Opinion
Criminal No: 5:19-cr-00153-GFVT-MAS
2020-05-27
UNITED STATES of America, Plaintiff, v. Draven GREENE, Defendant.
Gary Todd Bradbury, AUSA, Assistant U.S. Attorney, U.S. Attorney's Office, Lexington, KY, for Plaintiff.
Gary Todd Bradbury, AUSA, Assistant U.S. Attorney, U.S. Attorney's Office, Lexington, KY, for Plaintiff.
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge
Defendant Draven Green filed a motion to suppress evidence obtained as a result of what he argues is an unlawful search and seizure. [R. 15.] The matter was referred to Magistrate Judge Matthew A. Stinnett for a hearing. Judge Stinnett held the suppression hearing on March 3, 2020. [R. 34.] A Recommended Disposition followed. [R. 43.] Greene timely filed objections to Judge Stinnett's Recommended Disposition, which the Court reviews de novo. [R. 44.] For the following reasons, Greene's objections are OVERRULED, and Judge Stinnett's Recommended Disposition is ADOPTED.
I
Defendant Draven Greene is charged with possession with intent to distribute 50 grams or more of methamphetamine and two firearm charges. [R. 1.] These charges stem from a vehicle search conducted by Richmond Police Department Officers James Colyer and Daniel Kirstein. [R. 36.] Magistrate Judge Stinnett outlined the facts in his Recommended Disposition. [R. 43.]
On July 23, 2019, Officers Colyer and Kirstein responded to a call about a stolen vehicle. [R. 36.] The officers were in separate cruisers. On his way to the call, Officer Colyer noticed a silver Pontiac G6 parked in the parking lot of a Waffle House with its headlights on at around 2:00 a.m. Officer Kierstein recalled seeing the car as well, also with its headlights on, at around 3:00 a.m. or 4:00 a.m.
Hours later, at around 5:00 a.m., Officer Colyer again observed the Pontiac in what appeared to be the same spot, its headlights still on. Officer Colyer "decided to go ahead and get out with the vehicle just to make sure they were okay. Make sure the occupants in the vehicle were okay." [R. 36.] Officer Colyer approached from the driver's side door while Officer Kirstein approached the passenger door. The officers noted there were two occupants in the vehicle, later discovered to be defendant Draven Greene and Helen Smith. The officers knocked on the windows of the vehicle and shined their flashlights into the cab to rouse Greene and Smith. After a minute, Smith awoke, but Greene was still unresponsive. Officer Colyer, apparently concerned something was physically wrong with Greene, opened the driver's side door.
Officer Colyer was able to wake Greene by physically patting him and talking to him. Upon opening the car door, however, Officer Colyer says he smelled marijuana. The officers searched the vehicle and found methamphetamine and a firearm in the vehicle.
To begin, Judge Stinnett noted that the parties agree as to the scope of the issue before the Court. [R. 43.] Green does not dispute that the officers were permitted to approach the vehicle under the circumstances, and the United States concedes that Officer Colyer's action of opening the driver side door constituted at least a seizure, if not also a search. Id. Greene further concedes that the smell of marijuana permitted officers to search the vehicle. Therefore, the only issue before the Court at the suppression hearing—and now—is whether Officer Colyer was permitted, under the circumstances, to open Green's car door without a warrant. Id.
Judge Stinnett answered in the affirmative. Judge Stinnett found that Officer Colyer's conduct is covered under the community-caretaker exception to the Fourth Amendment's warrant requirement. Green raises several objections, which the Court reviews de novo. See 28 U.S.C. § 636(b)(1)(c).
II
12 The Fourth Amendment of the United States Constitution protects an individual from unreasonable searches and seizures. Traditionally limited to "persons, houses, papers, and effects," early jurisprudence surrounding the Fourth Amendment related to common-law trespass. United States v. Jones, 565 U.S. 400, 405, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). Courts have since deviated from that strict approach, finding a violation of the Fourth Amendment occurs if a government officer intrudes upon a person's "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
3 The community-caretaker exception to the warrant requirement contemplates that there will be instances where individuals interact with law enforcement unrelated to violations of criminal law. With respect to vehicles, specifically, the Supreme Court has recognized:
the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers ... engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.
Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). As a result of their community caretaker obligations, law enforcement officers have "extensive, and often noncriminal contact with automobiles that will bring local officials in ‘plain view’ of evidence, fruits, or instrumentalities of a crime, or contraband. Id. at 443, 93 S.Ct. 2523. Whether the community-caretaker exception applies turns on whether the officers’ actions were reasonable under the circumstances. See id. at 439, 93 S.Ct. 2523 ("The ultimate standard set forth in the Fourth Amendment is reasonableness.").
A
45 Except in certain cases, a search of private property without consent or a warrant is unreasonable under the Fourth Amendment. See Camara v. Municipal Court, 387 U.S. 523, 528–29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Judge Stinnett relied heavily on United States v. Lewis in applying the community-caretaker exception in the case at bar. Speaking broadly, Green objects to Judge Stinnett's reliance on Lewis. [R. 44 at 4–5.] Green argues that under Lewis, the community-caretaker exception to the warrant requirement only applies where law enforcement's caretaking obligation is the "sole purpose" for conducing the warrantless search. Id. ; see United States v. Lewis, 869 F.3d 460, 461 (6th Cir. 2017) ("Here, the district court found that that officers’ ‘sole purpose was to find Lakes a safe ride home’ from which the district court concluded that the officers ‘were not investigating a crime.’ ... There is no clear error here[.]").
Green argues there are six key facts which undermine the United States’ argument that the community-caretaking exception applies to the case at hand. They are:
1. Colyer and Kirstein allowed the subject vehicle to remain with lights on and engines running for approximately three hours before actually approaching the vehicle;
2. Prior to Colyer's entry into the vehicle, Kirstein saw a firearm in the backseat of the vehicle and notified Colyer of its presence;
3. The reports prepared by Colyer and Kirstein in this matter, which were completed within a day of the incident, failed to mention that the purpose for entering the vehicle was for the health and well-being of the Defendant;
4. Officer Colyer falsely stated in his report that the Defendant initially opened the door, which lead to the search of the vehicle;
5. Colyer and Kirstein were also concerned for their own personal safety due to the presence of a gun; and
6. The Officers never called the EMT at any time prior to entry into the vehicle between 2 a.m. or 5 a.m.
[R. 44 at 5 (internal citations to record omitted).] Green argues that these facts, collectively, undermine Officer Colyer and Officer Kirstein's credibility, and therefore the Court should not rely on their testimony on the suppression issue. Green further argues that the Officers’ knowledge of the gun, failure to investigate when they first noticed the Pontiac around 2:00 a.m., and failure to call EMT at any time demonstrate they were not operating in a caretaking capacity in their dealings with Green.
These arguments are not persuasive. First, no ill-intent can be inferred from the fact Officers Colyer and Kirstein did not approach Green's Pontiac until they realized it had been sitting there several hours. There is nothing unusual about a car sitting in a parking lot with its lights on, but it is quite unusual to remain parked this way for hours on end. Second, there is no basis in law for Green's argument that, at the moment Officers Colyer and Kirstein noticed a firearm in the backseat, their community caretaking purpose evaporated. Third, Green is correct the reports did not mention the reason for approaching the car. [See R. 28-1; R. 28-2.] However, the reports describe seeing the car on two instances several hours apart, and describe being unable to awake Green. The fact that the report does not explicitly state the officers approached to check on Green's "health and well-being" does not mean it wasn't so. Fourth, Green is again correct that Colyer's report inaccurately says Green opened the car door, when in fact it was Colyer. But who opened the door informs whether there was a warrantless search of the vehicle, not Colyer's motive in approaching the car. The United States concedes that Officer Colyer's action of opening Green's car door constituted a search. Finally, body camera evidence from Officer Colyer shows that Officer Colyer tried to awaken Green for fifty-five seconds before finally opening the car door. True, Officer Colyer could have used that time to summon emergency services instead, but it was also "reasonable under the circumstances" to continue to try and rouse Green.
The reports are silent as to the officers’ motivation for approaching Green's vehicle. They state neither investigatory nor caretaking intention. Green would have the Court assume, then, that Officer Colyer's intent was investigatory. The Court declines. The reports do not explicitly speak to intent one way or the other.
