United States v. Scurry ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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)
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UNITED STATES OF AMERICA )
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v. ) Criminal Case No. 10-310 (RCL)
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ROBERT DION SAVOY, et al., )
Defendants. )
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)
MEMORANDUM OPINION
Pending before the Court are numerous pre-trial motions filed by six defendants and the
government. 1 All six defendants have filed motions to suppress evidence seized through
physical searches of their homes or homes to which they had a connection; defendant Scurry
moves to suppress evidence seized during a search of his vehicles. Defendant Hudson also
moves to suppress statements he made during the search of his home. Scurry, Savoy, and Brown
have filed additional miscellaneous motions which are dealt with in turn below. Finally, the
government has filed one motion to allow impeachment of defendants Hudson and Robinson
with their prior felony convictions.
Upon consideration of the defendants’ and government’s motions, responses of the
parties, and relevant law, the Court hereby DENIES defendants’ motions to suppress physical
evidence [35, 37, 38, 58, 63, 67, 89, 101, 201]; DENIES Savoy’s Motion for a Pretrial Hearing
[36], DENIES Scurry’s Motion to Compel Disclosure of Information Regarding Confidential
Informants, Witnesses, and Cooperating Criminals [53]; DENIES Scurry’s Motion for a Bill of
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The Court has granted motions from all defendants except Robinson and Hudson to adopt and join in all motions
filed by other co-defendants not inconsistent with one another’s positions. Robinson has not adopted or joined any
other motion. Hudson adopts or joins only pending motions [53] and [89].
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Particulars [54]; DENIES Scurry’s Request for Notice Prior to Trial of Government’s Intention
to Present Evidence Pursuant to 404(b) [55]; DENIES Scurry’s Motion for Discovery of
Detector Dog Information [70]; DENIES Brown’s Request for Preservation of Electronic Mail
[60]; and GRANTS Hudson’s Motion to Suppress Statements [76]. The Court does not rule
today on the Government’s Motion to Impeach Defendants with Prior Convictions Pursuant to
Rule 609 [68].
I. Background
In 2009, prompted by renewed violence in the 4200 block of Fourth Street, S.E.,
Washington, D.C., the Federal Bureau of Investigation’s (FBI) Safe Streets Task Force began
investigating the cocaine and crack dealers in that area. Agents and detectives introduced a
confidential informant into the area, who made a series of controlled purchases of crack cocaine
from Eric Scurry from November 2009 to March 2010. In addition to reliance on physical and
audio- and video-surveillance, the task force also secured warrants to intercept cellular telephone
wire communications of defendants Scurry, Hudson, Savoy, and Johnson.
The government’s theory, as outlined in the affidavits, suggests that Jerome Johnson sold
wholesale amounts of powder cocaine to Robert Savoy. Gov’t Omnibus Resp. Defs.’ Mots., Ex.
8, at 9, ECF No. 111-8. Savoy also collaborated with James Brown to buy wholesale quantities
of cocaine. Id. Savoy then re-sold powder cocaine and crack cocaine to others, including
Terrence Hudson and an unindicted suspect. Id. Hudson, Brown, and a second unindicted
suspect resold powder and crack cocaine to others. Specifically, Hudson would resell to Eric
Scurry and two additional unindicted suspects. Id. Finally, Nathan Robinson allegedly sold
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narcotics in the same geographic area as Scurry and a fifth unindicted suspect and the three
would assist one another with sales in that area. Id.
Based on the evidence generated during this investigation, a grand jury issued multiple
indictments against various alleged co-conspirators. The most recent, the Third Superseding
Indictment issued in December 2011, charged Savoy, Hudson, Johnson, Eric Scurry, Robinson,
and Brown, with Conspiracy to Distribute and Possess with Intent to Distribute 5 Kilograms or
More of Cocaine and 280 Grams or More of Cocaine Base, in violation of Title 21, United States
Code, Section 846. The indictment also included an additional thirty seven substantive counts
against defendants.
Defendants filed motions to suppress evidence obtained from the government’s
interceptions of their wire communications. This Court denied those motions in August 2012.
The Court now considers additional pre-trial motions filed by defendants and the government.
II. Motions to Suppress Evidence Seized through Searches [35, 37, 38, 58, 63, 67, 89,
101, 201]
a. Background
Each of the six defendants has filed a motion to suppress physical evidence recovered
during a search of his residence and defendant Scurry has filed a motion to suppress evidence
recovered from his vehicles. Between November 7 and November 9, 2010, Special Agent
(“SA”) Christopher M. Ray of the FBI submitted three applications for search warrants to the
U.S. District Court for the District of Maryland and the U.S. District Court for the District of
Columbia. Gov’t Omnibus Resp. Defs.’ Mots., Exs. 2, 4, 5, 7, 9–11, ECF No. 111-2, 111-4,
111-5, 111-7, 111-9–111-11. SA Ray requested search warrants for eight locations in Maryland
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and three locations in the District of Columbia, including the residences of all six defendants, as
well as warrants for three vehicles, belonging to Scurry. Id. The warrant applications were
accompanied by lengthy affidavits from SA Ray. Gov’t Omnibus Resp., Exs. 3, 8, 12, ECF No.
111-3, 111-8, 111-12.
The affidavits included facts gleaned from the FBI’s lengthy investigation into the
distribution of powder and crack cocaine in and around the Washington, D.C. metro area. Gov’t
Omnibus Resp., Ex. 8, at 8. Specifically, they detailed information obtained from cooperating
witnesses, controlled buys, physical surveillance, and finally, intercepted wire communications
from the wiretaps authorized by Judge Henry H. Kennedy of the U.S. District Court for the
District of Columbia. Id. According to SA Ray, each of the defendants had drug trafficking
related communications or interactions with one or more co-defendants, controlled buyers,
and/or unindicted suspects. Id. at 9–10. The affidavits also outlined the government’s theory
regarding the defendants’’ alleged criminal activities. Finally, each of the co-defendants and
unindicted suspects whose residences the government sought to search had at least one, and
typically multiple, prior narcotics charges or convictions. Id. at 10–21.
b. Legal Standard
i. Fourth Amendment Protections Generally
The Fourth Amendment protects against unreasonable searches and seizures by
government actors. U.S. Const. amend. IV. Warrantless searches are generally per se
unreasonable subject to limited exceptions. Katz v. United States, 389 U.S. 347, 357, (1967)
(“[T]his Court has emphasized that . . . searches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se unreasonable . . . subject only to a few
specifically established and well-delineated exceptions.”) (citations omitted). Thus, a warrant is
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usually required before a search may be conducted and the warrant must be supported by
probable cause. U.S. Const. amend. IV; Katz, 389 U.S. at 357–58.
For a warrant to issue, the magistrate must make a “practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’
and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462
U.S. 213, 237 (1983). Thus, a probable cause determination encompasses both the probability
that criminal activity is afoot, as well as a nexus between that activity and the place to be
searched. Additionally, probable cause may not be based on mere allegations or conclusory
statements. See id. at 239 (citing cases in which “wholly conclusory” or “bare bones” affidavits
failed to provide a sufficient basis for probable cause).
Suppression of evidence derived from an unlawful search is the baseline remedy for
Fourth Amendment violations. However, as will be described in more detail below, this
exclusionary rule has, for almost thirty years, been subject to a significant exception in cases
where officers conducted the search pursuant to a warrant.
ii. Standing to Challenge an Allegedly Unlawful Search or Seizure
A defendant must have standing to challenge an allegedly unlawful search or seizure and
to seek suppression of evidence derived therefrom. Fourth Amendment rights are “personal”
rights and may not be asserted by third parties. Rakas v. Illinois, 439 U.S. 128, 132–34 (1978).
Thus, to challenge the validity of a search or the introduction of evidence seized therefrom, an
individual must have a “legitimate expectation of privacy” in the place searched. Id. at 143.
One moving to suppress evidence on the basis of an illegal search bears the burden of
demonstrating that his own Fourth Amendment rights were violated by the search. Id. 131 n.1
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(citations omitted). In Rakas, for example, the court held that petitioners lacked standing in part
because they made “no showing that they had any legitimate expectation of privacy” in the areas
searched. Id. at 148.
An individual’s expectation of privacy is perhaps at its height in his own home.
However, individuals often have standing to challenge searches of places other than their own
homes, including vehicles or the residence of another. Id. at 142 (citing Jones v. United States,
362 U.S. 257, 265 (1960)). This is part due to the Supreme Court’s finding that Fourth
Amendment rights do not depend upon “a property right in the invaded place but upon whether
the person who claims the protection of the Amendment has a legitimate expectation of privacy
in the invaded place.” Id. at 143.
Some early cases suggested that an individual might have standing to challenge the
search of a location if he was “legitimately on premises.” See Jones, 362 U.S. at 267 (holding
that a guest staying temporarily in a friend’s apartment had standing to challenge the search of
that apartment). However, subsequent cases have made clear that mere legitimate presence at a
location does not automatically confer standing to challenge a search of that location. See Rakas,
439 U.S. at 142–43 (noting that Jones “merely stands for the unremarkable proposition that a
person can have a legally sufficient interest in a place other than his own home” and rejecting the
notion that merely being “legitimately on premises” confers standing to challenge a search of
that location). Rakas outlined a number of factors which, in Jones, had given rise to standing,
including the fact that the movant had permission to stay in the apartment, had been given a key
to the apartment, kept belongings there, and had “complete dominion and control over the
apartment and could exclude others from it.” Rakas, 439 U.S. at 142–43, 149.
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Subsequent to Jones and Rakas, however, the Supreme Court made clear that a guest in
another’s home need not have the level of “dominion and control” over the residence that gave
rise to standing in Jones. The Court, in Minnesota v. Olson, held that an overnight guest had
standing to challenge the warrantless search of his host’s home. 495 U.S. 91, 98–99 (1990). In
finding that the individual had a “legitimate expectation of privacy” in his host’s home, the Court
emphasized societal expectations of privacy in such circumstances and noted that “[w]e are at
our most vulnerable when we are asleep [for example, in another’s home] because we cannot
monitor our own safety or the security of our belongings.” Id. at 99.
With respect to vehicle searches, Supreme Court precedent suggests that a defendant may
have standing to challenge the search of a vehicle in which has a property or possessory interest.
See Rakas, 439 U.S. at 148 (rejecting petitioners’ claims in part because they “asserted neither a
property nor a possessory interest in the automobile, nor an interest in the property seized”).
Moreover, the fact that a vehicle is registered in another’s name need not negate standing for one
who has some privacy interest in the vehicle. See, e.g., United States v. Williams-Davis, 1992
WL 26025, at *1–2 (D.D.C. 1991) (holding that defendant had standing to challenge search of
car that he used and drove even though the car was registered in his aunt’s name and the
ownership of the car was disputed).
iii. Probable Cause
In making a probable cause determination for purposes of issuing a warrant, a magistrate
should make a “practical, common-sense decision whether, given all the circumstances set forth
in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime
will be found in a particular place.” Gates, 462 U.S. at 238 (1983). The magistrate’s decision is
owed “‘great deference by reviewing courts.’” Id. at 236 (quoting Spinelli v. United States, 393
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U.S. 410, 419 (1969); accord United States v. Spencer, 530 F.3d 1003, 1006–07 (D.C. Cir.
2008)). The magistrate’s decision should not be subjected to de novo review. Id. The Supreme
Court has directed that reviewing courts should not “invalidate . . . warrant[s] by interpreting
affidavit[s] in a hypertechnical, rather than a commonsense, manner.” Id. (citation omitted).
“[S]o long as the magistrate had a “substantial basis for . . . conclud[ing]” that a search would
uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Id. at 236–37
(quoting Jones, 362 U.S. 257, 271 (1960)).
In examining whether probable cause existed to grant a search warrant, reviewing courts
look at the “totality of the circumstances” rather than considering facts in isolation. Id. at 238.
Relevant factors may include the affiant’s experience and training, the reliability of any
informants, prior similar criminal acts by individuals allegedly participating in the investigated
criminal activity, etc. See, e.g. United States v. Laws, 808 F.2d 92 (D.C. Cir. 1986) (discussing
the importance of the affiant’s experience and noting that the criminal records of the suspects
bore “weightily” on the issue of probable cause). While each fact within an affidavit may be
insufficient when standing alone, the combination of all of the facts can establish probable cause.
See United States v. Catlett, 97 F.3d 565, 574 (D.C. Cir. 1996); United States v. Halliman, 923
F.2d 873, 881 (D.C. Cir. 1991).
Of particular importance to this case is the magistrate’s ability to look to the affiant’s
experience in putting potentially ambiguous or seemingly innocent conduct into context. See
United States v. Gilliam, 167 F.3d 628, 633 (D.C. Cir. 1999). The D.C. Circuit has recognized
the role that law enforcement experience can play in probable cause determinations. In United
States v. Laws, for example, the court noted that an officer’s more than ten years of experience in
investigating narcotics distribution “enabled him to fit the informants’ descriptions of the
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suspects’ behavior into a pattern familiar to drug-law enforcers” and to recognize facts as part of
a modus operandi typical of drug trafficking. 808 F.2d 92, 103 (1986). “Law-enforcement
officers may draw upon their expertise in translating activity that appears innocuous to the
untrained mind into grounds supporting a search or arrest warrant. . . . In assessing probable
cause, as the Supreme Court has declared, ‘the evidence . . . collected must be seen and weighed
not in terms of analysis by scholars, but as understood by those versed in the field of law
enforcement.’” Id. at 103–04.
Also relevant to this case is the ability of magistrates, in making a probable cause
determination, to consider the past criminal involvement of the target of a warrant. The D.C.
Circuit has noted that the prior drug trafficking records of suspects may be one factor
corroborating other information forming the basis of a probable cause decision, for example, the
reliability informants’ statements. Id. at 104.
