ROBERT E. LARSEN, Magistrate Judge.
Before the court is defendant's motion to suppress his statement
On March 10, 2016, defendant went to the federal building in Kansas City, Missouri, and became unruly and threatening. Officers struggled to handcuff defendant. Once he was on the ground and in handcuffs, defendant said that he had a gun in his car. His person was searched and police recovered a small amount of heroin from his pants pocket. The car, which was illegally parked, was towed; and during an inventory search a firearm was found.
A criminal complaint was filed on March 11, 2016, charging defendant with possessing a firearm after having been convicted of a felony. On March 30, 2016, an indictment was returned adding one misdemeanor count of possessing a controlled substance. On November 15, 2016, a superseding indictment was returned, adding one count of threatening a federal law enforcement officer.
On December 1, 2016, defendant filed a motion to suppress challenging his statement on the ground that he was questioned while in custody and without having been advised of his
On January 4, 2017, I held a suppression hearing. The United States was represented by Assistant United States Attorneys Jeffrey McCarther and Bradley Kavanaugh. Defendant was present, represented by Assistant Federal Public Defender Marc Ermine. The following witnesses testified:
The following exhibits were admitted into evidence:
A transcript of the hearing was filed on January 9, 2017 (document number 44).
On January 11, 2017, defendant filed a supplemental motion to suppress (document number 46). Defendant argues that the evidence presented during the first hearing establishes that not only his
A supplemental hearing was held on February 8, 2017. The United States was represented by Assistant United States Attorneys Jeffrey McCarther and Courtney Pratten. Defendant was present, represented by Assistant Federal Public Defender Marc Ermine. The following witnesses testified:
The following exhibits were admitted into evidence:
A transcript of the second hearing was filed on February 15, 2017 (document number 59).
On the basis of the evidence presented at the suppression hearings, I submit the following summaries of the versions of the incident.
On March 10, 2016, FPO Inspector David Yadon was working at 601 East 12th Street in Kansas City, the Richard Bolling Federal Building (1Tr. at 7-8). He was carrying a communications radio for dispatch in the event of incidents requiring law enforcement response (1Tr. at 8).
At approximately 8:30 a.m., Inspector Yadon was told via his radio that the protective security officers ("PSOs") stationed in the lobby had a disorderly person and needed assistance (1Tr. at 8, 26). Inspector Yadon was on the second floor of the Federal Building and headed to the lobby on the first floor (1Tr. at 8, 14-15).
When he arrived in the lobby, Inspector Yadon was told by the PSOs that a person had come into the facility and asked for a federal judge (1Tr. at 9). The man had been told there were no federal judges in the building and he would have to leave (1Tr. at 9). The man had reportedly been slapping himself in the face, and he was making incoherent statements about his son (1Tr. at 26-27). The PSOs told Inspector Yadon that the man was out on the street (1Tr. at 9).
Inspector Yadon and two other inspectors (Wright and Patterson) started walking out toward the street and saw defendant in the street, screaming, waving his arms, and pacing back and forth (1Tr. at 9-10, 15, 27). Inspector Yadon asked defendant what was going on and started walking toward defendant (1Tr. at 10). Defendant began walking toward the inspectors, yelling obscenities (1Tr. at 10, 15-16). At some point defendant turned around and started walking away (1Tr. at 16). For unknown reasons, defendant turned around and headed back toward the inspectors, saying things such as, "I'll kick your ass" (1Tr. at 10, 15-16). They asked defendant what the problem was, why he was angry (1Tr. at 10). Inspector Yadon tried to engage defendant, but defendant looked away and said to another inspector, "I'll fucking kill you" (1Tr. at 10).
