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United States v. Sanders

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

June 11, 2018

UNITED STATES OF AMERICA
v.
JOSEPH E. SANDERS

          REPORT AND RECOMMENDATION

          Susan Collins United States Magistrate Judge.

         Before the Court is a motion to suppress evidence (DE 30) and a supplemental motion to suppress evidence (DE 47) filed by Defendant Joseph Sanders. Sanders seeks to suppress evidence discovered by police officers after a traffic incident on March 21, 2017, and evidence discovered when Sanders was arrested at a residence on Buell Drive, on May 2, 2017. Sanders contends that all of the evidence from both encounters was obtained as a result of violations of his Fourth Amendment rights and his rights under the Due Process Clause of the Fourteenth Amendment. After considering the evidence and argument submitted by the parties in this matter, I RECOMMEND that Sanders's motion to suppress evidence and supplemental motion to suppress evidence be DENIED.

         I. BACKGROUND

         On April 26, 2017, Sanders was indicted by way of a single-count indictment and charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (DE 1). An arrest warrant was issued (DE 4), and Sanders was arrested on May 2, 2017 (DE 5). Following his arrest, Sanders was indicted by way of a four-count superseding indictment and charged with two counts of being a felon in possession of a firearm, in violation 18 U.S.C. § 922(g)(1); one count of possessing with the intent to distribute cocaine and fentanyl, in violation of 21 U.S.C. § 841(a)(1); and one count of possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). (DE 21).

         On June 29, 2017, Sanders pleaded not guilty to the charges in the superseding indictment. (DE 27). On August 16, 2017, Sanders filed the instant motion to suppress evidence resulting from his arrest on May 2, 2017. (DE 30). On September 21, 2017, the Court granted a motion to withdraw filed by Attorney Marcia Linsky, who was counsel to Sanders at the time. (DE 38; DE 40). On September 28, 2017, Attorney Anthony Churchward filed a notice of appearance of counsel on behalf of Sanders. (DE 44). On October 25, 2017, Sanders filed a supplemental motion to suppress evidence found during an encounter with law enforcement on March 21, 2017. (DE 47). Both matters were referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1). (DE 31; DE 49).

         An evidentiary hearing on this matter was held on November 6 and 14, 2017. (DE 51-52). On January 22, 2018, Attorney Churchward filed a motion to withdraw as counsel to Sanders, and notified that Court that Sanders wished to proceed pro se. (DE 60). On February 20, 2018, District Court Chief Judge Springmann granted Attorney Churchward's motion to withdraw, allowing Sanders to proceed pro se with Attorney Churchward as stand-by counsel. (DE 65). On March 3, 2018, Sanders filed a post-hearing brief in support of his motions to suppress. (DE 67). Sanders filed what the Court construed as a supplemental brief on March 19, 2018.[1] (See DE 69-72). The Government filed its response on April 23, 2018. (DE 83). On May 11, 2018, Sanders filed his reply brief. (DE 84).

         II. FINDINGS OF FACT

         At the evidentiary hearing, the Government offered the testimony of Fort Wayne Police Department (“FWPD”) Officer Geoffrey Norton (“Officer Norton”); United States Marshal Service Deputy John Simpson (“Deputy Simpson”); United States Marshal Service Deputy Eric Anderson (“Deputy Anderson”); Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Task Force Officer Caleb Anderson (“TFO Anderson”); and ATF Special Agent Timothy Worthen (“Special Agent Worthen). (DE 58; DE 59, Transcript of Motion to Suppress Hearing (“Tr.”) 2, 140). Sanders offered the testimony Ms. Angelia Freeman (“Freeman”) and himself. (Tr. 140).

         Exhibits of record confirm and corroborate evidence offered by the Government's witnesses, and the Government's witnesses provided consistent descriptions of the events in this case. However Sanders and Freeman contradicted themselves, each other, and exhibits of record. Therefore, as discussed below, I FIND the Government's witnesses to be credible, and Sanders and Freeman not to be credible.

         A. The March 21, 2017, Encounter

         Around 3:18 p.m. on March 21, 2017, Officer Norton[2] was on patrol in his police vehicle, [3] driving eastbound on McKinnie Avenue, when he passed a silver Hyundai traveling in the opposite direction. (Tr. 8-9). Officer Norton testified that the driver of the silver Hyundai, later identified as Sanders (Tr. 12-13), gave a look with widened eyes, which drew Officer Norton's attention (Tr. 9-10, 23-24). Officer Norton testified that in his experience, Sanders's look indicated possible criminal activity.[4] (Tr. 10, 31).

