United States District Court, S.D. Ohio, Western Division
ORDER DENYING DEFENDANT'S MOTION TO
Timothy S. Black United States District Judge
criminal case is before the Court on Defendant's motion
to suppress (Doc. 18) and the Government's response in
opposition (Doc. 20).
8, 2019, this Court held a hearing on Defendant's motion,
at which time the Court heard the testimony of
Defendant's witness, Ms. Reja Faulkner, as well as the
Government's witnesses, Officer Kerri Maloney and Lt.
David Schofield. (Min. Entry, May 8, 2019). The Court ordered
the preparation of a transcript (Doc. 24) and subsequently
received post-hearing briefs from the parties. (Docs. 25, 26,
27). The motion is now ripe for decision.
March 7, 2018, Defendant Deon Sanders was charged by way of a
single-count indictment with possession of a firearm by a
prohibited person, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). (Doc. 7).
charge arises from evidence seized during the search of
Apartment #2 at 550 Ringgold Street in Cincinnati, Ohio.
(Doc. 18). Defendant moves for suppression of the evidence,
arguing that officers of the Cincinnati Police Department
(“CPD”) did not obtain proper consent before
conducting a warrantless search of the Ringgold apartment.
purposes of this Order, the Court will rely upon the facts as
set forth in the parties' pre- and post-hearing briefs
(Docs. 18, 20, 25, 26, 27), as well as the testimony and
evidence proffered at the May 8, 2019 suppression hearing
November 14, 2017, CPD officers responded to a report of
shots fired in the area of Highland and Ringgold Street in
Cincinnati, Ohio. (Doc. 18 at 1). Officer Kerri Maloney and
Lt. David Schofield were the first to arrive, joined
thereafter by a number of other CPD officers, including
Officers Herrmann, Horner, and Ventre. (Doc. 24 at
34).Upon arrival, Officer Maloney and Lt.
Schofield observed a female passenger sitting in a maroon
Cadillac, with the engine running, in the alleyway in front
of 550 Ringgold Street. (Doc. 20 at 2). The officers then
observed a man exiting Apartment #2 of 550 Ringgold Street.
(Id.) The man was ultimately identified as Demetrice
Cook. (Doc. 24 at 35). As the officers questioned Mr. Cook,
they observed the female vehicle passenger, later identified
as Defendant's girlfriend Reja Faulkner, exit the vehicle
and enter Apartment #2. (Doc. 20 at 2). Ms. Faulkner
emerged from the apartment a short while later and was
observed locking the door behind her with a key.
(Id.; Doc. 24 at 35). Officer Maloney and Lt.
Schofield then made contact with Ms. Faulkner as well.
(Id. at 35-36).
Faulkner informed the officers that she lived at the Ringgold
apartment and that she had been sitting in the Cadillac,
smoking marijuana with her boyfriend, when she heard shots
fired. (Herrmann, 11:35). She told officers that her
boyfriend, Defendant Deon Sanders, had since gone inside the
apartment and that she did not know the other man who had
previously exited the home. (Id.) During the
hearing, Ms. Faulkner testified that the Ringgold apartment
was not Defendant's primary residence, nor was Defendant
a party to the lease agreement. (Doc. 24 at 6-7).
Nonetheless, Ms. Faulkner explained that Defendant was a
frequent overnight guest at the Ringgold apartment, that he
had his own key, kept his clothes there, and had permission
to come and go at his leisure. (Id. at 7).
scene, Ms. Faulkner also told officers that she held a
concealed carry permit and owned three firearms, including a
rifle. (Doc. 24 at 20, 45; Horner, 19:30). Ms. Faulkner's
disclosure was notable, as Lt. Schofield had located six
rifle shell casings in the alleyway, close to the entrance of
the Ringgold apartment. (Id.) Accordingly, Officer
Maloney took Ms. Faulkner aside to ask for consent to search
the Ringgold apartment. (Herrmann, 12:00-13:45).
Maloney testified at the hearing that her decision to stand
just outside the Ringgold alleyway when speaking with Ms.
Faulkner was, in part, an effort to place herself in a better
tactical position. (Doc. 24 at 39, 57-58). Officer Maloney
also explained that she chose to speak with Ms. Faulkner away
from other officers because “then the intimidation
factor goes down.” (Id. at 60). Moreover, Lt.
Schofield testified that he remained within earshot at all
times, although he may not have heard every word spoken.
(Id. at 87).
speaking to Ms. Faulkner, Officer Maloney approached Lt.
