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United States v. Gibson

United States District Court, N.D. Indiana, Fort Wayne Division

January 29, 2018



          Susan Collins United States Magistrate Judge

         Before the Court is a motion to dismiss the indictment, or in the alternative, to suppress all evidence (DE 20) filed by Defendant Shon L. Gibson. Gibson seeks to suppress evidence discovered by police officers in their search of Gibson's home on December 13, 2016, as well as any subsequent custodial interrogation. Gibson argues that the indictment should be dismissed and/or the evidence should be suppressed in this case because all of the evidence was obtained as a result of violations of his Fourth Amendment rights. After considering the evidence and arguments submitted by the parties in this matter, I RECOMMEND that Gibson's motion to dismiss the indictment or, alternatively, to suppress all evidence be DENIED.

         I. BACKGROUND

         On December 20, 2016, Gibson was indicted on a two-count Indictment for: in Count 1, possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); and in Count 2, being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (DE 13). On December 20, 2016, Gibson pleaded not guilty. (DE 17). On January 17, 2017, Gibson filed the instant motion. (DE 20). This matter was referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1). (DE 23). An evidentiary hearing on this matter was held on February 28, 2017. (DE 25; DE 30). On April 17, 2017, Gibson filed a post-hearing brief in support of his motion to suppress. (DE 28). The Government filed its response on June 14, 2017. (DE 35). Gibson filed his reply brief on June 28, 2017. (DE 36).

         At the Government's request, the Court held a supplemental evidentiary hearing on September 14, 2017. (DE 40; DE 43). Gibson filed his brief relating to that hearing on November 20, 2017. (DE 42). The Government filed its supplemental response brief on December 22, 2017 (DE 46), and Gibson filed his supplemental reply brief on December 28, 2017 (DE 47).


         A. February 29, 2017, Hearing

         At the initial evidentiary hearing, the Government offered the testimony of Officer Brandon Garrison (“Officer Garrison”) of the Wolcottville Police Department and Deputy Kyle Hartman (“Deputy Hartman”) of the Noble County Sheriff's Department. Gibson did not testify or call any witnesses to testify. The Government and Gibson agreed that the application and the warrant would be submitted as exhibits to the post-hearing briefing. (DE 32, Transcript of Motion to Suppress Hearing (“Tr.”) 111). The testimony of the officers was not contested in any meaningful way at the hearing, and I FIND their testimony to be credible.

         1. Officer Garrison's Testimony

         Officer Garrison testified as follows:

         On the evening of December 13, 2016, Officer Garrison was on patrol in Wolcottville, Indiana, while wearing a police uniform and driving his marked police car. (Tr. 13). Officer Garrison was patrolling a residential neighborhood around Park Street, which is made up of houses as well as two trailer parks. (Tr. 16). The neighborhood that Officer Garrison was patrolling was on the Noble County side of Wolcottville, as the town of Wolcottville is located half in LaGrange County and half in Noble County. (Tr. 11, 16). The town of Wolcottville had been experiencing “a rash of burglaries and thefts in the Noble County area, ” as well as a big problem with methamphetamine use. (Tr. 11). The burglaries had taken place in the specific neighborhood that Officer Garrison was patrolling and included multiple thefts of four-wheelers. (Tr. 17). The Wolcottville Police Department began doing special patrols in the area of the trailer park to try to prevent more burglaries from occurring, and the Noble County Sheriff's Department had also put out extra patrols in the area. (Tr. 17).

         While on patrol, at about 10:09 p.m., Officer Garrison saw two men walking on Park Street near where it intersected with Lovette. (Tr. 13-15). Officer Garrison's attention was drawn to the men because it was “brutally cold that night, ” and it was unusual for anyone to be walking at that time of night in Wolcottville. (Tr. 15-17). Officer Garrison was suspicious of the men because a four-wheeler and a trailer had been stolen just one street over about a week before, and he did not believe either Gibson or his companion lived in Wolcottville, as he has lived there his entire life. (Tr. 13, 15, 20). Also, although Gibson was wearing a thick Carhartt jacket and jeans, his companion was wearing pajama pants and a sweatshirt, with no hat or gloves, which was not appropriate for the very cold weather. (Tr. 20, 22).

