Opinion
Criminal Action No. 3:18-cr-172-DJH-RSE
03-05-2020
UNITED STATES OF AMERICA, Plaintiff, v. ERIC CARSON, Defendant.
* * * * *
MEMORANDUM OPINION AND ORDER
Defendant Eric Carson is charged with one count of conspiracy to distribute a controlled substance that resulted in death or serious injury, two counts of possession of a controlled substance with intent to distribute, and two counts of conspiracy to commit money laundering. (Docket No. 7). After several weeks of investigation, law enforcement officers executed a search warrant on Carson's apartment in Louisville on August 3, 2018. The Court considers Eric Carson's challenges to: a warrant issued by a Kentucky state court authorizing law enforcement authorities to track Carson via cellphone activity (D.N. 52-4); a warrant issued by a United States Magistrate Judge to search Carson's apartment (D.N. 52-2); and the admissibility of statements Carson made in a subsequent meeting with government representatives. Carson now moves to suppress any evidence obtained from the search of his apartment (D.N. 52), and also moves to suppress his post-arrest statements. (D.N. 50) For the reasons stated below, the Court will deny both motions.
I.
The investigation of Defendant Eric Carson began when Sergeant Tom Schardein of Louisville Metro Police Department—a designated task force officer with the United States Drug Enforcement Agency—responded to a reported death at a rehabilitation facility on April 9, 2018. (D.N. 52-2, PageID # 152) While investigating the apparent overdose, Schardein found texts on the deceased's cell phone implicating "Ryan M" (eventually identified as Carson's codefendant Ryan Moore), and a narcotics dealer known as "Max." (Id., PageID # 153-54)
Sergeant Schardein's name was misspelled as "Schradein" in the federal search warrant application for Carson's Echelon Way apartment. (D.N. 52-2, PageID # 148-49) The correct spelling has been used here.
A joint task force of LMPD and DEA agents executed a search warrant for Moore's residence on May 22, 2018 and read Moore his Miranda rights. (Id., PageID # 154) Moore gave a statement to law enforcement that provided key information on Max. (Id., PageID # 154-55) Moore stated that Max had been his heroin dealer for about a year, and that both he and the deceased had purchased heroin from Max shortly before the overdose. (Id., PageID # 155) Moore believed that Max had succeeded Moore's previous dealer, "Youngin," after Youngin was arrested the year before. (Id.) According to Moore, Max drove a black Mazda 3, often set locations for buys at grocery stores in Middletown, and conducted his transactions by driving up next to the purchaser's car and tossing drugs and money through the open car windows. (Id., PageID # 155-56) Moore permitted officers to open his phone and retrieve Max's phone number. Moore described Max as a "black male, about 5'7," slim build, a short haircut." (Id., PageID # 156) On June 8, 2018, at a subsequent meeting with DEA agents and his attorney, Moore reaffirmed his previous statements. He confirmed that Youngin's given name was Marcus Bishop, that Max had taken over following Bishop's arrest, and that Max now operated out of a white Nissan. (Id.) Moore gave a likely location for Max to set a drug deal. (Id., PageID # 156-57) The officers then showed Moore a photo array, and he identified Defendant Eric Carson as the dealer he knew as Max. (Id., PageID # 158) Sergeant Schardein and other officers then obtained historical cell site information for the phone numbers associated with Carson and established that these cell phones "pinged" frequently in the area of Carson's apartment on Echelon Way in Louisville. (Id., PageID # 159; D.N. 52-4 (Kentucky warrant application for cellular location data))
A United States Postal Inspector confirmed that D.H., one of Carson's frequently contacted associates, received mail at the specific Echelon Way apartment at issue. (D.N. 52-2, PageID # 159-60) Officers surveilled the apartment and eventually observed a suspect they identified as Carson parking a black Mazda 3 with a license plate ending in XSP outside the apartment building. (Id.) The officers saw Carson walk through the exterior door, and although they could not see him enter a specific apartment, they "noted that there are no other doors in that area that the subject could enter." (Id., PageID # 160) On July 24, Schardein and his partner tailed the Mazda 3, license plate ending in XSP, to the Mall St. Matthews and saw Carson exit the car, behave suspiciously around the Red Robin restaurant, then drive to the mall's covered parking garage. (Id.) The officers then observed multiple cars park alongside Carson in succession and exchange what appeared to be money and drugs through the cars' open windows; the occupants of these cars never left their vehicles before driving out of the parking lot. (Id., PageID # 161) The affidavit indicates that the Mall St. Matthews security team has provided video of these suspected transactions. (Id., PageID # 163) Schardein and his partner pulled over one of these vehicles, and an occupant "admitted to having just purchased heroin from a subject known to him/her as 'Max.'" (Id., PageID # 161) Both of the occupants had been identified as potential customers of Max through the investigation of Carson's cell activity. (Id.)
On July 30, 2018 officers again observed Carson operating the Mazda 3 around the Oxmoor Mall in "what can only be described as if the Mazda was a 'drive thru' with quick exchanges." (Id., PageID # 164) The officers again pulled over one of the suspected customers, who admitted to having just bought heroin from "Max." (Id., PageID # 165) This customer also had the same number stored for Max that Sergeant Schardein had previously recovered from the deceased's phone. (Id.) After confirming Max's connection with the Mazda 3, the officers obtained warrants from a Kentucky state court to track the vehicle with a GPS device. (Id., PageID # 163; D.N. 52-3 (Kentucky search warrant affidavits for Mazda 3))
As surveillance of Carson continued that same day, officers observed him engaging in a suspected hand-to-hand transaction outside of a Texas Roadhouse restaurant. (D.N. 52-2, PageID # 165) Carson then left the restaurant accompanied by an African American woman driving a white Nissan Altima with a license plate ending in XAF, later discovered to be registered to Carson's mother, K.T. (Id., PageID # 166) Both the Mazda 3 and Nissan Altima then traveled to Blaze Pizza. (Id.) The same two cars were observed parked outside the Echelon Way apartment the next day. (Id.) Ongoing surveillance of the GPS tracking device indicated that the Mazda 3 spent significant amounts of time parked at the Echelon Way apartment. (Id., PageID # 166-67)
DEA agents then served a records subpoena on the management of the Echelon Way apartments. (Id., PageID # 166) The manager stated that other residents had complained of the occupants of the apartment in question, who appeared to be a couple, and gave a physical description of the apartment occupant's boyfriend that matched Carson. (Id.) The manager also confirmed that the Mazda 3 and Nissan Altima belonged to the apartment's occupants and "specifically indicated that CARSON regularly drives the Mazda 3." (Id.)