At this time, Inspector Schwarz was getting out of his vehicle nearby and headed toward the group (1Tr. at 15). Inspector Yadon did not know what defendant's intentions were (1Tr. at 11, 17-18). Defendant was clenching his fists which is a pre-assault indicator as taught by the Policy Academy, and he was screaming and yelling threats (1Tr. at 29). For the safety of everyone present, Inspector Yadon circled around behind defendant and grabbed his arms, hoping to handcuff him behind his back (1Tr. at 11, 17-18). At the same time, Inspector Wright put his hand on his Tazer (1Tr. at 17). When Inspector Yadon grabbed defendant's arms, defendant began kicking, twisting, biting, and trying to get free (1Tr. at 11, 17). It took six individuals to restrain defendant (Inspectors Yadon, Schwarz, Wright and Patterson, and two Kansas City, Missouri, Police detectives) (1Tr. at 11, 18). When he was taken down to the ground, defendant was banging his head on the concrete (1Tr. at 27).
While this was going on, Inspector Yadon noticed keys come out of defendant's hand; and after he was taken to the ground, the keys were lying in front of him (1Tr. at 12). Inspector Yadon asked defendant if he had driven to the Federal Building (1Tr. at 12). The PSOs had indicated that defendant came from a silver car which was parked in a spot reserved for emergency vehicles; it would have been a safety hazard to leave defendant's car parked in that spot (1Tr. at 12-13). Defendant said, "Yes, I drove and I have a gun in the car" (1Tr. at 13).
After defendant was restrained, an ambulance was called (1Tr. at 11-12). Based on his training and experience, Inspector Yadon thought it obvious that defendant was under the influence of some type of drug or was experiencing some mental issue, and Inspector Yadon wanted to make sure medical assistance was available (1Tr. at 12, 26).
While defendant was face-down on the ground with his hands cuffed behind him, his pockets were searched and heroin was recovered (1Tr. at 18-19). Defendant was never placed under arrest for a crime (1Tr. at 33).
Defendant was taken by ambulance to Truman Medical Center where he was monitored for drug usage or mental health problems, and he tested positive for PCP while at Truman (1Tr. at 27). After a gun was found in defendant's car, Inspector Yadon was told to go to Truman to stand by at the hospital while an arrest warrant was being sought (1Tr. at 33-34). At the hospital, defendant was fighting with security staff, he broke free of his restraints, urinated all over his hospital room, and had to be sedated (1Tr. at 33).
During the initial incident, Inspector Yadon did not ask defendant if he had any weapons in his car (1Tr. at 13, 28). He did not ask defendant if he had any weapons on his person (1Tr. at 13, 28). He was not yelling at or hurting defendant when he asked whether defendant had driven to the Federal Building (1Tr. at 13).
Detective Bailey testified at both hearings. During the first hearing, Detective Bailey testified as follows: At approximately 8:30 a.m. on March 10, 2016, Detective Bailey and his partner were walking out of the Jackson County Courthouse at the intersection of 12th Street and Locust when they observed defendant wearing all blue and shouting profanities and running around in the street (1Tr. at 35-36). The detectives were about a half a block away (1Tr. at 36). They got in the patrol vehicle and drove toward defendant (1Tr. at 36).
They saw defendant walking aggressively toward the front doors of the Federal Building which is on the south side of 12th Street (1Tr. at 37). As defendant approached the doors of the building, the detectives parked their vehicle directly in front of the building (1Tr. at 37).
As they were getting out of the car, they observed four uniformed security officers make contact with defendant who continued to act in an aggressive and erratic manner, shouting profanity (1Tr. at 37). He appeared not to be following the verbal commands of the officers (although Detective Bailey could not hear what was being said (1Tr. at 42)), and Detective Bailey saw an officer attempt to handcuff defendant behind his back which resulted in a struggle (1Tr. at 37). The detectives approached the group and physically assisted in controlling defendant (1Tr. at 37, 42).