As already mentioned, probable cause requires not only a fair probability of criminal
activity but also a nexus between that activity and the place to be searched. In other words, it
requires “a fair probability that contraband or evidence of a crime will be found in a particular
place.” Gates, 462 U.S. at 237 (emphasis added). The D.C. Circuit has held that “‘observations
of illegal activity occurring away from the suspect’s residence, can support a finding of probable
cause to issue a search warrant for [the suspect’s] residence.” United States v. Thomas, 989 F.2d
1252, 1254 (D.C. Cir. 1993) (per curiam). The court in Thomas noted that the nexus simply
requires a “reasonable basis to infer from the nature of the illegal activity observed, that relevant
evidence will be found in the residence.” Id. at 1255. In that case, probable cause to infer that
evidence would be found in defendant’s residence was supported by the affiant officer’s
statement that, “in his experience, drug dealers frequently keep business records, narcotics,
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proceeds from sales, and firearms in their houses.” Id. at 1254; see also id. at 1254–55 (citing
cases from the Eighth and Ninth Circuits finding probable cause to search residences of those
suspected of drug-related activities).
To establish probable cause, the facts relied upon in the government’s application must
also support an inference that evidence of a crime will be found in the place to be searched at the
time of the search. This is often referred to as a requirement that information supporting the
application not be “stale.” The D.C. Circuit has noted that, while not controlling, the length of
time between an event supporting the issuance of a warrant and the actual application of a
warrant is an important factor. United States v. Webb, 255 F.3d 890, 904 (D.C. Cir. 2001) (citing
Schoeneman v. United States, 317 F.2d 173, 177 (D.C. Cir. 1963); Sgro v. United States, 287
U.S. 206, 210 (1932)). However, Courts need not simply look to the number of days or months
between events in determining whether information is stale. Rather they may look to the type of
criminal activity alleged, the characteristics of the suspect and the evidence sought, and the
nature of the place to be searched. See United States v. Bruner, 657 F.2d 1278 (D.C. Cir. 1981)
(noting that a court may examine the character of “‘the crime (chance encounter in the night or
regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized
(perishable and easily transferable or of enduring utility to its holder?), of the place to be
searched (mere criminal forum of convenience or secure operational base?), etc.’”) (quoting
Andresen v. State, 331 A.2d 78, 106 (Md. Ct. Spec. App. 1975), aff’d, 427 U.S. 463 (1976)).
The D.C. Circuit has upheld searches based on information obtained at least 109 days
prior to application for the warrant, though it has expressed some discomfort with delays this
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long. 2 See, e.g., Webb, 255 F.3d at 904. Again, however, the Circuit’s decisions have not relied
solely on a numerical calculation of elapsed days. For example, in Schoeneman v. United States,
the court held that probable cause did not exist to believe that unlawfully held classified
documents would be recovered from defendant’s home. The warrant affidavit was based on a tip
that the documents had been seen at the defendant’s residence 107 days prior to the warrant
application. Schoeneman, 317 F.2d at 177–78. 3 In Webb, the Circuit upheld a search based on
information 109 days old, but found it “troubling” that the warrant to search for documents
related to narcotics trade was based on information of that vintage. 255 F.3d at 904.
Nevertheless, the Webb court upheld the search because, even if the information was too stale to
support a showing a probable cause, the Leon good faith exception made suppression
inappropriate. Id. at 904–05. In support of its finding, the court distinguished Schoeneman as
relating to a “single-incident crime.” Webb, 255 F.3d at 905 (noting that the warrant in
Schoeneman had issued on the basis “solely of an informant’s statement that he had seen
classified documents in the defendant’s home on [a] single occasion”). In contrast, the Webb
affidavit suggested ongoing or recurring narcotics transactions and contained an informant’s
statement that Webb had been selling drugs “‘for an extended period of time.’” Id. The court
noted that “[c]ourts have been considerably more lenient in assessing the currency of information
supporting probable cause in the context of extended conspiracies than in the context of single-
incident crimes” and continued that “it would not necessarily have been unreasonable for an
officer to conclude that a longtime drug dealer, whose most recent known deal had occurred
2
Other cases upholding probable cause determinations on the basis of information as much as 3 months old include
In re Search Warrant Dated July 4, 1977, for Premises at 2125 S St., Northwest, Washington, D.C., 667 F.2d 117(D.C. Cir. 1981) (abrogated on other grounds) and Andresen v. Maryland, 427 U.S. 463, 478 n.9 (1976).
3
Note that Schoeneman was decided before Leon and so the court did not consider Leon’s good faith exceptions.
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three months earlier, would still retain papers permitting him to get back in touch with his
customers or . . . his supplier.” Id.Likewise in United States v. Bruner, the D.C. Circuit rejected an argument that a January
1978 affidavit was based on stale information when it relied on information from the previous
summer or early fall. 657 F.2d 1278, 1298 (D.C. Cir. 1981). The Court emphasized that the
information related to a suspect who had been involved in a drug trafficking conspiracy for six
years, that the conspiracy continued to exist, and the suspect lived at the place to be searched. Id.at 1298–99. The Court also noted that the evidence included in the affidavit (observation of a
drug display cabinet in the suspect’s home) had long been kept in defendant’s residence and that
the suspect had expressed his intention to keep the cabinet as long as he sold drugs. Id. at 1299.
iv. Leon Good Faith Exception
Even where a reviewing court disagrees with the magistrate’s finding of probable cause,
such disagreement does not automatically suggest the need to suppress evidence uncovered
during the search. In United States v. Leon, the Supreme Court confirmed a “good faith”
exception to the exclusionary rule. 468 U.S. 897 (1984). Specifically, the Court held that law
enforcement officers may rely on the probable cause determination of the magistrate approving
the search warrant. Id. at 922. As long as the executing officer relied in good faith on the
warrant, the exclusionary rule does not apply. Id. at 920. In fact, the D.C. Circuit has noted that
the degree of deference owed by police to the magistrate’s probable cause determination is even
greater than the “great deference” owed by reviewing courts to that determination. Spencer, 530
F.3d at 1007 (“[T]he ‘degree of police deference to the magistrate which is perceived by courts
as reasonable under Leon exceeds significantly that ‘great deference’ owed the magistrate by
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reviewing courts under Gates.’”) (quoting 1 Wayne R. Lafave, Search and Seizure § 1.3(f), at
97–98 (4th ed. 2004)).
The Supreme Court has limited application of the Leon “good faith” exception and
suppression of evidence remains an appropriate remedy where: (1) “the magistrate or judge in
issuing a warrant was misled by information in an affidavit that the affiant knew was false or
would have known was false except for his reckless disregard of the truth;” 4 (2) “the issuing
magistrate wholly abandoned his judicial role”; (3) the warrant was based on an affidavit “so
lacking in indicia of probable cause as to render official belief in its existence entirely
unreasonable”; or (4) the warrant was “so facially deficient—i.e., in failing to particularize the
place to be searched or the things to be seized—that the executing officers cannot reasonably
presume it to be valid.” Leon, 468 U.S. at 923.
Only two of these exceptions to the exception are raised by defendants, namely that the
affiant relied, knowingly or with reckless disregard for the truth, on false information and that
the affidavit was so lacking in indicia of probable cause as to render it unreasonable to rely on.
There appear to be few cases granting motions to suppress on the basis of the third
exception to Leon (that the affidavit was so lacking as to render reliance entirely unreasonable).
However, the cases appear to include situations where, for example, the affidavit failed to link
the suspect to the location to be searched, and failed to explain why the affiant believed evidence
of criminal activity would be found at the location, failed to explain why evidence would be
present long after officers received relevant information to support the affidavit. See, e.g.,
United States v. Johnson, 322 F. Supp. 2d 35, 39 (D.D.C. 2004). In another case, discussed in
more detail below, officers learned 178 days prior to issuance of a warrant that photographs
showing illegal activity had been taken in a suspect’s home. United States v. Lindsey, 596 F.
4
The Court cited Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
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Supp. 2d 55 (2009). This Court held that the affidavit at issue was so lacking in indicia of
probable cause as to make reliance upon it unreasonable. The affidavit did not specify when the
photographs had actually been taken, and therefore when the criminal activity had occurred.
Moreover, there was no additional corroborating evidence subsequent to the discovery that the
photos were taken in Lindsey’s home. Finally, the Court reiterated that the case involved a
single-incident crime, rather than an ongoing crime for which evidence of criminal activity
would presumably be present in the location to be searched for a longer period of time.
Cases finding that the Leon requirements were not met appear to be the exception rather
than the rule. As the D.C. Circuit has noted, “‘[w]hen officers have acted pursuant to a warrant,
the prosecution should ordinarily be able to establish good faith without a substantial expenditure
of judicial time.’” Spencer, 530 F.3d at 1007 (quoting Leon, 468 U.S. at 924).
c. Defendants’ Motions
i. Hudson Motions to Suppress [35, 63]
1. Background
Defendant Terrence Hudson filed two nearly identical motions arguing that the
November 10, 2010 search of his home at 6902 Hudson Avenue, Oxon Hill, Maryland, was
unlawful and urging suppression of evidence seized pursuant to that search. Def. Hudson’s Mot.
Suppress Phys. Evid. 1, ECF No. 35; Def. Hudson’s Mot. Suppress Phys. Evid. 1, ECF No. 63. 5
That search resulted in the seizure of various items including a firearm and ammunition; a plate,
straw, razor, and scale with residue; various rock-like substances; over $6,000 in cash; and cell
phones and documents. Gov’t Omnibus Resp. Defs.’ Mots., Ex. 5, at 4–5, ECF No. 111-5.
5
All references are to Hudson’s Motion at ECF No. 63.
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Mr. Hudson concedes that he lived at the home searched and this is supported by the
information contained in SA Ray’s affidavit. Hudson’s Mot. 5. Hudson thus has standing to
challenge the search and seizure.
Hudson argues that the government’s warrant affidavit did not establish probable cause.
Hudson’s Mot. 5. Specifically, he points to the affidavit’s reliance on admittedly ambiguous
wiretapped conversations between Hudson and co-defendant Savoy. In one such conversation,
Savoy told Hudson “I just got a new pair of shoes, I’m getting ready to go in here and try em on
right now.” Hudson replied, “Alright, let me know something.” Gov’t Omnibus Resp. Defs.’
Mots., Ex. 8, at 28, ECF No. 111-8. Savoy responded that he would “let [Hudson] know in
about 40 minutes” and an hour later called to state “we real cool . . . you can run all day if you
want to.” Id. at 28–29. Four days later, Savoy called Hudson to ask “What’s the word?” Hudson
replied, “Oh yeah that’s straight right there. I need to see you when you get out.” Id. at 30. The
two then drove separately to a parking lot in Oxon Hill, Maryland where Savoy got into
Hudson’s vehicle for less than 30 seconds before returning to his own vehicle. Each then drove
away in different directions. Id. at 31.
Special Agent Ray interpreted these conversations to include narcotics code language and
to relate not to shoes, but to drugs. Id. at 28–29. He argued that “try[ing] on” the “shoes”
referred to cooking cocaine into cocaine base or crack cocaine to test the quality. Id. According
to SA Ray, Savoy’s comment, “we real cool,” and Hudson’s comment, “that’s straight,” were
references to the satisfactory quality of the drugs Savoy provided Hudson. Id. at 29. SA Ray
also believed that during the meeting in the parking lot, Savoy provided Hudson with another
supply of drugs. Id. at 31.
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Hudson argues that SA Ray’s interpretations of the wiretapped conversations amount to
“conclusory explanations . . . insufficient to make up for the lack of probable cause” that
contraband would be found at Hudson’s residence. Hudson’s Mot. 6. Specifically, Hudson
suggests that codes are usually used more than once and that the mention of “a new pair of
shoes” in only one call does not support the inference that the phrase was code for drugs.
Hudson’s Mot. 8. He argues that more corroboration was necessary to show probable cause that
Hudson was part of the conspiracy and that his home would contain illegal drugs or other
evidence of criminal activity. Hudson’s Mot. 6.
Hudson goes on to suggest that Leon’s good faith exception does not save the allegedly
defective warrant because the affidavit was so lacking in indicia of probable cause as to make
reliance upon it unreasonable. Hudson’s Mot. 6–7. Again, Mr. Hudson argues that the
affidavit’s reliance on coded conversations cannot support the officers’ good faith reliance on the
warrant. Hudson’s Mot. 8.
2. Probable Cause Existed to Search Hudson’s Residence
Hudson’s motion downplays or fails to mention several key pieces of information. First,
Special Agent Ray has served on a drug and violent crime squad since October 2008 and, prior to
that, was a Public Safety Officer and Detective for approximately eight years with the Highland
Park Department of Public Safety in Highland Park, Texas. Gov’t Omnibus Resp. Defs.’ Mots.,
Ex. 8, at 1–2, ECF No. 111-8. His affidavit provides some eight pages of information detailing
his experience, training, and involvement in the present investigation as well as patterns he has
observed in other drug trafficking investigations. Id. at 1–8. As outlined above, his experience
and interpretations are entitled to some weight.
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Second, two cooperating witnesses informed the FBI that Hudson sold crack cocaine and
that he had been seen with defendant Scurry. Id. at 21–23. Cooperating Witness (“CW1”), for
example, had been cooperating with the FBI since July 2007 and had known Hudson “for a
number of years.” Id. at 21–22. CW1 informed the FBI that Hudson had been selling crack
cocaine for “some time,” at least since 2007. Id. at 22. Although the cooperating witnesses have
criminal records and one has been paid for some of “its” cooperation, the information they
provided was corroborated “to the extent possible.” Id. Moreover, the affidavit laid out these
facts for the magistrate’s consideration. Id. at 23.
Third, the affidavit stated that Hudson had two prior charges for possession with intent to
distribute a controlled substance and that Savoy, the person with whom Hudson was talking, has
two prior charges for possession with intent to distribute cocaine. Id. at 10–11. Although the
information is not dispositive, a magistrate making a probable cause determination may consider
a suspect’s prior involvement in the same type of criminal activity being investigated.
