United States District Court, N.D. Indiana, Fort Wayne Division
FINDINGS, REPORT, AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(B)(1)(B)
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on a Motion to Suppress [DE 30],
filed by Defendant Billy Harris on March 21, 2018. Defendant
requests that any evidence obtained from the search of a
residence at XXX Boltz Avenue, Fort Wayne, Indiana, on July
28, 2017, be suppressed because, he alleges, the search was
conducted without a warrant and without valid consent.
April 12, 2018, District Court Chief Judge Theresa L.
Springmann entered an Order of Referral [DE 38] referring
this matter to the undersigned Magistrate Judge for a report
and recommendation on the instant motion pursuant to 28
U.S.C. § 636(b)(1)(B). This Report constitutes the
undersigned Magistrate Judge's combined proposed findings
and recommendations pursuant to 28 U.S.C. §
636(b)(1)(C). Finding that the search was conducted pursuant
to valid consent, the Court recommends that the District
Court deny the Motion to Suppress.
Billy Harris is charged by way of a single count Indictment
charging him with being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). The Indictment
also includes a forfeiture allegation. Evidence supporting
the Indictment was recovered from the residence at XXX Boltz
Avenue, Fort Wayne, Indiana, during a search at that address
on July 28, 2017.
March 21, 2018, Defendant filed the instant Motion to
Suppress, requesting that any physical evidence seized from
XXX Boltz Avenue, Fort Wayne, Indiana, be suppressed because
the evidence was seized allegedly in violation of his Fourth
Amendment rights. The Government filed a response on April
11, 2018, and Defendant filed a reply on April 23, 2018. On
May 7, 2018, the Court held an evidentiary hearing on the
motion, receiving testimony and other evidence. On July 23,
2018, Defendant filed a post-hearing brief, to which the
Government filed a response on August 22, 2018.
28, 2017, Special Agent T.J. Worthen (“SA
Worthen”), ATF Task Force Officer Caleb Anderson
(“TFO Anderson”), and Indiana State Police
Trooper James Stanley (“Trooper Stanley”) went to
XXX Boltz Avenue, where Defendant was thought to be living.
(Redacted Tr. 15:3-4, 16:6-9, ECF No. 48). As the law
enforcement officers approached the house at XXX Boltz
Avenue, Brian Jones, later identified as Defendant's
stepfather, exited the house and spoke with the officers.
Id. at 17:6-19. When Mr. Jones tried to re-enter the
house, he had to knock on the door because the door had been
closed and locked behind him. Id. at 17:21-24.
the same time, Defendant's mother, Beverly Maxine Harris,
arrived at the house. Id. at 18:15-16. SA Worthen
testified that he received Ms. Harris's consent to enter
the home. Id. at 21:24-22:1, 23:4-7. Ms. Harris
testified that she did not want the law enforcement officers
in her home and that she told SA Worthen that she would have
Defendant come outside to talk. Id. at 66:2-5. A
recording of the encounter at XXX Boltz Avenue, taken from an
audio recording device worn by SA Worthen, has been admitted
into evidence. This recording reveals that SA Worthen
approached Ms. Harris and reported that law enforcement had
observed suspected drug activity taking place at the address.
(Hr'g Ex. 15 at 00:03:03-:05). SA Worthen informed Ms.
Harris that she was not suspected of being involved in drug
activity herself and that he wanted to talk to Defendant.
Id. at 00:03:27-:03:58. Ms. Harris originally said
“I'll get [Defendant] to come out and talk to you .
. . .” Id. at 00:03:58-:04:04. SA Worthen
suggested instead that he go in the house to talk.
Id. at 00:04:24-26 (“So let's go in, I
mean that way everybody knows.”). A response of
“yeah” can be heard on the recording.
Id. at 00:04:27. The Court finds that Ms. Harris
gave verbal permission for the law enforcement officers to
enter her house to talk to Defendant.
Worthen testified that, upon approaching the residence, he
smelled the odor of burnt or raw marijauna or spice.
(Redacted Tr. 16:21-22). He also saw a digital scale,
residual marijuana around the scale, and a marijuana blunt on
the porch. Id. at 22:7-17. TFO Anderson testified to
also seeing a shell casing while he was on the porch.
Id. at 41:13-17. SA Worthen further testified that
when he tried to enter the house, Defendant allowed Ms.
Harris to enter the residence, and then Defendant stepped
into the doorway to block SA Worthen's entry.
Id. at 24:17-21. Defendant appeared apprehensive.
Id. at 24:14-16. SA Worthen and TFO Anderson
ultimately entered the house to talk with Defendant with Ms.
Harris's express permission. Id. at 23:4-7,
25:16-18; (Hr'g Ex. 15 at 00:09:55-:10:05). The combined
testimony of SA Worthen and TFO Anderson is that rounds of
ammunition, an ammunition magazine, and something appearing
to be marijuana residue were in plain view inside the house.
(Redacted Tr. 26:10-13, 44:18-21).
Worthen testified that, after receiving consent to enter the
house and observing the items in plain view, he informed Ms.
Harris that he would be able to obtain a search warrant due
to what had been seen at the house. Id. at
78:21-79:16. The audio recording reveals that law enforcement
told the house occupants that a search warrant could be
obtained because of the scale, bullet casing, and marijuana
blunt on the porch and the marijuana in the house. (Hr'g
Ex. 15 at 00:10:50-:11:38).
Worthen further testified that he did not talk to the
occupants of the Boltz Avenue residence in either a hostile
or a threatening manner, nor did he demand that any occupant
consent t o a s e a r c h . Id. at 79:17-24.
Defendant testified that, at some point after the law
enforcement officers entered the home, he went outside and
asked to speak to SA Worthen there. Id. at 86:11-13.
Harris testified that she allowed the officers into her home
because she did not want trouble. (Redacted Tr. 67:11-15).
She further testified that she initially indicated that her
house could not be searched but later gave consent to search
after she was informed that the law enforcement officers
could get a search warrant. Id. at 68:8-18.
Anderson testified as follows. Ms. Harris never said that she
did not want her home searched. Id. at 80: 22-24. He
had Ms. Harris accompany him while he searched the house so
that she could easily withdraw her consent to the search if
she wanted to do so. Id. at 45:18-24. Ms. Harris was
helpful during the search. Id. at 50:21-25. None of
the house's occupants in his presence told a law
enforcement officer to leave or to stop searching the house,
he did not threaten or raise his voice to any occupant with
regard to ...