ABW Fall 2013 Final Assignment

8/13/2019 ABW Fall 2013 Final Assignment

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______________________________________________________IN THE COURT OF APPEALS

SIXTH DISTRICTCUYAHOGA COUNTY, OHIO

______________________________________________________

Case No. NCC-1701-AMICHAEL ROBERTS,

Plaintiff-Appellant,v.

UNITED STATES OF AMERICA,Defendant-Appellee.

______________________________________________________________________________APPEAL FROM THE JUDGMENT OF THE

UNITED STATES DISTRICT COURTFOR THE NORTHEASTERN DISTRICT OF OHIO EASTERN DIVISION

(Lower Court Case No. 1:08CR189) ______________________________________________________________________________ ______________________________________________________________________________

BRIEF OF DEFENDANT-APPELLEE ______________________________________________________________________________

MARK S. BENNETT (0069823) MUTAJAH HUSSEIN (2186266)Cleveland Marshall College of Law Big Bad Government2121 Euclid Avenue 123 Federal Court HouseCleveland, Ohio 44115 Cleveland, Ohio 44113

Attorney for Plaintiff/Appellant Attorney for Defendant/Appellee



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TABLE OF CONTENTSPage

TABLE OF CONTENTS ........................................................................................................ i

TABLE OF AUTHORITIES ................................................................................................ iii

STATEMENT OF THE ISSUES PRESENTED ................................................................. xx

STATEMENT OF THE CASE .............................................................................................. 1

STATEMENT OF THE FACTS ........................................................................................... 1

I. Background. ......................................................................................................... 1A. Roberts and Williams suspicious meeting in the Cadillac ....................... 5B. The delivery of drugs by Roberts to Williams ......................................... 5

C.

Gregg finds drugs on Williams ................................................................ 5II. Roberts‟ arrest and detainment ............................................................................ 3A. The search incident to arrest on Roberts‟ cell phone ................................ 5B. The lawful use of Roberts‟ key to locate “my house” .............................. 5C. The lawful search at Chandler and Roberts apartment ............................. 5

SUMMARY OF THE ARGUMENT .................................................................................... 7

STANDARD OF REVIEW ................................................................................................... 9

LAW AND ARGUMENT ................................................................................................... 10

II. Standard of Review 10

II. The agents had reasonable suspicion and probable cause to stop andsearch Michael Roberts based on their years of experience in narcotics lawenforcement and the testimony of an informant, Michael Williams 10

A. Reasonable Suspicion to arrest Roberts .............................................. 10B. Probable cause to arrest Roberts ......................................................... 11

III. Because a lawful arrest was made, the agents conducted a valid search incidentto arrest of Roberts‟ person and lawfully obtained his keys when theofficers inventoried his belongings ..............................................................................

A. Roberts‟ lawful search incident to his arrest ....................................... 10B. Valid sear ch of Roberts‟ cell phone incident ...................................... 10C. Officers lawfully froze the apartment ................................................ 10



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III. The agents did not coerce consent to search the residence from Chandler and performeda search under the “plain view doctrine”. .........................................................................

A. Agents did not coerce Chandler for consent to search ...................... 10B. The plain view doctrine allowed officer to search .............................. 10

CONCLUSION .................................................................................................................... xx

CERTIFICATE OF SERVICE ............................................................................................ xx



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TABLE OF AUTHORITIES

Cases Chimel v. California,

395 U.S. 752, 762–63, 89 (1969). _________________________________________________________________________________ 10

Coolidge v. New Hampshire,

403 U.S. 443, 472 (1971) __________________________________________________________________________________________ 18

Garcia v. Dykstra,

260 Fed.Appx. 887, 898 (6th Cir.2008). __________________________________________________________________________ 16

Harris v. United States,

390 U.S. 234 (1968). _______________________________________________________________________________________________ 18

Katz v. United States,

389 U.S. 347, 357 (1967). __________________________________________________________________________________________ 10

Ornelas v. United States,

517 U.S. 690, 697 (6th Cir.1996). __________________________________________________________________________________ 5

Spano v. New York,

360 U.S. 315, 319 (1959). __________________________________________________________________________________________ 17

United States v. Bentley,

29 F.3d 1073, 1075 (6th Cir.1994). ________________________________________________________________________________ 8

United States v. Bishop,

338 F.3d 623, 628-29 (6th Cir.2003). _____________________________________________________________________________ 19

United States v. Caicedo,

85 F.3d 1184, 1192 (6th Cir.1996). ________________________________________________________________________________ 7

United States v. Chadwick, 433 U.S. 1, 10-11 (1977). __________________________________________________________________________________________ 14

United States v. Concepcion,

942 F.2d 1170, 1172–73 (7th Cir.1991) __________________________________________________________________________ 13

United States v. Cooper ,

431 Fed. Appx. 399, 401 (6th Cir. 2011) ___________________________________________________________________________ 6

United States v. Cooper ,

431 Fed.Appx.339, 401 (6th Cir. 2011). ___________________________________________________________________________ 5

United States v. DeBardeleben,

740 F.2d 440, 444-45 (6th Cir. 1984) _____________________________________________________________________________ 15

United States v. Edwards,

415 U.S. 800, 803–04, 807 (1974). ________________________________________________________________________________ 10

United States v. Finley,

477 F.3d 250, 259–60 (5th Cir.2007). ____________________________________________________________________________ 11



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United States v. Flores-Lopez ,

