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United States v. Givens

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

November 18, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
DARRELL L. GIVENS, Defendant.

          REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTIONS TO SUPPRESS EVIDENCE

          ROBERT E. LARSEN, UNITED STATES MAGISTRATE JUDGE

         Before the court are defendant's motions to suppress the indictment (document numbers 39 and 47), which are interpreted as motions to suppress evidence (a firearm, a vial of PCP, and cash) and defendant's subsequent statement.

         I. BACKGROUND

         On March 31, 2016, Officers Garrett Lynch and Kenneth Lightner were sent to 4055 Oakley Avenue to investigate a disturbance. They parked their vehicle at the front of the house; and as they were walking toward the house, they heard screams coming from inside. A woman, Sonya Wiggins, was inside the house; and when she saw the officers at the front door, she yelled, “He's trying to hide his gun! He's trying to hide his gun in the sink!” Officer Lightner was entering the house and heard the sound of a solid metal object hit another metal object. He saw defendant in the kitchen near the sink. Defendant was the only person in the kitchen. Defendant walked into the living room and said he did not have a gun. Officer Lightner went into the kitchen, looked in the sink, and saw a red bowl flipped over. Officer Lightner lifted up the bowl and saw a Jimenez .380 caliber pistol which he seized. He contacted the robbery unit and learned that defendant was a convicted felon, so he arrested defendant for being a felon in possession of a firearm. Defendant was searched incident to arrest and officers found a vial of PCP in his pants pocket and a total of $6, 999 cash in his pockets.

         An indictment was returned on April 20, 2016, charging possession of PCP with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a convicted felon, with the enhanced penalty provision of 18 U.S.C. § 924(e).

         On September 28, 2016, defendant's request to proceed pro se was granted. He filed multiple pretrial motions including the instant motions to suppress. Defendant argues that the fact that several minutes of the body cam were muted violated his Fifth Amendment rights as well as the entire-controversy doctrine, the officers' reliance on their badges under color of law amounts to cruel and unusual punishment, Officer Lightner's moving of the bowel violated the plain view doctrine, and seizure of the gun was unconstitutional because there was no warrant and no consent to search the residence.

         On October 24, 2016, the government filed a response in opposition to defendant's motions (document number 54), arguing that Officer Lightner's looking in the sink and moving the bowel to discover the gun was lawful pursuant to the community caretaking function which permits police to help those in danger.

         I held a hearing on November 7, 2016. The United States was represented by Assistant United States Attorney Mike Green. Defendant was present acting pro se.

         The following witnesses testified:

1. Officer Kenneth Lightner, Kansas City, Missouri, Police Department
2. Detective Eric DeValkenaere
3. Defendant Darrell Givens

         The following exhibits were admitted into evidence:

P. Ex. 1 Dash camera video
P. Ex. 2 Video of interview between defendant and Detective DeValkenaere
P. Ex. 3 Miranda waiver form signed by defendant
P. Ex. 4 Photo of living room and dining room of residence
P. Ex. 5 Photo of handgun found in the sink and the cash and PCP found on defendant's person
P. Ex. 6 Photograph of money
D. Ex. 1 Portion of police report (included as attachment to document number 39)
D. Ex. 2 Portion of police report (included as attachment to ...

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