Schofield and explained, in Ms. Faulkner's immediate
presence, that Ms. Faulkner had a rifle and two
additional firearms in the apartment, that Ms. Faulkner was
going to try to call Defendant out of the apartment, and that
Ms. Faulkner had given the officers permission to go into the
apartment once Defendant had exited. (Herrmann, 13:22-13:45;
Ventre, 11:36-11:53). Ms. Faulkner did not protest, correct,
or otherwise attempt to qualify any aspect of Officer
Maloney's statement. (Id.)
discussed, Ms. Faulkner and the officers then approached the
door of the Ringgold apartment, where Ms. Faulkner proceeded
to call out to Defendant in an effort get him to exit the
home. (Id. at 12:05-12:50). However, Ms. Faulkner
quickly became agitated by Defendant's slow response and
apparently took a step into the doorway, prompting Lt.
Schofield to grab Ms. Faulkner's hooded sweatshirt in an
effort to keep her from entering the apartment. (Id.
at 12:25-12:50; Doc. 24 at 84). Ms. Faulkner responded by
calling to Defendant: “They pullin' on my hoodie
and stuff. Come on.” (Ventre, 12:25-50). Ms. Faulkner
then told Lt. Schofield that she felt as if she was being
choked, that she was uncomfortable and nervous, and that she
just wanted Defendant to come out. (Id.) Lt.
Schofield explained to Ms. Faulkner that he was just trying
to “make sure [she is] safe.” (Id. at
ultimately walked outside and the officers prepared to enter
the Ringgold apartment. (Id. at 12:50). At that
time, in Defendant's presence, Ms. Faulkner expressed
hesitation about the search and questioned the officers as to
whether they “are allowed to do this; just go in there
with the baby in there.” (Id. at 17:25).
Officer Maloney explained that the officers were permitted to
enter in light of Ms. Faulkner's prior consent, in
response to which Ms. Faulkner again expressed concern for
her two-year old daughter sleeping upstairs and stated that
she had never given consent and that she “didn't
say yes or no.” (Id.) Despite this statement,
Ms. Faulkner then asserted that no one had ever asked for
consent at all, but explained to the officers: “If you
just ask me, I could say yes or no. My daughter [is] up
there, that's all I'm saying. And I would like to
come with.” (Id. at 18:01-18:09).
officers were speaking to Ms. Faulkner, Officer Herrmann
approached and informed Lt. Schofield and Officer Maloney
that Defendant had an outstanding probation violation, as
well as prior felony convictions for drug trafficking.
(Hermann, 21:20). In light of this information, as well as
Ms. Faulkner's recent hesitation to the search, Lt.
Schofield asked Officer Maloney to take Ms. Faulkner aside
and speak to her again, outside the presence of Defendant and
the other officers. (Id.)
Officer Maloney was speaking with Ms. Faulkner, Lt. Schofield
explained to Officer Herrmann that, given Defendant's
felony convictions and his knowledge of the firearms in the
apartment, the officers could obtain a warrant for the home.
(Id. at 21:47). However, Lt. Schofield stated that
he would “hate to go that route, ” in light of
the fact that Ms. Faulkner had previously given consent to
search. (Id.) Lt. Schofield stated that Ms. Faulkner
appeared concerned for the two-year old child, who was still
asleep in the house. (Id.) At the suppression
hearing, Ms. Faulkner acknowledged that her hesitation was
because of her daughter. (Doc. 24 at 28). However, as Lt.
Schofield explained to Officer Herrmann, he believed that Ms.
Faulkner would once again agree to the search once Officer
Maloney had a chance to speak to her outside the presence of
other officers. (Herrmann, 21:47). Lt. Schofield then
approached Officer Maloney and Ms. Faulkner. (Horner, 1:00).
Lt. Schofield testified that, particularly as to this second
conversation, he wanted to remain within earshot to be sure
there was no further confusion. (Doc. 24 at 87-88).
speaking with Ms. Faulkner for a few minutes, Officer Maloney
confirmed with Ms. Faulkner, in the presence of Lt. Schofield
and Officer Horner: “So you're going to allow us to
go in and [inaudible] the firearms?” (Horner,
1:00-1:15). Ms. Faulkner agreed. (Id.) Lt. Schofield
testified that he was certain of Ms. Faulkner's consent
to search and that, if there had been any doubt in his mind,
he would have sought a search warrant. (Doc. 24 at 88-89).
the suppression hearing, Officer Maloney testified that, in
securing Ms. Faulkner's consent for the second time, she
explained to Ms. Faulkner that the officers had the option to
either obtain a warrant or that Ms. Faulkner could consent to
the search for the firearms. (Id. at 44). Ms.
