United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
TERRY I. ADELMAN, Magistrate Judge.
The above matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(B). The Defendant filed a motion to suppress statements and evidence and the Government filed a response thereto. On June 11, 2014, the undersigned ordered that the evidentiary hearing be held on June 24, 2014. Based upon the evidence adduced at the hearing on the motion to suppress, the undersigned makes the following finds of fact and conclusions of law:
Findings of Fact
Curtis Brassel is a United States Postal Inspector. On October 4, 2013, Inspector Brassel was assisting Postal Inspector Jeff Walters in the investigation of Alan Jung. Mr. Jung was suspected of making a threat to kill numerous people at the Post Office in St. Charles, Missouri. According to the affidavit filed by Inspector Walters in this case in support of a complaint, Mr. Jung was a former employee of the St. Charles Post Office having been terminated three months earlier. He was terminated because he accused people at the post office of "poisoning" his salt shaker. Postal Inspector Brassel had investigated some of Mr. Jung's allegations, and believed Mr. Jung was mentally unstable. On October 3, 2013, Defendant approached a former supervisor while she was having lunch and asked her about a former co-worker whom he said was poisoning him. He then screamed at the supervisor, "you are a bitch and I will get you and all of them." When the supervisor asked what he meant he said "I will come to the post office and kill all of them." Because of the specific nature of the threat Inspector Walters, who had been assigned the case, met with an Assistant United States Attorney on October 4, 2013. Their plan was to file a complaint with an United States Magistrate Judge and arrest the Defendant before he could act on his threat. In the interim, Inspector Brassel and another postal inspector were to go to Mr. Jung's house to question and/or detain him in order to make sure that he did not carry out his threat.
Pursuant to this, Inspector Brassel and another postal inspector, Brian Budt, went to Defendant's apartment at 1408 Lockwood in St. Peters, Missouri. They proceeded up the stairs to Defendant's apartment and Inspector Brassel knocked on the door. After approximately fifteen to twenty seconds, the inspectors heard a voice asking them who was at the door. Inspector Brassel replied, "Postal Inspectors" and Defendant immediately opened the door to the apartment. He stated to them immediately, without being asked any questions, "I didn't threaten her." The inspectors explained to the Defendant that they needed to talk to him about the alleged threats he made to his supervisor and said that they wanted him to go with them to the office in order to be questioned about the matter. The Defendant said he expected that they would want to talk to him. Defendant opened the door widely while stepping back or to the side to let them in. The inspectors felt they were being invited into the apartment. They stepped across the threshold and the Defendant closed the door and stated that he wanted to get dressed. They told him that was fine and he started to reach for a shirt in a laundry basket next to him in the laundry room of his apartment which was right next to the front door. As he did so, Inspector Budt noticed what appeared to be a loaded.45 caliber automatic pistol in the laundry basket in which Defendant was reaching. Inspector Budt informed Inspector Brassel of the weapon and, because he believed the Defendant was reaching for the gun, grabbed the gun while Inspector Brassel handcuffed the Defendant. When the Defendant observed Inspector Budt grab the gun, he said, "I brought the gun to the door for my protection, but put it down when I determined that you were postal inspectors. I forgot the gun was there."
The inspectors did not know whether or not the Defendant was alone in the apartment or lived with someone. Because of this and because they believed the Defendant reached for a loaded firearm, they determined that they needed to do a protective sweep of the apartment. They felt it was prudent in view of the fully loaded firearm and ammunition in the laundry basket.
In conducting a protective sweep of the apartment, Inspector Budt checked every room in the residence and checked closets and any other place an individual may be hiding to verify there was no one in the residence. During this time, he was able to see in plain sight numerous firearms and boxes ammunition in the apartment. In all, he seized about ten (10) firearms, several of which were semi-automatic handguns. In doing this he seized only the weapons that were in plain view. He did not look into any boxes, drawers, or under any mattresses, box springs, pillows, etc. Because to this, he was unsure whether all of the weapons in the residence had been found and, in fact, was fairly certain there were still firearms in the apartment. During the time Inspector Budt was doing the protective sweep, Defendant was in handcuffs in the living room of the apartment. He was not allowed to sit down on the couch because Inspector Brassel, who was with him, could observe a loaded firearm sitting on the couch.
After the firearms were collected, Defendant was conveyed to the postal inspector's office where he was advised of his rights but he refused to make a statement.
Conclusions of Law
A. Entry into Defendant's Apartment
Based upon the above findings the undersigned concludes that the entry by Brassel and Budt into Defendant's apartment was consented to by the Defendant and therefore, the initial entry into the apartment was lawful.
In United States v. Turbyfill , 525 F.2d 57 (8th Cir. 1975), a Kansas City police officer and a Secret Service agent went to the defendant's house to investigate a counterfeiting matter. They rang the doorbell and an individual answered the door. The officers identified themselves and the defendant opened the inside door a few feet and stepped back. After the defendant did this, the officers opened an unlocked screen door and entered the house. After entering the house, they immediately smelled a strong odor of marijuana and observed other marijuana in the room. Eventually, the officers arrested both individuals in the house and charged them with possession of marijuana with intent to distribute it. In upholding the entry into the premises and a later seizure of the marijuana as lawful the court stated as follows:
Turbyfill says, however, that even if Church had authority to permit others to enter the dwelling, nothing done by Church was an invitation to the officers to enter the house and thus be in a position to see the marijuana which was first observed. An invitation or consent to enter a house may be implied as well as expressed. There was no error in the determination of the district court that the action of Church in the opening of the door and stepping back constituted an implied invitation to enter. The entry of the ...