670 F.3d 803, 807 (7th Cir.2012) _________________________________________________________________________________ 13

United States v. Hudson,

405 F.3d 425, 441 (6th Cir.2005). _________________________________________________________________________________ 16

United States v. Hunter, No. 96–4259, 1998 WL 887289 (4th Cir. Oct. 29, 1998) ________________________________________________________ 13

United States v. Hurst,

228 F.3d 751, 756–57 (2000) ______________________________________________________________________________________ 8

United States v. Jackson,

131 F.3d 1105, 1109 (4th Cir.1997). ______________________________________________________________________________ 19

United States v. Johnson,

351 F.3d 254, 263 (6th Cir.2003). _________________________________________________________________________________ 16

United States v. Johnson,

846 F.2d 279, 282 (5th Cir.1988) _________________________________________________________________________________ 12

United States v. May ,

399 F.3d 817, 819 (6th Cir. 2005). _________________________________________________________________________________ 8

United States v. Montgomery ,

377 F.3d 582 (6th Cir. 2004). _______________________________________________________________________________________ 5

United States v. Portillo-Reyes,

529 F.2d 844, 852 (9th Cir.1975). _________________________________________________________________________________ 15

United States v. Robinson,

U.S. 218, 235 (1973). _______________________________________________________________________________________________ 10

United States v. Rodriguez,

995 F.2d 776, 778 (7th Cir.1993). _________________________________________________________________________________ 13

United States v. Salgado,

250 F.3d 438, 456 (6th Cir.2001). _________________________________________________________________________________ 14

United States v. Smith,

549 F.3d 355, 358 (6th Cir. 2008) __________________________________________________________________________________ 5

United States v. Smith,

549 F.3d 355, 359 (6th Cir.2008) _________________________________________________________________________________ 10

United States v. Stewart, 315 F. Appx. 554, 556 (6th Cir. 2009). _____________________________________________________________________________ 8

United States v. Stewart ,

315 Fed. Appx. 554, 557 (6th Cir.2009) ___________________________________________________________________________ 8

United States v. Torres–Ramos,

536 F.3d 542, 555 (6th Cir.2008) __________________________________________________________________________________ 8



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United States v. Townsend ,

305 F.3d 537, 539 (6thCir. 2002) ___________________________________________________________________________________ 5

United States v. Young,

278 Fed.Appx. 242 (4th Cir.2008). ________________________________________________________________________________ 19

United States v. Young,278 Fed.Appx. 242, 245 (4th Cir.2008). __________________________________________________________________________ 12

Washington v. Chrisman,

455 U.S. 1, 5-6 (1982) ______________________________________________________________________________________________ 18



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STATEMENT OF THE ISSUES PRESENTED

I. THIS COURT HOLDS THAT REASONABLE SUSPICION AND PROBABLECAUSE ARE ESSENTIAL FOR A WARRANTLESS ARREST. ROBERTS EXIBITED

ALL OF THE BEHAVIORS ASSOCIATED WITH DRUG TRAFFKICNG AND THEAGENTS DEDUCED FROM THEIR EXPERTISE IN DRUG ACTIVITY, THATWILLIAMS DID BUY THE CRACK COCAINE FROM ROBERTS THAT NIGHT.SHOULD THIS COURT DENY ROBERTS‟ APPEAL BECAUSE THE AGENTS HAD

THE REQUIRED SUSPICION AND CAUSE?

II. THIS COURT HOLDS THAT ONCE THE OFFICER MAKES A LAWFUL ARREST,THE DEFENDANT AND HIS EFFECTS MAY BE SEARCHED AND SEIZEDWITHOUT A WARRANT. AGENT SAUNDERS LAWFULLY ARRESTEDROBERTS‟ AND SEIZED HIS CELL PHONE ALONG WITH THE REST OF HIS

BELONGINGS. THUS, THE OFFICERS USED THE PHONE TO FURTHERINVESTIGATE AND COLLECT EVIDENCE FOR TRIAL. SHOULD THIS COURTAFFIRM THE DISTRICT COURT‟S DENIAL BECAUSE THE OFFICERS

SEARCHED HIS PHONE INCIDENT TO HIS ARREST?

III. THIS COURT HOLDS THAT IT IS NOT COERCION TO THREATENDEFENDANTS, IF THE THREAT HAS A LEGAL BASIS. FURTHERMORE, THISCOURT HOLDS THAT AN OFFICER CAN SEIZE ANY CONTRABAND IN HER“PLAIN VIEW”. SHOULD THIS COURT DENY ROBERTS‟ APPEAL BECAUSE

THE OFFICERS LAWFULLY SPOKE WITH LISA CHANDLER AND AGENTGREG SAW COCAINE ON THE TABLE OVER HER SHOULDER?



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STATEMENT OF THE CASE

This is case concerns a motion to suppress hearing in the United States District Court for

the Northern District of Ohio. The defendant, Michael Roberts was arrested in September of

2007 and received a three count indictment in March of 2008. The first charge was felony

possession of a firearm and ammunition; the second charge was distribution of crack cocaine

within a school zone and the last charge was possession with intent to distribute. Roberts filed a

motion to suppress evidence seized by his arresting officers. His motion argued violations of his

Fourth, Sixth and Fourteenth Amendment rights but the court decided only to review his Fourth

Amendment claim. The lower court denied his motion to suppress, he appealed and the

Government submits the brief in support of denial of Roberts‟ appeal.

