______________________________________________________ IN THE COURT OF APPEALS SIXTH DISTRICT CUYAHOGA COUNTY, OHIO ______________________________________________________ Case No.

NCC-1701-A MICHAEL ROBERTS, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. ______________________________________________________________________________ APPEAL FROM THE JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE NORTHEASTERN DISTRICT OF OHIO EASTERN DIVISION (Lower Court Case No. 1:08CR189) ______________________________________________________________________________ ______________________________________________________________________________ BRIEF OF DEFENDANT-APPELLEE ______________________________________________________________________________ MARK S. BENNETT (0069823) Cleveland Marshall College of Law 2121 Euclid Avenue Cleveland, Ohio 44115 Attorney for Plaintiff/Appellant MUTAJAH HUSSEIN (2186266) Big Bad Government 123 Federal Court House Cleveland, Ohio 44113 Attorney for Defendant/Appellee

TABLE OF CONTENTS Page TABLE OF CONTENTS ........................................................................................................ i TABLE OF AUTHORITIES ................................................................................................iii STATEMENT OF THE ISSUES PRESENTED ................................................................. xx STATEMENT OF THE CASE.............................................................................................. 1 STATEMENT OF THE FACTS ........................................................................................... 1 I. Background. ......................................................................................................... 1 A. Roberts and Williams suspicious meeting in the Cadillac ....................... 5 B. The delivery of drugs by Roberts to Williams ......................................... 5 C. Gregg finds drugs on Williams ................................................................ 5 Roberts arrest and detainment ............................................................................ 3 A. The search incident to arrest on Roberts cell phone ................................ 5 B. The lawful use of Roberts key to locate my house .............................. 5 C. The lawful search at Chandler and Roberts apartment ............................. 5

II.

SUMMARY OF THE ARGUMENT .................................................................................... 7 STANDARD OF REVIEW ................................................................................................... 9 LAW AND ARGUMENT ................................................................................................... 10 II. II. Standard of Review 10

The agents had reasonable suspicion and probable cause to stop and search Michael Roberts based on their years of experience in narcotics law enforcement and the testimony of an informant, Michael Williams 10 A. B. Reasonable Suspicion to arrest Roberts .............................................. 10 Probable cause to arrest Roberts ......................................................... 11

III.

Because a lawful arrest was made, the agents conducted a valid search incident to arrest of Roberts person and lawfully obtained his keys when the officers inventoried his belongings .............................................................................. A. B. C. Roberts lawful search incident to his arrest ....................................... 10 Valid search of Roberts cell phone incident ...................................... 10 Officers lawfully froze the apartment ................................................ 10

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III. The agents did not coerce consent to search the residence from Chandler and performed a search under the plain view doctrine. ......................................................................... A. Agents did not coerce Chandler for consent to search ...................... 10 B. The plain view doctrine allowed officer to search .............................. 10 CONCLUSION .................................................................................................................... xx CERTIFICATE OF SERVICE ............................................................................................ xx

iii

TABLE OF AUTHORITIES Cases

Chimel v. California, 395 U.S. 752, 76263, 89 (1969). _________________________________________________________________________________10 Coolidge v. New Hampshire, 403 U.S. 443, 472 (1971) __________________________________________________________________________________________18 Garcia v. Dykstra, 260 Fed.Appx. 887, 898 (6th Cir.2008). __________________________________________________________________________16 Harris v. United States, 390 U.S. 234 (1968). _______________________________________________________________________________________________18 Katz v. United States, 389 U.S. 347, 357 (1967). __________________________________________________________________________________________10 Ornelas v. United States, 517 U.S. 690, 697 (6th Cir.1996). __________________________________________________________________________________ 5 Spano v. New York, 360 U.S. 315, 319 (1959). __________________________________________________________________________________________17 United States v. Bentley, 29 F.3d 1073, 1075 (6th Cir.1994). ________________________________________________________________________________ 8 United States v. Bishop, 338 F.3d 623, 628-29 (6th Cir.2003). _____________________________________________________________________________19 United States v. Caicedo, 85 F.3d 1184, 1192 (6th Cir.1996). ________________________________________________________________________________ 7 United States v. Chadwick, 433 U.S. 1, 10-11 (1977). __________________________________________________________________________________________14 United States v. Concepcion, 942 F.2d 1170, 117273 (7th Cir.1991) __________________________________________________________________________13 United States v. Cooper, 431 Fed. Appx. 399, 401 (6th Cir. 2011) ___________________________________________________________________________ 6 United States v. Cooper, 431 Fed.Appx.339, 401 (6th Cir. 2011). ___________________________________________________________________________ 5 United States v. DeBardeleben, 740 F.2d 440, 444-45 (6th Cir. 1984) _____________________________________________________________________________15 United States v. Edwards, 415 U.S. 800, 80304, 807 (1974). ________________________________________________________________________________10 United States v. Finley, 477 F.3d 250, 25960 (5th Cir.2007). ____________________________________________________________________________11

