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United States v. Everett

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

March 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES E. EVERETT, JR., Defendant.

          REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT'S MOTION TO SUPPRESS EVIDENCE

          ROBERT E. LARSEN United States Magistrate Judge

         Before the court is defendant's motion to suppress his statement[1] that he had a gun in his car, on the ground that he was in custody and was questioned in violation of the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966). In a supplemental motion, defendant moved to suppress the gun found in the car and the heroin found on defendant's person. I find that (1) the government has not satisfied its burden of proving by a preponderance of the evidence that defendant's statement was not obtained in violation of Miranda, (2) defendant's statement was not coerced and therefore the Miranda violation does not require suppression of the firearm, (3) the seizure of the firearm from the car was done pursuant to a lawful inventory search, and (4) the seizure of the heroin was unlawful as the search of defendant's person exceeded to scope of a pat down for weapons. Therefore, defendant's motion to suppress his statement and the heroin should be granted; his motion to suppress the firearm should be denied.

         I. BACKGROUND

         On March 10, 2016, defendant went to the federal building in Kansas City, Missouri, and became unruly and threatening. Officers struggled to handcuff defendant. Once he was on the ground and in handcuffs, defendant said that he had a gun in his car. His person was searched and police recovered a small amount of heroin from his pants pocket. The car, which was illegally parked, was towed; and during an inventory search a firearm was found.

         A criminal complaint was filed on March 11, 2016, charging defendant with possessing a firearm after having been convicted of a felony. On March 30, 2016, an indictment was returned adding one misdemeanor count of possessing a controlled substance. On November 15, 2016, a superseding indictment was returned, adding one count of threatening a federal law enforcement officer.

         On December 1, 2016, defendant filed a motion to suppress challenging his statement on the ground that he was questioned while in custody and without having been advised of his Miranda rights (document number 35). The government filed a response on December 23, 2016 (document number 38) arguing that the public safety exception to Miranda applies, and that defendant's statement was voluntary and non-responsive. On December 30, 2016, defendant filed a reply (document number 39) disputing the government's summary of the facts and disputing the government's argument that the public safety exception applies in this case.

         On January 4, 2017, I held a suppression hearing. The United States was represented by Assistant United States Attorneys Jeffrey McCarther and Bradley Kavanaugh. Defendant was present, represented by Assistant Federal Public Defender Marc Ermine. The following witnesses testified:

1. FPS Inspector David Yadon
2. Detective Bradley Bailey, Kansas City, Missouri Police Department

         The following exhibits were admitted into evidence:

D. Ex. 1 Report of Investigation by Special Agent Travis Vas, Federal Protective Service
D. Ex. 2 Supplemental Report by FPS Officer Patterson
D. Ex. 3 Affidavit in support of criminal complaint signed by Agent Vas

         A transcript of the hearing was filed on January 9, 2017 (document number 44).

         On January 11, 2017, defendant filed a supplemental motion to suppress (document number 46). Defendant argues that the evidence presented during the first hearing establishes that not only his Miranda rights were violated, but his Fifth Amendment rights were violated as well since his statement about the gun was involuntary and was the result of coercive police action.[2] “As such, derivative evidence -- the gun found in the car Mr. Everett was driving -- is subject to suppression.” Defendant also argues that Officer Yadon testified that defendant was merely detained and not under arrest; however, officers searched his person (finding heroin) and this search exceeded the bounds of a frisk for weapons and therefore the heroin should be suppressed.

         A supplemental hearing was held on February 8, 2017. The United States was represented by Assistant United States Attorneys Jeffrey McCarther and Courtney Pratten. Defendant was present, represented by Assistant Federal Public Defender Marc Ermine. The following witnesses testified:

1. Special Agent Travis Vas, Federal Protective Service
2. Detective Bradley Bailey, Kansas City, Missouri, Police Department

         The following exhibits were admitted into evidence:

P. Ex. 6 Kansas City, Missouri, Police Department Procedural Instruction for Towing and Protective Custody of Vehicles and Contents
P. Ex. 7 Tow report
P. Ex. 8 Kansas City, Missouri, Police Department Incident Report prepared by Detective Bailey
P. Ex. 9 Kansas City, Missouri, Police Department Uniform Parking Citation
D. Ex. 4 Supplemental report written by Inspector David Wright
D. Ex. 5 Supplemental Report written by Officer Wesley Patterson

         A transcript of the second hearing was filed on February 15, 2017 (document number 59).