It was difficult to get defendant under control (1Tr. at 37). Officers are trained in various techniques to take control of an individual who is physically resisting, and those techniques failed (1Tr. at 37). Defendant was therefore taken to the ground to get control of him, and he was finally restrained and put in handcuffs (1Tr. at 37-38, 42). Detective Bailey did not observe defendant appear to injure himself during or immediately after the struggle (1Tr. at 38). After he was in handcuffs, defendant continued to resist, continued to shout, began spitting, and he attempted to bang his head on the concrete (1Tr. at 38). Detective Bailey held defendant's head down to prevent him from raising it and continuing to strike it on the ground (1Tr. at 38).
Due to defendant's irrational, erratic behavior during the entire incident, a decision was made to order an ambulance (1Tr. at 39). Detective Bailey has, during his law enforcement career, observed individuals act in a similar manner when under the influence of alcohol or drugs, or suffering from a mental disorder (1Tr. at 39, 42-43).
While they were waiting for the ambulance, Detective Bailey heard defendant say he was "over at his nigga's house smoking kush" and the detective heard "another spontaneous statement stating that the gray car over there was his and there was a gun under the seat." (1Tr. at 40). Detective Bailey did not hear anyone ask defendant about a gun (1Tr. at 40). The detective did not hear any officer make any statements or ask any questions (1Tr. at 40). No one asked defendant about weapons on his person or in his car or anywhere else (1Tr. at 40-41).
Because defendant was spitting at the officers and at the paramedics once they arrived, a hood was placed over defendant's head (1Tr. at 44).
Either Detective Bailey or his partner issued a citation for defendant's car being parked in an "emergency vehicle only" spot (1Tr. at 43). The car was searched during issuance of the citation (1Tr. at 43).
During the second hearing, Detective Bailey testified as follows: During the incident between defendant and law enforcement officers, Detective Bailey heard defendant make a spontaneous statement that "the gray car over there was his and that there was a gun under the seat." (2Tr. at 31). Detective Bailey did not hear any exchange between defendant and any officers about the car or gun (2Tr. at 57). When he said this, defendant looked over toward 12th Street which was directly in front of where this took place (2Tr. at 31). Detective Bailey observed a silver or gray car parked on 12th Street facing east on the south curb in a lane that was exclusively marked with signs for emergency vehicles only (2Tr. at 31). Because this car was not an emergency vehicle, it was subject to being ticketed and towed (2Tr. at 32). Regardless of whether the vehicle belonged to defendant, it would have been ticketed and towed based on its location in an emergency-only spot (2Tr. at 32).
Kansas City Police policy states that an inventory search of the vehicle's property should be conducted prior to the vehicle being towed (2Tr. at 33). Every part of the vehicle's interior that could contain personal belongings is searched (2Tr. at 33). Any personal property or other items found during the search are documented on a tow-in report (2Tr. at 33). This is in case later someone claims items were in the vehicle when it was towed but were not, or if items present at the time of the tow are later found to be missing (2Tr. at 38).
During the inventory search of defendant's vehicle, a handgun was found underneath the driver's seat (2Tr. at 36, 37). One of the Kansas City police detectives found the handgun; Detective Bailey did not hear any FPS officer say a handgun had been found under the seat (2Tr. at 44).
The citation was left with the vehicle; it had been determined that the vehicle was registered to Tiara Gray and not to defendant (2Tr. at 41). Although the tow policy provides that officers should make every reasonable effort to contact the owner of the vehicle, the officers had no knowledge of Ms. Gray being present at the scene and no phone number is associated with a vehicle registration (2Tr. at 45).
Defendant was taken into custody before he was transported to the hospital in an ambulance (2Tr. at 54-55). He was not arrested by any Kansas City, Missouri, police officer on any charges relating to the incident (2Tr. at 56).
To become an FPS officer, one undergoes training on how to make arrests and what questions to ask when someone is taken into custody (2Tr. at 14). Special Agent Vas was trained to ask whether the person who is being detained has any weapons on his person (2Tr. at 14).
