Kentucky is often a state of distinction for the wrong reasons. It ranks in the top ten of the two of the worst categories: corruption and meth labs. Both categories lend support to each other. The Kentucky States Police reported last year that the seizure of meth labs reached an “all-time high” (an increase of 188 percent in a two year period) and in 2011 the Drug Enforcement Administration (DEA) reported that meth arrests were up by 65 percent in the state. These figures reflect a growing concern, and presence, of both state and federal law enforcement in this area, especially in the eastern part of the state where meth production and trafficking is concentrated.
This brings us to the case of Courtney Junior Noble, Marcus Jessie Adkins, and Dena Lynn Brooks. In the fall of 2012, a DEA Task Force was investigating a methamphetamine-distribution network in Kentucky.
DEA agent Scott McIntosh received information from a confidential informant (CI) about Brooks’ and Adkins’ involvement in the meth network. According to the CI, Brooks would pick up quantities of meth from a source in Louisville and bring it to Lexington where she would meet with Adkins. Adkins would then take the drugs to Wolfe and Powell Counties for distribution.
In December 2012, McIntosh interviewed Brooks who cooperated with the agent by confirming that Adkins indeed distributed meth in Wolfe and Powell Counties, naming Noble as one of his customers. In January 2013, the CI informed Agent McIntosh that Brooks would be traveling to Louisville on January 28 to purchase some meth. The CI not only described Brooks’ vehicle to the agent, a white Jeep Cherokee, but provided him with its license number as well, and provided the precise time Brooks had to be back in Lexington.
On the 28th, the Task Force set up surveillance teams on both the I-75 and 1-64 corridors in an effort to spot Brooks in the white Cherokee driving toward Louisville. The surveillance was unproductive. At approximately 5:00 p.m., McIntosh received a phone call from the CI advising him that Brooks might be driving Adkins’ dark-colored Chevrolet Tahoe instead of her white Cherokee.
The CI also informed the agent that he had seen Adkins and Brooks at a motel near Exit 115 off I-75. The CI said the duo used the motel as a “way station” on route to Wolfe and Powell Counties, and he believed they may have stopped at the motel again that day.
With this information in hand, the McIntosh contacted a Detective Hart, a Lexington detective assigned to the DEA Task Force. McIntosh asked Hart to investigate to determine if either the Cherokee or Tahoe were at the motel.
Hart located the two vehicles at a La Quinta Inn after which he set up surveillance on the vehicles. A short time later the Tahoe drove out of the motel parking lot traveling in the direction to I-64. Hart followed the Tahoe while making contact with a uniformed officer named Ray with the Fayette County Government Division of Police. Hart told the patrol officer about the Task Force’s investigation, but that he was not sure who driving the Tahoe and had no information about any weapons being in the vehicle. Hart could only say that the vehicle was linked to an individual being investigated by the Task Force.
Officer Ray soon spotted the vehicle and began to follow it. The Tahoe slowed, switching from the center lane to the right lane without signaling. The officer also noticed that the driver’s window was heavily tinted. He had enough information for a traffic stop. Detective Hart arrived on the scene a few moments after the stop was made. Officer Ray approached the Tahoe from the passenger side for safety reasons. He asked Adkins, the driver of the vehicle, for his driver’s license, and informed the driver about why he had stopped him.
While going through this preliminary process, Officer Ray observed that the passenger in the vehicle, who turned out to be Noble, was extremely nervous, his hand visibly shaking while holding a popular sports drink. The officer then pointed his tint meter at one of the vehicle’s windows and found it was in violation of Kentucky law.
Officer Ray questioned Adkins about why he had changed lanes without signaling. The driver said he was distracted by his cell phone. The officer conducted a field sobriety test on Adkins who passed it. He then began to question Adkins about Noble’s nervousness and followed that up with a question about whether there was “anything illegal on him or in the vehicle.” Adkins responded, “not to my knowledge.”