STATEMENT OF THE FACTS

I. Background

A. Roberts‟ and Williams‟ suspicious meeting in the Cadillac Escalade

On September 5, 2007, Alcohol, Tobacco, and Firearms (“A.T.F.”) Special Agent

Ronald Gregg (“Gregg”) drove past the DSM convenient store, located on Wooster Road in

Fairview Park, Ohio, where he observed Scott Williams displaying behaviors that are closely

associated with drug activity. (R. at p.10). Specifically, Williams stood outside of the store

watching all of the cars going by and talking on his cell phone. Id. Gregg sat outside of

the store‟s parking lot and observed the area for about five minutes before Michael Roberts

arrived in a 2007 Cadillac truck. Id . at 11. Then, Roberts drove off after Williams jumped into

the truck and lingered slowly down the road for over one hundred yards. Seconds later, Roberts

made a U-turn and stopped abruptly in the middle of the road, where Gregg saw the figures



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moving inside the truck hurriedly and rushed. Id . Suddenly, Williams exited the truck and

hurried across the street to the DSM, while Roberts drove away. Id .

B. The delivery of drugs by Roberts to Williams

As an experienced veteran of the AFT and specialized member of the Cuyahoga County

Drug Task Force, Gregg relied extensively on his twelve years of experience to deduce that a

drug deal occurred between Roberts and Williams. The car method is preferable for dealers

because it offers cover while the parties quickly pass off the drugs after they meet at an agreed

upon place and negotiate the price. To illustrate, the driver usually does not remain static but

drives a several feet in an attempt to elude police surveillance and blend in with other cars.

C. Officer Barron and Gregg found drugs on Williams in the DSM Convenient Store.

After Gregg observed Roberts‟ and Williams‟ suspicious behavior, he called in the details

about Roberts‟ car to the other officers involved in the investigation. (R. at p. 11). When Officer

Barron (“Barron”) arrived, he and Gregg quickly entered the DSM to stop Williams before he

had an opportunity to leave the store. Id. They searched Williams and found approximately 7

grams of crack cocaine on Williams‟ person and advised him of his rights. Id . at 12.

Without prompting or questions from Gregg, Williams stated that he brought the drugs

from M-Rob, the Cadillac‟s driver and also stated that he believes he knows where M-Rob lives

because he usually purchased from him in Fairview Park but has also met Roberts‟ at his father‟s

home in Westlake. Id. Then Williams stated that he believes M-Rob sells in quantities of “8-balls

(3.5 grams) and above”. Id .

II. Roberts arrested and detained

Gregg contacted Drug Enforcement Agency (“DEA”) Special Agent Jonathan Saunders

(“Saunders”) after Williams confessed to buying drugs from Roberts. Saunders followed Roberts



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until he existed the car and parked the Cadillac. Id . at 14. Then Saunders arrested him for selling

drugs and advised him of his Miranda rights. Id. Next, the officers transported Roberts to

Fairview Park police station where the officers searched him incident to his arrest and took an

inventory his personal belongings, which included $1,275.00 in cash and two cell phones. Id . at

12.

Gregg read Roberts his Miranda rights and questioned him about his address. Roberts

claimed to live in Westlake and maintained that he did give anyone a ride, speak with anyone in

Fairview Park that day or even stop at the DSM parking lot, at all. Furthermore, he denied selling

any cocaine to Williams. Id .

A. The lawful search of Roberts‟ cell phone

About 5-10 minutes after Roberts arrived at the station, two officers overheard one of the

confiscated cell phones ringing continuously for at least five minutes. Both of these officers are

members of the drug task force so this drew this drew their attention and then they noticed that

the call came from a number labeled as “my house”. Id. Once the phone continued to ring, the

officers looked in the call log. Next, the officers were able to determine the actual number

labeled as „my house‟, which they then used to determine the address and name listed under the

number. Id . However, they did not access any other information in the phone. Id.

B. The lawful use of Roberts‟ keys to locate “my house”

Based on Gregg‟s experiences and assessment someone with a large amount of cash, a

rental car and two cell phones like Roberts has a “stash house” where he stores a large quantity

of cocaine to avoid a robbery or clash with police. Id . Moreover, Roberts‟ claim about his

address seemed like a lie considering “my house” was listed under a different address and



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Williams claimed “M-Rob lives” in Fairview Park. Id. Moreover he was forthcoming with the

officers about his residence. Id.

Gregg and other drug task force members went to the address attached “my house” to

determine if this was Roberts‟ address and potentially secure any evidence. Id. After they

arrived, Gregg used Roberts‟ keys to find which apartment belonged to the person listed as the

occupant, Lisa Chandler. Id. Once the keys worked to unlock the door, Gregg removed it from

the lock without opening the door, knocked on the door and Lisa Chandler answered. Id.

C. The lawful search at Chandler and Roberts‟ apartment

After Chandler answered the door, she left the door open and stood in the doorway while she began to speak

with Gregg, who identified himself as an ATF Special Agent. Gregg asked her to step into the hallway but he

observed a white powdery on the coffee table as he peered over her shoulder. Id. Again based on his experience,

Greg deduced that the substance was likely cocaine based on his experiences. Id. Gregg proceeded to question

Chandler about Roberts’ and she admitted that she knew him but claimed he occasionally stayed at the apartment.

Id. Furthermore, she admitted that Roberts was there earlier that day and the night before. Id. Gregg accessed the

situation and regarded Roberts’ earlier statement about his address as false. Id. Furthermore, he had reasonable

suspicion to believe that criminal activity was committed because the table appeared to have cocaine on it. Id. The

officers then conducted protective sweep of the apartment for their safety and to secure any evidence. Id.