iv

United States v. Flores-Lopez, 670 F.3d 803, 807 (7th Cir.2012) _________________________________________________________________________________13 United States v. Hudson, 405 F.3d 425, 441 (6th Cir.2005). _________________________________________________________________________________16 United States v. Hunter, No. 964259, 1998 WL 887289 (4th Cir. Oct. 29, 1998) ________________________________________________________13 United States v. Hurst, 228 F.3d 751, 75657 (2000) ______________________________________________________________________________________ 8 United States v. Jackson, 131 F.3d 1105, 1109 (4th Cir.1997). ______________________________________________________________________________19 United States v. Johnson, 351 F.3d 254, 263 (6th Cir.2003). _________________________________________________________________________________16 United States v. Johnson, 846 F.2d 279, 282 (5th Cir.1988) _________________________________________________________________________________12 United States v. May, 399 F.3d 817, 819 (6th Cir. 2005). _________________________________________________________________________________ 8 United States v. Montgomery, 377 F.3d 582 (6th Cir. 2004). _______________________________________________________________________________________ 5 United States v. Portillo-Reyes, 529 F.2d 844, 852 (9th Cir.1975). _________________________________________________________________________________15 United States v. Robinson, U.S. 218, 235 (1973). _______________________________________________________________________________________________10 United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir.1993). _________________________________________________________________________________13 United States v. Salgado, 250 F.3d 438, 456 (6th Cir.2001). _________________________________________________________________________________14 United States v. Smith, 549 F.3d 355, 358 (6th Cir. 2008) __________________________________________________________________________________ 5 United States v. Smith, 549 F.3d 355, 359 (6th Cir.2008) _________________________________________________________________________________10 United States v. Stewart, 315 F. Appx. 554, 556 (6th Cir. 2009). _____________________________________________________________________________ 8 United States v. Stewart, 315 Fed. Appx. 554, 557 (6th Cir.2009) ___________________________________________________________________________ 8 United States v. TorresRamos, 536 F.3d 542, 555 (6th Cir.2008) __________________________________________________________________________________ 8

United States v. Townsend, 305 F.3d 537, 539 (6thCir. 2002) ___________________________________________________________________________________ 5 United States v. Young, 278 Fed.Appx. 242 (4th Cir.2008). ________________________________________________________________________________19 United States v. Young, 278 Fed.Appx. 242, 245 (4th Cir.2008). __________________________________________________________________________12 Washington v. Chrisman, 455 U.S. 1, 5-6 (1982) ______________________________________________________________________________________________18

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STATEMENT OF THE ISSUES PRESENTED

I.

THIS COURT HOLDS THAT REASONABLE SUSPICION AND PROBABLE CAUSE ARE ESSENTIAL FOR A WARRANTLESS ARREST. ROBERTS EXIBITED ALL OF THE BEHAVIORS ASSOCIATED WITH DRUG TRAFFKICNG AND THE AGENTS DEDUCED FROM THEIR EXPERTISE IN DRUG ACTIVITY, THAT WILLIAMS DID BUY THE CRACK COCAINE FROM ROBERTS THAT NIGHT. SHOULD THIS COURT DENY ROBERTS APPEAL BECAUSE THE AGENTS HAD THE REQUIRED SUSPICION AND CAUSE?

II.

THIS COURT HOLDS THAT ONCE THE OFFICER MAKES A LAWFUL ARREST, THE DEFENDANT AND HIS EFFECTS MAY BE SEARCHED AND SEIZED WITHOUT A WARRANT. AGENT SAUNDERS LAWFULLY ARRESTED ROBERTS AND SEIZED HIS CELL PHONE ALONG WITH THE REST OF HIS BELONGINGS. THUS, THE OFFICERS USED THE PHONE TO FURTHER INVESTIGATE AND COLLECT EVIDENCE FOR TRIAL. SHOULD THIS COURT AFFIRM THE DISTRICT COURTS DENIAL BECAUSE THE OFFICERS SEARCHED HIS PHONE INCIDENT TO HIS ARREST?

III.

THIS COURT HOLDS THAT IT IS NOT COERCION TO THREATEN DEFENDANTS, IF THE THREAT HAS A LEGAL BASIS. FURTHERMORE, THIS COURT HOLDS THAT AN OFFICER CAN SEIZE ANY CONTRABAND IN HER PLAIN VIEW. SHOULD THIS COURT DENY ROBERTS APPEAL BECAUSE THE OFFICERS LAWFULLY SPOKE WITH LISA CHANDLER AND AGENT GREG SAW COCAINE ON THE TABLE OVER HER SHOULDER?

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STATEMENT OF THE CASE This is case concerns a motion to suppress hearing in the United States District Court for the Northern District of Ohio. The defendant, Michael Roberts was arrested in September of 2007 and received a three count indictment in March of 2008. The first charge was felony possession of a firearm and ammunition; the second charge was distribution of crack cocaine within a school zone and the last charge was possession with intent to distribute. Roberts filed a motion to suppress evidence seized by his arresting officers. His motion argued violations of his Fourth, Sixth and Fourteenth Amendment rights but the court decided only to review his Fourth Amendment claim. The lower court denied his motion to suppress, he appealed and the Government submits the brief in support of denial of Roberts appeal. STATEMENT OF THE FACTS I. Background A. Roberts and Williams suspicious meeting in the Cadillac Escalade

On September 5, 2007, Alcohol, Tobacco, and Firearms (A.T.F.) Special Agent Ronald Gregg (Gregg) drove past the DSM convenient store, located on Wooster Road in Fairview Park, Ohio, where he observed Scott Williams displaying behaviors that are closely associated with drug activity. (R. at p.10). Specifically, Williams stood outside of the store watching all of the cars going by and talking on his cell phone. Id. Gregg sat outside of the stores parking lot and observed the area for about five minutes before Michael Roberts arrived in a 2007 Cadillac truck. Id. at 11. Then, Roberts drove off after Williams jumped into the truck and lingered slowly down the road for over one hundred yards. Seconds later, Roberts made a U-turn and stopped abruptly in the middle of the road, where Gregg saw the figures

moving inside the truck hurriedly and rushed. Id. Suddenly, Williams exited the truck and hurried across the street to the DSM, while Roberts drove away. Id. B. The delivery of drugs by Roberts to Williams