         II. FINDINGS OF FACT

         On the basis of the evidence presented at the suppression hearings, I submit the following summaries of the versions of the incident.

         FPO Inspector David Yadon

         On March 10, 2016, FPO Inspector David Yadon was working at 601 East 12th Street in Kansas City, the Richard Bolling Federal Building (1Tr. at 7-8). He was carrying a communications radio for dispatch in the event of incidents requiring law enforcement response (1Tr. at 8).

         At approximately 8:30 a.m., Inspector Yadon was told via his radio that the protective security officers (“PSOs”) stationed in the lobby had a disorderly person and needed assistance (1Tr. at 8, 26). Inspector Yadon was on the second floor of the Federal Building and headed to the lobby on the first floor (1Tr. at 8, 14-15).

         When he arrived in the lobby, Inspector Yadon was told by the PSOs that a person had come into the facility and asked for a federal judge (1Tr. at 9). The man had been told there were no federal judges in the building and he would have to leave (1Tr. at 9). The man had reportedly been slapping himself in the face, and he was making incoherent statements about his son (1Tr. at 26-27). The PSOs told Inspector Yadon that the man was out on the street (1Tr. at 9).

         Inspector Yadon and two other inspectors (Wright and Patterson) started walking out toward the street and saw defendant in the street, screaming, waving his arms, and pacing back and forth (1Tr. at 9-10, 15, 27). Inspector Yadon asked defendant what was going on and started walking toward defendant (1Tr. at 10). Defendant began walking toward the inspectors, yelling obscenities (1Tr. at 10, 15-16). At some point defendant turned around and started walking away (1Tr. at 16). For unknown reasons, defendant turned around and headed back toward the inspectors, saying things such as, “I'll kick your ass” (1Tr. at 10, 15-16). They asked defendant what the problem was, why he was angry (1Tr. at 10). Inspector Yadon tried to engage defendant, but defendant looked away and said to another inspector, “I'll fucking kill you” (1Tr. at 10).

         At this time, Inspector Schwarz was getting out of his vehicle nearby and headed toward the group (1Tr. at 15). Inspector Yadon did not know what defendant's intentions were (1Tr. at 11, 17-18). Defendant was clenching his fists which is a pre-assault indicator as taught by the Policy Academy, and he was screaming and yelling threats (1Tr. at 29). For the safety of everyone present, Inspector Yadon circled around behind defendant and grabbed his arms, hoping to handcuff him behind his back (1Tr. at 11, 17-18). At the same time, Inspector Wright put his hand on his Tazer (1Tr. at 17). When Inspector Yadon grabbed defendant's arms, defendant began kicking, twisting, biting, and trying to get free (1Tr. at 11, 17). It took six individuals to restrain defendant (Inspectors Yadon, Schwarz, Wright and Patterson, and two Kansas City, Missouri, Police detectives) (1Tr. at 11, 18). When he was taken down to the ground, defendant was banging his head on the concrete (1Tr. at 27).

         While this was going on, Inspector Yadon noticed keys come out of defendant's hand; and after he was taken to the ground, the keys were lying in front of him (1Tr. at 12). Inspector Yadon asked defendant if he had driven to the Federal Building (1Tr. at 12). The PSOs had indicated that defendant came from a silver car which was parked in a spot reserved for emergency vehicles; it would have been a safety hazard to leave defendant's car parked in that spot (1Tr. at 12-13). Defendant said, “Yes, I drove and I have a gun in the car” (1Tr. at 13).

         After defendant was restrained, an ambulance was called (1Tr. at 11-12). Based on his training and experience, Inspector Yadon thought it obvious that defendant was under the influence of some type of drug or was experiencing some mental issue, and Inspector Yadon wanted to make sure medical assistance was available (1Tr. at 12, 26).

         While defendant was face-down on the ground with his hands cuffed behind him, his pockets were searched and heroin was recovered (1Tr. at 18-19). Defendant was never placed under arrest for a crime (1Tr. at 33).

