United States District Court, N.D. Indiana, Fort Wayne Division
REPORT AND RECOMMENDATION
Collins United States Magistrate Judge.
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
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).
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).
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. (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).
FINDINGS OF FACT
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).
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.
The March 21, 2017, Encounter
3:18 p.m. on March 21, 2017, Officer Norton was on patrol in
his police vehicle,  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. (Tr. 10, 31).
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). 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. (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).
continued to accelerate, prompting Officer Norton to turn on
his emergency sirens. (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).
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).
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 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).
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).
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).
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).
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).
The May 2, 2017, Encounter
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).
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 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).
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. (Tr. 39, 55). All of the Agents were
armed, and some of them carried rifles. (Tr. 165-66). Deputy
Anderson 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 were standing to the side of the house,
watching an adjacent alleyway and the back door. (Tr. 114).
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. (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.
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. (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).
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).
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).
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.
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).
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. (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).
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).
Anderson asked Freeman about the firearm found during the
March 21, 2017, encounter. (Tr. 121; see also Ex.
6-1). Freeman admitted that Sanders gave her
$200 to purchase the Glock pistol, but insisted that Sanders
did not access or take the pistol. (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. (Tr. 129; Ex. 6-1 at 25:50-26:05;
see also Ex. 6-2 at 14:45- 15:45). Freeman also