         Additionally, Officer Garrison recognized Gibson based on numerous tips he had received from multiple individuals since January 2016, along with information provided by other officers, that Gibson was involved in a motorcycle gang and was distributing large quantities of methamphetamine. (Tr. 18-19, 21). Officer Garrison's experience and training made him aware that motorcycle gangs were commonly involved with guns and violence. (Tr. 20).

         Officer Garrison decided to approach Gibson and his companion after he drove by them in his patrol car, so he turned his car around and then stopped the car about 10 to 15 feet from the men. (Tr. 23). When he stopped his car, neither the sirens or the lights were on. (Tr. 23). After he stopped his car, Officer Garrison got out of the car and identified himself as an officer with the Wolcottville Police Department. (Tr. 24). Officer Garrison asked the two men, in a normal speaking tone, to walk to the front of his car. (Tr. 24). While his companion, Randy Miller, walked to the front of the car as requested, Gibson walked past the patrol car on the passenger side and then set a two-liter bottle of Mountain Dew on the ground in the snow. (Tr. 25-26). Officer Garrison thought it was “weird” that Gibson had walked two or three feet out into the snow to set down his soda, when he could have just set it down where he was. (Tr. 27). Gibson then came back to the front of Officer Garrison's patrol car. (Tr. 26).

         Officer Garrison kept asking Gibson to keep his hands out of his pockets as a safety precaution, but Gibson continued putting his hands in his pockets. (Tr. 26). Gibson was being “somewhat cooperative, ” but he “would not follow instructions as far as standing in front of [Officer Garrison's] car, ” and instead “kept wanting to walk to the side of [the] car, ” which made Officer Garrison nervous. (Tr. 30). Officer Garrison was also concerned because Gibson's thick jacket could easily conceal a weapon. (Tr. 20). Officer Garrison asked Gibson if he could pat him down, and Gibson said that was fine. (Tr. 26). Officer Garrison began patting down Gibson, and then Gibson made a movement and went down to his right knee. (Tr. 26). While Gibson said he slipped and fell, Officer Garrison did not think it looked like a slip or fall, as Gibson just kind of went to his knee. (Tr. 26). Officer Garrison called for backup at that time, because he was dealing with the two men on his own in an area known for crime. (Tr. 26). When Gibson went down on his knee, Officer Garrison laid Gibson the rest of the way down to rest on his stomach and placed him in handcuffs for safety. (Tr. 26, 30). After Gibson had been placed in handcuffs, an officer from Rome City arrived to assist Officer Garrison. (Tr. 26). Officer Garrison then finished patted down Gibson, but the pat down did not result in Officer Garrison finding any weapon or contraband on Gibson. (Tr. 29).

         The Rome City officer took Miller back to his patrol car, while Officer Garrison remained with Gibson in front of his own patrol car. (Tr. 27). Officer Garrison asked Gibson what he and Miller were doing and why they were in the area. (Tr. 27). Gibson responded that they were on their way to the house of a man named Rodney Owens, which was half a mile from where Officer Garrison had stopped the men. (Tr. 27). Gibson said that they had parked at the home of Tim Criswell, who Officer Garrison knew used and sold drugs. (Tr. 28). Officer Garrison knew that Criswell's trailer had been moved, so essentially Gibson had parked at an abandoned lot, which Officer Garrison found to be suspicious. (Tr. 28). Officer Garrison was also suspicious that the men would park at the abandoned lot before walking a half mile into town to visit Owens. (Tr. 28). Gibson also stated that Owens was Miller's friend, and Miller was taking Gibson over to Owens's house to hang out. (Tr. 28).

         Officer Garrison then went to talk to Miller, who stated that Owens was Gibson's friend and that Gibson was taking him to Owens's house to hang out. (Tr. 28). Officer Garrison was suspicious because the two men's stories were not lining up, and because he did not understand why the men would park in the trailer park to walk half a mile in temperatures that were well below freezing. (Tr. 28-29). Nevertheless, the officers permitted both men to leave because they had no reason to detain them any longer. (Tr. 31). Gibson and Miller began walking back to their car. (Tr. 31).