Faulkner also testified that Officer Maloney did in fact
explain that the officers had the option to seek a warrant.
(Id. at 24). Additionally, Officer Maloney testified
that Ms. Faulkner's “main concern was the child
upstairs, ” and that Ms. Faulkner “wasn't
completely understanding that we had to go in by
ourselves.” (Id. at 44). Given those concerns,
Officer Maloney explained to Ms. Faulkner the various safety
reasons for why the officers needed to enter alone and,
“[a]t that time [Ms. Faulkner] understood and gave [the
officers] consent.” (Id.) Ms. Faulkner also
told Officer Maloney the specific locations of all three
firearms. (Id. at 70; Ventre, 27:32-27:42). Notably,
with regard to the rifle, Ms. Faulkner asked Defendant, in
the presence of the other officers, where the firearm was
located, to which Defendant responded that he thought the
rifle was in the bedroom, but was uncertain. (Herrmann,
secured Ms. Faulkner's consent, the officers again
prepared to enter the Ringgold apartment. (Ventre, 22:30).
Only then did the officers learn that Ms. Faulkner had failed
to disclose the presence of yet another adult male, who was
present in the Ringgold apartment the entire time.
(Id. at 23:00-24:30). After the man exited the
apartment, the officers entered and conducted a protective
sweep. (Doc. 24 at 85). Thereafter, the officers commenced
the search, at which time Officer Maloney notified Lt.
Schofield and Officer Herrmann of the probable locations of
all three firearms, stating: “dresser, fridge, and she
[Ms. Faulkner] thinks under the couch. She had to ask him
[Defendant] where [the rifle] was at, and he [inaudible] in
here but he didn't know.” (Id. at 85-86;
Ventre, 27:32-27:42). Within seconds, Lt. Schofield spotted
one of the firearms sitting on top of the refrigerator,
nearly at his eye-level. (Id.) Subsequently, the
officers also located the rifle and another firearm in Ms.
Faulkner's bedroom closet. (Doc. 24 at 70, 85-86). All
three firearms were seized and, as the officers came to
learn, one of the handguns was reported stolen. (Id.
the search, Officer Maloney was able to locate a consent to
search form, which form she asked Ms. Faulkner to execute.
(Id. at 47-48). Ms. Faulkner signed the form without
objection. (Id.) Ms. Faulkner also received a copy
of the fully executed consent form, which included an
inventory of the items seized-i.e., all three
firearms and ammunition. (Id. at 68; Gov. Ex. 2).
Again, Ms. Faulkner did not object to any aspect of her
consent. (Doc. 24 at 47-48).
at the suppression hearing, Ms. Faulkner testified that she
had only given officers permission to retrieve the rifle, but
not the remaining firearms. (Id. at 11-13, 29).
Moreover, Ms. Faulkner testified that, during both of the
semi-private conversations, Officer Maloney told her that if
she refused to consent to the search, “someone was
going to have to get custody of [Ms. Faulkner's] kids
because [Officer Maloney] was going to take [her]
downtown.” (Id. at 11). Ms. Faulkner testified
that she consented to the search only because she had no one
to pick up her children at the time. (Id. at 12). On
cross-examination, Ms. Faulkner testified that Officer
Maloney very specifically used the language: “We will
take your children away from you.” (Id. at
24). Conversely, Officer Maloney testified that she did not
coerce Ms. Faulkner's consent nor did she threaten to
take Ms. Faulkner's children away from her. (Id.
STANDARD OF REVIEW
Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures ….”
U.S. Const. amend. IV. “[S]earches conducted outside
the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth
Amendment- subject only to a few specifically established and
well-delineated exceptions.” Katz v. United
States, 389 U.S. 347, 357 (1967) (footnotes omitted).
exclusionary rule prohibits the admission of evidence seized
in searches and seizures that are deemed unreasonable under
the Fourth Amendment, as well as derivative evidence acquired
as a result of an unlawful search.” United States
v. Kennedy, 61 F.3d 494, 497 (6th Cir. 1995) (citing
Wong Sun v. United States, 371 U.S. 471, 484-85
(1963)). The exclusionary rule serves to deter law
enforcement from obtaining evidence by unconstitutional
means. Nix v. Williams, 467 U.S. 431, 442-43 (1984).
So critical is the goal of deterring violations of
constitutional and statutory protections that ...