Finally, and perhaps most importantly, Hudson’s motion fails to mention an intercepted
call between Savoy and Hudson on August 4, 2010. According to SA Ray, the two discussed
meeting so that Savoy could provide Hudson with “‘five,’” which Ray interpreted to mean five
31-gram packages of powder cocaine. Id. at 31–32. Savoy and Hudson then met in the parking
lot of the House of Chang restaurant in Fort Washington, Maryland. Id. A subsequent traffic
stop of Hudson by Prince George’s County Police resulted in the seizure of five plastic bags each
containing approximately 31 grams of powder cocaine from the center console of Hudson’s car.
Id.
Based on a totality of the circumstances, the magistrate’s approval of a search warrant for
Hudson’s home was reasonable. The affidavit supporting the warrant application was based on a
17
combination of factors, including information from two cooperating witnesses previously
determined reliable by the FBI, interpretations of coded conversations by SA Ray, the prior
narcotics involvement of both men, two unexplained meetings between Hudson and Savoy in
parking lots, and the seizure of five bags of cocaine from Hudson shortly after he had discussed
meeting with Savoy to get “five.” These were sufficient to support a finding of probable cause
that Hudson was engaged in narcotics trafficking with Savoy.
Furthermore, D.C. Circuit precedent supports the inference that evidence of narcotics
trafficking would be found in Hudson’s home, despite the fact that most evidence of it was
derived from activity that may have taken place elsewhere. See United States v. Johnson, 437
F.3d 69, 71–72 (D.C. Cir. 2006); Spencer, 530 F.3d at 1007 (“Common experience suggests that
drug dealers must mix and measure the merchandise, protect it from competitors, and conceal
evidence of their trade . . . in secure locations. For the vast majority . . . the most convenient
location to secure items is the home.”).
Finally, even if probable cause were lacking, the agents relied upon the warrant in good
faith. The Court rejects Hudson’s assertion that the affidavit was “so lacking in probable cause”
as to render reliance on it unreasonable. Furthermore, the Court is mindful that “‘[w]hen officers
have acted pursuant to a warrant, the prosecution should ordinarily be able to establish good faith
without a substantial expenditure of judicial time.’” Spencer, 530 F.3d at 1007 (quoting Leon,
468 U.S. at 924).
For the foregoing reasons, Hudson’s Motions [35, 63] to Suppress are DENIED.
ii. Savoy Motions to Suppress [37, 38]
1. Background
18
Savoy moves to suppress the introduction of evidence seized during the November 10,
2010 search his residence at 3766 Stonesboro Road, Fort Washington, Maryland. Def. Savoy’s
Omnibus Mot. 3–4, ECF No. 37; Def. Savoy’s Mot. Suppress Tangible Evid. 1, ECF No. 38.
During the search, agents seized a variety of items including what was believed to be over one
kilogram of cocaine, two digital scales, multiple firearms and ammunition, and over $35,000 in
cash. Gov’t Omnibus Resp. Defs.’ Mots., Ex. 7, at 4–6, ECF No. 111-7.
Savoy argues that the affidavit in support of the search warrant contains “multiple
representations in the nature of conjecture, inferences and conclusions . . . [and] does not set
forth any facts or circumstances pertaining to any participation by Mr. Savoy in any specified . . .
act of criminal conduct. ” Savoy’s Mot. 2 (emphasis omitted). Savoy argues that the affidavit
“failed to provide the essential specifications of fact and circumstances that might have
supported a finding of probable cause.” Savoy’s Mot. 3. Little other detail is provided regarding
why probable cause might be lacking. Savoy requests an evidentiary hearing to “confirm the
facts alleged above” and an order suppressing the use of the evidence by the government. Id.Savoy concedes that the search conducted was of his residence and this is supported by
the surveillance information outlined in SA Ray’s affidavit. Savoy’s Mot. 4; Gov’t Omnibus
Resp. Defs.’ Mots., Ex. 8, at 48, ECF No. 111-8. Savoy thus has standing to challenge the
search and seizure.
2. Probable Cause Existed to Search Savoy’s Residence
The facts supporting probable cause as to Savoy overlap significantly with those
supporting probable cause as to two other defendants and one unindicted suspect. The affidavit
incorporates the details of these facts by reference to the sections dealing with the other
defendants. Id. The affidavit refers to a number of calls, detailed above, in which Savoy told
19
Hudson, he had gotten a new pair of shoes and was going to try them on. It also refers to the
meeting between Savoy and Hudson in the House of Chang parking lot, after which Hudson was
stopped with five, 31-gram baggies of cocaine. The affidavit also refers to calls and a meeting
between Savoy and co-defendant Johnson. On July 27, 2010, Savoy received a call from
Johnson in which Savoy stated he “made me a good move last night” and that he “got rid of,
well, you know.” Id. at 44. The next day, Johnson called Savoy and Savoy said “Hopefully
somebody will hit me and clean me up today. . . . If they do, I will hit you and let you know.”
Id. at 45. Special Agent Ray believed that in this conversation, Savoy was telling Johnson that
he had sold most of the cocaine he had and that he would be ready to buy more from Johnson
when another buyer contacted him that day. Id. About two weeks later, during a call between
Johnson and Savoy, Johnson said, “Yea, it’s good” and asked “where you want to holler at me?”
Savoy responded “. . . I guess the regular” and the two met shortly thereafter in a parking lot in
Fort Washington, Maryland. Id. at 46. They spoke for approximately 10 minutes before each
driving away. Id. at 46–47. Special Agent Ray believed that Johnson provided Savoy with a
kilogram of cocaine at this meeting. Id. at 47. Johnson later called Savoy and Savoy said, “[It]
should have been six five and one deuce” to which Johnson replied “Oh yeah, thirty-two right?”
Id. Savoy said “The six fives was in two bands and the deuce was in one band down the
middle.” Id. Special Agent Ray interpreted this to refer to $32,000 or a price consistent with the
retail price for a kilogram of powder cocaine in Washington, D.C. at the time. Id.
The affidavit also describes conversations and a meeting between Savoy and an
unindicted suspect in which the unindicted suspect told Savoy he needed to see him and Savoy
replied, “[Y]ou done already? . . . That joint was cool?” Id. at 50. The next day, the unindicted
suspect and Savoy met in the parking lot at the House of Chang restaurant and the unindicted
20
suspect walked toward Savoy holding what looked like a white envelope. Id. at 52. The two met
briefly before each driving away. Id. SA Ray believed the unindicted suspect had sold all of his
cocaine, needed a new supply from Savoy, and met Savoy to purchase it. Id. at 50.
In addition to the interpretations of these conversations and meetings, the affidavit
outlined Savoy’s previous criminal charges and at least one narcotics conviction. Id. at 10.
The totality of the circumstances supports the magistrate’s finding that there was
probable cause to search Savoy’s home. Perhaps most telling is the meeting between Savoy and
Hudson after which Hudson was pulled over and police found five, 31-gram baggies of cocaine.
Additionally, the conversations between Savoy and Johnson and between Savoy and an
unindicted suspect, while in ambiguous language, support SA Ray’s inference that Savoy was
purchasing drugs from Johnson and selling them to the unindicted suspect. This interpretation is
further supported by meetings between the parties and the apparent exchange of a white envelope
between the unindicted suspect and Savoy. Special Agent Ray’s interpretations of these
conversations, in light of his prior experience, is to be given credence. Finally, Savoy’s prior
narcotics involvement and the prior narcotics convictions of those with whom he was interacting
likewise support the finding of probable cause.
3. Leon Good Faith Exception Applies
As with the Hudson warrant, even if the above were not sufficient to establish probable
cause, it would be enough to support the agents’ good faith reliance on the warrant under Leon.
The warrant included significant information linking Savoy to the alleged drug conspiracy and
officers were able to corroborate at least one alleged drug transaction through the traffic stop of
and associated seizure of drugs from Hudson. There is nothing to suggest that the affidavit was
so lacking in indicia of probable cause as to render reliance upon it entirely unreasonable.
21
4. Evidentiary Hearing Not Required
Finally, no evidentiary hearing is needed to address the issue of probable cause. The
probable cause determination was made on the basis of the warrant application and the affidavit
provided. Review of that determination can be made within the four corners of those documents
and the defendant’s motion. For this reason, at a hearing on August 14, 2012, the Court denied
the request of Savoy and other defendants to call witnesses and noted that the Court would make
its determination on the papers.
For the foregoing reasons, Savoy’s Motions [37, 38] to Suppress are DENIED.
iii. Scurry Motion to Suppress Evidence Seized from Search of his Room
[58]
1. Background
Defendant Scurry argues that the Court should suppress evidence recovered from Room
“M” during the November 10, 2010 search of 6902 Dudley Avenue, Oxon Hill, Maryland. Def.
Scurry’s Mot. Suppress 1–3, ECF No. 58. The search resulted in the seizure of a number of
items from that room including, an off-white rock substance in the pocket of a pair of jeans,
ammunition, and various documents. Gov’t Omnibus Resp. Defs.’ Mots., Ex. 5, at 4–5, ECF
111-5.
At the time of the search, Scurry was allegedly residing in this room at the home of co-
defendant Terrance Hudson. Scurry does not concede in his motion that he resided there at the
time of the search, instead noting that the affidavit “claim[ed] that [he had] resided at the
residence ‘as of recent weeks’” and that evidence was recovered from the room he was “said to
occupy.” Scurry’s Mot. 1–2. Scurry also does not tell the Court why he has a legitimate
expectation of privacy in the room searched.
22
At the time of approval of the search warrant, significant evidence existed that Scurry
was involved in the narcotics trade, including nine controlled buys, many of which were audio-
or video-recorded, and numerous wiretapped conversations. Scurry’s primary argument in
support of his motion to suppress is that information on which probable cause was based was
“stale.” Scurry’s Mot. 3. Specifically Scurry states that the most recent information on which
issuance of the warrant was grounded consisted of calls on April 24, 2010, 199 days before the
warrant was issued. Scurry’s Mot. 3–4. He also points to a wiretapped conversation from April
14, 2010 between himself and his wife in which he stated that Hudson had seen a “strange car by
his house.” Scurry reported telling Hudson that he was going to “go in the house [and] clean my
little dirty room.” Scurry’s wife responded “I was praying for both of [y’all] earlier today,
saying both of [y’all] need to do something with [y’all] selfs . . . getting [too] old for that
nonsense.” Gov’t Omnibus Resp. Defs.’ Mots., Ex. 8, at 37, ECF No. 111-8. Scurry replied
“You right.” Id. Scurry mentions this exchange to support his claim that no evidence supported
any continuing involvement in drug trafficking by November 2010. Finally, Scurry notes that,
during earlier points in the investigation, he had resided elsewhere. Scurry’s Mot. 4. Scurry
alludes to the fact that this might defeat the nexus between the probable cause and the place to be
searched. Scurry’s Mot. 4–5. Scurry argues that the Leon good faith exception cannot apply
because the warrant was so lacking in probable cause as to render reliance on it unreasonable.
Scurry’s Mot. 5.
2. Staleness
Scurry points to a case from this Court, United States v. Lindsey, 596 F. Supp. 2d 55(2009), to support his assertion that evidence supporting his warrant was stale. In Lindsey, the
Washington, D.C. Metropolitan Police Department (MPD) obtained photographs of an adult
23
giving a Glock pistol and a Tec–9 assault pistol to a toddler. 596 F. Supp. 2d at 57. The MPD
determined that the adult was the child’s father, executed a search warrant at his residence on
August 24, 2006, but did not find either of the pictured weapons. Id. Evidence later suggested
that the photos had been taken in January or February of 2006 in the home of Ricky Lindsey. Id.Subsequently, another search of Johnson’s residence in November 2007 also failed to produce
the pictured weapons and on February 7, 2008, an FBI agent obtained a warrant to search
Lindsey’s residence on the basis of the photographs. Id. Relying on United States v. Webb, the
Court held that the warrant for Lindsey’s residence, issued at least 178 days after law
enforcement personnel learned where they were taken, did not issue upon probable cause. Id. at
59. The Court noted that this interval was much longer than in Webb and that, unlike Webb, the
case involved a single-incident crime rather than an ongoing conspiracy. Id. Furthermore, the
Court held that the Leon good-faith exception did not apply because the affidavit was so lacking
in probable cause as to render reliance on it unreasonable. Id. at 60–61. Specifically, the Court
distinguished the case from Leon where officers were held to have reasonably relied on a warrant
and the affidavit contained an informant’s statement that he had seen drugs (i.e. witnessed
criminal activity) five months before the search. Furthermore, the informant’s statements were
corroborated by observations within the month preceding issuance of the warrant. In Lindsey,
officers learned 178 days prior to issuance of the warrant that the photographs had been taken in
Lindsey’s home. The affidavit did not include information about when the photographs had
actually been taken, and therefore when the criminal activity had occurred. Furthermore, there
was no additional corroborating evidence subsequent to the discovery that the photos were taken
in Lindsey’s home. Finally, the Court reiterated that Lindsey involved possession of a weapon, a
single-incident crime, rather than an ongoing crime like the drug conspiracy in Leon. Id. at 61.
24
Leon itself also involved an affidavit that relied on a five-month old tip. In Leon, the
Court held that, although the affidavit did not support probable cause, evidence obtained from
the search could nevertheless be admitted during the prosecution’s case-in-chief because the
officers reasonably relied on the warrant.
3. Scurry Lacks Standing to Challenge Search
Scurry has not met his burden of showing that he has standing to challenge the search of
Room M at the Hudson residence. While the government believes that Scurry had been residing
at the house in the weeks leading up to the search and information gleaned during the search
suggests he was living there at the time, 6 Scurry refuses to acknowledge that he lived there or
even that he had been staying at the home. Moreover, Scurry makes no argument as to why he
may have had a legitimate expectation of privacy in the place to be searched. As a result, Scurry
does not have standing to challenge the search.
4. Evidence Nevertheless Admissible
Even if the Court were to find that Scurry enjoyed standing, the evidence seized during
the search would be admissible. While Scurry raises a legitimate concern regarding the possible
staleness of the evidence against him and the Court acknowledges that this is a close case,
several facts cut against Scurry and lead the Court to conclude that suppression would be
inappropriate (if not based on adequate probable cause, then under the Leon good faith
exception.