         After Gibson and Miller had left, Officer Garrison remained at the scene for a little while to talk with the Rome City officer as well as two Noble County deputies who had shown up. (Tr. 31). While he was talking with the other officers, Officer Garrison was rethinking his encounter with Gibson and Miller, and he felt Gibson may have tossed something under his car, based on Gibson's behavior during the encounter and the conflicting stories given by Gibson and Miller. (Tr. 31). The officers looked underneath Officer Garrison's patrol car and found a methamphetamine pipe under the front end of the car, near where Gibson had been standing. (Tr. 31). The road was covered with snow, but the pipe did not have any snow on it. (Tr. 31-32). The pipe was just laying on top of the snow, in front of the tire area on the driver's side. (Tr. 32). The pipe was made of glass and was about six or seven inches long. (Tr. 32-33). The pipe's location under the front of the car was not even a foot away from where Gibson was when he went down onto his knee during his encounter with Officer Garrison. (Tr. 33). Officer Garrison believed that Gibson could have “easily pitched” the pipe under the car when he went down onto his knee. (Tr. 33). Officer Garrison stated that it was “almost impossible to keep eyes and ears on both [Gibson and Miller] at the same time, ” so it was possible that Gibson had tossed the pipe under the car before going down to his knee, and it was possible that Miller might have been the one to toss the pipe under the car. (Tr. 33).

         Officer Garrison then radioed Noble County that he had found a methamphetamine pipe, and he radioed for Noble County law enforcement to conduct a traffic stop of Gibson's vehicle in order to investigate the pipe they had found. (Tr. 34).

         2. Deputy Hartman's Testimony

         At the hearing, Deputy Hartman testified as follows:

         On the night of December 13, 2016, Deputy Hartman received a dispatch from Noble County Communications that Officer Garrison was requesting immediate backup in the area of Lovette Street and Park Street. (Tr. 61). When Deputy Hartman had arrived at the scene, both suspects had been detained by Officer Garrison, who was talking with both of them to try to figure out why the men were walking outside at that time of night. (Tr. 61). When Deputy Hartman arrived at the scene, he recognized Gibson, whom he knew was involved in the Escorts motorcycle gang, which he believed to be involved with methamphetamine and possession of firearms. (Tr. 63-64). Deputy Hartman saw that Gibson was wearing a stocking cap with an 81 logo on it, which is the symbol for the Hell's Angels motorcycle gang. (Tr. 64). Gibson's hat corroborated the information Deputy Hartman had received about Gibson being involved in the Escorts. (Tr. 65).

         Later that night, after Gibson and Miller had been allowed to leave, Deputy Hartman conducted a traffic stop on Gibson's vehicle. (Tr. 65). Deputy Hartman stopped Gibson's vehicle for two reasons: the vehicle was a two-toned decomissioned police vehicle that could not be operated on Indiana roadways under Indiana Code § 5-22-22-9, and Officer Garrison requested that Gibson's vehicle be stopped. (Tr. 65-66). Deputy Hartman heard on his radio that Officer Garrison had located a methamphetamine pipe underneath his police vehicle. (Tr. 32). Officer Garrison requested further investigation of Gibson and Miller. (Tr. 32). Deputy Hartman observed Gibson's vehicle turning southbound onto State Road 9 from 1150 North in Noble County, which is just outside of the Wolcottville town limits. (Tr. 66). Five minutes or less had passed at that point from the time Gibson and Miller had been allowed to leave. (Tr. 66). Deputy Hartman was sitting in his vehicle in the parking lot of the Tire Star vehicle repair shop on State Road 9 in Wolcottville, while he listened to his radio to determine whether they wanted a traffic stop to be conducted on the vehicle. (Tr. 66). When Officer Garrison requested a traffic stop of Gibson's vehicle, Deputy Hartman pulled out of the parking lot to follow the vehicle, but he was quite a ways back from the vehicle. (Tr. 66).