The affidavit asserts that law enforcement observed Carson traveling to and from the Echelon Way apartment before and after drug deals, and for that reason Schardein suspected that he would find evidence of narcotics violations there. (Id., PageID # 167) This conclusion was at least partially based on his experience as a narcotics investigator, which taught him that "individuals who use, peddle and traffic narcotics . . . will often maintain narcotics in accessible locations, such as their motor vehicles, residences and with others in their presence." (Id.) Federal and local law enforcement officers jointly executed the search warrant at Carson's Echelon Way apartment on August 3, 2018. (D.N. 130, PageID # 515)
The officers recovered a significant amount of heroin and drug-dealing paraphernalia from the search. (Government's Exhibit 1, Audio Recording, 01:25-01:41) Carson claimed responsibility for all of the evidence seized, stating, "Everything on me." (Id. at 03:27-03:29) Sergeant Schardein read Carson his Miranda rights. (Id. at 02:28-02:44) The officers then discussed with Carson the charges he could face and how they "would like to help [him] help [him]self." (Id. at 05:32-05:34; 07:40-8:07) Carson responded by telling the officers that he was willing to speak with them after consulting with his attorney Frank Mascagni. (Id. at 8:50-9:07) The agents told Carson, "The more we can tell the US Attorneys that you want to cooperate the better chance they are gonna let you have the lower charges." (Id. at 08:33-08:45) DEA Special Agent Nate Mills testified that "after completion of the search warrant, we secured Mr. Carson in my vehicle, and I drove Mr. Carson directly from the apartment area to our office in downtown Louisville." (D.N. 130, PageID # 517) After Mascagni arrived at the DEA office later that afternoon, he, Carson, Mills, Mills' partner Special Agent Mike Cates, and Assistant U.S. Attorney Lettricea Jefferson-Webb conducted a "debriefing" interview with Carson, which lasted roughly an hour and a half. (See Government's Exhibit 2, taped interview) Over the course of the interview Carson detailed his involvement in narcotics trafficking and his knowledge of unrelated crimes. (Id.) He also provided information about his source of supply. (Id.) Carson and the agents discussed the possibility of setting up a controlled buy, and Carson expressed his fear of the associated danger and retaliation that might follow. (Id. at 34:30-37:32) Jefferson-Webb briefly explained the sentencing guidelines and how cooperation could help reduce Carson's offense level. (Id. at 33:00-34:23)
A federal grand jury indicted Carson on October 17, 2018. (D.N. 1) A superseding indictment was returned on September 4, 2019. (D.N. 77) Carson now challenges the validity of the state-court issued tracking warrant to monitor his cellphone, the sufficiency of the warrant for the search of his apartment, the validity of the consent he gave to search the cell phones recovered from that search, and the admissibility of the statements he made during the debriefing session. (D.N. 50; D.N. 52) The Court will consider each of Carson's arguments in turn.
II. Fourth Amendment
A. Validity of Tracking Warrant
In the Sixth Circuit, although "it is important not to stifle cooperation between federal and state officers," it "is clear that federal officers, investigating a federal crime, must comply with the federal rules governing their conduct." United States v. Searp, 586 F.2d 1117, 1121 (6th Cir. 1978). This holding is consistent with Federal Rule of Criminal Procedure 41(b)(4), which dictates that "a state court judge does not have authority to issue a tracking warrant." United States v. Stetkiw, No. 18-20579, 2019 WL 42200, *1 (E.D. Mich. Feb. 1, 2019) (citing United States v. Martin, No, 15-20544, 2016 WL 4493675, *3 (E.D. Mich. Aug. 26, 2016)); see also Rule 41 advisory committee notes (2006) ("Because the authorized tracking may involve more than one district or state, the Committee believes that only federal judicial officers should be authorized to issue this type of warrant."). But technical violations of Rule 41 do not automatically result in exclusion of resulting evidence: "Violations of Rule 41 alone should not lead to exclusion unless (1) there was 'prejudice' in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule." Searp, 586 F.2d at 1125 (quoting United States v. Burke, 517 F.2d 377, 386-87 (2d Cir. 1975)).
1.
Carson asserts that the joint task force violated Rule 41 when it obtained the warrant to track his cell phone activity from a state—rather than a federal—judge, and that the Court must therefore suppress the fruits of that surveillance. (D.N. 52, PageID # 144; see D.N. 52-4 (Kentucky warrant application for cellular tracking data)) He argues that Rule 41 applies because a federal agent, DEA Special Agent Andrew Smith, applied for the warrant. (See D.N. 52-4, PageID # 177) Carson does not assert that the first prong of the Searp test— "prejudice"—applies, and therefore he concedes the first prong. Nevertheless, the Court concludes that Carson would not have been able to demonstrate that he was prejudiced. Had the joint task force applied for the tracking warrant in federal court, the magistrate judge could properly have issued it based on the contents of the warrant application, even under the enhanced standard suggested by one federal district court.