Ultimately, Officer Colyer and Officer Kirstein's actions were reasonable under the circumstances. When knocking on the door failed to wake Green and Officer Colyer began to suspect an overdose, opening the car door and attempting further to wake Green was a reasonable action to undertake. The facts cited by Green do not persuade the Court that the community-caretaker exception to the warrant requirement is inapplicable here. And Judge Stinnett's observation regarding the effect of excluding the evidence collected in this case is well-taken: "accepting Green's argument could inadvertently deter law enforcement form provided life-saving assistance to those who need it." [R. 43 at 7.]
III
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as that Defendant Draven Green's Objections [R. 44] are OVERRULED. Judge Stinnett's Recommended Disposition [R. 43] is ADOPTED.
REPORT AND RECOMMENDATION
Matthew A. Stinnett, United States Magistrate Judge
This matter is before the Court on Defendant Draven Greene's Motion to Suppress. [DE 15]. The Hon. Gregory F. Van Tatenhove referred the initial matter to the undersigned for a Report and Recommendation. [See DE 15 (Motion to Suppress); DE 18 (Referral Order)]. The United States responded to the Motion. [DE 20]. The Court held an evidentiary hearing at which the parties presented witnesses and arguments through counsel. [DE 34]. For the reasons stated below, the Court recommends that the District Court deny Greene's Motion to Suppress.
I. RELEVANT FACTUAL BACKGROUND
On July 23, 2019, Richmond Police Department Officers James Colyer and Daniel Kirstein, each in separate marked patrol vehicles, responded to a call about a stolen vehicle. [DE 36, Transcript, Page ID # 153-54]. As Officer Colyer drove to the area where the stolen vehicle was spotted, he noticed a silver Pontiac G6 parked in the parking lot of a nearby Waffle House with its headlights on just after 2:00 a.m. [DE 36 at Page ID # 154-55]. Officer Kirstein recalled seeing the Pontiac in the Waffle House parking lot around 3:00 a.m. or 4:00 a.m., and similarly recalled that its headlights were on. [DE 36 at Page ID # 183-84].
A few hours later, around 5:00 a.m., Officer Colyer observed that the Pontiac appeared to be in the same spot with the headlights still on and the engine still running. [DE 36 at Page ID # 155-56]. Officer Colyer "decided to go ahead and get out with the vehicle just to make sure they were okay. Make sure the occupants in the vehicle were okay." [DE 36, at Page ID # 157].
Officer Colyer approached the driver's side of the vehicle and noted that there were two occupants in the front seats, both of whom appeared to be sleeping or unconscious. [DE 36 at Page ID # 157-58]. The officers later discovered the occupants’ identities: Draven Greene was in the driver's seat and his paramour, Helen Smith, was in the front passenger seat (respectively, "Greene" and "Smith"). Officer Kirstein approached the passenger side of the vehicle as Officer Colyer began shining his light into the vehicle on the occupants’ faces and knocking loudly on the front and rear driver's side windows. [DE 16, Ex. 2 to Mot. to Suppress at DE 15, Colyer Body Worn Camera, at 00:01-55.]. After nearly one minute, Smith had awoken but Greene had not moved. Officer Colyer "figured something was bound to be wrong with him" and thought "[h]e needed some kind of welfare check just to make sure he was okay." [DE 36 at Page ID # 159-60]. Officer Colyer opened front driver's side door, and after physically patting and talking to Greene, managed to finally rouse him. Upon opening the door, Officer Colyer testified he smelled marijuana (Officer Kirstein stated the same on Officer Colyer's Body Worn Camera footage at 9:20-25) and consequently, searched the vehicle. The officers found methamphetamine and a firearm in vehicle. A grand jury indicted Greene for possession with intent to distribute 50 grams or more of methamphetamine and two firearm charges. [DE 1]; See 18 U.S.C. § 841(a)(1) ; 18 U.S.C. § 922 and 924.
II. ANALYSIS
Greene claims this encounter violated his Fourth Amendment rights. [DE 15]. Specifically, Greene contends that Officer Colyer impermissibly "conducted a search of the vehicle by unilaterally opening the driver's side door without any apparent probable cause to do so." [DE 15 at Page ID # 48-49]. Greene requests the suppression of all evidence discovered as a result of the vehicle search. United States v. Kennedy , 61 F.3d 494, 497 (6th Cir. 1995) ("the exclusionary rule prohibits the admission of evidence seized in searches and seizures that are deemed unreasonable under the Fourth Amendment, as well as derivative evidence acquired as a result of the unlawful search").
