ORDER ADOPTING MAGISTRATE'S REPORT AND RECOMMENDATION

ROSEANN A. KETCHMARK, District Judge.

Before the Court is Defendant Gabriel Sherrod's Motion to Suppress (doc. 26). An evidentiary hearing was held on June 28, July 6, and July 7, 2017 before United States Magistrate Judge Sarah W. Hays. On October 13, 2017, Judge Hays issued the Report and Recommendation ("R&R"). (Doc. 56.) Defendant filed objections to the R&R (doc. 60), and the Government filed its memorandum opposing defense objections and objecting in part to the R&R (doc. 61). Defendant then filed a motion to strike the Government's objections to the R&R as untimely. (Doc. 62.)

Pursuant to Federal Rule of Criminal Procedure 59(b)(3), "[a] district judge must consider de novo any objection to a magistrate judge's recommendation." After an independent, de novo review of the record, including all exhibits admitted at the evidentiary hearing, the applicable law, and the parties' objections and original motion, the Court adopts the Report and Recommendation of Judge Hays in its entirety.

Accordingly, it is ORDERED that:

REPORT AND RECOMMENDATION

This matter is currently before the Court on Defendant's Motion to Suppress Evidence (doc #26). For the reasons set forth below, it is recommended that the motion be denied in part.

I. INTRODUCTION

On September 19, 2016, a criminal complaint was filed against defendant Gabriel Sherrod. On October 12, 2016, the Grand Jury returned a one-count indictment against defendant Sherrod. The indictment charges that on September 17, 2016, defendant, having been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessed firearms, to wit, a Smith & Wesson, model 422, .22-caliber semi-automatic handgun; a Remington, model 500, .22-caliber rifle; a Winchester, model 1897, 12-gauge shotgun; a Savage Arms, model 93R17, .17-caliber rifle; and a Stevens Arms, double-barrel, 12-gauge shotgun.

On May 13, 2017, defendant Sherrod filed a Motion to Suppress Evidence. An evidentiary hearing was held on June 28, July 6, and July 7, 2017. Defendant Sherrod was represented by Gerald Gray II. The Government was represented by Assistant United States Attorney David Raskin. The Government called Officer Timothy J. Trost, Detective Frank Rorabaugh, Sergeant Ronald Hunter, and Officer Chase Kuehl of the Kansas City, Missouri Police Department as witnesses. The defense called Gabriel Sherrod, Jr., Amy Sherrod and defendant Sherrod to testify.

II. FINDINGS OF FACT

On the basis of the evidence presented at the evidentiary hearing, the undersigned submits the following proposed findings of fact:

12. After receiving consent, the officers conducted a search of the home. (Tr. I at 25) The firearms which had already been observed were seized. (Tr. I at 25) A United States passport was discovered in a drawer of the coffee table in the living room. (Tr. I at 25) The passport did not belong to defendant Sherrod. (Tr. I at 32)

13. The morning of September 18, 2016, Detective Rorabaugh interviewed defendant Sherrod at the police station. (Tr. II at 6-7, 14) Detective Rorabaugh advised Sherrod of his Miranda rights. (Tr. II at 7) Sherrod stated that he understood his rights and agreed to speak with Detective Rorabaugh. (Tr. II at 7) Sherrod signed a Miranda waiver form. (Tr. II at 7) Sherrod said that he lived at 316 North Elmwood with his wife, Amy Sherrod, and children. (Tr. II at 8, 15-16; Government's Ex. 21)

III. DISCUSSION

Defendant Sherrod seeks to suppress all evidence seized on September 17, 2016, as a result of the warrantless search of his home. (Defendant's Motion to Suppress Evidence (doc #26) at 1) In support of his motion, defendant argues that his Fourth Amendment rights were violated in the following respects: (1) officers entered defendant's home without a search warrant or a valid warrantless exception; and (2) officers relied upon invalid consent when they searched the home without a warrant and seized the guns and drugs. (Id. at 3)

A. Entry Into Defendant's Home

First, the Court finds the officers were justified in entering the residence in order to execute the arrest warrant for defendant Sherrod. As set forth in United States v. Cantrell, 530 F.3d 684 (8th Cir. 2008):

Cantrell, 530 F.3d at 689-90. See also United States v. Lloyd, 396 F.3d 948, 952 (8th Cir. 2005) ("A lawful arrest warrant carries with it the authority to enter the residence of the person named in the warrant in order to execute the warrant as long as the officers executing the warrant have a reasonable belief that the suspect resides at and is currently present at the dwelling.")