As an experienced veteran of the AFT and specialized member of the Cuyahoga County Drug Task Force, Gregg relied extensively on his twelve years of experience to deduce that a drug deal occurred between Roberts and Williams. The car method is preferable for dealers because it offers cover while the parties quickly pass off the drugs after they meet at an agreed upon place and negotiate the price. To illustrate, the driver usually does not remain static but drives a several feet in an attempt to elude police surveillance and blend in with other cars. C. Officer Barron and Gregg found drugs on Williams in the DSM Convenient Store.

After Gregg observed Roberts and Williams suspicious behavior, he called in the d etails about Roberts car to the other officers involved in the investigation. (R. at p. 11). When Officer Barron (Barron) arrived, he and Gregg quickly entered the DSM to stop Williams before he had an opportunity to leave the store. Id. They searched Williams and found approximately 7 grams of crack cocaine on Williams person and advised him of his rights. Id. at 12. Without prompting or questions from Gregg, Williams stated that he brought the drugs from M-Rob, the Cadillacs driver and also stated that he believes he knows where M-Rob lives because he usually purchased from him in Fairview Park but has also met Roberts at his fathers home in Westlake.Id. Then Williams stated that he believes M-Rob sells in quantities of 8-balls (3.5 grams) and above. Id. II. Roberts arrested and detained Gregg contacted Drug Enforcement Agency (DEA) Special Agent Jonathan Saunders (Saunders) after Williams confessed to buying drugs from Roberts. Saunders followed Roberts

until he existed the car and parked the Cadillac. Id. at 14. Then Saunders arrested him for selling drugs and advised him of his Miranda rights. Id. Next, the officers transported Roberts to Fairview Park police station where the officers searched him incident to his arrest and took an inventory his personal belongings, which included $1,275.00 in cash and two cell phones.Id. at 12. Gregg read Roberts his Miranda rights and questioned him about his address. Roberts claimed to live in Westlake and maintained that he did give anyone a ride, speak with anyone in Fairview Park that day or even stop at the DSM parking lot, at all. Furthermore, he denied selling any cocaine to Williams. Id. A. The lawful search of Roberts cell phone

About 5-10 minutes after Roberts arrived at the station, two officers overheard one of the confiscated cell phones ringing continuously for at least five minutes. Both of these officers are members of the drug task force so this drew this drew their attention and then they noticed that the call came from a number labeled as my house. Id. Once the phone continued to ring, the officers looked in the call log. Next, the officers were able to determine the actual number labeled as my house, which they then used to determine the address and name listed under the number. Id. However, they did not access any other information in the phone. Id. B. The lawful use of Roberts keys to locate my house

Based on Greggs experiences and assessment someone with a large amount of cash, a rental car and two cell phones like Roberts has a stash house where he stores a large quantity of cocaine to avoid a robbery or clash with police. Id. Moreover, Roberts claim about his address seemed like a lie considering my house was listed under a different address and

Williams claimed M-Rob lives in Fairview Park. Id. Moreover he was forthcoming with the officers about his residence. Id. Gregg and other drug task force members went to the address attached my house to determine if this was Roberts address and potentially secure any evidence. Id. After they arrived, Gregg used Roberts keys to find which apartment belonged to the person listed as the occupant, Lisa Chandler. Id. Once the keys worked to unlock the door, Gregg removed it from the lock without opening the door, knocked on the door and Lisa Chandler answered. Id. C. The lawful search at Chandler and Roberts apartment

After Chandler answered the door, she left the door open and stood in the doorway while she began to speak with Gregg, who identified himself as an ATF Special Agent. Gregg asked her to step into the hallway but he observed a white powdery on the coffee table as he peered over her shoulder. Id. Again based on his experience, Greg deduced that the substance was likely cocaine based on his experiences. Id. Gregg proceeded to question Chandler about Roberts and she admitted that she knew him but claimed he occasionally stayed at the apartment. Id. Furthermore, she admitted that Roberts was there earlier that day and the night before. Id. Gregg accessed the situation and regarded Roberts earlier statement about his address as false. Id. Furthermore, he had reasonable suspicion to believe that criminal activity was committed because the table appeared to have cocaine on it. Id. The officers then conducted protective sweep of the apartment for their safety and to secure any evidence. Id.

SUMMARY OF THE ARGUMENT This Court should affirm the district courts decision to deny Roberts motion to suppress. First, the agents had reasonable suspicion and probable cause to arrest Roberts because of the drug trafficking behavior he displayed that night coupled with Greggs and Saunders assessment of the entire situation, which they based on years of experience in narcotics law enforcement. That night Roberts displayed all of the classic signs of a drug trafficker like the quick encounter in his truck with Williams, who Saunders arrest with drugs that Williams bought

from Roberts. Also the officers knew that Roberts delivery system by hurried exchange in a car is the preferred way to sell drugs in Cuyahoga County. Roberts also attempted to blend in with the other cars by driving a short distance so that he would not look out of place to law enforcement. Both officers deduced with their expertise that all of the behavior above indicated that Roberts and Williams conducted a drug which prompted Roberts and Williams arrests. Therefore, this Court should defer to the expertise of the officers and their finding of sufficient reasonable suspicion to sustain the arrests. This Court should denial Roberts appeal and affirm the district courts decision. Next, this Court should affirm the lower courts denial because the agents arrested Roberts and conducted a search of his person and belongings incident to arrest, which included obtaining an important number from his call logs. This Court holds that a search incident to a lawful arrest does not violate the arrestees Fourth Amendment rights and permits officers to search for additional evidence on the person or in his effects, therefore the agents did a valid search on Roberts and the cell phone at the station. Thus, this Court should affirm the lower courts denial of Roberts motion to suppress.