At least one court in this Circuit has concluded that an applicant for a tracking warrant must exceed the probable cause standard and "demonstrate a nexus between a suspect and the phone, the phone and the criminal activity, as well as the criminal activity and suspect's location in protected areas, rather than merely probable cause that the person is engaged in criminal activity." United States v. Powell, 943 F. Supp. 2d 759, 778-79 (E.D. Mich. 2013), aff'd, 847 F.3d 760 (6th Cir. 2017) (citing United States v. Williams, 544 F.3d 683, 686 (6th Cir.2008)). Even applying "the novel standard given in Powell," the affidavit here passes muster. See United States v. Wahid, 69 F. Supp. 3d 696, 700 (N.D. Ohio 2014), aff'd, 666 F. App'x 379 (6th Cir. 2016) (applying Powell standard for tracking warrant). The affidavit established a nexus—that is, evidence connects the alleged criminal wrongdoing with the thing to be searched—between Carson and the target cellphone. See infra, Part II.B.1. (for detailed discussion of warrant requirements and nexus). Sergeant Schardein stated in his affidavit that the investigation linked the target cellphone to Carson with the help of a cooperating witness, later identified as Carson's codefendant Ryan Moore. (D.N. 52-4, PageID # 182) Moore provided contact information for his heroin dealer, known to him as "Max." The joint task force found that the number provided by Moore had been recently disconnected, but that it shared a common call history with a new number—the target cellphone. (Id.) Moore identified as Max the person answering a call to the target cellphone. (D.N. 52-4, PageID # 184) And task force members showed Moore a photo array, and he identified Carson as the dealer he knew as Max. (Id.)
The affidavit also established a connection between the target cellphone and the suspected criminal activity. The affidavit linked the target cellphone to suspected narcotics trafficking by establishing the common call history between the number Moore used to purchase heroin and the target cellphone, as well as Moore's confirmation that Carson answered the target cellphone—and Carson was Moore's heroin dealer for over a year. (Id.) Finally, as in Wahid, when the purpose of the warrant is to locate an individual, the tracking warrant affidavit is necessarily devoid of geographical details. 69 F. Supp. 3d at 700 (finding that "the warrant might be useless" if it only applied to public places because defendant's identity was not known). Here, the joint task force "utilized all available law enforcement and commercial research databases to identify the physical location and residences of Eric K. CARSON, aka 'Max'" (D.N. 52-4, PageID # 184), but their efforts had proved unsuccessful. Without knowledge of Carson's residence, Schardein could not allege that Carson was in a "protected area," and therefore the affidavit is not deficient on that ground. Powell, 943 F. Supp. 2d at 779. Because the scope of the affidavit meets even the suggested enhanced criteria for a tracking warrant, a United States magistrate judge could properly have issued the requested tracking warrant.
2.
Carson argues that the fruits of the tracking warrant should be suppressed under the second prong of Searp. He asserts that a federal officer obtaining a tracking warrant from a state judge in a federal investigation amounts to an "intentional and deliberate disregard of a provision in" Rule 41, and that exclusion of the resulting evidence is therefore required. (Id., PageID # 145) (quoting Searp, 586 F.2d at 1125).
In response, the government states that it was actually Sergeant Schardein who applied for the warrant, since he is the affiant for each application in this case. The United States explains that the reference to "Smith" in the application for the tracking warrant was a "typographical error." (D.N. 62, PageID # 220; see D.N., 52-4, PageID # 172) Agent Smith's signature does not appear on the warrant application.
Irrespective of how these mistakes occurred, Carson has failed to show that the irregular tracking warrant process here amounts to a deliberate disregard of Rule 41. Carson fails to find support in the relevant case law. And cases such as United States v. Martin, which appear to support Carson's argument, are, upon closer examination, distinguishable. No. 15-20544, 2016 WL 4493675 (E.D. Mich. Aug. 26, 2016). Martin involved a "common practice" of violating Rule 41, which indicated that federal officers thought obtaining warrants from state court was more convenient than utilizing the federal system—and the case ultimately turned on a lack of probable cause. 2016 WL 4493675 at *4. Carson has not alleged, much less demonstrated, that the federal officers involved in this case engaged in a "common practice" of obtaining tracking warrants from state judges.
Additionally, as noted in Stetkiw, when federal officers train a state officer to participate in a joint task force, the movant must show that the "federal agents who trained [the state officer] knew that Rule 41 required law enforcement to obtain tracking warrants from a federal judge." 2019 WL 422200 at *3. A defendant who fails to show that the federal officers intentionally and deliberately failed to educate the state officer on Rule 41 cannot satisfy the second prong of the Searp test. Id. Assuming that the affiant Schardein, an LMPD officer, applied for the warrant, Carson would need to demonstrate that the federal agents responsible for Schardein intentionally failed to train him. Carson has not made that showing here.
In sum, while the tracking warrant process in state court was irregular and the application contained errors, Carson has not established that the application amounted to the type of Rule 41 violation that requires suppression under Searp. 586 F.2d at 1123 (finding that the exclusionary rule "should not be applied to all cases in which there has been a violation of the [statutory] rules by police"). Carson has not shown that the task force's decision to obtain the tracking warrant from a state-court judge amounted to "intentional and deliberate disregard" for Rule 41. Searp, 586 F.2d at 1125. Further, Schardein's affidavit for the tracking warrant contained the information necessary for a federal magistrate judge properly to issue the requested warrant. The Court therefore declines to suppress the evidence obtained from the state-issued tracking warrant.