         Officer Norton decided to turn around and follow Sanders to see if he committed any traffic violations or exhibited other signs of criminal activity. (Tr. 10, 27; Ex. 1 at 0:01-0:10[5]). After Officer Norton turned his vehicle around, Sanders accelerated away from him at a high rate of speed, approximately 55 to 60 miles per hour, and turned onto Smith Street. (Tr. 10, 26-28). Officer Norton perceived that Sanders was trying to flee. (Tr. 29). Officer Norton testified that the speed limit was 30 miles per hour in that area. (Tr. 10). As Officer Norton got closer to Sanders, he observed Sanders fail to turn on his turn signal within 200 feet of a turn onto Rudisill Boulevard, and fail to come to a complete stop at a stop sign.[6] (Tr. 11, 22, 28; Ex. 1 at 0:32-0:49). Sanders proceeded to turn onto Rudisill Boulevard, followed by Officer Norton, and Sanders then turned onto Bowser Avenue. (Tr. 11). Once Officer Norton turned onto Bowser Avenue he activated his emergency lights and called out that he was making a stop. (Tr. 11).

         Sanders continued to accelerate, prompting Officer Norton to turn on his emergency sirens.[7] (Tr. 11, 22-23, 29, 263; Ex. 1 at 0:58-1:20). However, Sanders continued to flee Officer Norton, reaching speeds of 65 or 70 miles per hour. (Tr. 11-12). After Sanders made a few more turns, he stopped his car in an alley behind a house, got out, and attempted to flee on foot. (Tr. 12).

         Officer Norton exited his vehicle and ran after Sanders commanding him to stop. (Tr. 12-13). Once Officer Norton caught up with Sanders, a struggle ensued as Officer Norton tried to put Sanders in a prone position. (Tr. 13-14). Officer Norton testified that while Sanders was on his hands and knees, he reached for his waistband, which Officer Norton testified indicated that Sanders was reaching for a weapon. (Tr. 13-14). Then Officer Norton stopped trying to prone Sanders out and stepped back. (Tr. 13-14). Officer Norton brandished a taser, told Sanders not to move, and maintained some distance from Sanders until backup arrived. (Tr. 14-15). During this altercation, Officer Norton sustained a cut on his right cheek. (Tr. 20; Ex. 5).

         When backup arrived, other FWPD officers handcuffed Sanders. (Tr. 15). FWPD Officer Dameron also searched Sanders after he was taken to his car, and found a small bag of marijuana and a “substantial amount of cash.” (Tr. 16). Additionally, FWPD officers recovered a loaded Glock nine-millimeter pistol near the entrance to the property that was surrounded by the fence. (Tr. 15-17, 20-21; Ex. 3). The pistol had two different serial numbers (Ex. 4), which TFO Anderson[8] testified indicated that the pistol had been illegally modified (Tr. 110). Sanders admitted in his testimony that he grabbed the gun prior to exiting his vehicle. (Tr. 261-62).

         Later, Officer Norton learned that Sanders's driver license was suspended. (Tr. 17). After running Sanders's information, Officer Norton believed that he had probable cause to arrest Sanders for felony resisting arrest by fleeing in his vehicle, resisting arrest resulting in an injury, and driving with a suspended license. (Tr. 31).

         Shortly after Officer Norton's encounter with Sanders, he contacted TFO Anderson to alert him that Sanders had felony convictions and was in possession of a firearm, and TFO Anderson decided to interview Sanders. (Tr. 98-101). TFO Anderson testified that during the interview Sanders initially represented to TFO Anderson that the pistol FWPD found was Freeman's (Tr. 101), but eventually Sanders admitted to possessing the pistol and purchasing ammunition (Tr. 151). TFO Anderson testified that Sanders had a tattoo indicating that he was affiliated with a gang called GMB. (Tr. 104, 107).

         While Sanders was incarcerated at the Allen County Jail, he made a couple of phone calls. (Tr. 101-02). TFO Anderson testified that in those phone calls, Sanders indicated that he had gotten rid of the pistol before he was arrested. (Tr. 101-02). TFO Anderson testified that during one phone call, Sanders urged a female to get money from a safe and post bond for him, and indicated that he had sold narcotics just before Officer Norton arrested him. (Tr. 106-07). Based on this phone call, TFO Anderson believed that Sanders was dealing narcotics. (Tr. 170-71).