Lastly, this Court should deny Roberts appeal because the officer had lawful possession of his keys after his arrest and Gregg appropriately froze Chandlers apartment after he observed some cocaine in plain view on the coffee table. This Court holds that officer may insert lawfully obtained keys into a lock to determine whether the key fits the lock or not and this is not a search. Furthermore, this Court also hold that an officer may seize contraband like drugs and weapons immediately if they are within the officers plain view. Here, Gregg saw some cocaine on the coffee table in Chandlers apartment as they stood in the doorway. Immediately, Gregg

had the authority to freeze the apartment to preserve that evidence. Therefore, this Court should deny Roberts appeal and affirm the lower courts denial. LAW AND ARGUMENT I. Standard of Review This Court should consider the evidence in the light most likely to support the district courts decision. United States v. Cooper, 431 Fed.Appx.339, 401 (6th Cir. 2011). It should also review the district courts factual findings for clear error and its legal conclusions de novo. Id. Although the standard of review on the ultimate reasonable suspicion is de novo, the district court has an institutional advantage. Furthermore, the inferences drawn by the resident judges and their determination has due weight because they observed the testimony or witnesses and understood the local conditions. United States v. Townsend, 305 F.3d 537, 539 (6thCir. 2002) citing Ornelas v. United States, 517 U.S. 690, 697 (6th Cir.1996). Lastly, this Court should view the evidence in the light most favorable to the government when it considers the denial of a suppression motion. United States v. Smith, 549 F.3d 355, 358 (6th Cir. 2008) citing United States v. Montgomery, 377 F.3d 582 (6th Cir. 2004). II. The agents had reasonable suspicion and probable cause to stop and search Michael Roberts based on their years of experience in narcotics law enforcement and the testimony of an informant, Michael Williams. A. Reasonable Suspicion

This Court evaluates the totality of the circumstances for a reasonable suspicion determination. Smith, 549 f.3d at 358. For example, this Court describes reasonable suspicion as a particularized and objective basis for suspecting the person stopped of criminal activity. Ornelas, 517 U.S. at 693.

In Townsend, the officers pulled over the defendants and decided to search the car and arrested the defendants for counterfeit money found in the search. Townsend, 305 F.3d at 538. The defendants moved to suppress the evidence obtained in that search on the grounds that there was no reasonable suspicion so the search violated their Fourth Amendment rights. Id. The officers argued that the suspects behaved unusually and appeared to lie about the purpose of their journey. Id. at 537- 38. Moreover, the officers testified that they observed three cell phones in the passenger compartment and expressed concern that the defendants hailed from a source city for narcotics to arrive in a destination city for narcotics. Id. at 540- 41. The lower court determined that the officers lacked reasonable suspicion and although the officers claimed reasons to suspect criminal activity, these were not sufficiently significant as a matter of law. Id. at 539. This Court affirmed the lower courts decision because the officers did not have any strong indicators of criminal conduct to accompany their weak nexus of minor factors. Id. at 542. This Court also held that the officer noted the defendants behavior as unusual but did not offer relevant experiential testimony about the defendants behaviors and their ties to criminal activity. Id. at 540. The government never raised the significance of the officers experience in their argument against the district court so it did not consider this in weighing the credibility of the officers statement. This Court has also held that it must afford the due weight the officers testimony because his specialized training and experience may permit her to make inferences from and deductions about the cumulative information that might elude an untrained person. United States v. Cooper, 431 Fed. Appx. 399, 401 (6th Cir. 2011) citing Townsend, 305 F.3d 537, 542 (6th Cir. 2002). Furthermore, the Court must consider the officers views of the facts through the

lens of his expertise and experience. Cooper, 431 Fed. Appx. at 400 citing Ornelas, 517 U.S. at 699. Unlike the Townsend officers, Gregg offered expert testimony about their suspicious behavior and how it ties into typical criminal activity. Gregg accessed Roberts and Williams behaviors and decided that they conducted a drug deal in the Cadillac. Similar to the Cooper officer, Gregg testified that Roberts and Williams conducted a drug deal in the rented Cadillac based on his extensive knowledge about the preferred drug techniques in Cuyahoga County. Moreover, Greggs assessment of Roberts and Williams actions triggered the required reasonable suspicion. In Townsend, this Court affirmed the lower courts decision that the officers did not provide a stable basis for reasonable suspicion against the defendants, therefore this Court should decide that these officers had the reasonable suspicion to arrest Roberts. In Cooper, this Court gave due weight to the officers expertise, thus it should afford due weight to Greggs testimony. Accordingly, this Court should affirm the lower courts finding of the required reasonable suspicion and their decision to deny Roberts motion to suppress. Equally important is that the officers had probable cause to arrest Roberts because this is another requirement for a lawful arrest without a warrant. B. Probable cause