At the outset, the parties generally agree as to the scope of the legal inquiry. Greene does not dispute the fact that the officers were permitted to approach the vehicle without any level of suspicion. The United States does not dispute that opening the car door "was at least a seizure and detention, if not a search[.]" [DE 20 at Page ID # 80]. And Greene concedes the officers were permitted to conduct a full search of the vehicle once they smelled marijuana. Thus, as the parties agreed upon at the suppression hearing, the only issue before the Court is whether Officer Colyer was permitted, under the circumstances, to open Greene's car door without a warrant. [DE 36 at Page ID # 152]. Greene argues he was not, but the United States counters that the community caretaker exception permits such a search without a warrant. As analyzed and explained more fully below, the Court agrees with the United States.
A. THE COMMUNITY-CARETAKER EXCEPTION TO THE WARRANT REQUIREMENT
The Supreme Court described law enforcement's "community caretaking" duties, particularly where vehicles are concerned, in Cady v. Dombrowski , 413 U.S. 433, 93 S.Ct. 2523 (1973) :
the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers ... engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.
Cady v. Dombrowski , 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). The community-caretaker exception to the Fourth Amendment's warrant requirement recognizes that law enforcement officers, in their role in the community, have "extensive, and often noncriminal contact with automobiles [that] will bring local officials in ‘plain view’ of evidence, fruits, or instrumentalities of a crime, or contraband." Cady , 413 U.S. at 443, 93 S.Ct. 2523. Such evidence does not have to be suppressed where it is discovered while the officer is performing his community caretaking duties, particularly where there is an emergency threatening human life or limb. See Taylor v. City of Saginaw , 922 F.3d 328, 335 (6th Cir. 2019) ("Courts have applied the community caretaker exception in narrow instances when public safety is at risk."); Cf., United States v. Williams , 354 F.3d 497, 508 (6th Cir. 2003) (Refusing to apply the community caretaking exception to entry into a residence where there was no immediate danger to life or limb and the officers had a considerable investigatory purpose in addition to a minor non-investigatory purpose, because "[t]he community caretaking function of the police cannot apply where, as here, there is significant suspicion of criminal activity.").
In analyzing whether the community-caretaker exception should apply, the Court must determine whether the officers’ actions were reasonable under the circumstances. See United States v. Lewis , 869 F.3d 460, 463 (6th Cir. 2017) ("[A]ny limited intrusion on Lewis's privacy from simply opening the [vehicle] door was reasonable."). B. THE COMMUNITY-CARETAKER EXCEPTION APPLIES TO THE OFFICERS’ SEARCH OF GREENE'S VEHICLE
The Court finds that it reasonably appeared to Officers Colyer and Kirstein that Greene was possibly unconscious and/or in need of medical attention, and the intrusion into his privacy of opening the car door was reasonable under those circumstances.
The Sixth Circuit directly addressed the issue before the Court in a case with similar facts. United States v. Lewis , 869 F.3d 460 (6th Cir. 2017) presented "the question of whether a warrant is required for a police officer, not investigating any wrongdoing, to open the passenger door of a parked truck[.]" United States v. Lewis , 869 F.3d 460, 461 (6th Cir. 2017). The Court found that "[f]ortunately, the Fourth Amendment does not impose technical prerequisites upon such a natural act of community service." Id. In Lewis , officers encountered an intoxicated woman in a Wal-Mart store. Id. She told them that her boyfriend, Lewis, was outside in a vehicle and could drive her home. Id. The officers located Lewis's truck and found him asleep in the vehicle. Id. One of the officers opened the door to inquire whether Lewis was "all right to drive" his intoxicated girlfriend home. Id. When the officers opened the door, they noticed a baggie of suspected narcotics in Lewis's lap that he quickly threw to the back floorboard. These observations resulted in a full search of the truck and the charges in the case. Lewis , 869 F.3d at 461-62. The Sixth Circuit found the officers’ actions fit within the community-caretaker exception to the warrant requirement because their sole purpose in opening Lewis’ vehicle door was to determine whether he could drive his girlfriend home, not any investigative purpose, and that the intrusion on Lewis's privacy was "limited" and "reasonable" under the circumstances. Lewis , 869 F.3d at 463.