         Defendant was taken by ambulance to Truman Medical Center where he was monitored for drug usage or mental health problems, and he tested positive for PCP while at Truman (1Tr. at 27). After a gun was found in defendant's car, Inspector Yadon was told to go to Truman to stand by at the hospital while an arrest warrant was being sought (1Tr. at 33-34). At the hospital, defendant was fighting with security staff, he broke free of his restraints, urinated all over his hospital room, and had to be sedated (1Tr. at 33).

         During the initial incident, Inspector Yadon did not ask defendant if he had any weapons in his car (1Tr. at 13, 28). He did not ask defendant if he had any weapons on his person (1Tr. at 13, 28). He was not yelling at or hurting defendant when he asked whether defendant had driven to the Federal Building (1Tr. at 13).

         Detective Bradley Bailey

         Detective Bailey testified at both hearings. During the first hearing, Detective Bailey testified as follows: At approximately 8:30 a.m. on March 10, 2016, Detective Bailey and his partner were walking out of the Jackson County Courthouse at the intersection of 12th Street and Locust when they observed defendant wearing all blue and shouting profanities and running around in the street (1Tr. at 35-36). The detectives were about a half a block away (1Tr. at 36). They got in the patrol vehicle and drove toward defendant (1Tr. at 36).

         They saw defendant walking aggressively toward the front doors of the Federal Building which is on the south side of 12th Street (1Tr. at 37). As defendant approached the doors of the building, the detectives parked their vehicle directly in front of the building (1Tr. at 37).

         As they were getting out of the car, they observed four uniformed security officers make contact with defendant who continued to act in an aggressive and erratic manner, shouting profanity (1Tr. at 37). He appeared not to be following the verbal commands of the officers (although Detective Bailey could not hear what was being said (1Tr. at 42)), and Detective Bailey saw an officer attempt to handcuff defendant behind his back which resulted in a struggle (1Tr. at 37). The detectives approached the group and physically assisted in controlling defendant (1Tr. at 37, 42).

         It was difficult to get defendant under control (1Tr. at 37). Officers are trained in various techniques to take control of an individual who is physically resisting, and those techniques failed (1Tr. at 37). Defendant was therefore taken to the ground to get control of him, and he was finally restrained and put in handcuffs (1Tr. at 37-38, 42). Detective Bailey did not observe defendant appear to injure himself during or immediately after the struggle (1Tr. at 38). After he was in handcuffs, defendant continued to resist, continued to shout, began spitting, and he attempted to bang his head on the concrete (1Tr. at 38). Detective Bailey held defendant's head down to prevent him from raising it and continuing to strike it on the ground (1Tr. at 38).

         Due to defendant's irrational, erratic behavior during the entire incident, a decision was made to order an ambulance (1Tr. at 39). Detective Bailey has, during his law enforcement career, observed individuals act in a similar manner when under the influence of alcohol or drugs, or suffering from a mental disorder (1Tr. at 39, 42-43).

         While they were waiting for the ambulance, Detective Bailey heard defendant say he was “over at his nigga's house smoking kush” and the detective heard “another spontaneous statement stating that the gray car over there was his and there was a gun under the seat.” (1Tr. at 40). Detective Bailey did not hear anyone ask defendant about a gun (1Tr. at 40). The detective did not hear any officer make any statements or ask any questions (1Tr. at 40). No one asked defendant about weapons on his person or in his car or anywhere else (1Tr. at 40-41).

         Because defendant was spitting at the officers and at the paramedics once they arrived, a hood was placed over defendant's head (1Tr. at 44).

         Either Detective Bailey or his partner issued a citation for defendant's car being parked in an “emergency vehicle only” spot (1Tr. at 43). The car was searched during issuance of the citation (1Tr. at 43).

         During the second hearing, Detective Bailey testified as follows: During the incident between defendant and law enforcement officers, Detective Bailey heard defendant make a spontaneous statement that “the gray car over there was his and that there was a gun under the seat.” (2Tr. at 31). Detective Bailey did not hear any exchange between defendant and any officers about the car or gun (2Tr. at 57). When he said this, defendant looked over toward 12th Street which was directly in front of where this took place (2Tr. at 31). Detective Bailey observed a silver or gray car parked on 12th Street facing east on the south curb in a lane that was exclusively marked with signs for emergency vehicles only (2Tr. at 31). Because this car was not an emergency vehicle, it ...


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