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United States v. Sanders

United States District Court, S.D. Ohio, Western Division

July 31, 2019

UNITED STATES OF AMERICA,
v.
DEON SANDERS, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS

          Timothy S. Black United States District Judge

         This criminal case is before the Court on Defendant's motion to suppress (Doc. 18) and the Government's response in opposition (Doc. 20).

         On May 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.

         I. BACKGROUND

         On 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).

         The 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. (Id.)

         For 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 (Doc. 24).[1]

         II. FACTS

         On 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).[2]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).[3] 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).

         Ms. 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.)[4] 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).

         At the 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).

         Officer 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).

         After 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.)

         As 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 12:38).

         Defendant 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).

         As the 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.)

         While 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).

         After 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).

         During 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, 22:55).

         Having 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).[5] 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. at 71).

         After 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).

         However, 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. at 48).

         III. STANDARD OF REVIEW

         The 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).

         “The 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 ...


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