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United States v. Carter

United States District Court, D. South Carolina, Charleston Division

December 28, 2018

UNITED STATES OF AMERICA,
v.
LARRY EDWARD CARTER, JR., Defendant.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This matter is before the court on a motion to suppress filed by Larry Edward Carter, Jr. ("Carter"). Based on the foregoing, the court grants the motion to suppress.

         I. BACKGROUND

         This motion arises out of a traffic stop of Carter conducted on Thursday, June 1, 2016 by Officer Kevin Whitfield ("Whitfield") of the North Charleston Police Department ("NCPD"). The thirty-minute stop concluded with NCPD officers searching Carter's vehicle and finding a gun and bullets before placing Carter under arrest. A later search of Carter after his arrest revealed that he was carrying narcotics. ECF No. 45, Tr. 16:1. Recordings from the police car's dashboard camera ("dashcam") of the stop indicates that Whitfield pulled Carter over due to his concerns about Carter's dark window tint and his suspicions of his involvement in a drug sale. At the hearing on this suppression motion, the government argued instead that the search of the vehicle was based on probable cause that had been provided several days earlier by a confidential informant ("CI"). The following is a detailed summary of the events, based on the dashcam video and the testimony of Whitfield and Agent Frank Preston ("Preston") (together, "the officers") at the suppression hearing.

         Preston is a senior special agent with the Department of Justice's Bureau of Alcohol, Tobacco, and Firearms ("ATF"). Tr. 4:25-5:3. Whitfield has worked for the NCPD for over five years and is currently a detective with the gang unit. Tr. 29:5-7. In May 2017, Whitfield was informed by a patrol officer that he had arrested a subject who "wanted to do something to help work off his charges." Tr. 29:18-20. Neither of the officers had ever met this person or used him as a CI before. After agreeing to work as an informant, the CI had several meetings with Whitfield and gave the officers a list of people from whom he could buy drugs, including the name "King," who frequently sold heroin to the CI. Tr. 30:2-9. On or about Saturday, May 27, 2017, a day or two after Whitfield and the CI first met, the CI called Whitfield to tell him that he had received text messages from King in which King asked the CI to participate in an armed robbery of a hotel that night. Tr. 30:12-20, 43:7-19. The CI sent Whitfield screenshots of the following text messages, which had "Yesterday 11:03 PM" at the top of the screen:

CFs Phone: [CI] is asleep what's up[1]
King: Tell him I may have a job for him
CI's phone: Ok I will tell him! What's it doing
King: A quick in and out 211[2] the same thing at his old job but I will supply him with the gun and 111 be his lookout and get away driver
CI's Phone: I will talk to him when he gets up in the am. How big is the take?
King: We'll do a 60% 40% split.. .I'll get the %60
King: It's at his old job yall know what's usually in the safe.[3]
CFs Phone: OK
CFs Phone: When are you wanting to do this?
King: Tonight I got zip ties and everything mask and all

ECF No. 35-1. After the CI sent these messages to Whitfield, Whitfield told the CI to try and stall King. Tr. 30:21-25. The following is the CFs response to King after talking with Whitfield:

CFs Phone: There are a couple factors Fm gonna have[e] to figure out before we can do this bubba. 1, 1 have to find out when Kyle's assistant is doing the nigh[t]. It would definitely be better to hit him tha[n] kyle. Kyle would take a bullet before he lets money go. John will give it up at the sight [o]f the gun. Feel me. And 2, 1 was told they put cameras in last week. I need to know where exactly they are and we need something we can ditch when this is over if that's true. Fet me work on this. Plus today is a holiday which means more cops on the roads tonight, which means a quicker response time [if] something does go wrong. Tuesday or Wednesday would in my mind be a better pick of when. Fet me know what you think. But in 100% game. Fet me find out some details on if anything has changed though. I [] still have 2 guys working there I can talk to. King (at 11:55 AM): Ok Wednesday would be cool.

Id. Although the screenshots of these text messages do not have any dates on them, the CI sent Whitfield the screenshots on Saturday, May 27, 2017, indicating that the texting conversation between King and the CI had taken place on Friday, May 26, 2017-"yesterday," as indicated at the top of the screenshot.

         On Wednesday, May 31, 2017, the day that the CI and King had agreed upon for the robbery, Whitfield and the CI drove an unmarked vehicle to an area where the CI expected to find King. Fr. 31:13-17. Between 2:00 PM and 3:00 PM, they slowly drove by the house where King was located at least three times in the course of five to ten minutes. Fr. 44:24-45:19. As they drove by, the CI identified for Whitfield the person that he knew as King, as well as King's car-a tan Grand Marquis that had darkly tinted windows and was missing the front grill. Tr. 32:14-33:8. Whitfield estimated that he and the CI were "maybe ten yards" from the porch where King was located. Tr. 47:4-11. Whitfield testified that he was able to see both King and the car very clearly. Tr. 33:1-8.