6
A later affidavit by SA Ray, provided in connection with a search warrant for Scurry’s vehicles, stated that the
owner of the Hudson residence stated that Eric and Keena Scurry were “primarily using a particular bedroom in that
residence” and that documents found therein referenced Keena Scurry and included the residence address as her
address. Gov’t Omnibus Resp. Ex. 8, at 15, ECF No. 111-8. Additionally, the three Scurry vehicles were seized
from outside the residence. Although these facts support an inference that Scurry was residing at the Dudley avenue
residence at the time of the search, it is for the party seeking to suppress evidence of an allegedly unlawful search to
establish that he has standing and a “legitimate expectation of privacy” in the searched location.
25
First, although Scurry cites April 24, 2010 as the last date on which the government
acquired information regarding Scurry’s involvement in the narcotics conspiracy, this was
arguably not the most recent relevant evidence. The search warrant affidavit outlines calls
between Scurry and an unindicted suspect, as well as between Scurry and Hudson, as late as May
19, 2010 and July 13, 2010, respectively. Gov’t Omnibus Resp. Defs.’ Mots., Ex. 8, at 59–60,
ECF No. 111-8. These calls linked Scurry to the alleged conspiracy within 174 or 119 days of
the warrant, respectively. Specifically, in a call on April 29, 2010, the unindicted suspect asked
Scurry whether he had talked to his “peoples” for him. Id. at 57. The following the day, the
unindicted suspect called Scurry to say he was outside and Scurry said he would send his cousin
“out there and get it.” Id. at 58. Three minutes later, Scurry called the unindicted suspect and
said “You gave him seven or six?” Id. When the unindicted suspect replied “Six. . . Why would
I give him seven?” Scurry said, “What you mean man, I’m tripping like shit.” Id. He then said
he was “about to go up there” and would “let [him] know something about five minutes.” Id.SA Ray interpreted this conversation as a transaction between the unindicted suspect and Scurry
in which the unindicted suspect paid Scurry (possibly $600) to buy drugs from Scurry’s supplier
on his behalf. Id. at 58–59. After being arrested, charged with Possession with Intent to
Distribute Cocaine, and briefly jailed, the unindicted suspect spoke with Scurry again on May
19, 2010 about getting in touch with his “peoples” so that he could “keep [his] balling rolling.”
Id. at 59. SA Ray interpreted these calls to suggest that the unindicted suspect was trying to
resuscitate his drug business after being in jail. Id. Finally, on July 13, 2010, after the
unindicted suspect had been re-arrested, Scurry told Hudson, “I finally went and got [his] car
today . . . but they took his money. . . It was still there though, lucky me. They got a search
warrant from the judge saying they . . . wanna search the car because illegal drugs in the car,
26
some shit. These [people] did all that, lying, and it was still there.” Id. at 59–60. SA Ray
interpreted this to mean that Scurry had found drugs stashed in the unindicted suspect’s car. Id.
at 60.
In addition to these more recent intercepted calls, two cooperating witnesses reported
their belief that Scurry had been selling crack cocaine since at least 1992 and 2005, respectively.
Id. at 21–23. These contentions are supported by the affidavit’s inclusion of Scurry’s extensive
narcotics convictions, stretching from 1990 to 2009. Id. at 12–13. The fact that Scurry then
participated in nine controlled buys suggests little indication that Scurry planned to cease his
narcotics operation. While Scurry cites the April 2010 conversation with his wife to negate the
possibility of probable cause in November, this argument is simply not persuasive enough to
counter evidence that Scurry had sold drugs over the past two decades, continued to sell drugs
throughout most of this investigation, and was, according to the government, living with one of
his alleged co-conspirators at the time of the search.
Unlike a search for a firearm, as in Lindsey, searches for evidence of a drug trafficking
conspiracy may be based on older information given the continuing nature of that crime and the
fact that drug dealers may store inventory and records at their homes for some time. See United
States v. Hopkins, 128 F. Supp. 2d 1, 7 (D.D.C. 2000). When viewed in totality, the evidence
appears to be sufficient to support a finding of probable cause.
However, the Court need not decide the issue of probable cause because, even if the
search warrant were based on stale information, the good faith exception would prevent
suppression of evidence seized during the search. There was significant evidence linking Scurry
to drug trafficking and to the alleged conspiracy. Scurry’s primary argument relates to the
potential staleness of this information. However, unlike in Lindsey, Scurry was charged with a
27
continuing offense for which the standard with respect to staleness is more relaxed. Moreover,
even if this were a close call, Leon would not require suppression unless the affidavit was so
lacking in indicia of probable cause as to render reliance upon it “entirely unreasonable.” That
was clearly not the case in this instance.
For the foregoing reasons, Scurry’s Motion [58] to Suppress is DENIED.
iv. Scurry Motion to Suppress Evidence Seized from Search of His
Vehicles [89]
1. Background
On November 17, 2010, SA Ray applied for, and the court issued, warrants to search
three vehicles belonging to Scurry and his wife. Searches of the vehicles resulted in the seizures
of various documents, photographs, GPS devices, and other items. Gov’t Omnibus Resp. Defs.’
Mots., Ex. 9, at 4, ECF No. 111-9; Gov’t Omnibus Resp., Ex. 10, at 4, ECF No. 111-10; Gov’t
Omnibus Resp., Ex. 11, at 3, ECF No. 111-11.
Scurry argues that evidence seized from the vehicles, as well as evidence of canine alerts
to areas of the vehicles, must be suppressed because the warrants were either based on
information obtained from the allegedly illegal use of a GPS tracker on Scurry’s GMC Denali or
based on stale information. Def. Scurry’s Mot. Suppress Evid. Vehicles 3. Specifically, Scurry
argues that the last fact to establish probable cause occurred 177 days before issuance of the
warrant, though it is not entirely clear how he calculated this figure. Scurry’s Mot. 4. Because
the Court determined during an August 2012 hearing that the “independent source” and the
inevitable discovery doctrines overcame any concerns related to potentially unlawful use of a
GPS, the Court deals now only with Scurry’s argument as to probable cause.
28
While Scurry does not explicitly assert that he has standing to challenge introduction of
the evidence seized from the vehicles, however, he asserts that the vehicles are “his.” Suggesting
either an ownership or possessory interest in the vehicles. Moreover, the government’s affidavit
supporting its warrant application provided extensive information about Scurry’s use of the
searched vehicles. While each of the three vehicles was registered in Scurry’s wife’s name, this
would not defeat standing so long as Scurry maintains a possessory interest in the vehicle. See,
e.g., Williams-Davis, 1992 WL 26025. The Court is satisfied that he has met his burden by
conceding that the vehicles belong to him and his wife. Scurry’s Mot. 1–2.
2. Probable Cause Likely Existed to Search Vehicles
Again, it is unclear how Scurry calculated that 177 days elapsed between the last fact to
establish probable cause and the issuance of the warrant, though it may represent the time
between a May 23, 2010 alleged drug transaction in Scurry’s GMC Denali, Gov’t Omnibus
Resp. Defs.’ Mots., Ex. 12, at 17, ECF No. 111-12, and the November 17, 2010 issuance of the
warrant for all three vehicles. However, as the Court will point out, subsequent events also
supported probable cause to search the Denali and the other vehicles.
The affidavit outlines probable cause with respect to each vehicle separately. Gov’t
Omnibus Resp. Ex. 8, ECF No. 111-8. With respect to a 1998 white van, registered in Keena
Scurry’s name at Hudson’s address, the affidavit stated that the van had been used during two
controlled buys in November 2009 and January 2010 and stated that agents had seen the van
driven by Scurry between April and July 2010 and parked where Scurry allegedly sold drugs. Id.
at 16. The affidavit also noted that the van bears a business advertisement for the remodeling
business SA Ray believed to be a front for Scurry’s narcotics trafficking organization. Id.
29
To support probable cause to search the 2004 grey GMC Denali, registered in Keena
Scurry’s name, the affidavit cited visual surveillance of the vehicle being used during two
alleged drug transactions on April 22, 2010 and May 23, 2010. Id. at 17–18. It also noted that
agents had, at various times between April and October 2010, seen the vehicle being driven by
Scurry and parked where he allegedly sold drugs. Id. at 17.
Finally, with respect to a 2006 Silver Chrysler 300, also registered in Keena Scurry’s
name, SA Ray saw Scurry, at various times between April and October 2010, driving the vehicle
and parking it where he allegedly sold drugs. Id. at 18.
If this information was the only information provided by the affidavit, the Court might
have lingering concerns regarding the potential staleness of the evidence. The most recent
evidence with respect to the white van was either a January 2010 controlled buy or a July 2010
sighting of Scurry in the driving or parking the van near where he allegedly sold drugs. With
respect to the other two cars, the evidence shows a buy in the Denali on May 23 and sightings of
Scurry driving the vehicles and parking them near where he sold drugs in October.
The mere sightings of Scurry parking these vehicles near where he sold drugs, without
more, might not particularly support probable cause. Moreover, it may be that a warrant for the
search of a car for evidence of drug-related activity must be supported by more recent evidence
than a warrant to search a suspect’s home. A vehicle, by nature, mobile. Scurry was likely to
have used it for many different purposes at many different places during the course of the
investigation. Unless routinely garaged, a vehicle is also routinely visible to the public and
driven or parked on public roads. While contraband might be hidden in the trunk or other
concealed places within the car, it seems far less likely that one engaged in criminal activity
would store evidence of his activity in a vehicle for months at a time rather than in his residence.
30
Indeed, the majority of the background information contained in the affidavit recites the affiant’s
experience that drug traffickers maintain evidence of their crimes in their residences, the
residences of friends or family, stash houses, storage facilities, business locations, and other
“secure locations.” 7 Id. at 3–8.
Nevertheless, the affidavit does state that, in SA Ray’s experience, Eric and Keena Scurry
used their vehicles to “transport, store and facilitate drug trafficking operations” and that drug
traffickers will “often use their vehicles to transport and to store their narcotics as well as the
accouterments of their narcotics trade, such as scales, packaging materials, and . . . other items”
and will “routinely alternate vehicles in order to elude law enforcement.” Id. at 9, 15. Moreover,
the affidavit recites evidence of Scurry’s more recent narcotics involvement through presentation
of evidence from the search of Scurry’s room seven days earlier. Id. at 14. Specifically, the
affidavit provides support for the notion that Scurry resided in that room and details the
discovery of 5.6 grams of crack cocaine in the pocket of a pair of pants believed to belong to
Scurry. Id. at 14. Scurry has argued that that the search of his “alleged” room was unlawful and
if the court were to find that to be the case, it would not consider the fruits of that search in
evaluating probable cause for another search. However, as already stated, the Court does not
hold that the search of Scurry’s room was based on less than probable cause and as such, the
evidence obtained was lawfully used by SA Ray in seeking a warrant for the search of Scurry’s
vehicles.
While the presence of crack cocaine in the defendant’s room supports only an attenuated
inference that evidence of drug trafficking would be found in Scurry’s vehicles, the Court
assumes that this, combined with Scurry’s lengthy, narcotics-related criminal record and
7
Admittedly, the lack of discussion about vehicles may relate to the fact that the background section appears to have
been taken from the affidavits to support warrant applications for defendants’ residences. Nevertheless, the affiant
must demonstrate probable cause to search the location for which a warrant application has been submitted.
31
previous use of all three vehicles for his activities, is sufficient to support probable cause to
search the vehicles.
3. Leon Good Faith Exception Excuses Any Defect
Again, however, the court need not decide the issue of probable cause because the search
was reasonable under the Leon good faith exception. The affidavit was not so lacking as to
render reliance upon it entirely unreasonable. SA Ray outlined the basis for his belief that
Scurry was engaged in criminal activity and continued to be engaged in such activity leading up
to issuance of the search warrant. He also stated the basis upon which he believed that
contraband would be found in the vehicles. Once the magistrate accepted these assertions and
issued the warrant, officers acted reasonably in relying on it.
For the foregoing reasons, Scurry’s Motion [89] to Suppress is DENIED.
v. Johnson Motion to Suppress [67]
1. Background
Johnson moves to suppress physical evidence seized during the November 10, 2010
search of his home at 1005 Frimler Court, Capitol Heights, Maryland. Def. Johnson’s Mot.
Suppress Phys. Evid. 1, ECF No. 67. During that search, agents seized over $10,000 in cash, a
digital scale, various electronics including a laptop and several cell phones, photos, and financial
documents. Gov’t Omnibus Resp. Defs.’ Mots., Ex. 6, at 5–6, ECF No. 111-6.
Although Johnson does not explicitly set out the basis for his standing to challenge the
search, he concedes that the search was of his home and the government does not dispute that he
has standing. Thus the Court finds that he has standing.
Johnson argues that SA Ray’s affidavit did not establish probable cause that Johnson had
committed a crime nor that evidence of a crime would be found at Johnson’s residence.
32
Johnson’s Mot. 3. Specifically, he argues that the affidavit includes evidence against Johnson in
only four of sixty pages, id., and that the conversations excerpted are “highly ambiguous and
equally lend themselves to perfectly innocent explanations.” Id. at 4. He goes on to point out
that, although the affidavit describes a meeting in which Johnson allegedly provided Savoy with
one kilogram of cocaine, it does not state that agents observed the transfer of a brick-sized object
or that narcotics were seized from either individual after the meeting. Id. at 4–5.
More specifically, the affidavit evidence against Johnson consists of four calls intercepted
on Savoy’s phone and two meetings between Johnson and Savoy at various times between July
27, 2010 and August 13, 2010. No calls from the September 13 to October 12 wiretap of
Johnson’s phone were included in the affidavit. As with other defendants, the calls between
Johnson and Savoy consist mainly of coded or ambiguous conversation interpreted by SA Ray.
