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United States v. Simpson

United States District Court, E.D. Virginia, Newport News Division

November 23, 2016

UNITED STATES OF AMERICA
v.
ROSCOE LEE SIMPSON, JR., and WILLIAM WHITE, Defendants.

          OPINION AND ORDER

          ROBERT G. DOUMAR, SENIOR UNITED STATES DISTRICT JUDGE.

         This 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.

         I. PROCEDURAL BACKGROUND

         On 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.

         Defendant 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.

         II. FACTUAL BACKGROUND

         The 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.

         On July 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.

         The 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.

         Statements 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.

         At the 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.

         Mr. 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.

         Mr. 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.

         The 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.

         During 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.

         After 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. at 18-19.

         On 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.

         Special 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.

         Upon 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.

         During 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.

         During 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.

         III. DEFENDANT'S MOTION TO SUPPRESS EVIDENCE DUE TO LACK OF PROBABLE CAUSE FOR ARREST AND TO PRODUCE

         Defendant 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.

         At the 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.

         A. Arrest

         1.Standard ...


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