SUMMARY OF THE ARGUMENT

This Court should affirm the district court‟s decision to deny Roberts‟ motion to

suppress. First, the agents had reasonable suspicion and probable cause to arrest Roberts because

of the drug trafficking behavior he displayed that night coupled with Gregg‟s and Saunders‟

assessment of the entire situation, which they based on years of experience in narcotics law

enforcement. That night Roberts‟ displayed all of the classic signs of a drug trafficker like the

quick encounter in his truck with Williams, who Saunders arrest with drugs that Williams bought



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from Roberts‟. Also the officers knew that Roberts‟ delivery system by hurried exchange in a car

is the preferred way to sell drugs in Cuyahoga County. Roberts‟ also attempted to blend in with

the other cars by driving a short distance so that he would not look out of place to law

enforcement. Both officers deduced with their expertise that all of the behavior above indicated

that Roberts‟ and Williams conducted a drug which prompted Roberts and Williams arrests.

Therefore, this Court should defer to the expertise of the officers and their finding of sufficient

reasonable suspicion to sustain the arrests. This Court should denial Roberts‟ appeal and affirm

the district court‟s decision.

Next, this Court should affirm the lower court‟s denial because the agents arrested

Roberts‟ and conducted a search of his person and belongings incident to arrest, which included

obtaining an important number from his call logs. This Court holds that a search incident to a

lawf ul arrest does not violate the arrestee‟s Fourth Amendment rights and permits officers to

search for additional evidence on the person or in his effects, therefore the agents did a valid

search on Roberts‟ and the cell phone at the station. Thus, this Cour t should affirm the lower

court‟s denial of Roberts‟ motion to suppress.

Lastly, this Court should deny Roberts‟ appeal because the officer had lawful possession

of his keys after his arrest and Gregg appropriately froze Chandler‟s apartment after he observed

some cocaine in plain view on the coffee table. This Court holds that officer may insert lawfully

obtained keys into a lock to determine whether the key fits the lock or not and this is not a

search. Furthermore, this Court also hold that an officer may seize contraband like drugs and

weapons immediately if they are within the officer‟s plain view. Here, Gregg saw some cocaine

on the coffee table in Chandler‟s apartment as they stood in the doorway. Immediately, Gregg



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had the authority to freeze the apartment to preserve that evidence. Therefore, this Court should

deny Roberts‟ appeal and affirm the lower court‟s denial.

LAW AND ARGUMENT

I. Standard of Review

This Court should consider the evidence in the light most likely to support the district

court‟s decision. United States v. Cooper , 431 Fed.Appx.339, 401 (6th Cir. 2011). It should

also review the district court‟s factual findings for clear error and its legal conclusions de

novo. Id . Although the standard of review on the ultimate reasonable suspicion is de novo, the

district court has an institutional advantage.

Furthermore, the inferences drawn by the resident judges and their determination has due

weight because they observed the testimony or witnesses and understood the local

conditions. United States v. Townsend , 305 F.3d 537, 539 (6thCir. 2002) citing Ornelas v. United

States, 517 U.S. 690, 697 (6th Cir.1996). Lastly, this Court should “view the evidence in the

light most favorable to the government when it considers the denial of a suppression

motion.” United States v. Smith, 549 F.3d 355, 358 (6th Cir. 2008) citing United States v.

Montgomery, 377 F.3d 582 (6th Cir. 2004).

II. The agents had reasonable suspicion and probable cause to stop and

search Michael Roberts based on their years of experience in narcotics law

enforcement and the testimony of an informant, Michael Williams.

A. Reasonable Suspicion

This Court evaluates the totality of the circumstances for a reasonable suspicion

determination. Smith, 549 f.3d at 358. For example, this Court describes reasonable suspicion as

a particularized and objective basis for suspecting the person stopped of criminal

activity. Ornelas, 517 U.S. at 693.



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In Townsend , the officers pulled over the defendants and decided to search the car and

arrested the defendants for counterfeit money found in the search. Townsend , 305 F.3d at 538.

The defendants moved to suppress the evidence obtained in that search on the grounds that there

was no reasonable suspicion so the search violated their Fourth Amendment rights. Id . The

officers argued that the suspects behaved unusually and appeared to lie about the purpose of their

journey. Id . at 537- 38. Moreover, the officers testified that they observed three cell phones in the

passenger compartment and expressed concern that the defendants hailed from a “source city for

narcotics” to arrive in a “destination city for narcotics”. Id . at 540- 41.

The lower court determined that the officers lacked reasonable suspicion and although the

officers claimed reasons to suspect criminal activity, these were not sufficiently significant as a

matter of law. Id . at 539. This Court affirmed the lower court‟s decision because the officers did

not have any strong indicators of criminal conduct to accompany their “weak” nexus of minor

factors. Id . at 542. This Court also held that the officer noted the defendants‟ behavior as unusual

but did not offer relevant experiential testimony about the defendant‟s behaviors and their ties to

criminal activity. Id . at 540. The government never raised the significance of the officer‟s

experience in their argument against the district court so it did not consider this in weighing the

credibility of the officer‟s statement.

This Court has also held that it must afford the due weight the officer‟s testimony

because his specialized training and experience may permit her to make inferences from and

deductions about the cumulative information that might elude an untrained person. United

States v. Cooper , 431 Fed. Appx. 399, 401 (6th Cir. 2011) citing Townsend , 305 F.3d 537, 542

(6th Cir. 2002). Furthermore, the Court must consider the officer‟s views of the facts through the



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lens of his expertise and experience. Cooper , 431 Fed. Appx. at 400 citing Ornelas, 517 U.S. at

699.

