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United States v. Ford

United States District Court, N.D. Indiana, South Bend Division

June 27, 2019




         On June 12, 2018, police officers executed a search warrant for drugs and drug paraphernalia at a residential garage in which Defendant Eric Ford usually slept. While conducting the search, the officers observed a sawed-off shotgun in plain view and seized it. The government subsequently charged Ford with one count of possessing a sawed-off shotgun, in violation of 26 U.S.C. §§ 5822, 5861(c), and 5871. Ford now moves to suppress the shotgun seized during the garage search [DE 51], and the parties have submitted a set of stipulated facts in lieu of an evidentiary hearing. [DE 85][1] For the reasons set forth below, the Court will deny Ford's motion to suppress.


         As stipulated by the parties, just before midnight on June 12, 2018, officers with the South Bend Police Department surrounded a garage located at 1710 Medora Street in South Bend, Indiana. They had with them an arrest warrant for Joshua Kendall (Ford's codefendant in this case) and had received a tip that Kendall was inside the garage. Officers knew that Kendall had a prior conviction for a crime of violence and considered him dangerous and possibly armed.

         Officers noticed that the garage itself had security cameras mounted outside. The garage door was open and officers heard music emanating from a room inside the garage, which was segregated by a closed door. The officers then conducted a “call out” and ordered the garage's occupants outside. Four individuals emerged from the garage's inner room with their hands up: Joshua Kendall, Eric Ford, and two women. The officers could not fully see into the inner room from outside the garage, so once they secured the four individuals, three officers performed a quick protective sweep of the room (which turned out to be Ford's bedroom) to determine if anyone else had remained inside. The sweep “was very quick and involved the officers only looking where any other person might be hiding.” [DE 85 at 2] During this sweep, the officers detected a strong odor of raw marijuana and observed “several firearms and ammunition throughout the room, ” in the open. Id.[2]

         Based on their observations, officers applied for a warrant to search the room for illegal drugs and paraphernalia, firearms, and ammunition. The officers presented the application to a state court judge, who then issued a search warrant for “drug evidence, to wit, drugs, drug paraphernalia, scales, packaging items, and any other items related to drugs.” [DE 73 at 9] The state court judge, however, denied the officers' request to search for firearms and ammunition.

         Armed with the search warrant, officers searched the garage bedroom and located and seized evidence of illegal drug activity, namely, marijuana, smoking pipes, and four digital scales. Id. at 10. Officers also summoned ATF task force agent Sheldon Scott to the scene “to come and seize the firearms.” [DE 85 at 3] Scott then seized ammunition, a suppressed rifle, a revolver, and a sawed-off shotgun. The shotgun was sitting in plain view on top of a dresser or cabinet in the bedroom.


         As stated at the outset, Ford seeks to suppress the shotgun seized from his bedroom in the garage. He advances two main legal arguments: first, that the officers conducted an unreasonable protective sweep of the bedroom; and second, that the officers later exceeded the scope of the search warrant when they seized the shotgun. These arguments do not persuade the Court.

         A. Protective Sweep

         Ford first contests the officers' justification for conducting a protective sweep of the bedroom inside the garage, during which they detected the strong odor of marijuana that provided probable cause for the subsequent search warrant. He argues that the officers did not have grounds to conduct the sweep because they had already completed their arrest of Kendall outside the garage and because they had no reason to believe that another person posing a threat could have remained inside the bedroom. Although the officers did not seize any evidence during their sweep, Ford argues that because the sweep was not justified, any evidence seized pursuant to the later search warrant must be excluded as fruit of the poisonous tree.

         “A ‘protective sweep' is a quick and limited search of premises, incident to arrest conducted to protect the safety of police officers or others.” Maryland v. Buie, 494 U.S. 325, 327 (1990). Officers do not need a search warrant in order to conduct a protective sweep. United States v. Henderson, 748 F.3d 788, 791 (7th Cir. 2014). Instead, the Fourth Amendment permits a protective sweep “if the searching officer possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others.” Buie, 494 U.S. at 327 (internal citations omitted). A protective sweep is “not a full search of the premises, ” id. at 335, and is “limited to a cursory inspection into spaces where other assailants may be hiding and must not last ‘longer than is necessary to dispel the reasonable suspicion of danger.'” Henderson, 748 F.3d at 791 (quoting id.).

         The inquiry into whether a protective sweep is reasonable “is an exceptionally fact-intensive one in which we must analyze myriad factors including, among other considerations, the configuration of the dwelling, the general surroundings, and the opportunities for ambush. United States v. Starnes, 741 F.3d 804, 808 (7th Cir. 2013) (citing United States v. Burrows, 48 F.3d 1011, 1016 (7th Cir. 1995)). Three factors guide this inquiry: (1) the sweep must be based on more than a mere inchoate and unparticularized suspicion or hunch regarding the danger; (2) the search must be cursory, lasting no longer than is needed to dispel the officers' reasonable suspicion of danger; and (3) the search must be limited to a cursory visual inspection of places where a person might be hiding. Starnes, 741 F.3d at 804 (internal citations omitted).

         In this case, officers surrounded the garage prior to executing an outstanding arrest warrant on one of its occupants, Joshua Kendall. Officers knew that Kendall had been previously convicted of a crime of violence and considered him dangerous and possibly armed. Officers also noticed security cameras outside the garage, which would provide them reason to suspect that their approach, movements, and positions were under observation from inside the garage or from elsewhere, and perhaps by Kendall himself. Four people exited from the bedroom in response to the officers' ...

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