United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Okanlawan Norbert's Motion to
Suppress. The Court has reviewed the testimony and evidence
presented at the suppression hearing and received arguments
of counsel. For the reasons stated below, Norbert's
Motion is granted.
morning of November 29, 2017, Investigator Felix McClinton, a
law enforcement officer with the Hinds County Sheriff's
Office, received a telephone complaint from an anonymous
woman who said she was in management at the Millsaps
Apartments, an apartment complex located at 333 Millsaps
Avenue in Jackson, Mississippi. The caller stated that
illicit narcotics were being sold in the parking lot of the
Millsaps Apartments. She described the suspected narcotics
dealer as “a black male, dark skinned, slender build
with gold teeth known as ‘N.O.'” and said he
drove a black Infiniti with a tag reading
“HVK225.” Docket No. 27-1 at 6. The complainant
told him that the alleged drug dealing was a “personal
safety issue” and that “the residents of the
apartment complex were in fear of coming and going.”
Excerpt from Suppression Hearing Transcript 9, Oct. 7, 2019.
The complainant said she called the Hinds County Sheriff
Office after calling other agencies had been unfruitful.
McClinton found the complainant to be credible based on his
training and experience. Around 6:00 PM, he met with deputies
of the Hinds County Sheriff's Office “Street Crimes
Task Force.” The morning telephone complaint was the
only item on the agenda.
8:00 PM, Investigator McClinton and six to seven deputies
traveled to the Millsaps Apartments to investigate the
complaint. The deputies were all in uniform or other clothing
that marked them as law enforcement.
arrival, Investigator McClinton saw “three to four
individuals standing in the parking lot of the apartment
complex standing next to some vehicles.” Hr'g Tr.
at 9. He also saw a vehicle and an individual with
characteristics matching the description provided by the
telephone complainant. Investigator McClinton “did not
see any drug transactions taking place.” Hr'g Tr.
Kevin Lavine was also on the scene. He saw a black Infiniti
and several black men standing in the parking lot speaking to
a man sitting in a pickup truck. Investigator Lavine was
unable to say if any of the men matched the description of
the person described in the complaint. Defendant Norbert
Okanlawan was originally not with the group of men, but came
toward the group, “walking out of a courtyard
area.” Hr'g Tr. at 36.
the deputies got out of their cars, they approached the group
and introduced themselves. They stated that they were there
in reference to a complaint of drug activity at the apartment
complex. The deputies asked if any of the men lived at the
property. Testimony at the evidentiary hearing conflicts
here. Investigator McClinton testified that no one responded
that they lived there, see Hr'g Tr. at 10, while
Investigator Lavine said one of the men claimed his father
was employed at the Millsaps Apartments as a maintenance
worker and that he was staying in a vacant apartment,
Hr'g Tr. at 35.
to the deputies, all of the men were patted down for officer
safety. The men identified themselves and were checked for
warrants by the Hinds County dispatch. During the pat down,
one person - not Defendant Norbert - was found to have a
plastic bag that had smaller plastic bags of marijuana. The
person was arrested and field released to address the charges
with the Hinds County Justice Court.
the pat down, the deputies kept some of the men in one area -
purportedly for officer safety. Others were questioned,
including Norbert. Both Investigator McClinton and
Investigator Lavine state they began to speak with Norbert,
with different recollection of the events.
McClinton says he spoke with Norbert before approaching the
black Infiniti. The tone on both sides was calm. Norbert
identified the black Infiniti as his vehicle. Investigator
McClinton testified that not long after Norbert identified
the car, Investigator McClinton walked over to it. The car
was 15- to 20-feet away from the group. Investigator
McClinton further testified that:
Initially when I made contact with the vehicle, I ran the
tag. I went around to get the tag information on it to check
to see if it was stolen. While I'm in the process of
doing that as I walk back to the driver's door, I look
through the glass, and I can see a pistol laying on the floor
in plain view.
Hr'g Tr. at 14. Investigator McClinton says he walked
back over to Norbert, spoke with him briefly, then walked to
the Infiniti with Norbert. Investigator McClinton then opened
the door to the car, which was unlocked, reached in, and
retrieved the gun. Investigator McClinton states that this
was done for officer safety. Investigator McClinton testified
that he did not remember whether Norbert gave him consent to
enter the car.
