United States District Court, D. South Carolina, Charleston Division
C. NORTON, UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.