United States District Court, N.D. Indiana, Fort Wayne Division
REPORT AND RECOMMENDATION
Collins United States Magistrate Judge
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.
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).
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).
FINDINGS OF FACT
February 29, 2017, Hearing
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
Officer Garrison's Testimony
Garrison testified as follows:
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).
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).
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).
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.
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).
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).
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).
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).
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).
Deputy Hartman's Testimony
hearing, Deputy Hartman testified as follows:
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).
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).
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).
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).
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.
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).
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).
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).
Application and Warrant
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
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
September 14, 2017, Supplemental Evidentiary Hearing
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