During a July 27, 2010 conversation between Johnson and Savoy, Savoy told Johnson he had
“made me a good move last night . . . got rid of, well you know . . . A little something so it
shouldn’t be long now. . . Well, what you want to do?” Gov’t Omnibus Resp., Ex. 8, at 44, ECF
No. 111-8. Johnson responded “Well it you mainly” to which Savoy said, “I’m going to get with
you, come right back to you.” Id. The next day, Johnson called Savoy and, according to the
affidavit asked if he was ready to be re-supplied with cocaine. Savoy replied, “Soon as a mother
fucker get thru to me I’m going to get thru to you” to which Johnson said “Ok . . . I know that’s
right.” Id. at 45. At some point between July 28 and August 13, 2010, intercepted calls
suggested Johnson was on his way to meet Savoy at a steak house in Washington, D.C.
Surveillance units saw Johnson enter the steak house for a few moments before exiting the
restaurant with Savoy and an unindicted suspect and then talking with Savoy near Johnson’s car
for “several minutes.” Id. at 45–46. Savoy and Johnson then each drove away in separate cars.
33
Id. On August 13, 2010, Savoy called Johnson and, according to the affidavit, asked if Johnson
had heard from his supplier. Johnson said “Yea, it’s good . . . where you want to holler at me?”
After Savoy responded “the regular,” Johnson said “I see you down there in maybe 15 minutes.”
Id. at 46. Thirty minutes later the two exited their vehicles in a parking lot in Fort Washington,
Maryland and spoke for approximately 10 minutes before each leaving the area. Id. Subsequent
to this meeting, Johnson called Savoy and Savoy said “It[] . . . should have been six five and one
deuce.” Johnson said, “Oh, yeah thirty-two, right?” and Savoy stated “The six fives was in two
bands and the deuce was in one band down the middle.” Id. Special Agent Ray stated his belief
that Savoy had contacted Johnson on August 13 to ask whether Johnson had received the cocaine
he wanted to buy. When Johnson said yes, the two met and Johnson sold Savoy a kilogram of
cocaine for $32,000.
Johnson also argues that there is an insufficient basis to support probable cause that
evidence of criminal activity would be found in his home. Although he acknowledges the United
States v. Thomas conclusion that “‘observations of illegal activity occurring away from the
suspect’s residence, can support a finding of probable cause to issue a search warrant for the
residence, if there is a reasonable basis to infer from the nature of the illegal activity observed,
that relevant evidence will be found in the residence,’” Motion at 5–6 (quoting United States v.
Thomas, 989 F.2d 1252, 1255 (D.C. Cir. 1993)), he distinguishes the Thomas warrant as having
been based on more recent and more compelling evidence of ongoing narcotics trade, including a
recent, corroborated tip from an informant that Thomas was selling drugs and an undercover buy
from Thomas. Id. at 6 (citing Thomas at 1253–54). Though Johnson does not explicitly make
the comparison, the most recent information allegedly linking Johnson to a narcotics conspiracy
appears to have been 88 days old when the warrant issued. Gov’t Omnibus Resp., Ex. 8, at 47,
34
ECF No. 111-8 (describing a phone call in activation #2677 after the August 13, 2010 alleged
cocaine sale).
Finally, Johnson avers that the warrant was so lacking in indicia of probable cause as to
render reliance on it unreasonable and to prevent application of the Leon good faith exception.
Motion at 7.
2. Probable Cause Appears to have Existed to Approve Warrant
The affidavit certainly includes less evidence linking Johnson to the alleged narcotics
conspiracy than it provides with respect to most of the other defendants. The evidence consists
primarily of SA Ray’s interpretations of Johnson’s conversations as well as his prior narcotics-
related convictions. Additionally, Johnson rightly points out the oddity of an alleged daytime
transaction of one kilogram of cocaine, in a parking lot under visual surveillance by the FBI,
during which agents did not actually report seeing an exchange of money or any object. Given
the size of a kilogram of cocaine, it does seem unlikely that agents would fail to observe the
alleged handoff.
However, the Court returns to its earlier statement that probable cause is not to be
evaluated on the basis of isolated facts in an affidavit. The Court must give great deference to
the magistrate’s determination of probable cause. The warrant was supported by SA Ray’s
interpretations, based on his experience, training, and prior involvement with the investigation
and these deserve to be credited. Moreover, the conversations reported in the affidavit, while
admittedly vague, took place between two people, Johnson and Savoy whose prior narcotics
convictions were listed in the affidavit. 8 Additionally, Savoy’s more recent drug-related
8
The affidavit indicated that both Johnson and Savoy had two prior drug-related convictions in the early 1990s.
Gov’t Omnibus Resp. Defs.’ Mots., Ex. 8, at 10–11. However, as co-defendant Brown pointed out in a pro se filing
related to his own motions, the value of two-decade-old convictions to a probable cause determination is
questionable. However, the convictions included in the affidavit are not to be read as dispositive indications of
35
activities had been corroborated through intercepted calls between Savoy and other alleged co-
conspirators and through the traffic stop of Hudson that resulted in the seizure of five baggies
immediately following a conversation where Savoy stated he would give Hudson “five.”
Based on the totality of the circumstances and the great deference owed by this Court to
the magistrate’s determination, the Court assumes that probable cause existed with respect to the
warrant to search Johnson’s home. However, the Court need not decide the issue because the
Leon good faith exception excuses any lack of probable cause that might exist in this instance.
3. Leon Good Faith Exception Would Excuse Any Warrant
Defects
Even if the Court were to find that the warrant was not supported by probable cause, the
Leon good faith exception makes suppression inappropriate. Johnson has not shown that the
agents’ reliance on the warrant was unreasonable. Johnson’s Mot. 7. Although he refers to the
affidavit as “bare bones,” in fact, it was a 60-page document outlining the affiant’s prior
experience, the reliability of two cooperating witnesses, the extensive investigations already
conducted, the prior drug convictions of all of those being investigated, and the interpreted
conversations between the defendants. While not all of this background material pertained
directly to Johnson, much of it, particularly the information regarding SA Ray’s prior experience,
bolsters the case for a search of Johnson’s home as well. Moreover, as the D.C. Circuit noted in
United States v. Spencer, “‘the police, having turned the probable cause decision over to another
person, . . . are generally entitled to presume that the magistrate knows what he is doing.’” 530
F.3d at 1007 (quoting 1 Wayne R. Lafave, Search and Seizure § 1.3(f), at 97 (4th ed. 2004)).
Based on the weight given by D.C. Circuit and United States Supreme Court cases to law
criminal activity and are merely one factor in a totality of the circumstances analysis. Given the other factors
supporting the probable cause determination, or at least application of the good faith exception, as to Johnson, the
Court need not elaborate further on the value of these convictions to the probable cause determination.
36
enforcement reliance on warrants approved by neutral and detached magistrates, this Court holds
that suppression of evidence seized from Johnson’s home would be inappropriate.
For the foregoing reasons, Johnson’s Motion [67] to Suppress is DENIED.
vi. Robinson Motion to Suppress Evidence Seized During Search [201]
1. Background
Robinson moves to suppress evidence seized from the November 10, 2010 search of 4331
4th Street, S.E., Apt. 2, Washington, D.C. Def. Robinson’s Mot. Suppress Evid. 1, ECF No.
[201]. That search resulted in the seizure of two bags of a rock-like substance, one bag of a
white powdery substance, $3021 in cash, mail addressed to Nathan Robinson, and various other
items, all from Room “C” with the exception of three photos from Room “A.” Gov’t Omnibus
Resp. Defs.’ Mots., Ex. 2, at 5, ECF No. 111-2. The search warrant receipt does not specify
whether the mail was addressed to Robinson at 4331 4th Street or to another address. Id.
Robinson was on the premises at the time of the search and was arrested. Robinson’s Mot. 2.
Robinson argues that he did not live at the residence searched. Robinson’s Mot. 3. In
support of this contention, Robinson attaches affidavits from his grandmother stating that he has
lived with her since June or July 2005 and from Raesheeda Ball, a resident of the place searched,
stating that he has not lived there since being released from prison in June 2005. Robinson’s
Mot., Ex. 3. He also attaches a copy of his District of Columbia driver’s license listing another
District location as his address. Id. Robinson does not state whether the seized items belonged
to him nor does he explain the reason for his presence in the apartment at the time of the search
other than to say he had a “relationship with someone” that lived there. 9
9
The government contends that Robinson was dating Raesheeda Ball, the lessee of the residence and that he lived
with her there.
37
Robinson also contends that the search did not meet the standards of Franks v. Delaware,
438 U.S. 154 (1978), that “no evidence” suggests he was involved in a conspiracy or selling
narcotics in the 4200 block of 4th Street, S.E., and that there was no evidence included in the
affidavit to establish probable cause that “evidence and instrumentalities of violation of the law
[would be found at the premises.]” Robinson’s Mot. 2–3. Finally, during oral argument at the
Court’s August 2012 motions hearing, Robinson’s counsel emphasized that the interactions
between the defendants provided little support for a probable cause determination because the
defendants know each other and are likely to talk or meet for perfectly innocent purposes.
The government counters that evidence was set forth in the search warrant affidavit to
suggest that Robinson lived at the searched location. Gov’t Omnibus Resp. 61–62, ECF No.
109. Specifically, Robinson had been arrested for a narcotics offense in a stairwell of the
building, his car had been seen parked in front of the building early on the morning of June 17,
2010 and on multiple occasions between April and November 2010, and wiretapped
conversations suggested that he lived with “Ray-Ray,” or Raesheeda Ball, the lessee of the
apartment searched. Gov’t Omnibus Resp., Ex. 3, at 24, ECF No. 111-3. The government also
argues that, if Robinson does not in fact live at this address, he lacks standing to challenge the
search. Gov’t Omnibus Resp. 60–61, ECF No. 109.
2. Robinson Lacks Standing to Challenge Search
Although Robinson claims that he did not live at the apartment searched, he fails to
provide a basis upon which the Court could find that he nevertheless had a legitimate expectation
of privacy in the apartment. He has implied, but not stated, that he was legitimately on the
premises. He also has not claimed that he was an “overnight guest” there, though it is possible
that he was since he was found in the apartment at shortly after 6:00 a.m.
38
As mentioned above, the party moving to suppress evidence derived from an unlawful
search bears the burden of demonstrating that he has standing. See, e.g., United States v. Hicks,
978 F.2d 722 (D.C. Cir. 1992) (holding that, in the context of a pre-trial motion to suppress, the
district court correctly declined to consider defendant’s Fourth Amendment claims where he
failed to carry his burden of showing that his own Fourth Amendment rights had been violated).
Because Robinson has failed to allege that he had a legitimate expectation of privacy in
the place searched and thus lacks standing his motion is DENIED.
For the foregoing reasons, Robinson’s Motion [201] to Suppress is DENIED.
vii. Brown Motion to Suppress Evidence Seized During Search [101]
1. Background
Defendant Brown moves to suppress evidence obtained pursuant to a search of his home
at 851 48th Street, NE, Apartment A. Def. Brown’s Mot. Suppress Evid. 1, ECF No. 101.
During that search, the government seized a digital scale, phones and other electronics,
paperwork, and photos. Gov’t Omnibus Resp. Defs.’ Mots., Ex. 4, at 4–5, ECF No. 111-4.
Brown asserts that he has standing to challenge the legality of the search based on the fact
that he resided in the place searched. Brown’s Mot. 2. The Court is satisfied that Brown has met
his burden to establish standing.
Brown argues that the affidavit upon which the search warrant was granted failed to
establish probable cause as to him and his residence and that the Leon good faith exception does
not apply. Brown’s Mot. 2–3.
Affidavit evidence to support probable cause as to Brown included three phone calls and
one meeting between Savoy and Brown, all taking place on August 11, 2010. Specifically, just
after 5:00 p.m. that day, Savoy called Brown and asked “What did he say?” Brown responded,
39
“He says yea, he got it . . . he [is] going out of town tomorrow so . . . he said whatever gotta do
I’m gonna do it today.” Gov’t Omnibus Resp., Ex. 3, at 31–32, ECF No. 111-3. Savoy then
asked, “we . . . talking 44 right?” Id. at 32. Brown affirmed and said “I don’t know why that shit
seem so fucking loud, man. . . . why . . . so high that number?” Id. Savoy then stated, “You
know what I’m gonna give him? . . . 4375 . . . because if you break it all the way down to what I
be doing when I was doing it with him that what it come to.” Id. SA Ray interpreted this
conversation to mean that Brown had talked with a supplier who agreed to sell them drugs for
$4400, which Savoy and Brown considered high. Id. Later that night, Savoy and Brown met
briefly near Brown’s residence and then each drove away. Savoy noticed a surveillance unit and
called Brown to alert him to the presence of the unit. Id. at 32–33. SA Ray believed that the two
met to complete a drug transaction. Id. at 33.
Brown contests SA Ray’s interpretations of his wiretapped conversations. For example,
he argues that Ray’s interpretation of “44” as the referring to the price of cocaine is a
“conclusory explanation[].” Brown’s Mot. 3 (citing United States v. Feliz, 20 F. Supp. 2d 97,
104 (D. Me. 1998); United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996). More was
needed, he argues, to establish probable cause that he was part of a conspiracy and that evidence
of criminal activity would be found at his home. Id. In a pro se reply to the Government’s
Omnibus Response to Defendant’s Legal Motions, Brown also suggests that the evidence as to
him was stale, consisting of “surveillance of a single-incident alleged drug transaction” three
months before issuance of the search warrant. Def. Brown’s Pro Se Reply (Second) to Gov’t
Omnibus Resp., Ex. 1, ECF No. 156-1.
40
Finally, Brown contends that the Leon good faith exception does not apply because the
affidavit was so lacking in indicia of probable cause as to render belief in it unreasonable.
Brown’s Mot. 3–4.
2. Affidavit to Search Brown’s Home May Not Have Established
Probable Cause
The affidavit evidence against Brown is the least persuasive of the six current defendants.
Although it is roughly on par with Johnson’s, the evidence appears to just fall short of that
necessary to establish probable cause. Like Johnson, the evidence against Brown is based almost
solely on a handful of intercepted phone calls and one meeting with co-defendant Savoy. See
Gov’t Omnibus Resp. Defs.’ Mots., Ex. 3, at 31–33, ECF No. 111-3. Like Johnson, Brown has
prior narcotics convictions, the last of which is nearly twenty years old. Id. at 19–20.