On March 10, 2016, Special Agent Vas went to the Federal Building (2Tr. 7). Defendant was already lying on the ground handcuffed when Special Agent Vas arrived (2Tr. at 7). He noticed that a uniformed officer's hand was bleeding, so he took the officer to the nurse's station in the Federal Building (2Tr. at 7). When Special Agent Vas returned to the front of the Federal Building, defendant was no longer present (2Tr. at 8). Special Agent Vas has no personal knowledge of the incident involving defendant and law enforcement officers (2Tr. at 8).
Special Agent Vas drafted the affidavit in support of the criminal complaint in this case (2Tr. at 6). Paragraph 5 of the affidavit reads:
(2Tr. at 6; D. Ex. 3).
Special Agent Vas also drafted a Report of Investigation (D. Ex. 1). Page 3 of that document includes the following:
(2Tr. at 7).
Special Agent Vas got his information from supplemental reports and speaking to law enforcement officers who were present during the incident (2Tr. at 8, 15). He is familiar with a supplemental report written by FPS Inspector Wright (D. Ex. 4) and a supplemental report written by Inspector Patterson (2Tr. at 10). The affidavit in support of the criminal complaint and the Report of Investigation drafted by Special Agent Vas are summary documents (2Tr. at 8).
Although Inspector Patterson's report states that Inspector Schwarz was one of the individuals who responded immediately to defendant, Inspector Schwarz did not prepare a report (2Tr. at 16). However, Special Agent Vas talked to Inspector Schwarz before drafting any documents (2Tr. at 16). He does not recall any of the specifics of his conversation with Inspector Schwarz other than taking him to get medical treatment from the nurse and generally asking, "What's going on?" (2Tr. at 18).
Although these two documents drafted by Special Agent Vas both indicate that defendant was asked if he had any weapons on him, no one told Special Agent Vas this (2Tr. at 9). When he heard that defendant had made the statement about having a gun in the car, "it was just such a spontaneous statement and the fact that we're always taught in training to ask if a person has weapons or contraband on their person, I had just assumed that that was asked of the defendant prior to him making that statement." (2Tr. at 9).
(2Tr. at 19-22).
In his viewing of a video of the incident, it appeared to Special Agent Vas that something resembling keys was tossed or flung from defendant's hands as he was coming down to the ground; however, Special Agent Vas has no knowledge of what happened to the keys (2Tr. at 9-10). He does not know why they are not listed as having been seized from the defendant other than that he does not think it was anything FPS collected as far as personal property (2Tr. at 25).
Special Agent Vas has no knowledge about when defendant was arrested (2Tr. at 26). Because FPS has no way to tow a vehicle from a city street, defendant's car would had to have been towed by the Kansas City Police Department (2Tr. at 26-27). Special Agent Vas has no direct knowledge about the search of the vehicle, the finding of the gun, or the inventory search (2Tr. at 28).
In D. Ex. 1, Special Agent Vas wrote that, "The subject was arrested by FPS and the Kansas City Police Department (KCPD). During a search incident to arrest, EVERETT stated he had a firearm in his vehicle." (D. Ex. 1, p. 1). The report further states:
(D. Ex. 1, p. 3).
(D. Ex. 1, p. 3-4).
(D. Ex. 1, p. 3-4).
Inspector Wright assisted in the incident with defendant and prepared a report afterward (D. Ex. 4). He wrote:
(D. Ex. 4., p. 2).
In a report generated by Officer Patterson, he noted that at approximately 8:30 a.m., he heard on a police radio that FPS inspectors had been requested due to an unruly person in the lobby of the Federal Building. "Inspector Wright, Inspector C. Schwarz, Inspector D. Yadon and I responded immediately. Area Commanders C. Schwarz and Burnetta and District Commander M. Yadon arrived approximately one minute later. Threat Branch Manager Chief Reuschlein arrived shortly thereafter, as did Special Agent Vas." Officer Patterson then describes defendant's behavior, the attempt to take him to the ground, the arrival of the police detectives, and the search of defendant's car. (D. Ex. 5).