Officers may arrest a person without a warrant if they have probable cause at the time of the arrest to believe that the person has committed or is committing a crime. United States v. Caicedo, 85 F.3d 1184, 1192 (6th Cir.1996). The question is whether, at the time of the arrest, the facts and circumstances within the arresting officer's knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent person to conclude that

an individual either had committed or was committing an offense. United States v. Stewart, 315 Fed. Appx. 554, 557 (6th Cir.2009); United States v. TorresRamos, 536 F.3d 542, 555 (6th Cir.2008) quoting Beck v. Ohio, 379 U.S. 89, 91, 85 (1964). This Court recognized that when a law enforcement officer lacks probable cause, but possesses a reasonable and articulable suspicion that a person has been involved in criminal activity, he may detain the suspect briefly to investigate the suspicious circumstances. United States v. Hurst, 228 F.3d 751, 75657 (2000) quoting United States v. Bentley, 29 F.3d 1073, 1075 (6th Cir.1994). Furthermore, this Court also looks at the totality of the circumstances to review the sufficiency of a confidential informants testimony to establish probable cause. United States v. May, 399 F.3d 817, 819 (6th Cir. 2005). In Heath, the officer watched the area while the defendant ducked in and out of the apartment complex often to meet with people. Heath, 259 F.3d at 528-29 (6th Cir.2001). Moreover, the defendant sometimes changed clothes, carried heavy packages in suitcase and usually was in and out within minutes, which are all behaviors associated with drug trafficking. Id. When the district court denied the defendants motion to suppress, it found all of these details relevant in denying defendants motion to suppress. It also held that the officer knew the defendant had prior drug trafficking convictions and that the officers had a reliable tip that he was currently involved in trafficking in large quantities of cocaine. Id. at 528-29. Accordingly, this Court affirmed the district courts decision and denied the defendants appeal. Id. at 534. For example in Stewart, the officer watched as the defendant exhibited drug trafficking behavior like leaving his friends to dart into an ally and reemerged moments later to rejoin his friends. United States v. Stewart, 315 F. Appx. 554, 556 (6th Cir. 2009). After the officer

searched the alley and found drugs, he arrested the defendant. When the defendant moved to suppress the evidence, this Court held that a reasonable officer would believe he had probable to arrest defendant for possession based on the behavior that the officer observed and the officers experience with drug activity. Stewart, 315 Fed. Appx. at 557-58. In Hill the officer followed the defendants UHAUL truck for a speeding violation and uncovered narcotics during the search. The defendants argued that the officer targeted them because he testified that in his experience drug couriers use U-Hauls and rental cars to conduct drug related crimes. Hill, 195 F.3d at 267 (6th Cir. 1999). This Court held that the officer had an articulable reasonable suspicion that the defendants were engaged in criminal activity; therefore, the stop was constitutional because he was entitled to assess the circumstances in light of his experience as a police officer and his knowledge of drug courier activity. In the instant case, Roberts alleges that the officers did not have reasonable suspicion or probable cause to stop and arrest him. Like the officers in Heath, Stewart and Hill, a reasonable officer in Greggs position with drug activity expertise would know that Roberts engaged in illegal drug activity that evening. From the rented truck, which is a typical drug traffickers technique, to the meeting with Williams, Gregg had probable cause that Roberts committed a drug crime that night. Furthermore like the officer in Heath, Gregg has a reliable tip from Williams claimed he brought drugs from Roberts that evening. In the cases above, this Court affirmed the lower courts and denied all of the defendants appeals mainly to give deference to the resident judges and the officers expertise. Likewise, this Court should affirm the lower courts decision here and deny Roberts appeal. III. Because a lawful arrest was made, the agents conducted a valid search incident to arrest of Roberts person and lawfully obtained his keys when the officers inventoried his belongings.

10

A.

Roberts lawful search incident to his valid arrest.

Although warrantless searches violate the Fourth Amendment's guarantee against unreasonable searches and seizures, there are a few specifically established and well -delineated exceptions. United States v. Smith, 549 F.3d 355, 359 (6th Cir.2008) citing Katz v. United States, 389 U.S. 347, 357 (1967). A search incident to a lawful arrest is among the exceptions. Smith, 549 F.3d at 359 citing Chimel v. California, 395 U.S. 752, 76263, 89 (1969). The Supreme Court held holds that the search of a person incident to a lawful arrest does not require any justification beyond the establishment of probable cause for arrest. Smith, 549 F.3d at 358 (6th Cir. 2008) citing United States v. Robinson, U.S. 218, 235 (1973). Furthermore, once a lawful arrest is made, the defendant and any effects in his possession at the place of detention may be searched and seized without a warrant even though a substantial period of time has elapsed between arrests and inventorying the property as evidence. United States v. Edwards, 415 U.S. 800, 80304, 807 (1974). In Smith, the officer received a reliable tip that the defendant was on the way to a town with a supply of drugs. Smith, 549 F.3d at 355. When the officers approached the defendant, he attempted to conceal something in his pants. Id. at 356. Furthermore, the search dog alerted officers to the presence of drugs when he sniffed the defendants crotch area. Id. Hence, the defendant was arrested and he was thoroughly searched, which yielded a large quantity of drugs concealed in the defendants underwear. Id. The defendant moved to suppress the evidence and argued that the warrant authorizing his search was too bare bones. Id. The district court denied the defendants motion and this Court affirmed their decision on appeal. This Court held that once a lawful arrest is made, the suspect and any effects in his possession at the place of detention may lawfully be searched and seized without a warrant. Id. at 11

