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United States v. Bailey

United States District Court, E.D. Virginia, Norfolk Division

October 30, 2014

UNITED STATES OF AMERICA,
v.
RICKIE BAILEY, JR., Defendant.

OPINION AND ORDER

ROBERT G. DOUMAR, Senior District Judge.

This matter comes before the Court upon the Motion to Suppress filed by Rickie Bailey, Jr. ("Defendant") on September 24, 2014. (ECF No. 18). On October 8, 2014, the Government filed a response. (ECF No. 19). On October 20, 2014, the parties appeared before the Court for a hearing on the Motion to Suppress. The Motion has been fully briefed and is ripe for review by this Court. For the reasons set forth below, the Court hereby DENIES the Defendant's motion to suppress.

I. FACTUAL BACKGROUND

The parties dispute the interpretation of the facts. The only evidence presented at the hearing, however, was the testimony of Officer Warren Prescott of the Chesapeake Police Department ("Prescott" or "Officer Prescott") and video footage from cameras worn by Officer Prescott and Officer Joel Ayala ("Ayala" or "Officer Ayala") during the entry and subsequent search of Defendant's property. Aside from the first thirty seconds of the video, which did not include audio, the video captured almost all of the officers' actions. The Court not only observed the first two-and-a-half minutes of the video during the hearing, but also reviewed the video in chambers after the hearing, repeatedly stopping the tape to analyze the footage in order to ensure an accurate interpretation of events. Accordingly, the Court FINDS the following events occurred in the following order.

Sometime around 6:30 a.m. on April 24, 2014, Officer Prescott was conducting a foot patrol of the Sun Suites Hotel complex in Chesapeake, Virginia. Sun suites is a multi-level motel with rooms that open to out door walkways. Upon arriving on the second floor of the hotel, Prescott detected the odor of burnt marijuana. Before investigating the source of the smell, Officer Prescott contacted Officer Ayala, who upon his arrival at the scene confirmed the odor of burnt marijuana to Prescott. Both determined that the strong odor was emanating from room 227. Unbeknownst to the officers at the time, Defendant was residing in room 227. After Officer Prescott knocked on the door to room 227 for approximately one minute, Defendant opened the door.

Once Defendant opened the door, Officer Prescott instantly noticed that the odor of marijuana became stronger and more apparent. Almost immediately, Prescott identified himself and Officer Ayala and informed Defendant that an odor of marijuana was coming from his room. Defendant then stepped into the walkway and continued to converse with the officers. As he did so, Defendant started to pull the door behind him. In response, Officer Prescott placed his foot against the doorjamb on the inside of the door to prevent it from fully closing.[1] Prescott then asked Defendant if the officers could enter the room to speak with him in order to avoid drawing attention to themselves as police officers or embarrassing Defendant. Defendant, according to Officer Prescott, gave his approval.

Once inside the room, Officer Prescott immediately performed a security sweep. After performing the sweep, Officer Prescott asked Defendant for his identification and leanred from Defendant had registered the hotel room under his name. Officer Prescott then requested consent from Defendant to search the hotel room. Prescott informed Defendant that if he did not give consent, the officers would apply for a search warrant, which could take up to four hours. In the process of doing so, Defendant would be prohibited from leaving, having another person enter the room, and making any phone calls. Defendant then gave the officers permission to search.

Officer Prescott proceeded to search the room. His search revealed marijuana cigarettes and paraphernalia, [2] as well as eighteen debit cards, and a stack of Green dot prepayable cards on the dining room table. None of the names on these cards matched Defendant's name. At this point, Prescott clearly and unmistakably gave Defendant Miranda warnings.[3] Subsequently, Officer Prescott continued his search and found a box under Defendant's bed. Inside the box, Prescott found a credit card writer device used to code credit cards, blank credit cards, and other credit cards that did not belong to Defendant.

At this point, Officer Prescott left the scene to call his supervisor and request that a fraud detective be called to the scene. When he returned, Prescott continued his search, finding a laptop as well as a notebook containing hundreds of names with corresponding social security numbers and dates of birth. Prescott also found more credit cards that did not belong to Defendant and various receipts. While Prescott was still sorting through the items retrieved in the search and asking Defendant questions, Defendant commented that he wanted to speak to a "detective or a lawyer."[4]

In the interim, the officers asked Defendant about a set of car keys, one of which had a Chevrolet emblem, that was found during the room search. Defendant responded that he had been dropped off at the hotel. Subsequently, Officer Ayala went to his police vehicle and began checking the license plates of all nearby Chevrolets. Ayala found one car, a Chevrolet with South Carolina plates, was registered in Defendant's name. Officer Prescott then asked for Defendant's consent search his vehicle, and Defendant gave his approval. During the search of Defendant's vehicle, Prescott found a check from H&R Block Tax Service in the amount of $8, 481, made payable to Joseph Alvarez, as well as additional notebook pages containing names, with corresponding social security numbers and dates of birth.

Following the vehicle search, Detective Mike Fischetti of the Chesapeake Police Department arrived on the scene. Upon his arrival, he had a short conversation with Defendant about the names, identity information, and credit cards that had been found in the room and the car. Defendant admitted to being in possession of these items and using his own Wal-Mart debit card. Defendant, however, refused to admit that he used any other credit or debit cards or, for that matter, to any wrongdoing. It was around this time that Officer Prescott asked for Defendant's consent to search two operable cell phones that the officers had found in the room. In response to Prescott's request for consent, Defendant gave Prescott permission to search the cell phones. A search of the cell phones revealed more incriminating evidence.

As the search was completed, federal investigators arrived. After investigating the scene, the agents transported Defendant to the Chesapeake Police Department. Once at the department, Defendant was provided a written copy of Miranda Warnings, which Defendant signed. Subsequently, Defendant made incriminating statements regarding his involvement in obtaining credit card information and attempting to re-encode credit cards.[5]

Defendant was charged on August 21, 2014, in a three count Criminal Indictment: Count One for the production, use, or trafficking of a counterfeit access device in violation of 18 U.S.C. § 1029(a)(1); Count Two for the possession of fifteen (15) or more counterfeit or unauthorized access devices in violation of 18 U.S.C. § 1029(c)(3); and, Count Three for possession of device-making equipment in violation of 18U.S.C. § 1029(a)(4). (ECF No. 14). On September 24, 2014, Defendant filed the instant Motion to Suppress.

II. MOTION TO SUPPRESS

The instant Motion seeks to suppress (1) "all evidence sized by agents of the Chesapeake Police Department from his hotel room, cellular phone, and vehicle on April 24, 2014, as well as any statements made at that time" and (2) "any statements made on April 24, 2014 while the defendant was being questioned at the Chesapeake Police Department." (Mot. to Suppress, ECF No. 18, at 1). Specifically, Defendant seeks to suppress these evidence and statements on six grounds: (1) the arresting officer did not have a warrant or the necessary exigent circumstances to enter the hotel room; (2) the arresting officer did not have a warrant or the necessary exigent circumstances to search the hotel room; (3) the arresting officer did not have a warrant or the necessary exigent circumstances to search Defendant's vehicle; (4) the arresting officer did not have the warrant necessary to search the cell phone; (5) all statements given were the fruit of these illegal searches; and, (6) no government agents gave the necessary Miranda warnings until Defendant was transported back to the police station. The Government opposes the Motion, arguing that (1) Defendant gave consent for all relevant ...


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