         Deputy Hartman saw Gibson's vehicle turn onto a side road that led to Northport Road, before turning left onto Northport Road. (Tr. 66). Gibson's vehicle gained more distance on Deputy Hartman because it took him some time to catch up. (Tr. 66-67). Deputy Hartman then saw Gibson's vehicle make a right turn onto Bayview Road, heading southbound and increasing its speed. (Tr. 67). At that point, when Deputy Hartman was turning onto Bayview Road, he activated his red and blue emergency lights to conduct a traffic stop of the vehicle. (Tr. 67). After activating his lights, Gibson's vehicle continued driving southbound on Bayview before making a right turn to head westbound on Chambers Street. (Tr. 67). Deputy Hartman radioed his dispatch and the other officers that the driver of the vehicle was failing to stop. (Tr. 67). He also activated his air horn after turning onto Chambers Street. (Tr. 68). The driver stuck his hands out of the window after Deputy Hartman activated his air horn. (Tr. 68-69). The vehicle continued between a quarter-mile and a half-mile before eventually coming to a stop in the driveway of Gibson's residence on Chambers Street. (Tr. 67).

         Deputy Hartman ordered Gibson to shut the vehicle off and then step out of the vehicle while showing his hands. (Tr. 73). Gibson complied with Deputy Hartman's instructions and did not try to resist. (Tr. 73). Deputy Hartman put Gibson in handcuffs out of concern for officer safety, but he placed the handcuffs with Gibson's arms in front of him, rather than behind him, given that it was cold outside and Gibson was wearing a bulky coat. (Tr. 73-74). At that point, Deputy Hartman ordered the passenger, Miller, out of the car. (Tr. 74). Deputy Hartman put Miller in handcuffs as well. (Tr. 74). Because it was so cold outside and because Miller was wearing only pajama pants and a hooded sweatshirt, Deputy Hartman placed Miller in the back of his patrol car to keep him warm. (Tr. 74). Deputy Hartman placed both men in handcuffs immediately because he was the only officer there, and because the vehicle did not stop immediately for the traffic stop. (Tr. 74). Deputy Hartman was concerned that the men might have accessed weapons in the vehicle, which would not have been found by officers during the stop of the men while they were walking on Park Street. (Tr. 74).

         After placing Miller in the back of his patrol car, Deputy Hartman spoke with Gibson about why Gibson had been stopped for the second time that night. (Tr. 74-75). Specifically, Deputy Hartman explained that a methamphetamine pipe had been found underneath the Wolcottville police car. (Tr. 75). Gibson denied possession of the methamphetamine pipe or any knowledge regarding the pipe. (Tr. 75). Officer Garrison arrived at the scene of the traffic stop at that point. (Tr. 75). Deputy Hartman then asked Gibson for consent to search his vehicle. (Tr. 75). Gibson gave Deputy Hartman a conflicting answer that “he did not give [Deputy Hartman] permission . . . but [Deputy Hartman] could go ahead and search the vehicle.” (Tr. 75). Deputy Hartman explained to Gibson that he was being evasive with his answer, and that Deputy Hartman just wanted to know whether he could search Gibson's vehicle. (Tr. 76). Gibson responded that Deputy Hartman could search it, but there was nothing in the vehicle. (Tr. 76). At the time Deputy Hartman asked Gibson for consent to search, he alone was speaking to Gibson, he did not have his gun out, and he was using a normal speaking tone of voice. (Tr. 77). Gibson did not seem intoxicated, agitated, or to be having difficulty understanding. (Tr. 77). Gibson did not revoke consent to search the vehicle at any time after giving consent. (Tr. 77).

