eventually returned the card to Ford, along with identification information that had been taken from Lewis and from the driver of the gray/ black automobile, Lakisha Slaton. Curt-singer then instructed Ford to go to the neighboring Ramada Inn to determine whether Lewis and Slaton had rented a room there and, if so, to secure that room pending the receipt of a warrant to search the premises for evidence of drug distribution.

The desk clerk at the Ramada Inn confirmed that the key card was indeed a key for a room in that hotel and that Lewis and Slaton previously had checked into Room 120 of the establishment; Concerned that another individual working with Lewis and Slaton might be in Room 120 and might destroy crucial evidence because Lewis did not return to the hotel within a designated time period, Ford knocked on the door to Room 120 and “advised that it was the police.” Receiving no response, and hearing no sounds emanating from the room, Ford used the key card to gain entry, again announced, “Police,” and walked through the room to ensure that no other persons were present. Finding no one else in the room, Ford proceeded back toward the hall door, at which time he noticed a box of plastic sandwich bags on the desk in the room. After transmitting that information to Curtsinger, Ford remained in the room with another officer for at least an hour while Curtsinger secured a warrant to search the room more thoroughly.

Ford claimed that while awaiting the issuance of the warrant, he did not conduct a further search of the room or its contents, did not “open any drawers, look in any luggage, lift up any pillows, or see if anything was laying around.” He also denied that, at that time, he put on the blue latex gloves that are used by police during searches so as not to contaminate the crime scene.

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615 F. App'x 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kelvin-lewis-ca6-2015.