Unlike the Townsend officers, Gregg offered expert testimony about their suspicious

behavior and how it ties into typical criminal activity. Gregg accessed Roberts‟ and Williams‟

behaviors and decided that they conducted a drug deal in the Cadillac. Similar to

the Cooper officer, Gregg testified that Roberts and Williams conducted a drug deal in the rented

Cadillac based on his extensive knowledge about the preferred drug techniques in Cuyahoga

County. Moreover, Gregg‟s assessment of Roberts and Williams‟ actions triggered the required

reasonable suspicion. In Townsend , this Court affirmed the lower court‟s decision that the

officers did not provide a stable basis for reasonable suspicion against the defendants, therefore

this Court should decide that these officers had the reasonable suspicion to arrest

Roberts‟. In Cooper , this Court gave “due weight” to the officer‟s expertise, thus it should

afford “due weight” to Gregg‟s testimony.

Accordingly, this Court should affirm the lower court‟s finding of the required reasonable

suspicion and their decision to deny Roberts‟ motion to suppress. Equally important is that the

officers had probable cause to arrest Roberts because this is another requirement for a lawful

arrest without a warrant.

B. Probable cause

Officers may arrest a person without a warrant if they have probable cause at the time of

the arrest to believe that the person has committed or is committing a crime. United States v.

Caicedo, 85 F.3d 1184, 1192 (6th Cir.1996). The question is “whether, at the time of the arrest,

the facts and circumstances within the arresting officer's knowledge and of which [he] had

reasonably trustworthy information were sufficient to warrant a prudent person to conclude that



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an individual either had committed or was committing an offense.” United States v. Stewart , 315

Fed. Appx. 554, 557 (6th Cir.2009); United States v. Torres – Ramos, 536 F.3d 542, 555 (6th

Cir.2008) quoting Beck v. Ohio, 379 U.S. 89, 91, 85 (1964).

This Court recognized that when “a law enforcement officer lacks probable cause, but

possesses a reasonable and articulable suspicion that a person has been involved in criminal

activity, he may detain the suspect briefly to investigate the suspicious circumstances.” United

States v. Hurst, 228 F.3d 751, 756 – 57 (2000) quoting United States v. Bentley, 29 F.3d 1073,

1075 (6th Cir.1994). Furthermore, this Court also looks at the totality of the circumstances to

review the sufficiency of a confidential informant‟s testimony to establish probable

cause. United States v. May, 399 F.3d 817, 819 (6th Cir. 2005).

In Heath, the officer watched the area while the defendant ducked in and out of the

apartment complex often to meet with people. Heath, 259 F.3d at 528-29 (6th Cir.2001).

Moreover, the defendant sometimes changed clothes, carried heavy packages in suitcase and

usually was in and out within minutes, which are all behaviors associated with drug

trafficking. Id . When the district court denied the defendant‟s motion to suppress, it found all of

these details relevant in denying defendant‟s motion to suppress. It also held that the officer

knew the defendant had prior drug trafficking convictions and that the officers had a reliable tip

that he was currently involved in trafficking in large quantities of cocaine. Id . at 528-29.

Accordingly, this Court affirmed the district court‟s decision and denied the defendant‟s

appeal. Id . at 534.

For example in Stewart , the officer watched as the defendant exhibited drug trafficking

behavior like leaving his friends to dart into an ally and reemerged moments later to rejoin his

friends. United States v. Stewart, 315 F. Appx. 554, 556 (6th Cir. 2009). After the officer



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searched the alley and found drugs, he arrested the defendant. When the defendant moved to

suppress the evidence, this Court held that a reasonable officer would believe he had probable to

arrest defendant for possession based on the behavior that the officer observed and the

officer‟s experience with drug activity. Stewart , 315 Fed. Appx. at 557-58.

In Hill the officer followed the defendant‟s UHAUL truck for a speeding violation and

uncovered narcotics during the search. The defendants argued that the officer targeted them

because he testified that in his experience drug couriers use U-Hauls and rental cars to conduct

drug related crimes. Hill , 195 F.3d at 267 (6th Cir. 1999). This Court held that the officer had an

articulable reasonable suspicion that the defendants were engaged in criminal activity; therefore,

the stop was constitutional because he was entitled to assess the circumstances in light of his

experience as a police officer and his knowledge of drug courier activity.

In the instant case, Roberts alleges that the officers did not have reasonable suspicion or

probable cause to stop and arrest him. Like the officers in Heath, Stewart and Hill , a reasonable

officer in Gregg‟s position with drug activity expertise would know that Roberts‟ engaged in

illegal drug activity that evening. From the rented truck, which is a typical drug trafficker‟s

technique, to the meeting with Williams, Gregg had probable cause that Roberts‟ committed a

drug crime that night. Furthermore like the officer in Heath, Gregg has a reliable tip from

Williams claimed he brought drugs from Roberts‟ that evening. In the cases above, this Court

affirmed the lower courts and denied all of the defendants‟ appeals mainly to give deference to

the resident judges and the officers‟ expertise. Likewise, this Court should affirm the lower

courts decision here and deny Roberts‟ appeal.

III. Because a lawful arrest was made, the agents conducted a valid search incident

to arrest of Roberts’ person and lawfully obtained his keys when the

officers inventoried his belongings.



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A. Roberts‟ lawful search incident to his valid arrest.

Although warrantless searches violate the Fourth Amendment's guarantee against

unreasonable searches and seizures, there are “a few specifically established and well-delineated

exceptions.” United States v. Smith, 549 F.3d 355, 359 (6th Cir.2008) citing Katz v. United

States, 389 U.S. 347, 357 (1967). A search incident to a lawful arrest is among the

exceptions. Smith, 549 F.3d at 359 citing Chimel v. California, 395 U.S. 752, 762 – 63, 89 (1969).