Additionally, Brown, like Johnson, had what SA Ray interpreted to be coded conversations with
co-defendant Savoy. Id. at 31–33. However, two factors distinguish the determination of
probable cause with respect to Brown from that with respect to Johnson. First, the affidavit
accompanying the warrant application to search Brown’s home did not include the additional
corroborating information that bolstered the inference that Brown’s alleged co-conspirator Savoy
was involved in narcotics trafficking. 10 Second, the three calls and one meeting detailed between
Brown and Savoy all occurred over the course of an approximately five-hour period, three
months prior to application for the warrant. Id. The evidence regarding Johnson, while not
10
Brown resided in the District of Columbia and a warrant application was submitted to the U.S. District Court for
the District of Columbia to search his residence as well as that of co-defendant Robinson and another unindicted
suspect. However, the warrant application and accompanying affidavit for the search of Savoy’s and Hudson’s
residences was submitted to the U.S. District Court for the District of Maryland. Because of this, the affidavit with
respect to Brown did not include information regarding the alleged drug transaction between Savoy and Hudson and
the subsequent traffic stop of Hudson and seizure of five baggies of cocaine.
41
significantly more probative, at least occurred over the course of more than two weeks, thereby
suggesting some level of continuing activity and involvement in the alleged conspiracy.
A handful of calls and one meeting on a single day, accompanied by 20-year old
convictions may not be enough, even with SA Ray’s informed interpretation of the calls, to
support the search of defendant’s home three months later. However, because of the
applicability of the Leon good faith exception, the Court does not decide today whether the
affidavit established probable cause.
3. Leon Good Faith Exception Excuses Any Defects
Again, cases from our Circuit suggest that application of the Leon good faith exception is
the “basic rule.” Against this backdrop, this Court finds that, once a magistrate approved
issuance of the warrant, officers were entitled to reasonably rely on it absent defects significant
enough to make reliance unreasonable. See Spencer, 530 F.3d at 1007 (“‘[T]he police, having
turned the probable cause decision over to another person, . . . are generally entitled to presume
that the magistrate knows what he is doing.’”) (citation omitted). While the affidavit as to
Brown is an extremely close case, the Court finds that it was not so lacking in indicia of probable
cause as to make reliance upon the warrant unreasonable.
For the foregoing reasons, Brown’s Motion [101] to Suppress is DENIED.
III. Hudson Motion to Suppress Statements [76]
a. Background
Hudson moves to suppress statements he made to agents during the search of his home on
November 10, 2010 and all testimony derived from those statements. Def. Hudson’s Mot.
Suppress Statements 1–3, ECF No. 76.
42
At 6:00 a.m. on the morning of November 10, agents and officers from the FBI and the
Prince George’s County Police Department (PGPD) forcibly entered Hudson’s home after
receiving no response from a knock and announce at the front and back doors. Hudson’s Mot. 2.
The officers and agents were armed and wore tactical gear. Hudson’s Mot. 2. Special Agent
(“SA”) Hanna of the FBI was the search team leader for the search. She testified at the August
14, 2012 motions hearing that approximately sixteen SWAT team members secured the home
before the search team entered. Upon entering, they encountered several adults, including
Hudson who was sitting on a couch in the basement, and one juvenile. The facts are somewhat
unclear, but it appears that Hudson and the other adults present were handcuffed and told to sit in
or near the living room. 11 Gov’t Omnibus Resp. Defs.’ Mots. 84, ECF No. 109. SA Hanna
testified that she pulled Hudson aside before beginning the search. She was at that time
accompanied by a PGPD officer. Both the officer and Agent Hanna were armed and, according
to testimony, their weapons were visible though not drawn. Special Agent Hanna asked Hudson
whether there was any contraband in the house, and Hudson responded that there was a handgun
in a cabinet in his room along with cocaine that was “already done.” 12 Hudson’s Mot. 2, Gov’t
Omnibus Resp. 84. When SA Hanna asked whether “already done” referred to the cocaine
having been converted to crack, Hudson said yes. Hudson’s Mot. 2. Finally, SA Hanna asked
Hudson whether his room was the one in the basement with the “Sabiato” bag and double bed
and Hudson responded in the affirmative. Gov’t Omnibus Resp. 84. After the search uncovered
contraband including a gun and narcotics, Hudson was arrested.
11
Mr. Hudson’s motion states that two adults and the juvenile were escorted out of the home and that Hudson was
“detained away from the residence.” The government’s motion states that three adults, other than Hudson, and one
juvenile were encountered at the home but it does not detail whether any or all of them, besides Hudson were
handcuffed. At the motions hearing, Special Agent Hanna suggested that three adults, in addition to Hudson, were
handcuffed and told to sit in or near the living room.
12
At the August 2012 motions hearing, Hudson denied having answered any of SA Hanna’s questions, stating that
the agents had knocked in the front and back doors of his home, that damage had already been done, and that he had
no reason to help them find anything in the home.
43
None of the officers or agents present during the search Mirandized Hudson. Hudson’s
Mot. 2. There are conflicting accounts of why SA Hanna asked Hudson about the presence of
contraband. The government’s opposition suggests that SA Hanna wanted to minimize any
damage to the home (which Hudson shared with his mother and others). Gov’t Omnibus Resp.
84. During the motions hearing, SA Hanna confirmed this desire but also stated that she wanted
to ensure the safety of the agents conducting the search.
Hudson appears to make two arguments to support his motion to suppress. First, he
argues that the statements were not voluntary. Hudson’s Mot. 3 (citing Culombe v. Connecticut,
367 U.S. 568, 602 (1961); Lego v. Twomey, 404 U.S. 477 (1972); Mincey v. Arizona, 437 U.S.
385, 402 (1978). Second, he argues that his statements be suppressed because they were given in
response to a custodial interrogation without Miranda warnings. Hudson’s Mot. 3.
b. Voluntariness and Miranda
Confessions are admissible only if they are the product of the defendant’s free will. See
Colorado v. Connelly, 479 U.S. 157 (1986). Evidence from involuntary confessions obtained as
a result of “police overreaching” may be inadmissible under the due process clause. Id. at 163–
65. In fact, the Supreme Court has held that “coercive police activity is a necessary predicate to
the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of
the Fourteenth Amendment.” Id. at 522. Though “[f]ailure to administer Miranda warnings
creates a presumption of compulsion,” Oregon v. Elstad, 470 U.S. 298, 307 (1985), the failure
to provide Miranda warnings does not automatically make a confession involuntary. New York
v. Quarles, 467 U.S. 649, 690, 104 S. Ct. 2626, 2650, 81 L. Ed. 2d 550 (1984).
With respect to Hudson’s Miranda arguments, the Fifth Amendment privilege against
self-incrimination applies to custodial interrogation by law enforcement. Miranda v. Arizona,
44
384 U.S. 436, 467–68 (1966). Miranda applies when a defendant is in “custody” and makes a
statement in response to government “interrogation.” Id.For purposes of Miranda, “custody” is not limited to formal arrests, but includes
restraints on freedom of movement that are the functional equivalent of a formal arrest.
California v. Beheler, 463 U.S. 1121, 1125 (1983). This is an objective standard not based on
how the suspect or law enforcement officer actually perceives the interaction. Stansbury v.
California, 511 U.S. 318, 323 (1994). The Supreme Court has phrased the inquiry as whether “a
reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and
leave.” Thompson v. Keohane, 516 U.S. 99, 112, (1995).
Custody need not include detention in a police facility and may even be found to exist in
one’s own home or bedroom. See Orozco v. Texas, 394 U.S. 324, 326–27 (U.S. 1969) (holding
that defendant was in custody when police entered suspect’s bedroom at 4:00 a.m. and
questioned him and where, at trial, an officer testified that the suspect had been “under arrest”
from the time the officers entered the bedroom and was not free to leave). Other Circuits, in
considering whether in-home questioning amounted to custodial interrogation have looked at
“the extent to which the circumstances of the interrogation turned the otherwise comfortable and
familiar surroundings of the home into a ‘police-dominated atmosphere.’” United States v.
Craighead, 539 F.3d 1073, 1083–84 (9th Cir. 2008) (noting its adoption of this standard and
citing the use of a “police-dominated atmosphere” benchmark by the First, Seventh, Eighth, and
Tenth Circuits).
Interrogation may include express questioning or its functional equivalent. Rhode Island
v. Innis, 446 U.S. 291, 300–01 (1980). Put differently, interrogation may include “any words or
actions on the part of the police (other than those normally attendant to arrest and custody) that
45
the police should know are reasonably likely to elicit an incriminating response from the
suspect.” Id. at 301 (footnote omitted).
While individuals subjected to custodial interrogation are due the procedural protections
of Miranda, there are exceptions to the Miranda requirements. For example, officers may
question a suspect without complying with Miranda where important public safety concerns are
at issue. See New York v. Quarles, 467 U.S. 649, 655–56 (1984) (noting that existence of a
“public safety” exception to the requirement for Miranda warnings that does not depend on the
subjective motivations of the officers involved). Law enforcement may also ask routine booking
and processing questions regarding “‘biographical data necessary to complete booking or pretrial
services.’” Pennsylvania v. Muniz, 496 U.S. 582, 601–02 (1990).
Barring the applicability of any exception, failure to provide Miranda warnings prior to
custodial interrogation violates the requirements set forth in Miranda. Miranda, 384 U.S. at 444.
Statements obtained in violation of these requirements will generally be inadmissible. Id.(“[T]he prosecution may not use statements . . . stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination.”) However, such statements may be used for purposes of
impeachment, Oregon v. Elstad, 470 U.S. 298 (1985). Additionally, the Miranda exclusionary
remedy applies only to the statements themselves and not to evidence obtained as a result of the
statements. United States v. Patane, 542 U.S. 630, 641–42 (2004).
c. Hudson’s Statements Were Not Involuntary But Should be Suppressed
Under Miranda
Hudson’s arguments with respect to the voluntariness of his statements can be disposed
of fairly quickly. The primary cases upon which Hudson relies, Mincey and Culombe, involve
46
vastly different fact patterns. For example, in Mincey, statements were found to be involuntary
when made by defendant while in the hospital intensive care unit, while in great pain, depressed,
“encumbered by tubes,” and unable to escape the officer’s interrogation (which persisted even
after Mincey stated that he did not want to talk further without a lawyer). Mincey, 437 U.S. at399–401. Similarly, Culombe involved statements by a defendant with a mental age of about
nine years old, who was detained by police and interrogated repeatedly over five days and four
nights. Culombe, 367 U.S. 568. Hudson’s statements and the surrounding circumstances bear
no similarity to these cases. There is also no indication here that SA Hanna or other agents
engaged in the kind of overreaching with which these cases are concerned. Accordingly, the
Court does not find that Hudson’s statements were involuntary.
With respect to Hudson’s Miranda claims, at issue is whether SA Hanna’s interaction
with Hudson constituted “custodial interrogation” and, if so, whether any exception to Miranda
applied which made it unnecessary for her to provide Hudson with a Miranda warning.
The government makes much of the fact that Hudson was in his own home when SA
Hanna questioned him and thus should have felt comfortable in the familiar surroundings. They
also point to SA Hanna’s demeanor, emphasizing that she never raised her voice to Hudson or in
any way attempted to intimidate him.
Nevertheless, the government’s argument ignores the fact that some sixteen agents had
broken through the front and back doors of his home at 6:00 a.m. when most people would be
sleeping or just waking up. Hudson was handcuffed, along with his family members in the living
room. He had to be accompanied by agents to the restroom. He was questioned by armed law
enforcement officials whose weapons were visible. Although he was in his own home, it is clear
47
that he was not free to move about the home and a reasonable person in his position would not
have felt free to terminate the encounter with SA Hanna.
Special Agent Hanna’s questions constituted interrogation for purposes of Miranda.
Hanna asked Hudson questions about which room was his, whether any contraband would be
found in the house, and whether the cocaine he mentioned had been cooked into crack. All of
these questions were reasonably likely to produce an incriminating response. Telling agents
which room was his would implicate him if any contraband was found in that room. The Court
need not explain how asking about the presence of contraband in the house might lead to an
incriminating response. Finally, asking Hudson whether the cocaine had been cooked into crack
arguably would produce a response that bears on the types of charges that might be levied
against Hudson.
Moreover, SA Hanna’s questions do not fall within the public safety or routine booking
exceptions to Miranda.
Although SA Hanna stated that the safety of officers and others in the home was part of
her motivation in asking Hudson about the presence of contraband in the house, her subjective
motivations do not determine whether such questions fall under the “public safety” exception to
Miranda. Unlike the situation in Quarles, where officers believed that a rape suspect had hidden
a gun in the supermarket he had just entered, this case involves the search of a home that had
already been secured by SWAT team members. There was no danger that “an accomplice might
make use of [the gun, or that] a customer or employee might later come upon it.” Quarles, 467
U.S. at 657. Rather, the search was being conducted in the suspect’s home by trained agents.
Although officer safety is certainly important, these agents presumably had experience searching
for firearms and could seize these items with minimal danger to themselves or others.
48
United States v. Peterson, 506 F. Supp. 2d 21 (D.D.C. 2007) involved a nearly identical
fact pattern to the situation here. In that case, officers executed a search warrant at the
defendant’s home at approximately 7:00 a.m. When there was no response to their knock and
announce, they forcibly entered the home, handcuffed the two adult men in the home and seated
them in the living room on a couch and briefly interviewed them. Id. at 22. The defendant was
not read his Miranda rights prior to questioning. The district court held that the totality of the
circumstances suggested that the defendant was in custody for purposes of Miranda. Id. at 23.
While acknowledging that handcuffing did not, per se, equate to custody, the Court pointed to
the presence of five officers plus a SWAT team, the use of a battering ram to break through the
door, and the fact that officers had weapons drawn and visible. Id. at 24.
