United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
G. DOUMAR, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court upon William White's
("Defendant") Motion to Suppress Evidence Due to
Lack of Probable Cause for Arrest and to Produce (styled as
"Defendant's Motion to Suppress All Evidence
Obtained in Connection with the Arrest of the Defendant On or
About August 24, 2016"), ECF No. 30, and Motion to
Suppress Defendant's Statements, ECF No. 31. For the
reasons set forth herein and explained at the November 16,
2016 hearing on these Motions, Defendant's Motion to
Suppress Evidence Due to Lack of Probable Cause for Arrest
and to Produce is DENIED as to the Motion to Suppress
Evidence and GRANTED as to the Motion to Produce. ECF No. 30.
Defendant's Motion to Suppress Defendant's Statements
is DENIED. ECF No. 31.
September 12, 2016, William White ("Defendant") was
named in a three-count Superseding Indictment. Defendant was
charged with Conspiracy to Possess with Intent to Distribute
Cocaine, in violation of 21 U.S.C. § 846 (Count One),
and Interstate Transportation in Aid of Racketeering
Enterprises, in violation of 18 U.S.C. § 1952(a)(3)
(Count Three). ECF No.18. Defendant's co-defendant,
Roscoe Lee Simpson, was also charged with Count One, as well
as Possession with Intent to Distribute Cocaine, in violation
of 18 U.S.C. § 841 (Count Two). Id.
submitted four Motions on October 13, 2016: (1) Motion for
Bill of Particulars, ECF No. 29; (2) Motion to Suppress
Evidence Due to Lack of Probable Cause for Arrest and to
Produce (styled as "Motion to Suppress All Evidence
Obtained in Connection with the Arrest of the Defendant On or
About August 24, 2016"), ECF No. 30; (3) Motion to
Suppress Defendant's Statements, ECF No. 31; and (4)
Motion to Sever Defendant, ECF No. 32. The Government filed a
response on October 28, 2016. ECF No. 35. The Court denied
the Motion for Bill of Particulars and Motion to Sever
Defendant on November 7, 2016. ECF No. 37. On November 16,
2016, the Court held a hearing regarding the two Motions to
Suppress. ECF No. 39.
following summary is provided by way of background. The basic
details of the investigation are not in dispute. Most of the
information summarized here has been drawn from the evidence
presented at the November 16, 2016 suppression hearing,
including the testimony of Department of Homeland Security
Special Agent John Slayton, Virginia State Police Agent Peter
Gallaccio, and the summary of the telephone conversations
between the co-defendants provided by the Defendant. See
Hr'g Tr., ECF No. 40; Ex. 2. Additional details
undisputed by the parties in their briefing are included to
fill out the narrative.
18, 2016, a team comprised of agents from the Department of
Homeland Security and Virginia State Police conducting an
investigation into cocaine distributors observed an
individual named David Rush entering a storage unit. Hr'g
Tr., ECF No. 40, at 7. Mr. Rush entered the storage unit
empty-handed, then returned to his vehicle shortly thereafter
with a bag in his hand. After agents approached Mr. Rush, he
agreed to cooperate and told them that the bag contained
drugs, which the investigative team later determined to be
forty-eight ounces of cocaine. Id. at 8-9. Mr. Rush
also stated he had a firearm and a large sum of currency at
his residence, which the agents then collected from his
residence. He identified his source of supply as Roscoe
Simpson, the co-defendant in this matter, and stated that he
expected to hear from Mr. Simpson regarding $120, 000 he owed
Mr. Simpson for a previous shipment of cocaine. He explained
he also expected to meet Mr. Simpson to receive another two
to three kilograms of cocaine. Id. at 9.
investigative team set up a meeting between Mr. Rush and Mr.
Simpson. For the meeting, agents supplied Mr. Rush with $66,
000 repackaged to appear as if it were $120, 000. While the
team was surveilling the meeting, agents observed Mr. Simpson
leaving at one point to enter a storage facility to deposit
the repackaged $66, 000 and obtain three kilograms of cocaine
to give to Mr. Rush. Id. at 10. The team then
approached Mr. Simpson, who agreed to cooperate. Agents also
obtained a search warrant for the storage unit and recovered
an additional half kilogram of cocaine, as well as the
repackaged $66, 000. Id. at 10-11.
made by Mr. Simpson after he had received a Miranda
warning indicate that since January 2016, Mr. Simpson and his
associates had been responsible for the importation and
distribution of approximately fifty kilograms of cocaine into
the area encompassing both the Newport News and Norfolk
Divisions of the Eastern District of Virginia. Mr. Simpson
was detained on a federal arrest warrant and transported to
the Western Tidewater Regional Jail ("WTRJ"). ECF
No. 35, at 2.