The Supreme Court held holds that the search of a person incident to a lawful arrest does

not require any justification beyond the establishment of probable cause for arrest. Smith, 549

F.3d at 358 (6th Cir. 2008) citing United States v. Robinson, U.S. 218, 235 (1973). Furthermore,

once a lawful arrest is made, the defendant and any effects in his possession at the place of

detention may be searched and seized without a warrant even though a substantial period of time

has elapsed between arrests and inventorying the property as evidence. United States v.

Edwards, 415 U.S. 800, 803 – 04, 807 (1974).

In Smith, the officer received a reliable tip that the defendant was on the way to a town

with a supply of drugs. Smith, 549 F.3d at 355. When the officers approached the defendant, he

attempted to conceal something in his pants. Id. at 356. Furthermore, the search dog alerted

officers to the presence of drugs when he sniffed the defendant‟s crotch area. Id . Hence, the

defendant was arrested and he was thoroughly searched, which yielded a large quantity of drugs

concealed in the defendant‟s underwear. Id. The defendant moved to suppress the evidence and

argued that the warrant authorizing his search was too bare bones. Id .

The district court denied the defendant‟s motion and this Court affirmed their decision on

appeal. This Court held that once a lawful arrest is made, the suspect and any effects in his

possession at the place of detention may lawfully be searched and seized without a warrant. Id. at



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361 citing Edwards, 415 U.S. at 807. Furthermore, it is the fact of the lawful arrest that validates

the search, not the officers' subjective belief about the occurrence of the arrest or the necessity of

a warrant. Id. at 358 citing Robinson, 414 U.S. at 235.

Like the officers in Smith, the officers here did not need a warrant to search Roberts‟

belongings because they searched him and inventoried his belongings incident to a lawful arrest.

The officers had the required reasonable suspicion and probable cause needed to arrest Roberts,

therefore a search incident to that arrest was completely appropriate. Similarly to this Court‟s

decision in Smith, Roberts‟ appeal should be denied and the lower court‟s decision affirmed.

B. The agents did not violate Roberts‟ Fourth Amendment rights when they searchedhis call logs because Roberts did not have a sufficient expectation of privacy tohis cell phone after his arrest.

Although warrantless cell phone searches are an issue of first impression in the Sixth

Circuit Court of Appeals, there is persuasive case law from the Fourth, Fifth and Seventh Circuit

regarding searches of cell phones. 12

The Fifth Circuit held that officers may retrieve call records and text messages from a

cell phone under a search incident to arrest. United States v. Finley, 477 F.3d 250, 259 – 60 (5th

Cir.2007). In Finley, the police stopped the defendant and searched his van. Id . at

254.Consequently, the police arrested him, seized a cell phone that was located his pocket and

started to question him. Id . During the questioning, an officer handed the cell phone to another

officer, who then searched through the phone's call records and text messages while noting that

1 The First Circuit of the United States Court of Appeals recently addressed this issue and heldthat search incident to arrest exception did not authorize the warrantless search of data on a cell phone or a computer seized from the arrestee. United States v. Wurie, 728 F.3d 1 (1st Cir.2013).

2 In Smith, the Ohio Supreme Court held that the Fourth Amendment prohibits a warrantlesssearch of data within a cell phone unless it is necessary for the safety of law enforcementofficers. State v. Smith, 124 Ohio St. 3d 163, 169 (2009).



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several of the text messages appeared to be related to narcotics use and trafficking. Id. The lower

court found the defendant guilty at trial and he contended, on appeal, that the call records and

text messages recovered should have been suppressed. Id.

This Court affirmed the trial court‟s decision, holding that the search was lawful because

a full search of the defendant after his arrest is an exception to the warrant requirement and a

reasonable search of the Fourth Amendment. Robinson, 414 U.S. at 235. Furthermore, this Court

affirmed that the officers were not limited to searching for weapons but may also look for

evidence of the arrestee's crime on his person in order to preserve it for use at trial, which

includes containers found on his person. Id. at 233 – 34 citing United States v. Johnson, 846 F.2d

279, 282 (5th Cir.1988) see also New York v. Belton, 453 U.S. 454, 460 – 61 (1981) (deciding that

officer can search open or closed containers located within arrestee's reach).

Similarly, the Fourth Circuit held that an arresting officer's need to preserve evidence

tempers privacy rights in the phone. United States v. Young , 278 Fed.Appx. 242, 245 (4th

Cir.2008). In Young , the officers arrested the defendant, accessed the text messages stored on his

phones and wrote down the contents. Young , 278 Fed.Appx. at 244. The defendant moved to

suppress that evidence alleging that the information contained in the text messages on the cell

phones was improperly seized and he argued the officer acted unlawfully when he manipulated

the cell phones to reveal the text messages because they had no authority to examine the phones'

contents without a warrant. Id . The trial court denied his motion to suppress and this Court

affirmed their decision and the officers acted lawfully in order to obtain and preserve

evidence. Id. at 243.



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This Court also cited the Fifth Circuit decision in Finely as part of its reasoning and held

that the officers lawfully searched the phone to preserve evidence. Id . at 244. In Flores-Lopez ,

the Seventh Circuit held that officers are entitled to open a pocket diary to copy the owner's

address; therefore, they should be entitled to turn on a cell phone to learn its number. Officers

may leaf through a pocket address book, so they should be entitled to read the address book in a

cell phone. United States v. Flores-Lopez , 670 F.3d 803, 807 (7th Cir.2012) citing United States

v. Rodriguez, 995 F.2d 776, 778 (7th Cir.1993). The Flores-Lopez officers arrested the

defendant, searched his truck and seized three cell phones from the defendant's person. Id. at

804. At the scene of the defendant‟s arrest, the officer searched each cell phone for its telephone

number, which the government later used to subpoena three months of each cell phone's call

history from the telephone company. Id .