The Court in Peterson also held that not all of Peterson’s statements were admissible as
responses to routine booking questions. The court suggested that the routine booking exception
was limited to questions such as those related to biographical information to complete forms,
address and ownership interests, and employment and marital status. Id. (citing Muniz, 496 U.S.
at 601–02; Gaston, 357 F.3d at 82. However, the court held that asking Peterson which bedroom
was his did not relate to administrative concerns falling within this exception and was designed
to illicit an incriminating response. Id. at 25.
On at least two occasions, the D.C. Circuit has considered, but declined to reach, the
question of whether Miranda warnings were required in similar situations. See, e.g., United
States v. Harris, 515 F.3d 1307 (2008); United States v. Gaston, 357 F.3d 77 (D.C. Cir. 2004).
In Harris, for example, officers executing a search warrant of defendant Harris’s
apartment, handcuffed Harris and two other adults inside, and an officer escorted Harris to a
hallway and asked whether there was anything in the residence “that [he] should know about[.]”
49
Id. at 86. Harris then disclosed that there were two guns in the bedroom. Id. On appeal, Harris
argued that her conviction should be vacated because the officer had violated her Fifth
Amendment rights by questioning her without apprising her of her Miranda rights. Given that
any error was harmless, the court did not reach the question of whether the officer had subjected
Harris to “custodial interrogation.” In a citation, the court acknowledged conflicting precedent
from two circuits, comparing United States v. Bautista, 684 F.2d 1286, 1292 (9th Cir.1982)
(finding that a suspect questioned after being handcuffed during a Terry stop was not “in
custody” for Miranda purposes), with United States v. Newton, 369 F.3d 659, 676 (2d Cir. 2004)
(“[A] reasonable person finding himself placed in handcuffs by the police would ordinarily
conclude [he was] in custody.”).
Thus, although D.C. Circuit precedent does not appear to dictate a particular result, the
Court holds that this situation constituted custodial interrogation and that the agents’ failure to
provide Hudson with an adequate warning regarding his rights violates the Miranda
requirements. As a result, Hudson’s motion to suppress his statements is GRANTED. However,
given that the Miranda remedy is limited to the suppression of statements, and not to the
physical fruits of those statements, the government may introduce physical evidence seized
during the search of Hudson’s home.
For the foregoing reasons, Hudson’s Motion [76] to Suppress Statements is GRANTED.
IV. Savoy Motion for Pretrial Hearing [36]
a. Background
Defendant Savoy moves for a pre-trial hearing to require the government to produce
evidence of the existence, scope, and duration of the alleged conspiracy and on the admissibility
50
of tape recordings. Def. Savoy’s Omnibus Mot. 4, ECF. No. 36. Citing Fed. R. Evid. 104(a) and
(b) he states that the Court has discretion to make preliminary determinations of fact relating to
the admissibility of evidence. Id. The thrust of Savoy’s argument seems to be that, because
defendants are charged with conspiracy, much of the evidence will not be relevant unless the
conspiracy is actually demonstrated. Id. By way of example, Savoy suggests that a pre-trial
determination of the existence, scope, and duration of the conspiracy is necessary to determine
whether co-defendant statements may come in under the co-conspirator exception to the hearsay
rule. Id. Savoy provides no authority or legal argument as to why a hearing should be granted as
to the admissibility of tape recordings.
b. Pre-Trial Hearing Not Required
Federal Rule of Evidence 801(d)(2)(E) provides that statements made by co-conspirators
made in furtherance of a conspiracy are not hearsay and are admissible against all co-
conspirators. United States v. (Joseph) Jackson, 627 F.2d 1198, 1216 (D.C. Cir. 1980). To admit
such statements, the prosecution need only establish by a preponderance of the evidence that a
conspiracy existed and that the statement was made in furtherance of that conspiracy. United
States v. Beckham, 968 F.2d 47, 51-52 (D.C. Cir. 1992) (citing Bourjaily v. United States, 483
U.S. 171, 175 (1987)).
However, the Court need not conduct a pre-trial determination of the existence of a
conspiracy to determine the admissibility of such statements. See United States v. Wilson, 26
F.3d 142, 159 (D.C. Cir. 1994); United States v. Gantt, 617 F.2d 831, 845 (D.C. Cir. 1980)
(upholding trial court’s refusal to hold a pre-trial hearing into the existence of a conspiracy so as
to determine admissibility of statements under coconspirators’ exception to hearsay rule); United
States v. Edelin, 128 F. Supp. 2d 23, 45-46 (D.D.C. 2001) (holding that a “hearing to make an
51
advance determination of conspiracy is unnecessary for the Court’s determination by a
preponderance of evidence that a conspiracy existed”).
The government points to prior D.C. Circuit precedent suggesting that while pre-trial
determinations of a conspiracy may be preferable, for example in determining the admissibility
of wire communication recordings, this is not always possible. See United States v. Jackson, 627
F.2d 1198 (D.C. Cir. 1980). In Jackson, the Court noted that hearsay evidence may be admitted
subject to connection. The Court noted the impracticability of taking witness testimony in a
piecemeal approach and waiting until the establishment of the conspiracy to recall the witnesses
to testify to hearsay declarations of co-conspirators. “As a concession to such practical
impediments that arise during trial, the court is vested with considerable discretion to admit
particular items of evidence subject to connection.” Jackson, 627 F.2d at 1218 (internal citations
omitted).
The D.C. Circuit has separately noted that “a decision on a motion should be deferred, if
disposing of the motion involves deciding issues of fact that are inevitably bound up with
evidence about the alleged offense itself.” United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir.
1994). The Circuit has specifically upheld a trial court’s refusal to hold a pre-trial hearing into
the existence of a conspiracy to determine admissibility of statements under the co-conspirator
exception to the hearsay rule. United States v. Gantt, 617 F.2d 831, 845 (D.C. Cir. 1980). The
court explained that “to avoid what otherwise would become a separate trial on the issue of
admissibility, the court may admit declarations of co-conspirators ‘subject to connection.’” Id.;
see also Jackson, 627 F.2d at 1218 (trial courts are not required to hold “mini-trials” on the
conspiracy issue before the conditional admission of a co-conspirator’s statements); Edelin, 128
F. Supp. 2d at 45–46. Finally, in United States v. White, the Circuit noted that trial exigencies
52
will often make it impracticable to prove the existence of a conspiracy before hearsay is admitted
and it reiterated its endorsement of the “traditional ‘subject to connection’ approach.’” 116 F.3d
903, 915 (D.C. Cir. 1997) (citation omitted).
In concluding, the Court notes that the government has communicated its intent to elicit
only those statements that will satisfy admissibility requirements. Gov’t Omnibus Resp. Defs.’
Mots. 108, ECF No. 109. The government rightly points out that defendants may raise
objections at trial to the admission of particular statements. Id.Given the foregoing, Savoy’s Motion [36] for a Pretrial Hearing is DENIED.
V. Scurry Motion to Compel Disclosure of Information Regarding Confidential
Informants, Witnesses, and Cooperating Criminals [53]
a. Background
Defendant Scurry moves, pursuant to Federal Rules of Criminal Procedure 12(d)(2) and
16 to compel the government to disclose the identities of government witnesses who may be
considered informants or cooperating individuals, as well as background information about each
including the files maintained by the investigating agency regarding each witness. Def. Scurry’s
Mot. Compel Disclosure 1, 3, ECF No. 53. Scurry argues that this information is “vital to
preparation of [his] defense.” Scurry’s Mot. 2. Scurry notes that the government is required to
provide information regarding benefits or promises made to such witnesses but expresses
concern that communication gaps between investigating agents and government attorneys may
result in the inadvertent failure to provide this information to defendants. Id.b. Legal Standard
53
As a general rule, the prosecution has a limited privilege to withhold the identity of an
informant from an accused criminal defendant. McCray v. State of Ill., 386 U.S. 300 (1967);
Roviaro v. United States, 353 U.S. 53, 59 (1957). However, this privilege is limited to the
identity of the informant and other information necessary to protect the “public interest in law
enforcement.” Roviaro, 353 U.S. at 59. The privilege also does not apply where the identity or
other information about the informant has already been communicated to “one who would have
cause to resent the communication,” Roviaro, 353 U.S. at 60, or where fairness mandates
disclosure because it is “relevant and helpful to the defense of an accused” or “essential to a fair
determination of a cause.” Roviaro, 353 U.S. at 60–61.
To overcome this privilege, the defendant bears the burden of demonstrating the potential
relevance of the information to his defense. Once the defendant has done this, the trial court has
discretion to compel the disclosure of the identity of an informant. United States v. Fields, 113
F.3d 313 (2d Cir. 1997); Sandoval v. Aaron, 562 F.2d 13 (10th Cir. 1977). The trial court must
balance the “public interest in protecting the flow of information against the individual’s right to
prepare his defense.” Roviaro, 353 U.S. at 62. Factors to be considered include: the charged
crime, defenses to that crime, the possible significance of testimony by the informer, how
involved the informant was in the alleged crime, whether disclosure of the informant’s identity
would help the defense, and the interests in nondisclosure. Rovario, 353 U.S. at 629. An
informant’s involvement in the alleged criminal conduct, for example, as a participant in or as a
material witness to an unlawful transaction may suggest the need for disclosure of the name and
address of that informant.
In United States v. Celis, the D.C. Circuit noted that the disclosure of government witness
lists has due process implications and requires balancing of the nature of the private interest with
54
the value of any additional safeguards and the impact on the government’s interests. 608 F.3d
818, 828–29 (D.C. Cir. 2010). It also may implicate Sixth Amendment confrontation
protections, depending on the timing of any disclosure. Id. at 829 (citing Smith v. Illinois, 390
U.S. 129, 131–32 (1968). With respect to the government’s duty under Brady to disclose all
exculpatory evidence, the Celis court stated that “‘[i]t does not follow from the prohibition
against concealing evidence favorable to the accused that the prosecution must reveal before trial
the names of all witnesses who will testify unfavorably.” Celis at 831 (quoting Weatherford v.
Bursey, 429 U.S. 545, 559 (1977))). Additionally, the court in Celis noted that a proposed
amendment to the Federal Rules of Criminal Procedure that would have required disclosure of
witness lists was defeated. Id. “‘The constitutional right to cross examine has never been held to
encompass a right to pretrial disclosure of prosecution witnesses.’” Id. (quoting United States v.
White, 116 F.3d 903, 918 (D.C. Cir. 1997)). This is particularly the case where there are security
concerns for the witness. Id. (quoting White, 116 F.3d at 918).
c. Scurry Not Entitled to Pre-Trial Disclosure of Witness Identities
Although the government is correct that it enjoys a privilege against providing witness
identities, sixteen of the twenty counts against Scurry appear to be based on controlled buys
conducted through the government’s cooperating witness. This witness, while considered
reliable by the government, has an extensive criminal history, including previous narcotics
convictions. Moreover, the witness has been paid for “its” cooperation.
Given the importance of this witness to proving the charges against Scurry, the identity of
the witness is relevant to Scurry’s preparation for trial. However, Scurry has already been
provided with audio and video recordings of the controlled buys with this witness. Presumably,
Scurry is now aware of the witness’s identity.
55
Moreover, it is this Court’s practice to require the government to turn over all Jencks Act
material on the Friday before a government witness is to testify. This material would include the
identity of the witness.
Given that Scurry has already been provided with audio and video recordings of the
controlled buys and given that he will receive additional Jencks Act material before the
government witness testifies, Scurry’s Motion [53] is DENIED.
VI. Scurry Motion for Bill of Particulars [54]
a. Background
Scurry moves for a bill of particulars setting forth various facts, including, the date on
which the grand jury was initially summoned and the date of any court order extending the
Grand Jury’s service; the earliest event or statement upon which the prosecution plans to rely to
establish the existence of the conspiracy; the “nature of any all [sic] statements and/or events
upon which the prosecution intends to rely to prove that the conspiracy existed” along with the
same facts with respect to Scurry’s involvement; the locations where the conspiracy is alleged to
have occurred; the identities of the unindicted co-conspirators known to the Grand Jury; the overt
acts upon which the government “may rely” at trial; the transactions providing the basis for the
allegation that the conspiracy involved 500 or more grams of cocaine 13 and 280 grams or more
of cocaine base; and the “manner and means of the conspiracy.” Def. Scurry’s Mot. Bill
13
After the filing of Scurry’s motion on October 14, 2011, a Third Superseding Indictment was issued by the grand
jury and filed on December 16, 2011. That Indictment charges the defendants with conspiracy to distribute and
possess with intent to distribute 5 kilograms or more of cocaine, rather than the amount initially charged. Third
Superseding Indictment at 2.
56
Particulars 1–2, ECF No. 54. Scurry also notes that, at the time of his motion, he had not been
charged with any substantive offense. 14
b. Legal Standard
Criminal defendants may move for a bill of particulars within fourteen days of
arraignment or at a later time if the court permits. Fed. R. Crim. P. 7(f). Districts courts may
order the government to file a bill of particulars and the trial court’s determination of whether a
bill of particulars is necessary “rests within the sound discretion of the trial court” and will not be
disturbed absent an abuse of discretion. Id.; United States v. Mejia, 448 F.3d 436, 445 (D.C. Cir.
2006) (citation omitted). A bill of particulars serves to ensure that charges against a defendant
are stated with sufficient particularity to permit the defendant to “understand the charges, to
prepare a defense, and perhaps also to be protected against retrial on the same charges.” United
States v. Butler, 822 F.2d 1191, 1193 (D.C. Cir. 1987); United States v. Esquivel, 755 F. Supp.
434, 436 (D.D.C. 1990). However, a bill of particulars is not to be used as “a discovery tool or a
devise for allowing the defense to preview the government’s theories or evidence. It properly
includes clarification of the indictment, not the government’s proof of its case.” United States v.
Ramirez, 54 F. Supp. 2d 25, 29 (1999). Also, if the requested information is “available in some
other form, then a bill of particulars is not required.” Butler, 822 F.2d at 1193.
c. Scurry Not Entitled to a Bill of Particulars
The government has already provided Mr. Scurry with extensive information, including
discovery, pleadings, and the government’s Omnibus Response to Defendant’s Legal Motions.