         Whitfield then dropped off the CI, returned to the house where King was located, and waited for King to leave. At some point, Whitfield left to use the rest room, and when he came back, King's car was gone. Whitfield returned to the house the next day, Thursday, June 1, 2017. Whitfield "sat on the house again, went off to use the rest room," and when he came back, the car had left. Tr. 33:20-34:3. Whitfield then began looking for the vehicle. He stated that he saw the Grand Marquis driving down McMillan Avenue and was confident it was the same vehicle due to its color, its darkly tinted windows, and its missing grill. Tr. 34:5-9. Whitfield followed the vehicle, which Carter[4] was driving, into the parking lot of the Money Man Pawn shop on McMillan Avenue, North Charleston. Carter parked next to a black SUV. Tr. 35:15-17. Whitfield then parked behind Carter's vehicle at an angle that prevented it from exiting and that partially blocked the car parked next to Carter. Whitfield testified at the suppression hearing that, as soon as he approached Carter's vehicle, he recognized the driver and "knew 100 percent that's the guy that was known as King." Tr. 35:17-23.

         The Dashcam video recording of the traffic stop reveals that, after initiating the stop, Whitfield asked Carter for his license and registration and informed him about the potentially problematic tint to his car windows. At minute 1:50, another officer arrived on the scene. At minute 2:45, Whitfield told Carter to stay in the car after Carter asked to get out due to the heat. Four minutes into the video, Whitfield can be heard calling someone. At minute 5:30, he can be heard on the phone with someone saying that he believed that Carter pulled up to "make a [drug] sale" and asked "should I write a warning and let him go or search the car?" At minute 7:15, Whitfield asked Carter to step out of the vehicle and introduced himself as an officer with the gang unit; Whitfield asked if Carter had any guns, to which Carter responded "no sir." At minute 7:35, Whitfield told Carter he was going to pat Carter down; when Carter objected, Whitfield affirmed that he was not searching Carter, but merely giving him a pat-down.

         At minute 7:50, Carter inquired about whether he would receive a ticket, to which Whitfield replied that he was still deciding whether to write a ticket or a warning. At minute 8:30, Whitfield asked Carter if he could search the car for "any weapons, guns, stuff like that." In response, Carter said "no sir, I don't consent to no search," to which Whitfield replied "that's fine, that's your right, I'm not going to go in your car if you say not to." Minute 8:40 to 11:40 of the recording sounds as though Whitfield was talking to someone else on the phone; at 11:20 he inquired into whether there was a K-9 unit available. At 11:45, Whitfield stated that he would get his tint meter in order to inform Carter of the shade of the tint. Carter then said "so if it's all right then I'm free to walk away?" From minute 12 to 13:20, Whitfield explained that Carter was "detained for the window tint" and was not free to leave until Whitfield released him. Minutes 14 and 15 involved further discussion of the tint violation.

         From minute 16-21:50 there was mostly silence, other than the woman in the SUV next to Carter asking to leave, which Whitfield allowed. At minute 22, Whitfield can be heard talking to another officer saying that he pulled Carter over for a window tint, that he's a drug dealer and that he was one of "our targets" who came here to buy or make a sale. At minute 22:30, Whitfield called and asked for a supervisor upon Carter's request. At minute 23:25, Whitfield said "I've searched cars for less." At minute 24:10, Carter reiterated that he does not and did not consent to the search. At minute 25, Whitfield said that "we're going to conduct a search of the car," and at 25:40 officers are heard asking Carter if he has a permit and why he is carrying a gun under his seat.

         At some point in these last few minutes of the stop, a K-9 unit appeared and a drug dog conducted a sniff search around the vehicle; although none of was captured by the dashcam footage, the officers claim that the drug dog alerted, after which they conducted a search of the vehicle. They found a firearm under Carter's seat, which turned out to be stolen, and some bullets in his back seat and inside the lid of the gas tank. Tr. 38:19-25. At minute 25:40, another officer who had arrived on the scene asked Carter why he carried bullets in his gas tank. Carter denied knowing that the bullets were in the car, and claimed that, although he owns the car, he does not always drive it. At minute 30:55, Whitfield is heard saying "I arrested my target. . . King ... no different guy actually ... his name is Larry Carter."

         Carter was arrested for illegal possession of the pistol. When booked at the jail, Carter was found to have 24 morphine pills, 12 Xanax pills, and 0.44 grams of cocaine on his person. Carter was indicted on four counts. The first three counts- possession with intent to distribute a quantity of morphine, carrying a gun in relation to a drug trafficking crime, and felon in possession-are from this June 1, 2017 stop. The fourth count, for possession with intent to distribute a quantity of heroin, is from June 6, 2017, after Carter was let out on bail. The motion to suppress addresses only the first three counts from June 1, 2017. Carter filed his motion to suppress on July 30, 2018, ECF No. 33, and the government filed its response on August 9, 2018, ECF No. 35. The court held an evidentiary hearing on the motion on September 18, 2018. ECF No. 41. ...


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