The Flores-Lopez trial court denied his defendant‟s motion to suppress the cell phone

evidence; this Court affirmed that decision because it perceived that the modest benefit of being

able to obtain a cell phone's number immediately is worth the modest cost in invasion of privacy

to defendants. Id . at 808. This court also held that the invasion of obtaining the cell phone‟s

number is limited and slight because the number is public information. Id . at 809. Furthermore,

this Court decided that looking in a cell phone for just the cell phone's phone number does not

exceed what decisions like Robinson and Concepcion allow. Id. at 810 citing Robinson, U.S.

218, 235 (1973) (holding that the search of a conventional container, such as cigarette pack, in

which heroin was found is no more invasive than a frisk); citing United States v.

Concepcion, 942 F.2d 1170, 1172 – 73 (7th Cir.1991) (holding that a minimally invasive search

may be lawful without a warrant, even if the usual exceptions to a warrant are absent).



15

The Fourth Circuit Court of Appeals held that officers possess the authority to retrieve

phone numbers from a pager seized incident to an arrest. United States v. Hunter, No. 96 – 4259,

1998 WL 887289 (4th Cir. Oct. 29, 1998). In Hunter , the court convicted the defendant of

conspiracy charges and he moved to suppress the evidence from the cell phones as improperly

seized. After the district court denied his defendant‟s motion, he appealed and argued that the

district court erred in failing to suppress the results of the execution of a search warrant and in

failing to suppress evidence of telephone numbers taken from his pager without a warrant. Id .

The court held that, until his arrest, the defendant did have a reasonable expectation of privacy in

the contents of the pager's memory, which cancelled upon his arrest. United States v.

Chadwick, 433 U.S. 1, 10-11 (1977).

In the instant case, the officers search of Roberts‟ phone after a lawful arrest with

probable cause. Like the Finley officers, the officers here should not be limited to searching for

weapons because the cell phone contained evidence that the officers used to further the

investigation into Roberts‟ true address. Moreover, like the officer in Young , these officers had to

manipulate Roberts‟ phone to see the call logs because they needed to get any evidence the

phone could provide. This situation is also similar to Flores-Lopez because the officers only

obtained a phone number, which the Seventh Circuit regards as minimally invasive and public

knowledge like lawfully leafing through an address book. Flores-Lopez , 670 F.3d at 807 (7th

Cir.2012). Likewise, like the defendant in Hunter , Roberts‟ did have a privacy interest in the

phone, which extinguished upon his arrest. Therefore, this Court should affirm the lower courts

holding and deny Roberts‟ appeal.



16

C. The officers used lawfully possessed keys to determine which door wasChandlers, therefore there was no violation of her Fourth Amendment rights.

This Court holds that “the mere insertion of a key into a lock, by an officer who lawfully

possesses the key and is in a location where he has a right to be, to determine whether the key

operates the lock is not a search.” United States v. Salgado, 250 F.3d 438, 456 (6th Cir.2001).

For example in Salgado, the officer discovered a key in a car parked outside of an apartment

complex. Id . at 455. The officer believed that it might be the key to a suspect's apartment so he

tried the lock to determine whether the key would unlock the door. Id. The key worked, but the

officer neither opened the door nor entered the apartment. Id. The defendant moved to have the

evidence suppressed because he had an expectation of privacy in the residence.

The trial court denied the defendant‟s motion to suppress and found that insertion of the

key to see whether it would fit the lock was not the beginning of the search. Id. at 446.

Consequently, the defendant appealed and this Court affirmed the trial court‟s decision to deny

the motion to suppress holding that the lock to the defendant‟s apartment door was as accessible

to anyone in the hallway like the lock on his car door to someone in the parking lot. Id. at

448. Furthermore, this Court held that the officers merely gained the information that the keys

work in the apartment door just the same as that gained by inserting a key into a car door. Id . In

addition, this Court held that the insertion of keys into the lock of an automobile was “a minimal

intrusion, justified by a „founded suspicion‟ and by the legitimate crime investigation” thus it

does not violate the Fourth Amendment. United States v. DeBardeleben, 740 F.2d 440, 444-45

(6th Cir. 1984) quoting United States v. Portillo-Reyes, 529 F.2d 844, 852 (9th Cir.1975).

In DeBardeleben, the officer took one of the defendant‟s keys and inser ted it into the lock

on the passenger side door of a car. Because the key operated the door lock, the officer relocked

the door, without ever opening it. The officer then fit the other key into the trunk, which caused

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the trunk lid to open. The officer saw what appeared to be a blue bag but he closed the trunk

without searching through any of its content. Id. at 443. When the defendant appealed his

conviction, this Court held that the agent acted on a reasonable belief that the car belonged to

defendant; therefore he did not search the actual car but merely identified it as belonging to the

defendant. Id . at 445.

In apposite to the above cases, the officer in Dykstra did not merely use the key to ensure

that it would open the lock on the storage unit but also opened the storage unit and looked inside

to examine the contents. Garcia v. Dykstra, 260 Fed.Appx. 887, 898 (6th Cir.2008). This Court

held that the officer did conduct an unreasonable search without a warrant when he visually

opened the door to inspect the contents, thus he violated the defendants Fourth Amendment

rights. Id . at 894 citing United States v. Hudson, 405 F.3d 425, 441 (6th Cir.2005).