Here, officers were responding to a check the welfare call for children. (Fact No. 1) The officers also knew that there was a felony arrest warrant for burglary for the father of the children, Gabriel Sherrod. (Fact No. 1) As the officers were walking up to Sherrod's residence shortly after 10:00 p.m., the door opened and a child (Gabriel Sherrod, Jr.) walked out with a bag of trash. (Fact No. 3) The officers had a conversation with the child on the sidewalk and determined that this was one of the children whose name had been provided in regard to the check the welfare call. (Fact No. 3) Officer Trost asked Gabriel Sherrod, Jr. if his dad was home. (Fact No. 3) Officer Trost testified that the child paused suddenly and looked unsure and then turned around and walked towards the house. (Fact No. 3) Given that it was after 10:00 p.m., the fact that a child was taking out the garbage, and the child's reaction when officers asked him if his dad was home, the Court finds that the officers had reason to believe that defendant Sherrod was within the residence and that Gabriel Sherrod, Jr. was leading the officers to him. The arrest warrant gave the officers authority to enter the residence.

By statute, officers are required to knock and announce before executing a search warrant. See 18 U.S.C. § 3109. Here, officers were executing an arrest warrant, not a search warrant. Assuming that officers are also required to knock and announce before serving an arrest warrant, "most circuit courts deciding the issue [of whether knocking is required when a door is open] have concluded when the door is open, the [knock and announce] rule is vitiated." United States v. Mendoza, 281 F.3d 712, 717 (8th Cir.), cert. denied, 537 U.S. 1004 (2002). See also United States v. Harwell, 426 F.Supp.2d 1189, 1200 (D. Kan. 2006)(`there is no `breaking' or `unannounced intrusion' or `forcible entry' when an officer walks through an open door in the presence of an occupant or resident"). The Court credits Officer Trost's testimony that the door to the residence was already open when the officers entered the residence behind Gabriel Sherrod, Jr.15 At set forth in Mendoza, "[i]n making the determination of whether the Fourth Amendment has been violated by a failure to knock and announce, we must remember reasonableness is our polestar." Id. Here, as Officer Trost entered the residence behind defendant's son, he calmly called out the name, "Gabriel?" (Fact No. 4) Officer Trost was in uniform and his weapon was holstered. (Fact No. 4) No property damage resulted from the officers' entry into the residence. The Court finds that the officers' entry into the residence to effectuate the arrest of defendant Sherrod on a warrant was reasonable. The officers were not required to knock and announce their presence before entering the open door of the residence.

B. No Search Warrant

It is well established that warrantless searches violate the Fourth Amendment unless they fall within a specific exception to the warrant requirement. See United States v. Karo, 468 U.S. 705, 717 (1984). One exception to the warrant requirement is the plain view doctrine. See Horton v. California, 496 U.S. 128, 134-37 (1990). Another exception to the warrant requirement is consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). See also United States v. Elam, 441 F.3d 601, 603 (8th Cir. 2006)("the Fourth Amendment does not prohibit the warrantless search of a person's home or other property if the police have obtained the voluntary consent of a third party with common authority over the premises or property").

1. Plain View

Upon entering the residence, Officer Trost testified that he observed piles of firearms within the residence in the front entryway. (Fact No. 5) After defendant Sherrod ran out the back of the residence and was arrested, Officer Trost, who was still inside the house, walked back where he had originally entered the house. (Fact Nos. 6 and 7) In that front room, Officer Trost testified that he observed two or three piles of firearms, as well as a handgun on the floor by the couch. (Tr. No. 7) Officer Trost testified that he also saw numerous syringes, a syringe that had a black liquid inside, a spoon with residue on it, and a scale in the front room. (Fact No. 7) Based on his training and experience, Officer Trost drew the conclusion that there was drug use within the residence. (Fact No. 7) Officers performed a protective sweep of the residence. (Fact No. 8) The officers found a black powder firearm above the door in one of the bedrooms. (Fact No. 8) Officer Trost testified that he contacted Detective Frank Rorabaugh for guidance given the discovery of firearms and the fact that defendant Sherrod had a felony warrant. (Fact No. 9) Detective Rorabaugh conducted a database search regarding Gabriel Sherrod's criminal history and determined that Sherrod was a convicted felon. (Fact No. 9) The firearms were seized after it was determined that defendant Sherrod was a convicted felon. (Fact No. 12)