The Fifth Amendment guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." In
The term "interrogation" under
In
In this case, the sole question with respect to the statement is whether defendant was asked by law enforcement whether he had any weapons, because clearly such a question would amount to interrogation.
It is the government's burden to prove by a preponderance of the evidence that defendant's statement was voluntary.
Special Agent Vas indicated in both the affidavit in support of the complaint and in his Report of Investigation that defendant was asked if he drove to the scene and if he had any weapons.
Detective Bailey heard defendant's statement, but he testified that he did not hear any officer make any statement or ask any question prior to defendant saying he had a gun in his car. However, this is not consistent with the testimony of other officers, including Inspector Yadon who testified that he in fact asked defendant if he had driven to the scene prior to defendant stating that he had a gun.
Inspector Wright's report states that he heard an officer ask defendant a question before defendant said he had a gun in the car.
Special Agent Vas testified that he got to the scene after defendant had been taken into custody and then accompanied an inspector to a nurse's office. However, Officer Patterson wrote in his report that Special Agent Vas arrived shortly after the unruly person was reported in the lobby; and according to Officer Patterson's report, Special Agent Vas arrived before the struggle with defendant took place. This conflicts with Special Agent Vas's testimony about how much personal information he had about the incident versus what he had to have been told by others.
The Report of Investigation prepared by Special Agent Vas is especially troubling when trying to ascertain what actually happened. This report (in which, according to his testimony, he merely assumes the question about weapons was asked) is full of very specific detail — name, date of birth, phone number, address of registered owner of the car; the citation number and time the citation was issued; the officers who eventually went to the hospital and assisted medical personnel in restraining defendant there so a sedative could be administered; defendant's criminal history and Department of Motor Vehicles information; the description of the firearm including the serial number and the nexus check; the information about defendant's parole violation warrant from the Kansas Department of Corrections; the dates of transport including the starting and ending mileage of the transport vehicles, etc. This document continues to recount events through July 8, 2016 — approximately three months after the incident. I find it difficult to believe that a Special Agent would assume something as important as whether an officer asked a defendant who was in custody and had not been advised of his
Additionally, Special Agent Vas's testimony that he assumed defendant was asked about weapons because that's what officers are trained to do does not logically mesh with the report's admission that no
I have struggled with the facts before me, attempting to figure out from all of the evidence what actually happened. It is undisputed that defendant was handcuffed and restrained with multiple officers on top of him — clearly he was in custody for Miranda purposes. It is undisputed that he was not advised of his
The defendant's constitutional right under the Fifth Amendment cannot be set aside because government witnesses remember events differently. Not only is there no legal precedent for this approach, it may create encouragement for officers to nullify constitutional violations simply by presenting conflicting testimony when their actions are challenged in court, or by having an officer who has no personal information prepare the affidavit or report with a different version of what occurred. The government bears the burden of establishing that statements are voluntary, that
The government argues that the public safety exception to
(Doc. 38, p. 4).
Under the public safety exception, a suspect's answer may be admitted into evidence if it was obtained in response to a question asked in furtherance of public safety and not designed solely to elicit testimonial evidence, even if
In arguing that the public safety exception applies in this case, the government cites
In
Those cases are distinguishable from the one before me now. First, the government's argument that the question, "Did you drive here?" is in furtherance of the public safety is not persuasive. The balancing test in
The government alternatively argues that the question, "Do you have any weapons?" falls within the public safety exception. The problem is that the government has presented nothing but conflicting evidence on the issue of whether that question was ever asked. Furthermore, the government denies in its response that this question was ever asked. Again, it is the government's burden to establish by a preponderance of the evidence that defendant's constitutional rights were not violated in obtaining his statement. The evidence before me now does not establish by a preponderance of the evidence that the question was or was not asked. It simply establishes that many versions of the incident have been reported, and at least one of those versions is that defendant was asked whether he had any weapons (and indeed that version is the one the government urges the court not to credit).