B. Validity of Warrant to Search Echelon Way Apartment
Carson next argues that "[t]he warrant failed to establish a nexus between the items being sought and the place to be searched." (D.N. 52, PageID # 141) He is essentially alleging that the search warrant affidavit did not establish probable cause because the affidavit failed to connect Carson's alleged wrongdoing to his Echelon Way apartment. After reviewing the warrant application and supporting affidavit, the Court disagrees.
For a search warrant to comply with the Fourth Amendment, it must be supported by probable cause. See Illinois v. Gates, 462 U.S. 213, 239 (1983). Probable cause is established when law-enforcement officials produce a warrant that contains 'reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.'" United States v. Coffee, 434 F.3d 887, 892 (6th Cir. 2006) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)). The issuing magistrate judge must determine whether, from the four corners of the warrant affidavit, "there is a 'fair probability, given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place." United States v. Shields, 978 F.2d 943, 946 (6th Cir. 1992) (quoting United States v. Loggins, 777 F.2d 336, 338 (6th Cir. 1985)). When evaluating the warrant affidavit, a court cannot rely on any singular indicator of veracity, but instead "must balance all potential indicia of reliability present." United States v. Neal, 577 F. App'x 434, 441 (6th Cir. 2014); see also United States v. Higgins, 557 F.3d 381, 389 (6th Cir. 2009) (noting that while veracity, reliability, and basis of knowledge are all "highly relevant" to a finding of probable cause, they are "not 'separate and independent requirements to be rigidly exacted in every case'" (quoting Gates, 462 U.S. at 230)); United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000) ("The affidavit is judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added."). This is a "practical, common sense determination," and the "affidavit or warrant request must state a nexus between the place to be searched and the evidence sought." United States v. Williams, 544 F.3d 683, 686 (6th Cir. 2008) (internal citations and quotation marks omitted). The magistrate judge's conclusion as to probable cause "should be paid great deference by reviewing courts," Gates, 462 U.S. at 236 (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)), and the "magistrate's discretion should only be reversed if it was arbitrarily exercised." Allen, 211 F.3d at 973.
1. Nexus
A warrant affidavit is sufficient if it establishes that "a nexus exists between a known drug dealer's criminal activity and the dealer's residence" and "some reliable evidence exists connecting the criminal activity with the residence." United States v. Gunther, 266 F. App'x 415, 419 (6th Cir. 2008). Specifically, "[t]o establish probable cause to search a home for drugs, there must be a 'fair probability' given all the circumstances described in the affidavit, that the drugs will be found in the home searched." United States v. Davison, 766 F. App'x 232, 236 (6th Cir. 2019) (quoting Peffer v. Stephens, 880 F.3d 256, 272 (6th Cir. 2018)). Drug dealers have earned particularized treatment under the Fourth Amendment because "[i]n the case of drug dealers, evidence is likely to be found where dealers live." United States v. Newton, 389 F.3d 631, 635 (6th Cir. 2004), vacated on other grounds, 546 U.S. 803 (2005) (internal quotation marks omitted) (quoting United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998)).
This case is similar to United States v. Houser, where the Sixth Circuit upheld a warrant to search a residence supported by officers' observations that the defendant would "leave from and then return to his apartment immediately before and after selling crack cocaine." 752 F. App'x 223, 227 (6th Cir. 2018). Although the officers had not directly observed any drug-dealing in the house they eventually searched, they had observed the defendant engage in a hand-to-hand transaction, then return to the residence. Id.; see also United States v. Ellison, 632 F.3d 347, 349 (6th Cir. 2011) (holding that confidential informant's observation of defendant dealing drugs outside of house and then returning to it established an a sufficient nexus between suspected narcotics trafficking and defendant's residence); Jones, 159 F.3d at 974-75 ("In this case, the fact that the incidents referred to in the affidavits took place on the premises rather than inside the house does not invalidate the search of the house."). Similarly, in Davison, the Sixth Circuit upheld the sufficiency of a warrant to search an apartment despite the fact that the warrant did not establish whether the defendant resided there. 766 F. App'x at 236. The appellate court found that "Davison's observed behavior dealing drugs before or after driving cars that were later parked at [the apartment], together with Davison's observed movements entering and exiting [the apartment] in close temporal proximity to the controlled drug buys," provided "more than enough" evidence to establish probable cause to search the apartment even if Davison himself did not live there. Id. at 237.
Here, Sergeant Schardein and his partners personally observed over a period of weeks Carson using his Mazda 3 as a platform for selling drugs. (D.N. 52-2, PageID # 160-64) The officers followed the Mazda 3 back and forth to Echelon Way and saw it in the company of the white Nissan Altima—both at drug deals and then at the apartment. (Id., PageID # 162-64) A manager of the Echelon Way apartments confirmed that the two cars belonged to the residents of the apartment to be searched and gave a description of the male resident that matched Carson. (Id., PageID # 166) Like the scenario found in Houser, the warrant affidavit here establishes that Carson left his Echelon Way apartment immediately before and after selling drugs from his Mazda 3, which was often left parked at the apartment. (Id., PageID # 160-64) And as in Houser and Davison, although the officers here did not observe any drug dealing within the Echelon Way apartment itself, they reported observing Carson engage in drug deals immediately before and after leaving the apartment. Like the defendant in Davison, Carson used a car that officers often saw parked at the apartment to effectuate those drug deals. This evidence—set out in the warrant affidavit and viewed through a "practical, common sense" lens, Gates, 462 U.S. at 238—provided a basis for the magistrate judge to conclude that there was a "'fair probability' given all the circumstances described in the affidavit, that drugs [would] be found in the home searched." Davison, 766 F. App'x at 236 (quoting Peffer, 880 F.3d at 272).