WTRJ, all individuals at the facility are notified prior to
any calls that their conversations are subject to monitoring
and recording. As the result of Mr. Simpson's detention
in the WTRJ, the investigative team was able to listen to Mr.
Simpson's recorded telephone conversations. Id.
at 11. On July 24, 2016, Mr. Simpson called, via a WTRJ
telephone, an individual later identified as the Defendant.
During the call, the investigative team learned the Defendant
would be visiting Mr. Simpson at the WTRJ on July 27, 2016,
Mr. Simpson's assigned visitation day. Mr. Simpson
informed Defendant he had been "set up all the way and
the guy put me in a position that I was with
everything." Defendant replied, "OK, " then
told Mr. Simpson he wanted to talk to Mr. Simpson by himself
(that is, during jail visitation) without Mr. Simpson's
mother, who was also planning on attending the visitation,
present. Ex. 2, at 1.
Simpson also told Defendant that while he was in the area
visiting, he would need Defendant to go to the residence of
an individual named "Light Skin, " later identified
as Walter Peyton (also called "Cuzzo"). The
Defendant replied, "I don't remember how to get
there. I need that number." The two also discussed
Defendant making contact with "Manny" and Defendant
being "able to find a little bit on the book" by
finding an individual named Gloria Rainey. Id. On
July 27, 2016, the investigative team conducted surveillance
at the jail. The team observed the Defendant meet with Mr.
Simpson's mother in the parking lot and then enter the
jail by himself. The team then, based on routine WTRJ
procedures recording conversations between individuals at the
facility and their visitors, listened to the conversation
between Mr. Simpson and Defendant. Hr'g Tr., ECF No. 40,
at 13-14. Mr. Simpson informed Defendant that he was caught
with three and a half bricks; Defendant did not ask for
clarification. Id. at 15.
Simpson also asked Defendant to visit Mr. Peyton. Mr. Simpson
gave the Defendant instructions on how to get to Mr.
Peyton's residence and "Manny's" residence.
During the conversation, Defendant was having difficulty
listening to Mr. Simpson and writing down directions;
Defendant told Mr. Simpson, "Hold on[, ] we got one
shot." Mr. Simpson also provided directions to the
residences or places of employment for other individuals,
after which he stated, "My cousin (Peyton) knows about
the other ones." Id. at 14. See also
Ex. 2, at 1.
investigative team then observed Defendant leaving WTRJ to
drive to Mr. Peyton's residence. While Defendant was
driving there, Mr. Simpson called Defendant again; Defendant
told Mr. Simpson that someone was following him. Mr. Simpson
suggested that Defendant could visit Mr. Peyton at another
time, but Defendant stated, "I think I'll still go
to say hello to [Mr. Peyton]." Ex. 2, at 2.
this visit, Mr. Simpson again called Defendant, who then
handed his telephone to Mr. Peyton. Mr. Simpson and Mr.
Peyton proceeded to discuss Mr. Simpson finding an individual
(later identified as Richard Taylor); Mr. Simpson being set
up; and whether Mr. Simpson wanted Mr. Peyton "to
exchange the exchange[d] shit, " to which Mr. Simpson
replied that Mr. Peyton should just give Defendant "a
number and he will give it to me." Id. See
also Hr'gTr., ECFNo.40, at65.
continuing surveillance of the residence, the team executed a
search warrant of Mr. Peyton's residence, in which they
found one kilogram of cocaine. Hr'g Tr., ECF No. 40, at
17. According to Agent Slayton's testimony, the team also
spoke with Mr. Peyton, who agreed to cooperate and told the
team that the reason for Defendant's visit to his
residence was to relay a message from Mr. Simpson that Mr.
Peyton should collect money from "Rich Boy" and
"Digger." Id. at 18. (Defendant disputes
that Mr. Simpson and Defendant ever discussed "Rich
Boy" and "Digger" during Defendant's visit
to WTRJ. Id. at 67.) Mr. Peyton collected the money,
approximately $37, 000, which the team then returned in a bag
to Mr. Peyton for the purposes of arranging a meeting to have
Mr. Peyton hand over the money to the Defendant. Id.
