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United States v. Montgomery

United States District Court, W.D. Missouri, Western Division

July 9, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD R. MONTGOMERY, Defendant.

REPORT AND RECOMMENDATION

SARAH W. HAYS, Magistrate Judge.

This matter is currently before the Court on defendant's Motion to Suppress Evidence (doc #54). For the reasons set forth below, it is recommended that the motion be denied.

I. BACKGROUND

On September 26, 2012, the Grand Jury returned a one-count indictment against defendant Donald R. Montgomery. The indictment charges that on September 25, 2012, defendant, having been convicted of crimes punishable by imprisonment for terms exceeding one year, possessed a firearm, to wit, a Cobra brand, .38 caliber derringer, which had been transported in interstate commerce.

An evidentiary hearing on the motion to suppress was held on June 5, 2014. Defendant Montgomery was represented by Assistant Federal Public Defender Robert G. Kuchar. The government was represented by Assistant United States Attorney David A. Barnes. The government called Officer Patrick Moss and Detective Eric Johnson of the Kansas City, Missouri Police Department as witnesses. The defense called no witnesses to testify.

II. FINDINGS OF FACT

On the basis of the evidence presented at the evidentiary hearing, the undersigned submits the following proposed findings of fact:

1. On September 25, 2012, Officer Patrick Moss was a patrol officer in East Patrol, 10 Sector. (Tr. at 3) The area encompasses from about 12th Street north to the river and from about Prospect all the way to the Independence city limits. (Tr. at 3-4) Officer Moss testified that it is an older neighborhood that has "a lot of property crimes issues, be it stealing copper, car thefts, drugs. Just about any crime that you can think of is rampant in our area." (Tr. at 4)
2. A couple of weeks before September 25, 2012, Officer Moss had received information from another officer about stolen autos in the back of a house and about it being a chop shop. (Tr. at 5) Officer Moss described a chop shop as a place where stolen vehicles are cut into pieces and the parts are then sold. (Tr. at 5) On September 18, 2012, Officer Moss and his partner, Officer Eric Johnson, went to the house at 905 Newton. (Tr. at 5-6) As the officers were driving down the alley, they observed an individual with a grinder actively cutting on a car. (Tr. at 6) The officers arrested the person who was chopping up the car. (Tr. at 7) The officers also noticed that there was some theft of utilities happening at the residence. (Tr. at 7) The color code on the power box was red which means that there should have been no electricity at the house. (Tr. at 7) The officers contacted KCP&L. (Tr. at 7) KCP&L came out and cut the cord from the transformer to the house due to the occupants of the house being so far behind on their utility bills. (Tr. at 7) The officers also had City Codes come to the residence and they said the house would be shut down if it did not have hot water within two days. (Tr. at 7)
3. At approximately 7:35 a.m. on September 25, 2012, Officer Moss and Officer Johnson were patrolling around the area of 9th and Newton. (Tr. at 5, 12) The officers were in a marked car and were in uniform. (Tr. at 12) The officers decided to drive by and see if there were any stolen cars in the back of the house like there had been the week before. (Tr. at 8) Officer Johnson testified that in addition to the incident on September 18, 2012, there had been other instances of auto theft and scrap metals being at that address and that it had just been a nuisance house. (Tr. at 38) The alley behind the house at 905 Newton is a public thoroughfare. (Tr. at 8)
4. The officers observed a 2002 gold Ford Windstar van parked behind the address. (Tr. at 10) Officer Moss testified that minivans are prevalent among stolen autos. (Tr. at 10) The officers parked their patrol vehicle in the alley and got out to see if the minivan was stolen and just waiting to be chopped up. (Tr. at 10, 41) As the officers walked up to the minivan, they saw a bunch of copper pipes in the back of the minivan. (Tr. at 10) Officer Johnson testified that there is a ready market for stolen copper at the scrap yards which are located in the East Patrol district. (Tr. at 37) The officers also observed two individuals sleeping in the minivan. (Tr. at 10)
5. The officers walked around the house at 905 Newton to see if the items that Codes said needed to be fixed the week before were fixed. (Tr. at 11) The officers encountered a gentleman in the side yard that on September 18 had said he lived there. (Tr. at 11, 38) The officers asked the gentleman if he knew anything about the van or the people in the van. (Tr. at 11) The gentleman indicated that he had not given anyone permission to be parked in the backyard.[1] (Tr. at 11)
6. Officer Moss testified that based on his training and experience, he suspected that criminal activity was afoot with regard to the possession or transportation of stolen copper piping. (Tr. at 12) Officer Moss knocked on the driver's window of the minivan. (Tr. at 12) The driver woke up and rolled down the window and Officer Moss asked him why he was parked in the yard. (Tr. at 12) The driver's ID had an address on Crescent and when asked by Officer Moss if he still lived at that address, the driver replied, yes, on Crescent, so Officer Moss inferred that the driver did not live at 905 Newton. (Tr. at 13, 31) Officer Moss ran the driver's name with dispatch. (Tr. at 13) Dispatch advised that he had two city warrants for his arrest. (Tr. at 13, 39) Officer Moss asked the driver (defendant Montgomery) to get out of the vehicle. (Tr. at 13, 39)
7. Officer Moss testified that up to this point, defendant Montgomery was pretty cooperative. (Tr. at 13) However, when Officer Moss asked him to get out of the vehicle, Officer Moss could tell that Montgomery did not really want to get out. (Tr. at 13) Montgomery started leaning forward and started rubbing his right front pants pocket with his right hand. (Tr. at 13, 39) Officer Moss thought that Montgomery had some drugs or paraphernalia of some sort in his pocket. (Tr. at 14) Officer Moss told Montgomery to get out of the van or Moss would remove Montgomery from the van. (Tr. at 14) As Montgomery was getting out of the van, Officer Moss told him to put his hands behind his back. (Tr. at 14) Officer Moss was going to place Montgomery under arrest on the city warrants. (Tr. at 14) Officer Moss had the handcuffs in his hands. (Tr. at 14) Officer Moss had a hold of Montgomery's right hand as Montgomery flailed his arms and tried to run from the scene. (Tr. at 14, 40) Officer Moss took Montgomery to the ground. (Tr. at 15, 40) Officer Moss and Officer Wilson, an officer who had come by when he heard that Officers Moss and Johnson were conducting a car check, tried to get Montgomery's hands behind his back while telling him to stop resisting. ...

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