2. Good-Faith Exception
Even if the warrant to search Carson's Echelon Way apartment was technically deficient, the evidence that the search uncovered would be salvaged under the good-faith exception. As the Supreme Court stated in United States v. Leon, "the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." 468 U.S. 897, 922 (1984). The good-faith exception applies as long as the affidavit contains "a minimally sufficient nexus between the illegal activity and the place to be searched." United States v. Frazier, 423 F.3d 526, 536 (6th Cir. 2005) (quoting United States v. Carpenter, 360 F.3d 591, 596 (6th Cir. 2004)) (internal quotation marks omitted)). The Sixth Circuit has summarized the circumstances under which the Leon good-faith exception is inapplicable:
1) the supporting affidavit contained knowing or reckless falsity; 2) the issuing magistrate wholly abandoned his or her judicial role; 3) the affidavit is "so lacking in probable cause as to render official belief in its existence entirely unreasonable;" or 4) where the officer's reliance on the warrant was neither in good faith nor objectively reasonable.Frazier, 423 F.3d at 533 (quoting Leon, 468 U.S. at 923). Carson has not argued that either of the first two exceptions applies, nor has he presented any evidence that the officers who searched his Echelon Way apartment acted unreasonably or in bad faith. And the Court finds that the warrant and accompanying affidavit provided ample support for a reasonable belief that the search was valid. Thus, even if the warrant was deficient, the fruits of the search of the Echelon Way apartment would be admissible under the good-faith exception. See United States v. Lindsey, No. 1:14-CR-24-GNS-1, 2015 WL 5311090, at *5 (W.D. Ky. Sept. 10, 2015) (finding that good faith exception would apply even if warrant was ultimately not supported by probable cause).
C. Validity of Consent to Search Cell Phones
In his final Fourth Amendment-based argument, Carson asserts that he did not voluntarily consent to the search of the cell phones recovered from his Echelon Way apartment and that any evidence that the phones contained or led to must therefore be suppressed. (D.N. 52, PageID # 143-44) Carson signed a standard DEA consent form with regard to all but one of the cell phones during a meeting with two DEA agents, AUSA Jefferson-Webb, and Carson's then-counsel Frank Mascagni. Carson points to the presence of the prosecutor at the interview and the lack of Miranda warnings in support of his claim that the consent he gave was coerced and therefore invalid. (Id.)
The exact nature of this meeting is discussed in detail below. See infra Part III.A.
The Court must decide whether Carson's consent was freely and voluntarily given by evaluating the totality of the circumstances. United States v. Riascos-Suarez, 73 F.3d 616, 625 (6th Cir. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). "Consent is voluntary when it is 'unequivocal, specific and intelligently given, uncontaminated by any duress or coercion.'" United States v. Beauchamp, 659 F.3d 560, 571 (6th Cir. 2011) (citing United States v. Moon, 513 F.3d 527, 537 (6th Cir. 2008)). Ultimately, consent is involuntary if the "defendant's will was overborne in a particular case." Schneckloth, 412 U.S. at 226. The Court must consider several factors that fall into two general categories, the characteristics of the consenting party and the characteristics of the detention. Harris v. Klare, 902 F.3d 630, 639 (6th Cir. 2018) (citing United States v. Ivy, 165 F.3d 397, 404 (6th Cir. 1998)).
Considering first Carson's characteristics, the Court finds little to support his position. The Court must evaluate Carson's "age, intelligence, and education" in addition to whether he understood his right to refuse consent to search. See id. Carson is an adult, and although his education level is not apparent from the record, there is no evidence that he is of below-average intelligence. The Court's review of the videotaped interview suggests the conclusion that Carson is at least of average intelligence. Moreover, he is familiar with law enforcement and the criminal justice process. (D.N. 52-2, PageID # 158 (listing Carson's criminal history)) Carson invoked his right to counsel at the time of his arrest. (Government's Exhibit 1, at 8:50-9:07) During the taped interview, Carson answered the government's questions coherently and thoroughly. (See Government's Exhibit 2) Mascagni told Carson, "I promise you they can get a judge to sign these search warrants for the cell phones. Or you can consent." (Exhibit 1, 15:02-15:40) Special Agent Cates explained the process used to search the phones, then told Carson that it "would be great if we had your permission to do it, again as your counsel said you don't have to do it." (Id. at 16:16-16:24) Carson then verbally consented and signed the consent form in the presence of his lawyer. (Id. at 15:52-16:00) He also demonstrated knowledge of his right to refuse consent when he advised the officers that one of the listed phones belonged to his girlfriend, and therefore he was unsure if he could consent to its search. The agents subsequently removed that phone from the list on the consent form. (Id. at 17:51-18:36) Mascagni conferred with Carson again, asking if Carson understood what he had agreed to. (Id. at 17:34-37) The Court finds that none of these characteristics and the context in which they are considered suggest that Carson's consent was involuntary.
As to the characteristics of the detention, law enforcement held Carson following the execution of the Echelon Way search warrant and his resulting arrest. But Carson was accompanied by his lawyer of choice. (See Government's Exhibit 2) Carson was not handcuffed or surrounded by hostile members of law enforcement (id.), but instead participated in a consensual debriefing session where he provided the government with information. Cf. United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999) (holding that expression of consent that is merely an "expression of futility in resistance to authority or acquiescence to officer's request" does not amount to valid consent). He was not subjected to "deprivation of food or sleep [or] prolonged detention or questioning." Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 830 (6th Cir. 2007) (quoting United States v. Jones, 846 F.2d 358, 360) (6th Cir. 1988)). The session was roughly an hour and a half long and Carson was free to end the interview at any time. Nor does the record suggest the presence of "more subtle forms of coercion that might flaw [Carson's] judgment" such that he could not voluntarily consent. Morphis v. United States, 110 F. App'x 527, 530 (6th Cir. 2004) (citing United States v. Watson, 423 U.S. 411, 424 (1976)). Thus, Carson's Fourth Amendment argument that he did not validly consent to the search of the cell phones recovered from Echelon Way is without support in the facts presented to the Court.
