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United States v. Norbert

United States District Court, S.D. Mississippi, Northern Division

January 13, 2020




         Before 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.


         On the 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.

         Investigator 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.

         Around 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.

         Upon 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. at 10.

         Investigator 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.

         After 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.

         According 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.

         After 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.

         Investigator 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.

         Investigator 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 Mirandized.

         Investigator 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.

         Investigator 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.

         Investigator 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.

         Norbert 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.

         In 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.

         The 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.”


         Generally, “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).


         As a 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 ...

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