Gov’t Omnibus Resp. Defs.’ Mots. 104–05, ECF No. 109. This information should allow Scurry
to adequately prepare his defense against the charges he faces. The government reports that it
14
The Third Superseding Indictment outlined an additional 19 counts against Scurry, including unlawful distribution
of cocaine base, and provided the dates upon which the alleged offenses took place.
57
has provided Scurry with details of nine controlled buys forming the basis of his wire
interceptions and that Scurry’s counsel has reviewed audio and video recordings of these buys.
Id. Scurry has also been provided with copies of all calls intercepted on his line, supporting
documentation, a summary of testimonial evidence the government anticipates sponsoring into
evidence detailing Scurry’s crack cocaine sales and surveillance of his activities. Id. Finally, the
government notes its intention to use evidence seized pursuant to a search of his home on
November 10, 2010, including cocaine base found in the pocket of a pair of pants allegedly
belonging to Scurry. Id. at 105.
The government argues that it has no obligation to file a bill of particulars detailing facts
regarding the existence and formation of the conspiracy, id. at 106 (citing United States v.
Rosenthal, 793 F.2d 1214, 1227 (11th Cir. 1986), or to specify every overt act of the conspiracy
that it plans to prove at trial, id. (citing Wong Tai v. United States, 273 U.S. 77, 81 (1927)), or to
disclose “specific information about the times and places that [the defendant] participated in the
alleged conspiracy. . . .” Id. (citing Butler, 822 F.2d at 1194). It argues that where extensive
discovery has already been provided to defendants, a bill of particulars is unnecessary. Id.(citing United States v. Harmon, 251 F.2d 379, 380 (D.C. Cir. 1958); United States v. Eiland,
2006 WL 516743, *7 (D.D.C. 2006). Additionally, it suggests that its omnibus response to the
defendants’ motions provides sufficient additional information regarding the allegations to
warrant denial of the motion for the bill of particulars. Id. (citing United States v. Butler, 822
F.2d 1191, 1193–94 (D.C. Cir. 1987) (upholding district court’s denial of bill of particulars when
additional information provided in opposition to motion for bill of particulars furnished
defendant with information requested).
58
Given the foregoing discussion and the government’s assurances that Scurry has already
received all information to which he is entitled, Scurry’s Motion [54] for a bill of particulars is
DENIED.
VII. Scurry Request for Notice Prior to Trial of Government’s Intention to Present
Evidence Pursuant to 404(b) [55]
a. Background
Scurry asks this Court to order the government to notify him of any intention to present
evidence under Fed. R. Evid. 404(b). Def. Scurry’s Req. Notice 404(b) 1, ECF No. 55. At the
time he filed the motion, Scurry had not yet been charged with substantive offenses for, among
other things, the controlled buys in which he was allegedly involved. Scurry requests that the
government be ordered to disclose its intention to introduce evidence of these buys and any other
crimes at trial, as well as the theory upon which the alleged acts are admissible.
b. Scurry Not Entitled to Additional Pre-Trial Notice Regarding 404(b)
Evidence
Evidence of a defendant’s character or character traits is inadmissible to show that the
defendant acted in conformity with that character or trait on a particular occasion. Fed. R. Evid.
404(a). However, Fed. R. Evid. 404(b) allows the admission of evidence of a “crime, wrong, or
other act” for other purposes, including to show opportunity, preparation, plan, knowledge,
absence of mistake, etc. Fed. R. Evid. 404(b)(2). At the request of a defendant, the government
must provide before trial, unless good cause is shown, “reasonable notice of the general nature”
of any such evidence the prosecution plans to offer at trial. Fed. R. Evid. 404(b)(2)(B).
59
In response to Scurry’s request, the government responds that it has put the defense on
notice, through its Notice of Intrinsic Evidence, Gov’t Notice Intrinsic Evid., ECF No. 69, of the
nature and breadth of the evidence it intends to introduce to prove the existence of the conspiracy
and the defendants’ participation in it beyond a reasonable doubt. Gov’t Omnibus Resp. Defs.’
Mots. 115, ECF No. 109. The government contends that all of the evidence detailed in the
Notice of Intrinsic Evidence, with the exception of certain certified convictions, is proof of the
conspiracy and falls outside of the requirements of Rule 404(b). Id.; see also United States v.
Williams, 900 F.2d 823 (5th Cir. 1990) (noting the distinction between intrinsic offense evidence
and 404(b) evidence). The government also notes that, in addition to the specific facts set forth
in the Notice, it has provided the defendants with Title III and search warrant affidavits, as well
as DEA reports of controlled substance analysis for evidence seized during the course of the
investigation. Gov’t Omnibus Resp. 115 n.35. With respect to defendant Scurry, in particular,
the government has provided extensive discovery, including information and evidence regarding
the controlled buys in which he was involved. Id. at 104–05. The government argues that the
evidence summarized in all the Notice of Intrinsic Evidence constitutes direct evidence of the
conspiracy and is admissible at trial. Finally, the government has stated its intention to provide
supplemental written notice to the Court and the parties should it become aware of additional
evidence which may be introduced at trial. Id. at 115.
To the extent that Scurry is requesting any additional notice, this Motion [55] is
DENIED.
VIII. Brown Request for Preservation of Electronic Mail [60]
a. Background
60
Brown requests that the court order the government, including its investigative agencies,
to preserve electronic mail and text messages made in connection with the investigation and
prosecution of this case. Def. Brown’s Mot. Preserv. Elec. Mail 1, ECF No. 60. Brown appears
to be concerned solely with preservation of witness statements that the government may be
required to provide pursuant to the Jencks Act (18 U.S.C. § 3500). Brown’s Mot. 1. Brown
argues that electronic mail and texts, presumably written by government witnesses, should be
considered “statements” within the meaning of the Jencks Act and that the government should be
ordered to preserve them.
b. The Court Need Not Order Government to Preserve Mail
The Court need not decide prior to the trial whether electronic mail and texts sent by
government witnesses during the course of the investigation and prosecution of this case are
“statements” for the purposes of the Jencks Act. The United States is aware of and notes its
intention to fully comply with its obligations under the Jencks Act for every witness it calls.
Gov’t Omnibus Resp. Defs.’ Mots. 115, ECF. No. 109. To alleviate Brown’s concern that
government investigators may have or might destroy their electronic mail, the Government has
requested that agents preserve electronic mail relating to this investigation. Id. at 116 n.36.
Given the fact that the government reports its compliance with the proposed motion, the
Motion [60] is DENIED as moot.
IX. Scurry Motion for Discovery of Detector Dog Information [70]
Scurry requests an order compelling the government to provide extensive information
regarding two detector dogs used during a search of his GMC Denali. Def. Scurry’s Mot. Disc.
Detector Dog Information 1, ECF No. 70. During the search, the dogs alerted at “several” areas
61
in the vehicle, but agents did not recover any drugs from the vehicle. Gov’t Omnibus Resp.
Defs.’ Mots. 114, ECF No. 109. Scurry argues that because the dogs alerted, the dogs’ reliability
is at issue and he needs the requested information to prepare for cross-examination of the agents
who searched the Denali. Scurry’s Mot. 3–4.
The government asserts that, while it may present testimony from these agents, it does
not anticipate the presentation of evidence regarding the dog sniffs. Gov’t Omnibus Resp. 114.
Since the government has not proffered that it will use the dog sniffs to indicate that
drugs had been present in Scurry’s vehicle, the Motion [70] is DENIED.
X. Government’s Motion to Impeach Defendants with Prior Convictions Pursuant
to Rule 609 [68]
a. Background
The government asks the Court, pursuant to FRE 609(a)(1), to allow the introduction of
prior convictions of defendants Hudson and Robinson for impeachment purposes should they
testify at trial. Gov’t Mot. Impeach 1, ECF. No. 68. Specifically, the government appears to
seek to introduce Hudson’s June 2007 conviction for Carrying a Pistol Without a License 15 and
Robinson’s December 2009 conviction for Distribution of Controlled Substance—Cocaine.
Both defendants are charged with Conspiracy to Distribute and Possess with Intent to Distribute
5 Kilograms or More of Cocaine and 280 Grams or More of Cocaine Base, in violation of 21
15
The government’s motion also lists the following June 2007 misdemeanor convictions of Hudson as “pertinent”:
Possession Controlled Substance—Cocaine, Possession Controlled Substance—Marijuana, and Possession
Controlled Substance—Ecstasy. Mot. Impeach 2. It is unclear if the government asks this Court to permit the
introduction of these convictions. Fed. R. Evid. 609(a)(1)(B), relating to convictions punishable by imprisonment
over one year, seems to be the only provision discussed by the government in its motion. To the extent that the
misdemeanor convictions listed in the Motion are punishable by imprisonment of less than one year, they will not be
admissible under Fed. R. Evid. 609(a)(1)(B).
62
U.S.C. § 846. Mot. Impeach 1. Hudson is also charged with Using, Carrying and Possessing a
Firearm During a Drug Trafficking Offense, in violation of 18 U.S.C. § 924(c).
b. Legal Standard
Pre-trial determination of impeachment questions is generally preferable so that the
parties may make strategic decisions accordingly. United States v. Jackson, 627 F.2d 1198, 1209
(D.C. Cir. 1980). Fed. R. Evid. 609(a)(1)(B) provides that evidence of a criminal conviction for
a crime punishable by imprisonment for more than one year must be admitted in a criminal case
in which the witness is a defendant “if the probative value of the evidence outweighs its
prejudicial effect to that defendant.” Fed. R. Evid. 609(a)(2) allows the introduction of
convictions involving dishonest acts or false statements regardless of the length of the associated
punishment. The factors relevant to a 609(a)(1)(B) determination of whether the probative value
of the conviction outweighs its prejudicial effect include, but are not limited to, “the nature of the
crime, the time of the conviction, the similarity of the past crime to the charged crime, the
importance of the defendant’s testimony, and the degree to which the defendant’s credibility is
central to the case.” Jackson, 627 F.2d at 1209.
The analysis involves a “careful[] and thoughtful[]” balancing that does not “lead[]
inexorably to admitting the prior conviction into evidence.” United States v. Lipscomb, 702 F.2d
1049, 1063 (D.C. Cir. 1983). While Fed. R. Evid. 609(a) “stresses admissibility” when
compared with 609(b), United States v. Lewis, 626 F.2d 940, 950 (D.C. Cir. 1980), there is no
“presumption” that prior convictions are admissible. Lipscomb, 702 F.2d at 1063 & n.54.
Nevertheless if the trial judge “explicitly balances probative value and prejudicial effect, his
decision will be reviewed only for an abuse of discretion.” Lewis, 626 F.2d at 950.
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Although a hearing on the matter is not necessary, “some inquiry into the nature and
circumstances of a prior conviction is a prerequisite to its admissibility under 609(a).” United
States v. Crawford, 613 F.2d 1045, 1053 (D.C. Cir. 1979). This requirement may be satisfied by
an inquiry into whether the prior conviction was a felony punishable by imprisonment over one
year, the type of charge, and the length of time between the conviction and the trial date. See
United States v. Lewis, 626 F.2d 940, 949 n.12 (D.C. Cir. 1980) (noting that the trial judge had
“satisfactorily anticipated” the need for an inquiry into the nature and circumstances of the prior
conviction by considering these factors).
With respect to the probative value of a felony conviction, the D.C. Circuit has held that
all felony convictions less than ten years old have “at least some probative value” and that it is in
the trial court’s discretion whether additional information is needed regarding the circumstances
surrounding the conviction. Lipscomb, 702 F.2d at 1056. However, the Circuit has also
suggested that some felony convictions will have more bearing on a witness’s credibility than
others. For example, in Lipscomb, the court noted that a prior conviction of robbery, because it
involved theft and was a “serious crime that shows conscious disregard for the rights of others”
reflected “more strongly on credibility than . . . [for example,] simple narcotics or weapons
possession.” 702 F.2d at 1071.
Conviction for a prior charge when a defendant is facing pending similar charges may be
prejudicial, see Lewis, 626 F.2d at 951, and the D.C. Circuit has noted that “convictions which
are for the same crime should be admitted sparingly.” Gordon v. United States, 383 F.2d 936,
940 (D.C. Cir. 1967). However, the probative value of convictions for prior similar charges may
outweigh their prejudicial effect if, for example, the defendant denies any prior involvement in or
knowledge of the type of criminal activity at issue. Id. Additionally, the D.C. Circuit has upheld
64
the admission of convictions for similar offenses to those for which the defendant is being tried.
In Lewis, the D.C. Circuit reviewed for abuse of discretion a trial court determination to admit
prior drug-related convictions. After the trial court’s decision, the defendant in that case testified
and denied ever having seen pills like the ones at issue and “tried to convince the jury that he
was a relative stranger to the use and sale of illegal drugs.” Lewis, 626 F.2d at 947. Given these
denials, the fact that the defendant would be the “only witness [for the defense],” and that the
government witness testimony would be in conflict with the defendant’s testimony, the Circuit
held that “the [trial court] judge’s decision to admit evidence of the prior conviction was a
reasonable response to the conflict in testimony. Where such conflict exists, it is of prime
importance that the jury be given as much help in determining credibility as the Rules of
Evidence permit.” Lewis, 626 F.2d at 950.
c. Application and Conclusion
The convictions apparently offered by the government, Hudson’s June 2007 conviction
for Carrying a Pistol Without a License and Robinson’s December 2009 conviction for
Distribution of Controlled Substance—Cocaine, appear to each be punishable by imprisonment
of more than one year and to have occurred within the last ten years. Facially, the prior felony
convictions of Hudson and Robinson would appear to be admissible to allow the jury to weigh
the credibility of these defendants should they choose to testify. However, a final determination
on this matter will be made at trial.
XI. Conclusion
In light of the foregoing, this case shall proceed to trial on all counts alleged in the
indictment.
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A separate Order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on September 5, 2012.
66