361 citing Edwards, 415 U.S. at 807. Furthermore, it is the fact of the lawful arrest that validates the search, not the officers' subjective belief about the occurrence of the arrest or the necessity of a warrant. Id. at 358 citing Robinson, 414 U.S. at 235. Like the officers in Smith, the officers here did not need a warrant to search Roberts belongings because they searched him and inventoried his belongings incident to a lawful arrest. The officers had the required reasonable suspicion and probable cause needed to arrest Roberts, therefore a search incident to that arrest was completely appropriate. Similarly to this Courts decision in Smith, Roberts appeal should be denied and the lower courts decision affirmed. B. The agents did not violate Roberts Fourth Amendment rights when they searched his call logs because Roberts did not have a sufficient expectation of privacy to his cell phone after his arrest.

Although warrantless cell phone searches are an issue of first impression in the Sixth Circuit Court of Appeals, there is persuasive case law from the Fourth, Fifth and Seventh Circuit regarding searches of cell phones. 12 The Fifth Circuit held that officers may retrieve call records and text messages from a cell phone under a search incident to arrest. United States v. Finley, 477 F.3d 250, 25960 (5th Cir.2007). In Finley, the police stopped the defendant and searched his van. Id. at 254.Consequently, the police arrested him, seized a cell phone that was located his pocket and started to question him. Id. During the questioning, an officer handed the cell phone to another officer, who then searched through the phone's call records and text messages while noting that
1

The First Circuit of the United States Court of Appeals recently addressed this issue and held that search incident to arrest exception did not authorize the warrantless search of data on a cell phone or a computer seized from the arrestee. United States v. Wurie, 728 F.3d 1 (1st Cir.2013).
2

In Smith, the Ohio Supreme Court held that the Fourth Amendment prohibits a warrantless search of data within a cell phone unless it is necessary for the safety of law enforcement officers. State v. Smith, 124 Ohio St. 3d 163, 169 (2009). 12

several of the text messages appeared to be related to narcotics use and trafficking. Id. The lower court found the defendant guilty at trial and he contended, on appeal, that the call records and text messages recovered should have been suppressed. Id. This Court affirmed the trial courts decision, holding that the search was lawful because a full search of the defendant after his arrest is an exception to the warrant requirement and a reasonable search of the Fourth Amendment. Robinson, 414 U.S. at 235. Furthermore, this Court affirmed that the officers were not limited to searching for weapons but may also look for evidence of the arrestee's crime on his person in order to preserve it for use at trial, which includes containers found on his person. Id. at 23334 citing United States v. Johnson, 846 F.2d 279, 282 (5th Cir.1988) see also New York v. Belton, 453 U.S. 454, 46061 (1981) (deciding that officer can search open or closed containers located within arrestee's reach). Similarly, the Fourth Circuit held that an arresting officer's need to preserve evidence tempers privacy rights in the phone. United States v. Young, 278 Fed.Appx. 242, 245 (4th Cir.2008). In Young, the officers arrested the defendant, accessed the text messages stored on his phones and wrote down the contents. Young, 278 Fed.Appx. at 244. The defendant moved to suppress that evidence alleging that the information contained in the text messages on the cell phones was improperly seized and he argued the officer acted unlawfully when he manipulated the cell phones to reveal the text messages because they had no authority to examine the phones' contents without a warrant. Id. The trial court denied his motion to suppress and this Court affirmed their decision and the officers acted lawfully in order to obtain and preserve evidence. Id. at 243.

13

This Court also cited the Fifth Circuit decision in Finely as part of its reasoning and held that the officers lawfully searched the phone to preserve evidence. Id. at 244. In Flores-Lopez, the Seventh Circuit held that officers are entitled to open a pocket diary to copy the owner's address; therefore, they should be entitled to turn on a cell phone to learn its number. Officers may leaf through a pocket address book, so they should be entitled to read the address book in a cell phone. United States v. Flores-Lopez, 670 F.3d 803, 807 (7th Cir.2012) citing United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir.1993). The Flores-Lopez officers arrested the defendant, searched his truck and seized three cell phones from the defendant's person. Id. at 804. At the scene of the defendants arrest, the officer searched each cell phone for its telephone number, which the government later used to subpoena three months of each cell phone's call history from the telephone company. Id. The Flores-Lopez trial court denied his defendants motion to suppress the cell phone evidence; this Court affirmed that decision because it perceived that the modest benefit of being able to obtain a cell phone's number immediately is worth the modest cost in invasion of privacy to defendants. Id. at 808. This court also held that the invasion of obtaining the cell phones number is limited and slight because the number is public information. Id. at 809. Furthermore, this Court decided that looking in a cell phone for just the cell phone's phone number does not exceed what decisions like Robinson and Concepcion allow. Id. at 810 citing Robinson, U.S. 218, 235 (1973) (holding that the search of a conventional container, such as cigarette pack, in which heroin was found is no more invasive than a frisk); citing United States v. Concepcion, 942 F.2d 1170, 117273 (7th Cir.1991) (holding that a minimally invasive search may be lawful without a warrant, even if the usual exceptions to a warrant are absent).