         Deputy Hartman escorted Gibson over to Officer Garrison near his patrol car, and then Deputy Hartman began a search of Gibson's vehicle with Deputy Garry Coney. (Tr. 76). Deputy Hartman and Deputy Coney were unable to locate any contraband in the vehicle, so Deputy Hartman requested that a K-9 officer be brought to the scene by his handler. (Tr. 77). A short time later, Topeka Officer Adam Fisel, who is a K-9 handler, and his K-9, “Hero, ” arrived at the scene. (Tr. 77). Hero conducted a free air sniff of the vehicle, and he alerted to the driver's side of the vehicle. (Tr. 77). Hero was then placed inside the vehicle, and he again alerted to the driver's side of the vehicle. (Tr. 77). The officers conducted a second search of the vehicle at that time, but no drugs, weapons, or other contraband were found in the search. (Tr. 109-10).

         While the officers were conducting the second search of the vehicle, a woman came out to the driveway from inside the residence. (Tr. 78). The woman was identified as Gibson's wife, Krista Gibson. (Tr. 78). The parties do not dispute that Mrs. Gibson came out of the house approximately 40 minutes into the traffic stop. (See Ex. 3 at 41:16). She wanted to know what was going on, so Deputy Hartman explained the situation to her. (Tr. 78). Deputy Hartman requested consent to search the residence from Gibson's wife; she agreed and signed a consent to search form. (Tr. 78). Because they were married, Deputy Hartman also asked Gibson for consent to search the residence, but Gibson denied his consent to the search. (Tr. 78).

         Deputy Hartman issued a citation to Gibson for his violation of Indiana Code § 5-22-22-9, since Gibson did not repaint the two-toned decommissioned police vehicle prior to operating it on any roadway. (Tr. 78; Ex. 2). The citation shows that it was issued at 10:39 p.m. on December 13, 2016. (Tr. 79). The time on the citation does not represent the time the citation was generated; the time and date shown on the citation can be changed, because officers have two years from the date of an infraction to issue a citation. (Tr. 94).

         3. Application and Warrant

         On December 14, 2016, Deputy Hartman completed an application for a warrant to search Gibson's residence on Chambers Street. (DE 28-1). In the application, Deputy Hartman described the events that had taken place that evening, including: Officer Garrison's stop of Gibson and Miller when they were walking on Park Street; Gibson's kneeling down and claiming he fell; the officers' subsequent discovery of the methamphetamine pipe under the police car; the fact that Gibson and Miller were known methamphetamine users; the traffic stop of the two-toned vehicle; the consent to search the vehicle obtained from Gibson; the alert by K-9 Hero on the vehicle; the fact that the search of the vehicle did not turn up any contraband; the appearance of Mrs. Gibson; and statements made by Mrs. Gibson to law enforcement. (DE 28-1 ¶¶ 1-7). Specifically, Deputy Hartman stated the following in his application for the warrant:

8. During an interview with Mrs. Gibson I learned that earlier in the day Mr. Gibson left the residence. When he did so she observed a bag of a crystal like substance sticking out of the pocket of Mr. Gibson, which she believes to be crystal methamphetamine which she knows of from previously dealing with it in the residence.
9. Mrs. Gibson stated that she went into the garage and was being nosey, she went on to say that he left a safe in the garage open. She said that she saw what was believed to be methamphetamine. She continued by saying that she saw money in envelopes. The meth was in 2 separate baggies one was the size of a baseball and the other is the size of a golf ball. She went on to say that she believes this activity to be dealing methamphetamine because [Gibson] has had people over before that are known meth users.

(DE 28-1). Based on Deputy Hartman's application, Judge Robert Kirsch of the Noble Superior Court issued a search warrant for Gibson's residence on Chambers Street. (DE 28-2).

         B. September 14, 2017, Supplemental Evidentiary Hearing

         The Court held a supplemental evidentiary hearing on September 14, 2017 (DE 40), at which Task Force Officer Sean Lundy (“Officer Lundy”) and Special Agent Michael Foldesi (“Agent Foldesi”) testified. (DE 43, Transcript of Continued Motion to Suppress Hearing (“Supp. Tr.”) 2). At this hearing, the Government presented evidence that in the approximately seven weeks leading up to December 13, 2016, Mrs. Gibson had been providing evidence to law enforcement regarding Gibson's drug-related activities. Gibson called no witnesses and I FIND the testimony of Officer Lundy and Agent Foldesi to be credible.

         1. Officer ...

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