         Following the March 21, 2017, encounter with FWPD, Sanders was indicted for being a felon in possession of a firearm. (Tr. 99-100; DE 1). As Sanders was released from the Allen County Jail on bond before the Government could arrest him pursuant to the indictment, TFO Anderson tried to locate him. (Tr. 100). TFO Anderson, via social media, learned that Sanders stayed at Freeman's house on Buell Drive. (Tr. 100, 102). TFO Anderson also learned that Freeman had purchased the firearms at issue in this case. (Tr. 101).

         B. The May 2, 2017, Encounter

         On May 2, 2017, at around 9:15 a.m., TFO Anderson conducted surveillance on Freeman's house, and saw the silver Hyundai that Sanders had been driving on March 21, 2017, parked at the house. (Tr. 102-03). On March 21, 2017, the Hyundai had a permanent license plate registered to Sanders at Freeman's address, but on May 2, 2017, TFO Anderson observed that the Hyundai was outfitted with a temporary license plate. (Tr. 102-03). TFO Anderson then received permission from the ATF Resident Agent in Charge in Fort Wayne to apprehend Sanders. (Tr. 104).

         Later that morning, the United States Marshal Service Deputies and ATF agents (collectively, the “Agents”) participated in a briefing regarding Sanders. (Tr. 38). The Agents had a warrant for Sanders's arrest for being a felon in possession of a firearm. (Tr. 38, 68, 76). TFO Anderson presented a picture of Sanders at the briefing, and gave the Agents an account of his criminal history (e.g., a conviction for dealing cocaine, felony domestic battery, battery with a weapon, and the encounter with Officer Norton). (Tr. 41, 104-06). Based on Sanders's tattoos, TFO Anderson informed the Agents that Sanders was likely affiliated with a gang in the area. (Tr. 104, 107, 111-12). TFO Anderson also informed the Agents that Sanders had attempted to brandish his pistol in the altercation with Officer Norton. (Tr. 104-05). The Agents learned at the briefing that he was known to resist law enforcement and carry firearms. (Tr. 38, 68, 76). The Agents learned that Sanders had a girlfriend in the house, and that children might also be present. (Tr. 55). Based on this briefing, the Agents felt the need to exercise more caution than usual. (Tr. 38). Additionally, Deputy Simpson[9] and TFO Anderson testified that in their experience, drug dealers, which Sanders was suspected of being, usually carry firearms and work with others who were also armed. (Tr. 46-48, 108-09).

         The Agents (there were around seven Agents total (Tr. 57-58, 84)) arrived at the residence on Buell Drive between 11:00 a.m. and noon on May 2, 2017, and exited their vehicles.[10] (Tr. 39, 55). All of the Agents were armed, and some of them carried rifles. (Tr. 165-66). Deputy Anderson[11] carried a ballistics shield, Deputy Simpson provided cover, and the other Agents were stacked behind them. (Tr. 39, 68). TFO Anderson and Special Agent Worthen[12] were standing to the side of the house, watching an adjacent alleyway and the back door. (Tr. 114).

         At the door, the Agents knocked and announced “U.S. Marshals, police, open the door.” (Tr. 40). An unaccompanied adult female, later identified as Freeman, opened the door.[13] (Tr. 40, 68, 182). Deputies Simpson and Anderson testified that once the door was open, while the Agents were still outside the house, they could smell burnt and raw marijuana emanating from the house. (Tr. 40-42, 56-57, 69-70; see also Tr. 115, 185). Deputy Simpson asked Freeman where Sanders was, and she responded that he was in the house. (Tr. 40). The Agents told Freeman to step outside and stay at the threshold of the door, and they walked into the house. (Tr. 41). The Agents did not know whether other individuals besides children were in the house (Tr. 60, 73), but based on their training, they treated the situation as if there was other persons in the house (Tr. 86). Additionally, Deputy Anderson testified that the presence of children created a unique safety concern as children can be used as hostages or be put in danger. (Tr. 73).

         Once inside, Deputies Anderson and Simpson called out for Sanders to come out with his hands up. (Tr. 42, 70-71). After calling out for Sanders to surrender for about 45 seconds to one minute, Sanders appeared from the back of the house with his hands up and a cell phone in one of his hands.[14] (Tr. 42, 57, 71-72). Deputy Simpson testified that in his experience, a delay in responding to calls to surrender is a safety concern that could indicate that the individual is retrieving a weapon. (Tr. 43). Deputy Simpson gave repeated commands for Sanders to lay on the ground and drop the cell phone, but Sanders did not comply; rather, Sanders argued with the Agents. (Tr. 43, 71-72, 85). This created a stand-off situation, causing additional safety concerns because the Agents perceived Sanders was agitated and unpredictable, and because Sanders could have been planning to harm the Agents or flee. (Tr. 44, 72-73, 85-86).