August 24, 2016, Agent Slayton and approximately eleven other
members of the investigative team waited in the parking lot
adjacent the Buffalo Wild Wings in which the Defendant and
Mr. Peyton were to meet and observed Defendant arriving
around 4:12 PM. Id. at 19-21. They then observed Mr.
Peyton walk over to Defendant's vehicle, hand him the bag
with the $37, 000 that the team had provided, and Defendant
place the bag in the vehicle. The two then proceeded into
Buffalo Wild Wings. Mr. Peyton later reemerged by himself
around 5:35 PM. He opened the trunk, though his back was
turned such that agents were unable to observe his actions.
Members of the team comprised of Virginia State Police in
uniform then approached Defendant and handcuffed him. A
member of the investigative team then retrieved the money
from the car. Id. at 22-23.
Agent Slayton, who was in plain clothes and carried a firearm
and badge, then approached Defendant. Special Agent Slayton
placed Defendant in the front passenger seat of Special Agent
Slayton's sports utility vehicle. Special Agent Slayton
sat in the driver's seat, while another special agent
from the Department of Homeland Security was in the back seat
behind the Defendant. Id. at 23-24. Special Agent
Slayton and the other special agent then identified
themselves; Defendant also identified himself as a Senior
Executive Service member of the Department of Homeland
Security. Id. at 29. Special Agent Slayton then
advised Defendant of his Miranda rights and that he
was not under arrest and free to leave at any time.
Id. at 24. Defendant said he was willing to talk to
agents and assist in any way possible. Id. The other
special agent then exited the vehicle and removed the
handcuffs on Defendant. Id.
Special Agent Slayton's questioning, Defendant advised
that he was collecting money for Mr. Simpson for
attorney's fees and bail. Id. at 25. Special
Agent Slayton then advised Defendant that he would be moving
the vehicle in which they sat from the area in the parking
lot adjacent to the Buffalo Wild Wings to the area adjacent
to Gianna's Pizzeria, across the parking lot, in order to
avoid the number of individuals gathering in the area for
dinnertime. Special Agent Slayton inquired as to whether
Defendant would assent to having one of the agents drive
Defendant's vehicle to that same area across the parking
lot, to which Defendant agreed. Id.
the remainder of the questioning, Special Agent Slayton asked
Defendant about the purpose of his visit to Mr. Simpson, to
which Defendant replied that Mr. Simpson had asked him to go
visit Mr. Simpson's cousin and collect money that was
owed to him. Id., at 26. Defendant clarified he knew that Mr.
Simpson did not have a job. Id. at 27. When Special
Agent Slayton inquired about the conversation in which Mr.
Simpson stated he had been caught with three and a half
bricks, Defendant agreed that the conversation took place.
Id. Special Agent Slayton also advised Defendant
that "he was in a bad situation, " to which
Defendant responded by stating that he felt Mr. Simpson had
placed him in a "bad situation" by asking him to
collect the money from Mr. Peyton. Id.
the length of the interview, Defendant remained in the same
seat. Special Agent Slayton also testified that Defendant did
not appear intoxicated, that the conversation did not become
heated at any point (though Special Agent Slayton did say,
"Come on, man. We're both grown fucking adults here,
" Id. at 55), and that Defendant maintained a
calm demeanor throughout. Id. at 28. After
approximately one hour and fifteen minutes of questioning,
Defendant was released, put his belongings in his vehicle,
and left in his vehicle. Id. at 28, 31.
DEFENDANT'S MOTION TO SUPPRESS EVIDENCE DUE TO LACK OF
PROBABLE CAUSE FOR ARREST AND TO PRODUCE
asks the Court to suppress any evidence stemming from the
August 24, 2016 arrest of Defendant due to lack of probable
cause for the arrest. ECF No. 3. See also Hr'g
Tr., ECFNo.40, at43.
hearing, the Parties disputed whether Defendant was arrested
on August 24, 2016, and, if Defendant was arrested, whether
there was probable cause to arrest Defendant. Thus, as a
threshold matter, this Court must first determine whether
Defendant was under arrest during the August 24, 2016
encounter with the investigative team. If he was, this Court
must then determine whether there was probable cause
sufficient to support his arrest.