14

The Fourth Circuit Court of Appeals held that officers possess the authority to retrieve phone numbers from a pager seized incident to an arrest. United States v. Hunter, No. 964259, 1998 WL 887289 (4th Cir. Oct. 29, 1998). In Hunter, the court convicted the defendant of conspiracy charges and he moved to suppress the evidence from the cell phones as improperly seized. After the district court denied his defendants motion, he appealed and argued that the district court erred in failing to suppress the results of the execution of a search warrant and in failing to suppress evidence of telephone numbers taken from his pager without a warrant. Id. The court held that, until his arrest, the defendant did have a reasonable expectation of privacy in the contents of the pager's memory, which cancelled upon his arrest. United States v. Chadwick, 433 U.S. 1, 10-11 (1977). In the instant case, the officers search of Roberts phone after a lawful arrest with probable cause. Like the Finley officers, the officers here should not be limited to searching for weapons because the cell phone contained evidence that the officers used to further the investigation into Roberts true address. Moreover, like the officer in Young, these officers had to manipulate Roberts phone to see the call logs because they needed to get any evidence the phone could provide. This situation is also similar to Flores-Lopez because the officers only obtained a phone number, which the Seventh Circuit regards as minimally invasive and public knowledge like lawfully leafing through an address book. Flores-Lopez, 670 F.3d at 807 (7th Cir.2012). Likewise, like the defendant in Hunter, Roberts did have a privacy interest in the phone, which extinguished upon his arrest. Therefore, this Court should affirm the lower courts holding and deny Roberts appeal.

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C.

The officers used lawfully possessed keys to determine which door was Chandlers, therefore there was no violation of her Fourth Amendment rights.

This Court holds that the mere insertion of a key into a lock, by an officer who lawfully possesses the key and is in a location where he has a right to be, to determine whether the key operates the lock is not a search. United States v. Salgado, 250 F.3d 438, 456 (6th Cir.2001). For example in Salgado, the officer discovered a key in a car parked outside of an apartment complex. Id. at 455. The officer believed that it might be the key to a suspect's apartment so he tried the lock to determine whether the key would unlock the door. Id. The key worked, but the officer neither opened the door nor entered the apartment. Id. The defendant moved to have the evidence suppressed because he had an expectation of privacy in the residence. The trial court denied the defendants motion to suppress and found that insertion of the key to see whether it would fit the lock was not the beginning of the search. Id. at 446. Consequently, the defendant appealed and this Court affirmed the trial courts decision to deny the motion to suppress holding that the lock to the defendants apartment door was as accessible to anyone in the hallway like the lock on his car door to someone in the parking lot. Id. at 448. Furthermore, this Court held that the officers merely gained the information that the keys work in the apartment door just the same as that gained by inserting a key into a car door. Id. In addition, this Court held that the insertion of keys into the lock of an automobile was a minimal intrusion, justified by a founded suspicion and by the legitimate crime investigation thus it does not violate the Fourth Amendment. United States v. DeBardeleben, 740 F.2d 440, 444-45 (6th Cir. 1984) quoting United States v. Portillo-Reyes, 529 F.2d 844, 852 (9th Cir.1975). In DeBardeleben, the officer took one of the defendants keys and inserted it into the lock on the passenger side door of a car. Because the key operated the door lock, the officer relocked the door, without ever opening it. The officer then fit the other key into the trunk, which caused

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the trunk lid to open. The officer saw what appeared to be a blue bag but he closed the trunk without searching through any of its content. Id. at 443. When the defendant appealed his conviction, this Court held that the agent acted on a reasonable belief that the car belonged to defendant; therefore he did not search the actual car but merely identified it as belonging to the defendant. Id. at 445. In apposite to the above cases, the officer in Dykstra did not merely use the key to ensure that it would open the lock on the storage unit but also opened the storage unit and looked inside to examine the contents. Garcia v. Dykstra, 260 Fed.Appx. 887, 898 (6th Cir.2008). This Court held that the officer did conduct an unreasonable search without a warrant when he visually opened the door to inspect the contents, thus he violated the defendants Fourth Amendment rights. Id. at 894 citing United States v. Hudson, 405 F.3d 425, 441 (6th Cir.2005). In the instant case, the officers had lawful possession of the key and only used them to ascertain Chandlers apartment number. Similar to the officers in Salgado and DeBardeleben, here the officers inserted the key into the lock to determine which apartment matched the keys, so they could further their investigation. Conversely, these officers did not enter the apartment without consent or inspect the contents of the apartment like the Dykstra defendant did. V. The agents did not coerce consent to search the residence from Chandler and preemptively performed a search under the plain view doctrine. A. Agents did not coerce Chandler for consent to search apartment.

Officers may threaten to prosecute a defendants family members, if there is sufficient and legal basis for the claims.United States v. Johnson, 351 F.3d 254, 262 (6th Cir. 2003). Additionally, threats to arrest members of a suspect's family may cause a confession to be involuntary. Finch, 998 F.2d at 356. However, whether a threat to prosecute a third party is 17