Because the government has failed to satisfy its burden of establishing by a preponderance of the evidence that defendant's statement (1) was not the result of custodial interrogation, and (2) was the result of a question by police that falls within the public safety exception to
Defendant argues that the search of the car was impermissible because defendant's statement that he had a gun in the car was the result of not merely a Miranda violation but coercive police action and as such derivative evidence (the gun found in the car) is subject to suppression. The government argues that the gun was discovered during a lawful inventory search of the vehicle.
In South Dakota v. Opperman, 428 U.S. 364, 368-369 (1976), the Supreme Court noted two common police practices. First, "automobiles are frequently taken into police custody" in the interests of public safety and "community caretaking functions." Second, "[w]hen vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents." The Court concluded that, properly implemented, these practices do not run afoul of the Fourth Amendment's search warrant requirement. Id. at 376. This Fourth Amendment ruling has come to be known as the "lawful inventory search" exception to the warrant requirement because evidence of criminal activity is sometimes discovered during an inventory search.
In
Here the government offered the Kansas City, Missouri, Police Department's tow policy which establishes that police may tow a vehicle that is illegally parked. "When a vehicle is observed to be abandoned or is illegally parked and is causing a problem/hazard officers will tow the vehicle. Officers will make every reasonable effort to contact the owner." (P. Ex. 6, p. 9). In this case, the undisputed evidence is that a car was parked in an emergency-vehicle-only parking spot in front of the Federal Building, it was not an emergency vehicle, and the registration information showed that a female owned the car and that female was not in the vicinity. Police were well within their authority to tow the car and were also, therefore, entitled to conduct an inventory search.
Defendant argues that because his statement was coerced, the search of the car was not lawful because the gun found during that search is evidence derivative of the involuntary statement.
The Supreme Court, in
Because police cannot violate the self-incrimination clause by taking unwarned but voluntary statements, an exclusionary rule "cannot be justified by reference to a deterrence effect on law enforcement."
There is no evidence before me that defendant's statement was coerced. The evidence is that his statement was obtained in violation of
Because the firearm was seized during a lawful inventory search of the car, defendant's motion to suppress on this basis should be denied.
Finally, defendant argues that the heroin seized from his person should be suppressed on the ground that the search exceeded the bounds of a frisk for weapons. I agree.
The evidence establishes that defendant was not arrested. Being detained for purposes of
Because defendant was not arrested while he was in front of the Federal Building, the search of his person was not incident to arrest.
However, officers may conduct a pat down search to determine whether a person is carrying a weapon if the person is stopped due to a reasonable suspicion that criminal activity may be afoot and the officer is justified in believing that the person may be armed and dangerous to the officer or others.
In
In this case, Inspector Yadon testified that defendant was searched and heroin was recovered from his person. Inspector Wright wrote in his report that officers searched defendant's person and seized a credit card, a driver's license, keys, and a small baggie with an unknown substance which was subsequently field tested and found to be heroin. Special Agent Vas wrote in his reports that defendant was searched and police seized a driver's licence, a cellular phone, a lighter, two die, a pack of Newport cigarettes, and a tube of Carmex lip balm.
There was no evidence offered by anyone that any law enforcement officer believed that any of these items were weapons or that the incriminating character of any of these items was immediately apparent without further investigation. The uncontradicted evidence was that defendant's person was searched "incident to arrest," even though no arrest took place.
Because the search of defendant's person was unlawful, the heroin seized from his pants pocket should be suppressed.
Based on all of the above, I find that (1) the government has not satisfied its burden of proving by a preponderance of the evidence that defendant's statement was not obtained in violation of
RECOMMENDED that the court, after making an independent review of the record and the applicable law, enter an order granting defendant's motion to suppress his statement (from the government's case in chief; however, the statement would be available as
Counsel are advised that, pursuant to 28 U.S.C. § 636(b)(1), specific objections must be filed and served within 14 days.