In the instant case, the officers had lawful possession of the key and only used them to

ascertain Chandler‟s apartment number. Similar to the officers in Salgado and DeBardeleben,

here the officers inserted the key into the lock to determine which apartment matched the keys,

so they could further their investigation. Conversely, these officers did not enter the apartment

without consent or inspect the contents of the apartment like the Dykstra defendant did.

V. The agents did not coerce consent to search the residence from Chandler

and preemptively performed a search under the “plain view doctrine”.

A. Agents did not coerce Chandler for consent to search apartment.

Officers may threaten to prosecute a defendant‟s family members, if there is sufficient

and legal basis for the claims.United States v. Johnson, 351 F.3d 254, 262 (6th Cir. 2003).

Additionally, threats to arrest members of a suspect's family may cause a confession to be

involuntary.” Finch, 998 F.2d at 356. However, whether a threat to prosecute a third party is









19

analogous to the facts from Johnson because the threat has a legal basis. Likewise, this Court

should rule the officers acted lawfully because they may use threats if they have a sufficient legal

basis to do. That said, the Court should deny Roberts‟ appeal and affirm the lower court‟s denial

of his motion to suppress, as well.

B. The plain view doctrine allowed the officers to search Chandler‟s apartment

The plain view doctrine exception to the Fourth Amendment warrant requirement allows

an officer to seize weapons, drugs and other contraband as evidence when discovered in a place

where the officer has a right to be. Washington v. Chrisman, 455 U.S. 1, 5-6 (1982)

citing Coolidge v. New Hampshire, 403 U.S. 443, 472 (1971); see also Harris v. United States,

390 U.S. 234 (1968).

For example in Chrisman, the officer caught a student underage drinking and arrested

him. Since the defendant did not have any identification, the officer followed him back to his

dorm room and stood in the doorway to maintain control of the situation. \ Chrisman, 455 U.S. 1

at 2 (1982). The officer immediately noticed seeds and a pipe associated with marijuana use and

advised the defendant and his roommate of their rights. Id . at 2. They both consented to a search,

which uncovered more drugs. The defendant moved to suppress the evidence and argued that the

officer lacked authority to seize the contraband, even though it was in plain view because he was

in the doorway outside of the when he made his observations. Id. at 8.

The defendant‟s motion was denied at the trial court and appellate levels then granted by

the Supreme Court of Washington that held there was no indication that the officer was in

danger; thus the officer had no right to enter the room or seize the contraband. Id . at 2. The

Supreme Court of the United States held that the officer had the right to act when he saw the

seeds and pipe Id . at 3. The Court also held that “this is a classic instance of incriminating



20

evidence found in plain view when a police officer, for unrelated but entirely legitimate reasons,

obtains lawful access to an individual's area of privacy. The Fourth Amendment does not

prohibit seizure of evidence of criminal conduct found in these circumstances.” Id . at 9.

In Young, the officer entered the premises and observed pills on the table. United States v.

Young , 278 Fed.Appx. 242 (4th Cir.2008). The officer picked up another item to investigate

further and a package containing more drugs fell out of the item. Id. at 243. Young moved to

suppress the evidence as improperly seized because it was not in plain view. Id . This Court ruled

that the seizure was proper because the plain-view doctrine authorizes warrantless seizures of

incriminating evidence when the object's incriminating character is immediately apparent.” Id .

citing United States v. Jackson, 131 F.3d 1105, 1109 (4th Cir.1997).

In Bishop, the officer was in the defendant‟s driveway bur then lost sight of him. The

officer peered into the open window of a car in the driveway. United States v. Bishop, 338 F.3d

623, 628-29 (6th Cir.2003). The officer saw the keys in the ignition and the barrel of a handgun

jutting from under the seat so he reached in and retrieved the loaded handgun. Id. Next, the

officer called in to dispatch to determine if the defendant had any warrants and to have the car

impounded. Id. The defendant moved to suppress the evidence in the car and the lower court

granted his motion holding that the plain view exception was not applicable because the officer

lacked basis for assuming the gun was contraband. Id. This Court held that an officer who

discovers a weapon or contraband in plain view may seize it if he believes that it poses an

immediate threat to officer or public safety. Id .

In the instant case, Greg saw the cocaine on the table, which is “clearly incriminating

given his experience with drug activity. Like the officer in Chrisman, Gregg had the right to act

immediately to preserve public safety once he observed the cocaine so as Gregg discovered the



21

contraband in plain view like the officer in Bishop and lawfully seized the area to wait for a

warrant. Therefore, this Court should deny Roberts‟ appeal and affirm the lower court‟s

decision.

CONCLUSION

For the reasons stated below, this Court should affirm the lower court‟s denial ofRoberts‟ motion to suppress.

1. The agents had the required reasonable suspicion and probable cause to arrest Roberts.

2. The agents performed a valid search of Roberts‟ person and cell phone incident to hislawful arrest.

3. The agents lawfully possessed Roberts‟ keys and Gregg froze Chandler‟s apartment

because he saw cocaine on the table in plain view.

CERTIFICATE OF SERVICE

I hereby certify that on November13, 2013, copies of Appelle‟s brief in support of

denying Michael Roberts appeal were sent by regular U.S. mail, postage prepaid, to Michael

Roberts, 111 Main Street, Cleveland, Ohio 44444.

_________________________Mutajah S. HusseinAssistant Federal Prosecutor123 Federal Court HouseCleveland, Ohio 44000(216) 000-0000Fax (216) [email protected]

mailto:[email protected]





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ABW Fall 2013 Final Assignment

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