Finally, since the Court finds that Carson's consent was valid, Carson's "Miranda argument has no legal foundation, as 'the Miranda rule protects against violations of the Self-Incrimination Clause [of the Fifth Amendment], which, in turn, is not implicated by the introduction at trial of physical evidence resulting from voluntary statements.'" United States v. Ward, 400 F. App'x 991, 996 (6th Cir. 2010) (quoting United States v. Patane, 542 U.S. 630, 634 (2004)).
III. Fifth Amendment
Carson challenges the admissibility of the statements he provided to the United States under both Federal Rule of Evidence 410 and the Fifth Amendment provision against self- incrimination. (D.N. 50) He also asserts a claim of ineffective assistance of counsel. (Id.) After carefully considering the record, the Court is unpersuaded by Carson's arguments.
A. Plea Discussions
Carson argues that any statements he made during the August 3, 2018, debriefing session were part of the plea-negotiation process, and thus cannot be used against him at trial pursuant to Federal Rule of Evidence 410. (D.N. 50, PageID # 135) The government maintains that the August 3 meeting was a voluntary conference, initiated by Carson, and that the discussion that took place was not in contemplation of a formalized plea agreement. (D.N. 133, PageID # 577)
Federal Rule of Evidence 410 provides that "[i]n a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: . . . (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea." Fed. R. Evid. 410(a)(4). The Court must apply a two-tiered test to determine if FRE 410 bars admission of Carson's statements, asking first "whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused's expectation was reasonable given the totality of the objective circumstances." United States v. Little, 12 F.3d 215 (6th Cir. 1993) (Table) (quoting United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir. 1978) (en banc) and adopting "widely followed" test for violations of FRE 410). This inquiry "protects the plea discussion process by preserving the accused's subjective expectations, while at the same time limiting self-serving, post hoc statements by the accused." Id. (quoting United States v. Swidan, 689 F. Supp. 726, 728 (E.D. Mich. 1988)). FRE 410 can apply to statements made prior to both arrest and indictment, "as these events are not prerequisites to 'an offer to plea guilty upon condition.'" Id. (quoting United States v. Levy, 578 F.2d 896, 901 (2d Cir. 1978)).
An Assistant U.S. Attorney was present for the interview. From a review of the videotaped conference it is clear that AUSA Lettricea Jefferson-Webb participated minimally in the discussion, explaining basic sentencing guidelines and stating that "you can also decrease your level by cooperation. And where you fall with that depends on a lot of different factors, how much you cooperate, whether we are able to take that information and it is useful to us." (Government's Exhibit 2, at 33:00-34:23) The government offered no defined term of years or specific charging concessions in exchange for Carson's information, distinguishing this situation from cases like United States v. Cross, No. 90-2212, 1992 WL 48009 (6th Cir. Mar. 13, 1992). There, the defendant spoke with federal law enforcement about a string of bank robberies following his arrest on unrelated state charges. Id. The defendant then refused to continue the debriefing until he received an offer from the United States. The AUSA offered twenty years, which the defendant rejected in a follow-up interview where he gave incriminating statements. Id. at *6. The defendant found twenty years to be too harsh a sentence and refused to cooperate further. Id. The Sixth Circuit held that the statements from the second interview should have been suppressed, because those statements were "in direct response to this 'offer [from the government]'" and therefore constituted plea negotiations. Id. Here, in contrast, Carson cooperated fully—with his counsel present—and without any definite offer from the government. At the suppression hearing the prosecutor asked Special Agent Mills if he recalled any specific discussion regarding an exchange of cooperation for a promise not to charge Carson with an overdose death, and Mills responded, "Absolutely not. There was no discussion of any kind like that." (D.N. 130, PageID # 535) Carson had been arrested by DEA agents and faced indictment in federal court following the fruitful search of his residence. (Government's Exhibit 1, at 02:08-02:11 ("you will be indicted federally"); D.N. 130, PageID # 533 ("He was always going to be charged federally.")) Unlike the defendant in Cross, Carson provided detailed information on the extent of his drug-dealing activity without any specific offer from the government.
Nor was any agreement or limitation on the statements Carson provided ever formalized or reduced to writing. Carson's counsel at the conference, Mascagni, testified: "There was, I thought, an agreement that if [Carson] cooperated and got debriefed, that would be taken into account, as with all clients, some decrease of his exposure postindictment in federal court." (D.N. 130, PageID # 541) This description is consistent with the tone and substance of the videotaped meeting. It is clear from Mascagni's advice to Carson and the statements of government representatives that cooperation would likely benefit Carson, leading an objective observer to conclude that an expectation of more favorable terms would follow from cooperation. But, to the extent that Mascagni describes this expectation as something more akin to a specific agreement, his testimony falls well short. The "agreement" was not explicit; was not quantified; was never confirmed by the AUSA in the meeting or memorialized in a written proffer agreement; and cannot be recovered from the record. (Id., PageID # 547) Simply put, the facts before the Court show that Mascagni's mere expectation or hope of favorable treatment did not result in either a proffer agreement or a plea agreement. Mascagni himself characterized the conference as a "debrief." (Government's Exhibit 2, at 11:08-11:20) ("I agree with your decision to be debriefed, or answer their questions.")