It is settled law that an officer "may seize, without a warrant, an item that is 1) in plain view 2) when it is observed from a lawful vantage point, 3) where the incriminating character of the item is immediately apparent." United States v. Banks, 514 F.3d 769, 773 (8th Cir.), cert. denied, 553 U.S. 1100 (2008). See also Payton v. New York, 445 U.S. 573, 587 (1980)("The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.") When they entered the residence to execute the arrest warrant, the officers were lawfully in the position from which they viewed the piles of firearms, the handgun, the syringes, the spoon with residue, and the scale. The incriminating character of the syringes, the spoon with residue, and the scale was immediately apparent to the officers. The officers suspected the incriminating character of the piles of firearms and the handgun given that they were executing a felony warrant for defendant Sherrod and the incriminating character of the firearms was quickly confirmed once Detective Rorabaugh conducted the database search regarding defendant Sherrod's criminal history. Upon conducting the protective sweep of the residence,16 the officers were lawfully in the position from which to view the black powder firearm above the door in one of the bedrooms. The firearms were seized after it was determined that defendant Sherrod was a convicted felon. The Court finds that the officers were justified in seizing these items under the plain view doctrine.

2. Consent

Following the protective sweep of the residence, the officers decided to seek consent to search the residence from Amy Sherrod, who was present in the residence. (Fact No. 10) Officer Trost testified that Ms. Sherrod appeared to be under the influence of some kind of substance, but appeared coherent enough to understand what Officer Trost was saying. (Fact No. 10) Officer Trost testified that he explained the consent to search form to Ms. Sherrod and advised her that she could sign the consent to search form or refuse to sign the form; it was her choice. (Fact No. 10) However, Officer Trost told Ms. Sherrod that if she did not sign the consent form, she would be going to jail because of the "stuff" at the house and her city warrant. (Fact No. 10) On cross-examination, Officer Trost was asked: "You gave her an option, sign it or go to jail, correct?" and Officer Trost answered, "Yes." (Fact No. 10) Ms. Sherrod ultimately agreed to sign the consent to search form. (Fact Nos. 10 and 11) After receiving consent, the officers conducted a search of the home. (Fact No. 12) The firearms which had already been observed were seized. (Fact No. 12) A United States passport (which did not belong to defendant Sherrod) was discovered in a drawer of the coffee table in the living room. (Fact No. 12)

The government bears the burden of proving that consent was voluntarily given. See United States v. Willie, 462 F.3d 892, 896 (8th Cir. 2006), cert. denied, 549 U.S. 1292 (2007). The test in reviewing a consent search is whether, in the totality of the circumstances, the consent was given voluntarily and without coercion. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). In United States v. Willie, the court set forth the following guidance in judging the voluntariness of a consent to search:

462 F.3d at 896 (citations omitted).

Based on the evidence outlined above, i.e. that Ms. Sherrod appeared to be under the influence of some kind of substance and that Officer Trost told Ms. Sherrod that if she did not sign the consent form, she would go to jail, the Court finds that the Government has not met its burden in establishing that Ms. Sherrod's consent to search was freely and voluntarily given and not the result of duress or coercion.17 Thus, Ms. Sherrod's consent to search does not provide an independent basis for the seizure of items from the residence.

IV. CONCLUSION

For the reasons set forth above, it is

RECOMMENDED that the Court, after making an independent review of the record and applicable law, enter an order granting in part and denying in part Defendant's Motion to Suppress Evidence (doc #26). The evidence which was discovered only as a result of the search which occurred pursuant to Amy Sherrod's consent (i.e. the United States passport) should be suppressed. The evidence which was observed in plain view (i.e. the piles of firearms, the handgun, the syringes, the spoon with residue, and the scale) should not be suppressed.

Counsel are reminded they have fourteen days from the date of receipt of a copy of this Report and Recommendation within which to file and serve objections to same. A failure to file and serve objections by this date shall bar an attack on appeal of the factual findings in this Report and Recommendation which are accepted or adopted by the district judge, except on the grounds of plain error or manifest injustice.