United States v. Maberry

193 F. Supp. 3d 724, 2016 U.S. Dist. LEXIS 80529, 2016 WL 3466933
CourtDistrict Court, S.D. Mississippi
DecidedJune 21, 2016
DocketCRIMINAL ACTION NO. 3:15-cr-98-DPJ-FKB-1
StatusPublished
Cited by2 cases

This text of 193 F. Supp. 3d 724 (United States v. Maberry) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Maberry, 193 F. Supp. 3d 724, 2016 U.S. Dist. LEXIS 80529, 2016 WL 3466933 (S.D. Miss. 2016).

Opinion

ORDER

. Daniel P. Jordan III, UNITED STATES DISTRICT JUDGE

Defendant Walter Maberry,. II, is charged with being a convicted felon .in the possession of a firearm. But he believes the search that produced the gun violated the Fourth Amendment to the United States Constitution, so he now moves to suppress the evidence recovered during the search. His motion was heard during an evidentiary hearing on May 24, 2016,.in which Jackson Police Department Detective Anthony Fox was the only witness. After the hearing, the parties were asked for and provided supplemental briefing. Having now considered the full record and legal authority, the Court concludes that Maberry’s motion should be granted.

I. Factual Findings

This criminal case began, as so many do, with a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). On April 8, 2014, Detective Fox, who was in the “learning phase” as a narcotics .detective, was working with other narcotics detectives and units of the Jackson Police Department (“JPD”). This joint “Special Operation” focused on the North Jackson community known as “Brown Bottom,” due to increased drug activity and shootings in the area. There is no dispute that the community constitutes a high-crime area.

As Detective Fox approached Bishop Street in his unmarked police car, he saw Maberry get into a black SUV with darkly tinted windows. The SUV was parked in a residential driveway facing the road. As Detective Fox pulled onto Bishop Street, Maberry pulled out of the driveway, but quickly hit his brakes when Fox became visible, put the SUV in reverse, and swerved back into the driveway. After pausing for a few seconds, Maberry accelerated back onto the road.

Detective Fox described these maneuvers as erratic and reckless, and he also considered them suspicious given the surroundings. Fox alerted other nearby officers .and initiated a stop in front of Maber-ry’s home. Fox then exited his vehicle and signaled for Maberry to roll down his window because the officer could not see inside due to the heavy tint. When Maberry complied, Fox could smell the strong odor of marijuana and noticed that Maberry’s eyes seemed glazed. The detective asked for and received Maberry’s permission to search the SUV.

Once Maberry exited the vehicle, Fox used a drug-sniffing K-9 named Alpha to search the SUV, producing several positive alerts. In the driver’s area, Fox found small amounts of marijuana. Alpha also alerted to a bag in the back cargo area that contained $1,000 in one-dollar bills that had been bound into stacks with rubber bands. Fox testified that the K-9 would not alert to money unless it had come in contact with drugs. Fox proceeded to arrested Maberiy, but according to Fox’s report [14-1], Maberry was not read his Miranda rights at that time.

[727]*727After completing the arrest, Fox retrieved the K-9 for what he claimed was another search of the SUV. But, according to Fox, the K-9 was not on a leash and immediately went to Maberry’s front door, where it again alerted. When Fox approached the front door to collect Alpha, he could smell marijuana emanating from the house. The dog then ran to a Chevrolet Monte Carlo parked in the driveway and again alerted. After obtaining a search warrant, officers searched the Monte Carlo and found the firearm that forms the basis of the sole charge against Maberry.

Fox’s testimony regarding the home and the car is not consistent with either his report or the “Underlying [F]acts and Circumstances” (“UFC”) that supported the warrant he obtained to search 'the Monte Carlo. In his report, Fox recorded that after finishing the search of the SUV, “I then walked K9 Alpha around the outer perimeter of the residence ... and he gave a positive alert at the front door.” Report [14-1] ¶ 5 (emphasis added). The following paragraph in his report states, “I then walked him around two vehicles parked in the driveway,” leading to another positive alert. Id. ¶ 6. Based on these events and the SUV search. Fox reports “requesting] a search warrant for the residence and the red Monte Carlo that was parked in the driveway at the location.” Id.

The UFC for the search warrant oh the Monte Carlo provides yet another account. Like Fox’s report, it states that when Fox “walk[ed] K-9 Alpha around [Maberry’s house] he smelled a strong odor of marijuana coming from this location and K-9 Alpha gave a positive alert odor on this resident [sic].” UFC [21-3] at 1. But unlike Fox’s report, the UFC indicates that JPD obtained and executed the search warrant on the house, discovered the drugs, and then allowed the K-9 to sniff the cars, all of which led to a second search warrant the officers requested for the car. The UFC for the search warrant on the Monte Carlo states:

After we executed the [s]eareh warrant at [redacted address] the Jackson Police Department recovered a large amount of [c]rack cocaine and a large amount of U.S. currency. Detective Fox walked K-9 Alpha around a 2007 Chevrolet Monte Carlo Tag [redacted] that is sitting in this driveway of [Maberry’s house]. K-9 Alpha gave a positive alert [to] odor on the trunk of this vehicle. With this information in mind, I, Detective Altrich Harvey, respectfully request that a search warrant be issued for a 2007 Chevrolet Monte Carlo Tag [redacted] that is sitting in the driveway of [redacted].

Id. 1-2 (emphasis added).

It should be noted that the arrest happened over two years ago and memories can fade. While Fox’s report does not seem to have a date, he presumably would have prepared it shortly after the arrest. The UFC, on the other hand, was obviously prepared at the scene and reflects the most contemporaneous evidence of what transpired. Moreover, it is what the officers reported to the court that issued the warrant.

Based on all of this, the Court credits Fox’s testimony up until the arrest. But it cannot credit his testimony that the dog found its way—unassisted—to the front door and to the Monte Carlo. The contemporaneous records show that Fox “walked” the dog to both locations. Id. Fox’s report also seems inaccurate to the extent it suggests JPD obtained the search warrants for the residence and the Monte Carlo at the same time. See Report [14-1] at ¶ 6 (stating that based on the positive alerts and other evidence to that point, “I had reasonable suspicion to [] believe that there were more illegal items located at this location, and requested a search war[728]*728rant for the residence and the red Monte Carlo.”)- This might simply be a matter of imprecise language, but as noted above, the UFC filed in support of the search warrant on the Monte Carlo expressly references the items already discovered when the officers executed the search warrant on the residence. UFC [21-3] at 1-2. Accordingly, the home search must, have come before the officers sought a warrant to search the Monte Carlo.

The more difficult question is the timing of the Monte Carlo sniff. Though not clear, Fox’s report seems to indicate that it occurred immediately after the sniff at the front door, see Report [14-1] at ¶¶ 5-6, and that is what Fox recalled from the witness stand. The UFC at least suggests that it occurred after the home was searched and the drugs were found. See

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Bluebook (online)
193 F. Supp. 3d 724, 2016 U.S. Dist. LEXIS 80529, 2016 WL 3466933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-maberry-mssd-2016.