The facts in the case before the Court are more compelling for the application of the community-caretaker exception to the warrant requirement than those in Lewis. Officer Colyer testified he observed Greene's vehicle in the same area for two or three hours with the running lights and engine on, which led to his decision to "[m]ake sure the occupants in the vehicle were okay." [DE 36 at Page ID # 156-57]. Officer Colyer's body worn camera shows that he was shining his light inside the vehicle—specifically, on Greene's face several times—and loudly rapping on the front and rear driver's side windows where Greene was seated for fifty-five seconds before he opened the driver's side door. [DE 16, Ex. 2 to Mot. to Suppress at DE 15, Colyer Body Worn Camera, at 00:01-55.]. The noise and light aroused Smith on the opposite side of the car, yet still did not awaken Greene.1 The critical question to this matter is whether it was reasonable for Officer Colyer to open Greene's door at this moment, when he could not arouse Greene from outside the vehicle. The Court finds that it was.
In Lewis , there is no indication that the officers were concerned for the safety of Lewis or that the officers attempted to rouse Lewis prior to opening the door; yet, the Sixth Circuit still found the intrusion to be "reasonable," "minimal," and within the community-caretaker exception. United States v. Lewis , 869 F.3d 460, 463-64 (6th Cir. 2017) ("True, the officers apparently did not knock on the truck window or attempt to speak with Lewis before opening the door, which might have been more respectful of Lewis's privacy." Nonetheless, "any failure to knock or attempt to speak does not make the officers’ actions here unreasonable.").
In contrast to Lewis , Officer Colyer did knock and attempt to awaken Greene prior to opening the door. Officer Colyer testified that he has responded to numerous drug overdose scenes as a police officer, and that he was concerned about a possible overdose situation when he knocked on the window and did not receive a response. [DE 36 at Page ID # 187-88]. Greene admitted he was "not responsive" prior to Officer Colyer opening the door. [DE 36 at Page ID # 214]. At this point it was entirely appropriate for Officer Colyer, acting in his community-caretaking role, to open the door of the vehicle to see if Greene was in midst of a medical emergency. Greene suggested that lieu of opening the vehicle door, Officer Colyer could have called for emergency medical technicians, sought a search warrant, or simply done nothing and walked away. [DE 36 at Page ID # 214]. All of these alternatives, however, could have resulted in Greene's death or serious injury if he was, in fact, experiencing a medical emergency.
Greene conceded at the suppression hearing that the "the critical issue is the justification for the entry into the car" and "everything after that, after that entry, after that door swings open, is irrelevant" because the officers smelled marijuana, which justified a full search of the vehicle and its occupants. Thus, although the parties spent a considerable amount of energy in their briefs and at the hearing arguing about whether the firearm in the backseat also justified the search of the vehicle, the issue is somewhat of a red herring. The parties agreed that the seizure of the vehicle—and possibly the search—commenced when Officer Colyer opened the driver's side door. This had nothing to do with the firearm. The parties further agree that the subsequent search is fully supported by the officers’ plain smell of marijuana; any inquiry into the presence of a firearm to support the search is unnecessary and distracting. Greene does not dispute that the firearm was in plain view. The presence of the firearm resulted in charges under 18 U.S.C. § 924 and § 922.
"The [exclusionary] rule's sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations.... For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs." Davis v. United States , 564 U.S. 229, 236–37, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). The "heavy cost" discussed in Davis was the potential that criminal activity goes unpunished. The "heavy cost" of suppression here is quite different: accepting Greene's argument could inadvertently deter law enforcement from providing life-saving assistance those who need it. This is not the type of law enforcement activity the exclusionary rule was designed to deter. The Court finds any suggestion that a law enforcement officer should delay checking on and rendering assistance to an unresponsive person to be morally repugnant. The Court further finds that the community-caretaker exception to the warrant requirement is designed specifically so that law enforcement officers, acting in good faith, who stumble across evidence of a crime during this type of event will not be sanctioned with suppression of the evidence.
III. CONCLUSION
For reasons stated herein, the Court RECOMMENDS that the District Court DENY the Motion to Suppress. [DE 15]. The Court directs the parties to 28 U.S.C. § 636(b)(1) for appeal rights concerning this recommendation, issued under subsection (B) of said statute. As defined by § 636(b) (1), Fed. R. Crim. P. 59(b), and local rule, within fourteen days after being served with a copy of this recommended decision, any party may serve and file written objections to any or all portions for consideration, de novo, by the District Court.