coercive turns on the issue of whether the threat could have been lawfully executed. Hunter, 332 Fed.Appx. at 289 citing United States v. Johnson, 351 F.3d 254, 263 (6th Cir.2003). In Finch, officers told the defendant that he, his mother and his girlfriend would be charged based on any drugs discovered in their home, unless one person claimed sole ownership. Finch, 998 F.2d at 355. The defendant then confessed and was arrested. Id. at 366. This Court concluded that the threat to arrest the defendants mother and girlfriend was objectively coercive because the police had no basis for lawfully arresting the women or threatening to do so. Id. at 356. Likewise in Spano, officers instructed the defendants friend to falsely state that he was in jeopardy of losing his job unless the defendant confessed. they Spano v. New York, 360 U.S. 315, 319 (1959).The officers also instructed the defendants friend to play on his emotions by mentioning his three children and pregnant wife. Id. The defendant ultimately confessed and The Court held to suppress the statement. Id. Conversely in Johnson, the officers threatened the defendants sister-in-law. Although this is generally considered coercive misconduct, this Court held that police may use threats as long they have a sufficient legal. Johnson, 351 F.3d at 302 (6th Cir. 2003). Because the officers had real reason to arrest the defendants sister-in-law, this Court ruled that the officers behavior was lawful. Id. Unlike the officers in Finch and Spano, the officers here did not falsely threaten Chandler. The officers could have called Children and Family Services and filed a legitimate complaint just based on the suspected drug activity in the apartment. Furthermore, if they actually found drugs on that table which was accessible to her small child, the officers had an obligation to notify Children Family Services about the incident. Thus, this situation is 18

analogous to the facts from Johnson because the threat has a legal basis. Likewise, this Court should rule the officers acted lawfully because they may use threats if they have a sufficient legal basis to do. That said, the Court should deny Roberts appeal and affirm the lower courts denial of his motion to suppress, as well. B. The plain view doctrine allowed the officers to search Chandlers apartment

The plain view doctrine exception to the Fourth Amendment warrant requirement allows an officer to seize weapons, drugs and other contraband as evidence when discovered in a place where the officer has a right to be. Washington v. Chrisman, 455 U.S. 1, 5-6 (1982) citing Coolidge v. New Hampshire, 403 U.S. 443, 472 (1971); see also Harris v. United States, 390 U.S. 234 (1968). For example in Chrisman, the officer caught a student underage drinking and arrested him. Since the defendant did not have any identification, the officer followed him back to his dorm room and stood in the doorway to maintain control of the situation. \ Chrisman, 455 U.S. 1 at 2 (1982). The officer immediately noticed seeds and a pipe associated with marijuana use and advised the defendant and his roommate of their rights. Id. at 2. They both consented to a search, which uncovered more drugs. The defendant moved to suppress the evidence and argued that the officer lacked authority to seize the contraband, even though it was in plain view because he was in the doorway outside of the when he made his observations. Id. at 8. The defendants motion was denied at the trial court and appellate levels then granted by the Supreme Court of Washington that held there was no indication that the officer was in danger; thus the officer had no right to enter the room or seize the contraband. Id. at 2. The Supreme Court of the United States held that the officer had the right to act when he saw the seeds and pipe Id. at 3. The Court also held that this is a classic instance of incriminating

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evidence found in plain view when a police officer, for unrelated but entirely legitimate reasons, obtains lawful access to an individual's area of privacy. The Fourth Amendment does not prohibit seizure of evidence of criminal conduct found in these circumstances. Id. at 9. In Young, the officer entered the premises and observed pills on the table. United States v. Young, 278 Fed.Appx. 242 (4th Cir.2008). The officer picked up another item to investigate further and a package containing more drugs fell out of the item. Id. at 243. Young moved to suppress the evidence as improperly seized because it was not in plain view. Id. This Court ruled that the seizure was proper because the plain-view doctrine authorizes warrantless seizures of incriminating evidence when the object's incriminating character is immediately apparent. Id. citing United States v. Jackson, 131 F.3d 1105, 1109 (4th Cir.1997). In Bishop, the officer was in the defendants driveway bur then lost sight of him. The officer peered into the open window of a car in the driveway. United States v. Bishop, 338 F.3d 623, 628-29 (6th Cir.2003). The officer saw the keys in the ignition and the barrel of a handgun jutting from under the seat so he reached in and retrieved the loaded handgun. Id. Next, the officer called in to dispatch to determine if the defendant had any warrants and to have the car impounded. Id. The defendant moved to suppress the evidence in the car and the lower court granted his motion holding that the plain view exception was not applicable because the officer lacked basis for assuming the gun was contraband. Id. This Court held that an officer who discovers a weapon or contraband in plain view may seize it if he believes that it poses an immediate threat to officer or public safety. Id. In the instant case, Greg saw the cocaine on the table, which is clearly incriminating given his experience with drug activity. Like the officer in Chrisman, Gregg had the right to act immediately to preserve public safety once he observed the cocaine so as Gregg discovered the

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contraband in plain view like the officer in Bishop and lawfully seized the area to wait for a warrant. Therefore, this Court should deny Roberts appeal and affirm the lower courts decision. CONCLUSION For the reasons stated below, this Court should affirm the lower courts denial of Roberts motion to suppress. 1. The agents had the required reasonable suspicion and probable cause to arrest Roberts. 2. The agents performed a valid search of Roberts person and cell phone incident to his lawful arrest. 3. The agents lawfully possessed Roberts keys and Gregg froze Chandlers apartment because he saw cocaine on the table in plain view. CERTIFICATE OF SERVICE I hereby certify that on November13, 2013, copies of Appelles brief in support of denying Michael Roberts appeal were sent by regular U.S. mail, postage prepaid, to Michael Roberts, 111 Main Street, Cleveland, Ohio 44444. _________________________ Mutajah S. Hussein Assistant Federal Prosecutor 123 Federal Court House Cleveland, Ohio 44000 (216) 000-0000 Fax (216) 000-0000 M.S.Hussein@cmlaw.csuohio.edu

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