         To end the standoff situation, Deputy Simpson informed Deputy Anderson that he would go “hands on” Sanders. (Tr. 44). Deputy Simpson holstered his pistol, approached Sanders, and put him in a prone position on the ground. (Tr. 44, 58, 75, 89). From their position, the Agents could not see if there was a threat around the stairs to their right or in the hallways to their left. (Tr. 45, 70-71). One of the Agents handcuffed Sanders (Tr. 44-45), and Deputy Simpson brandished his pistol and proceeded up the stairs to make sure that there was not a threat on the second floor (Tr. 44-45; see Tr. 75-76). Deputy Anderson testified that a protective sweep in this situation is standard practice. (Tr. 86-87, 94-95).

         As Deputy Simpson went up the stairs, he noticed a large sum of money wrapped in rubber bands on the right side of the stairwell (Tr. 48-50; Ex. 10; Ex. 11), which in his experience was an indication of drug activity (Tr. 48; see also Tr. 115-16). Deputy Simpson also noticed a closet on the left side of the stairwell that was closed, and a crawl space. (Tr. 48). Deputy Simpson testified that he opened the crawl space and the closet to find if other people who may pose a threat were hiding in the spaces but found nobody. (Tr. 48-49).

         At the same time Deputy Simpson was conducting his sweep, Deputy Anderson went into the room to the left and encountered a male child between the ages of two and four years old. (Tr. 76-77). Deputy Anderson kept the child company while the protective sweep was being conducted, and after the sweep were completed, he took the child outside with Freeman. (Tr. 77).

         Sanders was secured in handcuffs in the house while a second protective sweep took place. (Tr. 50-51, 91, 186). Deputy Anderson testified that during the second protective sweep, the Agents searched areas of the house in which they suspect a person could reasonably hide. (Tr. 78, 80). In the kitchen, Deputy Anderson observed a black digital scale on the stove with what appeared to be a white powder residue on it, which he believed was cocaine. (Tr. 79, 115-16; Ex. 9). Deputy Anderson testified that in his experience this sort of scale is indicative of drug dealing and weighing out quantities of drugs. (Tr. 79, 83).

         At that point Sanders was placed in a police vehicle and taken to the Allen County Jail. (Tr. 120-21, 148-49). TFO Anderson, who was wearing plain clothes, placed his weapon in his truck, and asked Freeman if she would go back inside the house and speak with him; she agreed to do so.[15] (Tr. 118, 166). Special Agent Worthen was also wearing plain clothes and was present during the interview. (Tr. 167-68). They were accompanied by ATF Agent Andy Badowski. (Tr. 118). All of the United States Marshal Service Deputies waited outside on the porch during the interview, except for Deputy Anderson who stayed inside to accompany Freeman's child. (Tr. 167).

         At the start of the interview, TFO Anderson observed that there were a number of armed law officers present; read Freeman's Miranda rights so that she would not feel intimidated, and Freeman indicated that she understood her rights. (Tr. 121, 125, 231-32; Ex. 6-1 at 3:00-4:05). Throughout this interview TFO Anderson, Special Agent Worthen, Deputy Anderson, and Freeman addressed each other in normal, polite tones. (Tr. 121, 188-89, 236-37; Ex. 6-1). The Agents did not restrain Freeman, handcuff her, touch her, prevent her from attending her child, or block any exits. (Tr. 124, 188-89).

         TFO Anderson asked Freeman about the firearm found during the March 21, 2017, encounter. (Tr. 121; see also Ex. 6-1[16]). Freeman admitted that Sanders gave her $200 to purchase the Glock pistol, but insisted that Sanders did not access or take the pistol.[17] (Ex. 6-1 at 20:30-23:34). However, later on, Freeman admitted that Sanders had access to the pistol when he wanted. (Tr. 126-27). Freeman denied knowing that Sanders was dealing drugs and denied that she or Sanders used drugs.[18] (Tr. 129; Ex. 6-1 at 25:50-26:05; see also Ex. 6-2 at 14:45- 15:45). Freeman also ...


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