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United States v. Harris

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

September 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
BILLY HARRIS, Defendant.

          FINDINGS, REPORT, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(B)(1)(B) & (C)

          PAUL R. CHERRY MAGISTRATE JUDGE

         This 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.

         On 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.

         PROCEDURAL BACKGROUND

         Defendant 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.

         On 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.

         FACTUAL BACKGROUND

         On July 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.

         Around 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.

         SA 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).

         SA 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).

         SA 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.

         Ms. 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.

         TFO 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 ...


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