McClinton testified that he complimented Norbert on the gun.
Eventually, during their verbal back and forth, Norbert
stated that it was his gun. Norbert also said that he had a
felony burglary conviction. Investigator McClinton verified
that Norbert had a felony conviction via the Hinds County
dispatch. Norbert was then placed under arrest and
Lavine's testimony differs in certain ways. He testified
that Norbert was walking up to the group as Investigator
Lavine asked which among them was “N.O.” One of
the men sitting on the ground gave a head and eye motion to
let him know that Norbert was “N.O.” Investigator
Lavine states he conducted a brief Terry pat of
Norbert. Investigator Lavine also said that he began to speak
with Norbert about Norbert's accent. They talked about
living in Louisiana. Norbert told Investigator
Lavine that he had “started to run but then . . .
realized there was some more of you all on the other side, so
I just turned around.” Hr'g Tr. at 37. Investigator
Lavine then questioned Norbert about his name and found out
then that he was known as “N.O.” Investigator
Lavine characterized the conversation as “light
hearted” and “jovial.” Hr'g Tr. at 39.
Lavine testified that Norbert identified the black Infiniti
as his. Then Investigator Lavine walked over to the vehicle
on the driver's side. He observed a “weapon kind of
wedged down between the seat and the center console . . .
[d]own close toward the floor.” Hr'g Tr. at 40.
Investigator Lavine testified that the deputies asked Norbert
if they could search the car. Norbert gave consent, saying
that he did not have the keys, but the vehicle was unlocked.
Investigator Lavine agreed that Investigator McClinton
entered the car and removed the gun.
Lavine then asked Norbert whose gun it was, and Norbert
responded that it was his. Investigator Lavine testified that
Norbert did not say anything about his criminal history.
However, the background check by the Hinds County
Sheriff's Office dispatch indicated that Norbert had a
prior felony. The checks were initiated before Investigator
Lavine says he found the gun.
moves to have the gun and his statements suppressed. He
argues that his detention in the parking lot of the Millsaps
Apartments and the entry into his vehicle without a warrant
were not supported by probable cause and violated the Fourth
Amendment. Norbert contends that the tip received by the
Hinds County Sheriff's Office was insufficient to
establish probable cause.
response, the Government first argues that the Fifth
Amendment governs whether Norbert's statements should be
suppressed, rather than the Fourth Amendment. The Government
claims that Norbert was not in custody when he spoke with law
enforcement and therefore his statements should not be
suppressed. Further, the Government maintains that though the
deputies did not have a warrant to enter Norbert's
vehicle and retrieve the gun inside, its discovery and
seizure were legally justifiable under the plain view
doctrine, as a protective sweep of the area under
investigation, and/or the automobile exception to the Fourth
Amendment warrant requirement.
Government also claims the fruit of the poisonous tree
doctrine does not apply to nontestimonial evidence found as a
result of a voluntary - though not Mirandized - statement, so
the gun found on the scene should not be suppressed.
Additionally, the Government maintains that Norbert's
statements should not be suppressed under the inevitable
discovery exception, claiming that “an on-the-scene
background check revealed that the Defendant had been
convicted of a felony previously.”
“on a motion to suppress, the defendant has the burden
of proving, by a preponderance of the evidence, that the
material in question was seized in violation of his
constitutional rights.” United States v. Roch,
5 F.3d 894, 897 (5th Cir. 1993) (citation omitted). However,
warrantless searches are presumptively unreasonable under the
Fourth Amendment. United States v. Wallen, 388 F.3d
161, 164 (5th Cir. 2004) (citation omitted). “When the
government searches or seizes a defendant without a warrant,
the government bears the burden of proving, by a
preponderance of the evidence, that the search or seizure was
constitutional.” United States v.
Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001).
preliminary note, the Government argues that the Court should
determine the admissibility of Norbert's statements under
Fifth Amendment jurisprudence concerning custodial
interrogation, rather than the Fourth Amendment. In support
of this proposition, the Government quotes United States
v. Wright, where the Fifth Circuit held that for Fifth
Amendment protections to attach, “[t]he requisite
restraint on freedom is greater ...