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United States v. Council

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

July 2, 2015



BRIAN C. WIMES, District Judge.

Before the Court is Magistrate Judge Matt J. Whitworth's Report and Recommendation (Doc. #35) denying Defendant Council's Motion to Suppress Evidence and For Hearing (Doc. #21). Defendant filed objections (Doc. #36) to the Report and Recommendation. After an independent review of the record, the applicable law, and the parties' arguments, the Court adopts Magistrate Judge Whitworth's findings of fact and conclusions of law. Accordingly, it is hereby

ORDERED for the reasons stated in the Report and Recommendation (Doc. #35), Defendant's Motion to Suppress Evidence and For Hearing (Doc. #21) is DENIED. It is further

ORDERED that Magistrate Judge Whitworth's Report and Recommendation be attached to and made part of this Order.



Defendant William Council has filed a motion for suppression of evidence and for hearing on November 3, 2014. (Doc. 21). Defendant contends that all evidence yielded from the search and seizure on or about August 23, 2013, of the defendant and the residence at 9349 Chippawa Trail, Callaway Estates, Missouri, is the fruit of unconstitutional search and seizure and should be suppressed. (Doc. 21 at 1). The government has filed suggestions in opposition (doc. 26), asserting that no constitutional violation occurred. Defendant filed reply suggestions in support of his motion to suppress (doc. 30), and a hearing was held regarding the motion on December 1, 2014.[1]

I. Background

On July 30, 2014, the Grand Jury returned a two-count indictment charging defendant Council in Count One with Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1) and in Count Two with Possession of Unregistered Firearm in violation of 26 U.S.C § 5861(d). (Doc. 1). Specifically in Count Two, the Indictment alleges that "on or about August 23, 2013, in Callaway County... [defendant Council] knowingly received and possessed a firearm, a New England model, 12 gauge shotgun, serial number 312410, having a barrel of less than 18 inches in length, not registered to him in the National Firearms Registration and Transfer Record, in violation of Title 26, United States Code, Sections 5841, 5861(d), and 5871." (Doc. 1 at 2).

The alleged unlawful search and seizure here stems from an investigation following a report made to the Callaway County Sherriff's Department of an assault with a firearm on August 23, 2013. As relayed through dispatch to Sergeant Kevin Foley of Callaway County at approximately 5:15 p.m., Andrew Wright reported that a man had aimed a weapon at him. Wright reported that he was standing in front of the residence of a friend, Melanie Miller, around 8:30 or 9:00 a.m. earlier that morning when he observed a man in a beat up, multi-colored, pickup truck drive by the house slowly, stare at him, shrug his shoulders, and continue to drive away slowly. Later that day, according to Wright, he and Miller were driving toward Williamsburg when the same truck pulled in front of their vehicle, blocking most of the road. Wright reported that the man jumped out of the passenger side of the truck and knelt down pointing what appeared to be a sawed-off shot gun with black tape at him. Wright further reported that he ducked down to avoid being shot and continued to drive around the man. The man purportedly got back into the truck and followed Wright and Miller. Wright was able to distance his vehicle from the man, and the man then abandoned the pursuit.

Sgt. Foley then contacted Melanie Miller, who confirmed Wright's account of the incident and identified the man as the defendant in this case, William (or "Bill") Council. Miller stated that she and the defendant were friends, but that the defendant desired a more intimate relationship. Miller also described the weapon carried by the man as dark in color with tape wrapped around the stock, and stated that she had observed him in possession of the weapon before. Sgt. Foley testified that the Sheriff's Department was familiar with the defendant and knew that he resided at Callaway Estates. Sgt. Foley testified that criminal complaints against the defendant had been filed by other residents of Callaway Estates, including allegations of violent behavior.

At this point, Sgt. Foley decided to make contact with the defendant at his residence and requested that Deputy Kirk Blehm go with him. After briefing Dep. Blehm on the accounts of the incident, Sgt. Foley and Dep. Blehm arrived at 9349 Chippawa Trail, the address where the defendant was known to reside in Callaway Estates, at approximately 7:15 p.m. on August 23, 2013. Upon arrival, the deputies observed a pickup similar to the one described by Wright and Miller and another pickup with a camper on its truck bed that was about twenty five to thirty yards distance from the road (See Gov. Ex. 1). Sgt. Foley proceeded to the door of the camper. while Dep. Blehm positioned himself off to one side and on the other side of a partition. In this position he had a view of the camper's doorway. (See Gov. Ex. 2).

Sgt. Foley knocked on the door to the camper. The camper moved as though someone was moving inside. The defendant responded from inside the camper, asking who was there. Sgt. Foley announced that the Sherriff's Office was present. When there was no response, Sgt. Foley knocked again. The defendant responded, again asking who was there, and Sgt. Foley loudly announced that the Sherriff's Office was present and instructed that he come to the door. The defendant opened the door of the camper, which opens outward, and stood in the doorway wearing only his underwear. Behind the defendant, a blanket was hanging inside the camper from the ceiling that obstructed the view into the camper. (See Dft. Ex. A). Dep. Blehm testified that from where he stood, he could see Sgt. Foley, the defendant standing at the doorway of the camper, and a blanket hanging behind where the defendant stood.

Sgt. Foley told the defendant that they needed to talk to him about a report received earlier that day. The defendant responded "okay", remaining in the doorway of the camper. Sgt. Foley recounted the incident as reported. Defendant responded that it was "fucking bullshit" and denied having done anything wrong. In response to Sgt. Foley asking where he was at 9:00 a.m. that morning, the defendant said that he had been asleep in his trailer. Defendant asked who had made the accusation, to which Sgt. Foley responded that Wright and Miller had reported the incident. Defendant called Miller a "liar" and stated that she was always causing problems for him. Defendant stated that the next time he saw her, he was going to "beat her half to death." Sgt. Foley then asked the defendant if he could search his ...

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