Carson's circumstances are similar to those in United States v. Edelmann, where the defendant moved to suppress statements under FRE 410. 458 F.3d 791 (8th Cir. 2006). Edelmann and her attorney participated in several pre-indictment discussions with FBI agents and the AUSA concerning bank and wire fraud charges. Id. at 804. Once confronted with incriminating evidence, Edelmann confessed to a heightened level of involvement in the scheme at issue, under what Edelmann claimed was "a clear understanding that we were doing this to cooperate with the government in return for a favorable deal." Id. at 804-05. Edelmann's attorney admitted that he did not know why the parties did not reduce the "agreement" to writing. Id. at 805. The Eighth Circuit ultimately found that the totality of the circumstances weighed against suppression of the statements, and that "no specific deal was made nor was any deal reduced to writing, which undermines the idea that formal plea negotiations occurred." Id. at 806. Similarly, here Mascagni acknowledged that a written proffer agreement was typically involved when he negotiated pleas for his clients—but that he did not receive a written or explicit proffer from the government in this case. (D.N. 130, PageID # 551) At no point during the videotaped conference did either Carson or Mascagni request that the parties reduce any form of agreement—proffer or otherwise—to writing. Although the better practice would have been for government representatives to inform both lawyer and client that no agreement had yet been made and to state the limits of the interview, the lack of a formalized proffer agreement, either oral or written, undermines the alleged "proffer" character of the August 3 meeting here, just as it did in Edelmann.
Even if Carson believed that he was negotiating a plea, the Court cannot conclude that his belief—as recently argued—was objectively reasonable. The debriefing took place immediately following the execution of the search warrant at the Echelon Way apartment and Carson's contemporaneous arrest. (D.N. 130, PageID # 517) That search uncovered a significant amount of heroin, for which Carson took unequivocal responsibility. (Government's Exhibit 1, at 03:27-03:29 ("Everything on me.")) Carson assertively told the DEA agents on scene at Echelon Way that he was willing to share information with his attorney present (id. at 10:23-10:25), and Mascagni repeated during the interview that "I have told them that you are willing to be debriefed or give a statement . . . and I agree with your decision to be debriefed, or answer their questions." (Government's Exhibit 2, at 09:24-11:12) Mascagni told Carson to "do everything you can to help yourself, depending on where this is going we're a couple of steps away. . . . We are here to seek information from you that will help you to convince this woman to give us a lesser term of years, based on your cooperation, how this turns out." (Id. at 37:38-38:15) (emphasis added) An objective analysis of the conference, highlighted by this statement, is consistent with the conclusion that the participants anticipated the possibility of reaching an agreement in the future—if Carson's information proved useful to the government—but that they had not reached an agreement prior to the conference. (Id. at 34:00-34:23) ("And where you fall with [the sentencing guidelines calculation] depends on a lot of different factors, how much you cooperate, whether we are able to take that information and it is useful to us").
Carson then shared detailed information on his drug-dealing activity before the United States made any concrete offer of a defined term of years or agreed to a specific charging decision, written or otherwise. (See id.) Thus, the government already held a strong hand against Carson: he had just been arrested by federal agents for narcotics offenses based on strong physical evidence found at the Echelon Way apartment. (See id., at 10:12-10:19 ("These are federal people and they are going to indict you in federal court at some point."); D.N. 130, PageID # 533) Carson's debriefing revealed no criminal activity of which the government was previously unaware, and the government thus lacked a significant incentive to proffer a favorable deal to Carson. Review of the videotaped conference shows that no proffer agreement limited the scope of the interview, although Carson and Mascagni may have hoped that the information Carson provided could result in more favorable treatment down the road. It would be unreasonable for Carson to believe that the discussion took place in furtherance of a plea negotiation when the government already possessed all the evidence it needed to charge Carson with serious narcotics crimes.
After carefully considering the totality of the circumstances, the Court concludes that Carson could not have reasonably believed that the interview was part of a plea negotiation. B. Miranda
Carson argues in the alternative that his statements must be suppressed because he did not voluntarily and knowingly waive his Fifth Amendment protection against self-incrimination. (D.N. 50, PageID # 135) As recognized in Miranda v. Arizona, the Fifth Amendment provides suspects the "privilege against self-incrimination and [the] right to retained or appointed counsel." 384 U.S. 436 (1966). The privilege against self-incrimination may be validly waived if two requirements are met:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.Moran v. Burbine, 475 U.S. 412, 421 (1986). The Court must evaluate the "totality of the circumstances surrounding the interrogation" to determine whether Carson's decision to talk was an "uncoerced choice" indicating the "requisite level of comprehension" such that his waiver of the privilege against self-incrimination was valid. Id. (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)).
As detailed above in Part II.C., the circumstances under which the government debriefed Carson were not unduly coercive and thus did not taint the validity of his Miranda waiver. Sergeant Schardein read Carson his Miranda warnings during the execution of the search warrant for the Echelon Way apartment. (Government's Exhibit 1, at 02:28-02:44) Carson demonstrated his understanding of his right to remain silent by immediately invoking it and indicating that he was uncomfortable speaking until he consulted with his lawyer, Frank Mascagni. See Garner v. Mitchell, 557 F.3d 257, 261 (6th Cir. 2009) (finding that defendant validly waived his Miranda rights when he appeared "perfectly normal" and the record did not indicate that he "engaged in conduct indicative of a misunderstanding"). The officers did not attempt to extract any additional information from Carson after he asserted his desire to speak with his attorney. (D.N. 130, PageID # 517) And, consistent with Miranda, the agents acted on Carson's request to involve his lawyer.
