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United States v. Grayon

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

March 29, 2019

UNITED STATES OF AMERICA
v.
MARK GRAYON, Defendant.

          ORDER

          DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

         The following matter is before the court on defendant Mark Grayon's (“Grayon”) motion to suppress, ECF No. 81. For the reasons set forth below, the court denies the motion.

         I. BACKGROUND

         On September 29, 2017 around 8:00 a.m., Detective Jessica Carpenter received a tip from a confidential informant (“CI”) that Grayon was currently travelling to Dorchester County with narcotics on his person. ECF No. 98, Tr. 9:1-5. Detective Carpenter works for the Dorchester County Sheriff's Office (“DCSO”) in the narcotics unit. Tr. 7:11-17. Upon receiving this tip, Detective Carpenter contacted other officers in her unit, and they began conducting surveillance of the area where Grayon was expected to be, according to the CI . Tr. 9:6-11. There were four units in addition to Detective Carpenter, including Lieutenant Thompson, Sergeant Allen, Detective Turbeville, and Detective Canfield. Tr. 27:16-22; 31:11-13. These units were in unmarked vehicles. Tr. 16:23-25.

         Detective Carpenter picked up the CI and began monitoring conversations between the CI and Grayon. Tr. 9:14-23. Specifically, she observed several text messages and overheard a portion of a phone call. Detective Carpenter explained that the CI and Grayon had previously arranged to meet at a Goodwill store on Trolley Road in Summerville, South Carolina so that Grayon could sell narcotics to the CI. Tr. 10:16-19; 11:25-12:3; 44:11-45:6. Detective Carpenter and the CI drove to the Goodwill and began surveilling the area. Tr. 13:6-14; 44:11-45:6. Detective Carpenter observed Grayon and another male, later identified as co-defendant Rodney Cabrera (“Cabrera”), getting dropped off in the Goodwill parking lot by a female driving a sedan. Tr. 13:16- 21. Detective Carpenter was able to identify Grayon based on photographs of Grayon that the CI had given her and the CI's positive identification of Grayon. Tr. 13:22-14:3. Grayon and Cabrera then entered the Goodwill store. Tr. 14:6-9.

         Detective Carpenter subsequently observed Grayon leave the Goodwill store and walk towards a nearby apartment complex. Tr. 14:7-9. While Grayon was in the apartment complex, he called the CI several times, but the CI did not answer the phone. Tr. 15:5-12. Grayon remained in the apartment complex for “no more than 20 minutes” and then left the complex. Tr. 15:15-21. Detective Carpenter observed that Grayon had changed clothes, but it is unknown what Grayon did while he was in the apartment complex because there were no surveillance units in the complex. Tr. 30:4-13. Grayon was picked up near the apartment complex by a gray sedan driven by a second female, later identified as Anna Shafer (“Shafer”). Tr. 15:15-16:13. Cabrera was in the car as well. As the car left the complex, Detective Carpenter did not follow it in order to protect the safety of the CI and to prevent the occupants of the car becoming suspicious that they were being followed. Tr. 16:14-19.

         Detective Adam Canfield, a narcotics detective who was part of the surveillance team, next saw the car in the Summerville Galleria parking lot, Tr. 48:1-4, which was about half a mile away from the Goodwill parking lot, Government's Exhibit 1. Detective Canfield was advised by other detectives that the car's occupants had gotten out of the car and were inside a Subway restaurant in the shopping center. Tr. 48:14-16. Detective Canfield could not see them while they were in the Subway, but he observed them leave the restaurant and get back in the car. Tr. 48:17-22.

         As Shafer pulled out of the Subway parking lot onto the main road, Detective Canfield observed Shafer fail to use her turn signal and fail to come to a complete stop. Tr. 50: 11-19. Detective Canfield informed officers in marked cars of these traffic violations. Tr. 50:24-51:4. Detective Canfield did not initiate the traffic stop himself “so as not to obviously disclose the involvement of the CI.” ECF No. 84 at 3. As Detective Canfield further explained at the hearing, he was an undercover officer in an unmarked vehicle, and therefore he neither had the ability to make the stop nor did he want to reveal himself while undercover. Tr. 52:8-15.

         Officer Timothy Clemens received this information and initiated a traffic stop. Tr. 58:7-17. He was able to do so without personally observing the violations because DCSO policy permits an officer to stop a car for traffic violations that he did not observe himself when the information about the violations come from another law enforcement officer. Tr. 58:18-25. Officer Clemens had a dashboard camera in his car that recorded the stop. Officer Clemens approached the driver's side window around minute 1:29 of the video. He asked Shafer for her driver's license, registration, and insurance information, and the passengers for their identification. Tr. 60:20-61:19. Grayon said he did not have identification on him, so Officer Clemens asked for him to write down his name and date of birth. Tr. 61:17-19. Grayon complied, but it was later determined that Grayon wrote down his brother's name and date of birth. Tr. 61:22-23. In addition, Shafer told Officer Clemens that the car was rented and gave him a copy of the rental agreement. Tr. 60:25-61:4.

         Officer Clemens returned to his car around minute 3:38. He called in the information he collected from the occupants of the car and confirmed that the car was the one being surveilled by the narcotics unit and that Grayon was the individual whom the narcotics detectives were surveilling. Tr. 61:24-62:6. At minute 9:28, Officer Clemens and Lieutenant Burnette, the other officer with Officer Clemens, began to discuss the fact that the car was rented and none of the occupants' names were on the rental agreement. Lieutenant Burnette advised Officer Clemens to talk to Shafer and find out whether she or any of the other occupants rented the car. He then advised that if no one in the car was on the rental agreement, Officer Clemens should ask Shafer's consent to search the car. Officer Clemens returned to the car around minute 11:20 and asked Shafer to get out of the car. Office Clemens asked for her permission to search the car, which she declined. Tr. 62:7-12. He then told Shafer that because no one in the car was on the rental agreement, no one had an expectation of privacy in the vehicle, and he could search the car. Tr. 62:14-15.

         The occupants got out of the car, and the officers searched the vehicle. There was a K-9 on the scene, but there was no sniff conducted around the car because Officer Clemens believed it to be unnecessary given the fact that none of the car's occupants were on the rental agreement. Tr. 63:14-64:2. Lieutenant Burnette found a black bag containing a crystal-like substance in the front passenger area where Grayon had been sitting. At that point, the officers detained Shafer, Grayon, and Cabrera, and Lieutenant Burnette decided to move the stop to a safer location with less traffic. Detective Carpenter arrived at the secondary traffic stop location after dropping the CI off at a safe location. Tr. 17:9-17.

         When the search resumed, Officer Clemens found a smaller package of a crystallike substance in a Subway cup in a cup holder in the back seat and another package of crystal-like substance in the front passenger floor board. The substance was confirmed to be methamphetamine. Subsequent testing confirmed that the officers recovered approximately 198 grams of methamphetamine from the car.

         Grayon was indicted on December 13, 2017 for (1) knowingly and intentionally combining, conspiring and agreeing together and having tacit understanding with each other and with others, both known and unknown to the grand jury, to knowingly, intentionally and unlawfully possess with intent to distribute and distribute methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A); all in violation of Title 21, United States Code, Section 846; and (2) knowingly, intentionally and unlawfully possessing with intent to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A). Grayon filed a motion to suppress on November 5, 2018, ECF No. 81. The government responded on November 19, 2018, ECF No. 84, and Grayon replied on January 7, 2019, ECF No. 90. The court held a hearing on the motion on January 17, 2019. The motion is ripe for review.

         II. ...


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