Officer Ray requested, and received, consent from Adkins to search the vehicle. He frisked Adkins before turning his attention to the vehicle. Adkins did not have any contraband or weapon on his person. Officer Ray then escorted Adkins to Detective Hart’s vehicle before turning his attention to Noble. The officer instructed the passenger to get out of the vehicle, informing him that he had permission to search it. Ray then patted down Noble to make sure he did not have any weapons on him. During the ensuing frisk, the officer discovered what he believed were packets of crack cocaine, a pill bottle, a crack pipe, and a loaded pistol on Noble’s person. In the meantime, Detective Hart elicited information from Adkins implicating himself and Noble in a narcotics purchase.
Other Task Force members sought, and secured, a search warrant for the motel room where dditional narcotics and paraphernalia were found.
This evidence led to grand jury indictments of Noble, Adkins and Brooks for an assortment of drug conspiracy charges. Noble was indicted on an additional count of possessing a firearm in furtherance of the conspiracy. All three defendants subsequently move to suppress the evidence, saying Officer Ray did not have probable cause to stop Adkins’ vehicle nor any reasonable suspicion to frisk Noble. The trial court denied the motions, finding the traffic stop was reasonable because the drug investigation was ongoing and that he had received consent to search the vehicle. The court also found the frisk was reasonable because Officer Ray had a reasonable suspicion that Noble might be armed and dangerous.
While all three defendants entered into plea agreement, they preserved their right to appeal the trial court’s denial of their motions to suppress. On August 8, 2014, the Sixth Circuit Court of Appeals addressed the suppression issues on appeal. The appeals court noted that most traffic stops are analogous to the so-called “’Terry stop’ than to formal arrest.” However, the defendants alleged that Officer Ray’s “detention of the Tahoe was excessive in scope and impermissibly long in duration.” While the defendants conceded that Adkins’ erratic driving and the heavily tinted windows justified the initial stop, they argued that once Officer Ray determined the windows were improperly tinted and Adkins had passed the field sobriety test, there was “no additional evidence to be found by searching the individuals or the vehicle.”
The court disagreed with part of the defendants’ argument, finding that Officer Ray did not act unreasonably when he detained Adkins and prior to his frisk of Noble. The issue then turned on whether the officer had “reasonable suspicion” to frisk Noble based on his nervousness. The appeals court concluded the “sequence of events, the officer’s actions after noticing Noble’s nervousness, and the suspects compliance with all commands serves to discount the relevance of Noble’s nervousness. Accordingly, we afford very little weight to Noble’s nervousness in our reasonable suspicion calculus.” The court then noted that at the time of the stop, there was absolutely no evidence to link Noble to the drug network, and thus, his mere presence in the Tahoe, in conjunction with his nervousness, did not form a reasonable suspicion that he was armed or dangerous sufficient to justify the frisk of him.
Based on a litany of precedents in this area of the law, the Sixth Circuit had no choice but to reverse Noble’s conviction. The appeals court then had to address what it called an “awkward problem” because neither Adkins nor Brooks had explained to the court how the unconstitutional frisk of Noble impacted their Fourth Amendment rights. This issue was made simpler by the fact that the Government did not object to—and, in fact, waived its right to challenge—Adkins’ and Brooks’ standing to make a Fourth Amendment claim based on Noble’s unconstitutional frisk. The appeals court concluded, therefore, that the Government’s waiver of standing prevented it from addressing the “lack of standing” issue and it was required to also reverse Adkins’ and Brooks’ convictions as well.
The Sixth Circuit pointed out that counsel for Adkins and Brooks were ill-prepared in making their argument to the court on this issue. The court said the attorneys presented “muddled briefs and oral arguments” on the issue. What saved the day for them was the Government’s expressed waiver of all non-jurisdictional defects in its plea agreements with the two defendants. It is rare that a federal appeals court will take it upon its own initiative to identify issues for reversal of a criminal conviction, but the Sixth Circuit did so in this instance—and we applaud the court for doing it.