The agents then brought Carson directly to the DEA office for the debriefing, where Mascagni met them shortly thereafter. (Id.) Only after consulting with Mascagni did Carson decide to provide the government with answers to their questions regarding narcotics activity and other criminal wrongdoing. Because his attorney was present, the government's burden of proving that Carson validly waived his Miranda rights is significantly mitigated. See Miranda, 384 U.S. at 475 (holding that the government bears the "heavy burden" of demonstrating knowing and intelligent waiver "[i]f the interrogation continues without the presence of an attorney."). Of additional note, Mascagni reiterated several times throughout the course of the interview that Carson could stop, that this was a voluntary meeting, and that it was Carson's decision whether to cooperate. (See Government's Exhibit 2, 09:24-11:12) These statements are consistent with the Miranda admonition. Further, review of the video record shows that Carson was not restrained, held for an unreasonably long time prior to questioning, exposed to physical discomfort, or other "overtly coercive tactics that overbore [his] will." Moore v. Mitchell, 708 F.3d 760, 809 (6th Cir. 2013). Instead, he told officers at the scene that "I will talk to you straight up" (Government's Exhibit 1, 10:23-10:25), and then participated in a consensual meeting with the government, with his counsel present and participating. (Government's Exhibit 2)
Carson also argues that the Court must suppress his statement because it "was impacted by the stress and the assurances that occurred at the time," and was therefore not voluntary. (D.N. 50, PageID # 135) Carson stated on the taped interview that he feared for his life if he chose to cooperate, and worried that, "You guys aren't gonna be able to protect me." (See Government's Exhibit 2, at 34:30-34:50; 01:26:14-01:26:20) But the Supreme Court has stated that "[t]he sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion. Indeed, the Fifth Amendment privilege is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion." Colorado v. Connelly, 479 U.S. 157, 170 (1986) (internal citations and quotations omitted). And Carson has not alleged that the government representative attempted to manipulate his fears to force him into an involuntary confession.
Here, in fact, it was not the government representatives who brought up the possibility of reprisal, but Carson himself. The law enforcement officers acknowledged the potential and discussed an approach to cooperation that would minimize Carson's exposure. (Government's Exhibit 2, at 36:00-36:59); See United States v. Booker, 978 F.2d 1259 (6th Cir. Nov. 5, 1992) (unpublished) (finding that defendant's fears of third parties in absence of coercive police action did not warrant suppression of statement). Moreover, the videotaped conference shows that Carson's counsel was present and participating, advising him not to say anything that would put him in danger. (Id. at 37:38-38:15) Carson acknowledged his lawyer's advice and decided to continue with the meeting. Carson has not shown that "police misconduct" of any kind was the "crucial motivating factor" behind his decision to divulge incriminating information, and therefore the Court concludes that Carson's fear of reprisal did not overbear his will and render his Miranda waiver involuntary. See McCall v. Dutton, 863 F.2d 454, 459 (6th Cir. 1988) (finding that absence of police misconduct rendered defendant's confession admissible, despite fact that defendant had sustained injuries shortly before he confessed).
The Court concludes that the hallmarks of an involuntary confession are not present here. See Jackson v. McKee, 525 F.3d 430, 433-34 (6th Cir. 2008) (citing Schneckloth, 412 U.S. at 226) (summarizing factors courts consider in the involuntary confession analysis as "the age, education, and intelligence of the suspect; whether the suspect was advised of his Miranda rights; the length of the questioning; and the use of physical punishment or the deprivation of food, sleep, or other creature comforts"). Carson made an informed decision to participate in the interview. Indeed, Carson's lawyer counseled him before and during his participation. The Court cannot find that Carson's decision to speak with the government agents was involuntary, coerced, or unknowing, and therefore the Fifth Amendment does not bar admission of Carson's statements.
C. Ineffective Assistance of Counsel
Finally, Carson argues that if the Court finds that the statements he made at the debriefing session are otherwise admissible, the Court must nonetheless suppress the statements on the basis of ineffective assistance of counsel. (D.N. 132, PageID # 571-72) But the Court need not scrutinize the quality of Mascagni's representation because Carson's Sixth Amendment right to counsel had not yet attached during the preindictment meeting. "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defen[s]e." U.S. CONST. amend. VI. But "[t]he Sixth Amendment right to counsel 'does not attach until a prosecution is commenced.'" Turner v. United States, 885 F.3d 949, 952 (6th Cir. 2018), cert. denied, 139 S. Ct. 2740 (2019) (quoting Rothgery v. Gillespie Cty., 554 U.S. 191, 198 (2008)).
In Turner v. United States, the Sixth Circuit held that the right to counsel cannot attach to preindictment plea negotiations because the "attachment rule is crystal clear"—and has never extended to "any point before the initiation of adversary judicial criminal proceedings." Id. at 953 (citing United States v. Gouveia, 467 U.S. 180, 187 (1984)). The Turner court concluded that an ineffective-assistance claim could not stem from alleged misconduct during preindictment plea negotiations because "[t]here can be no constitutionally ineffective assistance of counsel where there is no Sixth Amendment right to counsel in the first place." Id. at 955 (citing Smith v. Ohio Dep't of Rehab. & Corr., 463 F.3d 426, 433 (6th Cir. 2006)). An ineffective-assistance claim is therefore inapposite.
IV.
The affidavit supporting the search warrant for Carson's apartment established the requisite connection between the apartment and the alleged narcotics trafficking. Even if it had failed to sufficiently connect the two, the Court would find that the warrant was not facially deficient and apply the good-faith exception under Leon to uphold the search. Carson validly consented to the search of the recovered cell phones and waived his Miranda rights by speaking with the government agents in the presence of his attorney. The discussion between Carson and the government was not part of a plea negotiation, and no ineffective-assistance-of-counsel claim can be maintained. Thus, all of Carson's statements are admissible. Accordingly, and the Court being otherwise sufficiently advised, it is hereby
ORDERED that Carson's motions to suppress the evidence collected from the August 3, 2018 search (D.N. 52) and statements made at the debriefing session (D.N. 50) are DENIED.
March 5, 2020
/s/
David J. Hale, Judge
United States District Court