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United States v. Sisco

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

June 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDREW J. SISCO, Defendant.

          ORDER AND OPINION (1) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND (2) DENYING DEFENDANT'S MOTIONS TO SUPPRESS

          BETH PHILLIPS, UNITED STATES DISTRICT COURT JUDGE

         On December 8, 2015, Defendant Andrew J. Sisco was indicted for being a felon in possession of a firearm, receiving an unregistered automatic machine gun, and possessing an unregistered silencer. (Doc. 1.)

         Defendant filed motions to suppress evidence seized as a result of two search warrants issued on August 26, 2015, following Defendant's arrest on an Arkansas warrant. (Docs. 28, 29.) The first warrant was issued for three storage units at Neosho RV Boat and Mini Storage. (Doc. 30-1.) The second warrant authorized a search of Defendant's residence and was obtained after the execution of the search of the storage units. (Doc. 31-2.) Defendant's motions allege that the applications and supporting affidavits “wholly lack probable cause and any nexus to the places designated to be searched, thus violating Mr. Sisco's Fourth Amendment right against unreasonable search and seizure.” (Doc. 28, p. 1, Doc. 29 p. 1.)

         Defendant also filed a Motion to Suppress Custodial Statement. (Doc. 30.) Defendant argues that his verbal and written statements should be excluded from evidence at trial as they were the product of an unconstitutional search and seizure of Defendant in violation of the Fourth and Fourteenth Amendments. Defendant also contends that the statements were not voluntary and were obtained in violation of defendant's Fourth, Fifth and Sixth Amendment rights.

         The Honorable David P. Rush, Magistrate Judge for this District, held a hearing on September 7, 2016, and he issued two Reports and Recommendations (“the Reports”) on January 11, 2017 recommending that the Motions to Suppress be denied. (Docs. 46, 47.) Defendant has objected to the Reports. (Docs. 50, 51.) The Government has not responded to Defendant's objection, and the time for doing so has passed. Local Rule 74.1(b)(2).[1]

         The Court has conducted a de novo review as required by 28 U.S.C. § 636(b)(1). In particular, the Court has reviewed the parties' submissions before the hearing, the transcript from the hearing, and the exhibits admitted during the hearing. Having conducted this review, the Court adopts the Reports in their entirety as the Orders of the Court and denies the Motions to Suppress. Given the Reports' thoroughness there is no need for extended discussion.

         I. BACKGROUND

         Deputy David Mace was on patrol by himself between 1:00 and 2:00 a.m. on August 26, 2015. (Doc. 42, pp. 4, 33.) At approximately 1:25 a.m. while driving north on Highway 59, he saw a vehicle parked outside a storage lot with its headlights on. (Doc. 42, pp. 4, 8.) Deputy Mace turned around at the next intersection and drove back to the vehicle. (Doc. 42, p. 5.) When he returned, the vehicle's headlights were off, which was significant to the deputy as it occurred to him that the individuals there had seen him drive by and they turned their headlights off to possibly conceal themselves. (Doc. 42, p. 34.) Deputy Mace observed a female, who identified herself as Angela Sisco, near the vehicle going through what looked like rummage sale items or items that had come from a storage locker. (Doc. 42, pp. 5, 10.) Deputy Mace stopped to talk to her and she consented to a search of her vehicle. (Doc. 42, pp. 5, 7.)

         As Deputy Mace was searching the vehicle, he noticed a man, later identified as Defendant Andrew Sisco, approaching from the inside of the fenced area around the storage sheds. (Doc. 42, p. 7.) Ms. Sisco said that the individual was her son. (Doc. 42, p. 8.) Deputy Mace approached the chain link fence and asked Defendant to identify himself. (Doc. 42, p. 9.) Defendant did not comply with his request. (Doc. 42, p. 9.) The deputy asked him to identify himself several times. (Doc. 42, p. 33.) When Deputy Mace asked Defendant why he was there at this time of the morning, Defendant stated that it was a twenty-four hour access facility and Defendant has a storage shed. (Doc. 42, pp. 10, 28.) Deputy Mace testified that he felt it was important to identify Defendant because it appeared to him that a burglary or some other crime was being committed. (Doc. 42, p. 10.)

         Deputy Mace asked Defendant for the key pad access code to the gate, but Defendant would not provide it. (Doc. 42, pp. 11, 25.) The deputy was able to push the gate open just wide enough so that he could fit through. (Doc. 42, p. 11.) Deputy Mace testified that an individual could have pushed their way into the facility, as he did, without actually opening the gate. (Doc. 42, p. 11.) After pushing open the gate and going inside, Deputy Mace put Defendant in handcuffs. (Doc. 42, p. 13.) The deputy frisked him for weapons and then removed his wallet from his back pocket in order to identify him. (Doc. 42, p. 13.) Deputy Mace located an ID in the wallet that matched Defendant. (Doc. 42, p. 14.) He ran that ID through dispatch for warrants and also used that information to contact the business to see if Defendant had a storage unit. (Doc. 42, p. 14.) After running the information through dispatch, it returned with felony warrants out of Benton County, Arkansas. (Doc. 42, p. 15.) Defendant was placed under arrest as a result of the Arkansas warrants. (Doc. 42, p. 15.)

         After Defendant was arrested, officers sought a search warrant for his storage units. The affidavit, (Doc. 28-1, pp. 3-4), begins by stating that Defendant was arrested on August 26, 2015 at a storage unit facility at which Defendant had three storage units. The affidavit also details two previous arrests of Defendant. At the first arrest on August 9, 2014, an inventory search revealed ten grams of methamphetamine, a gun, and keys to storage units. At the second arrest on January 22, 2015, Defendant had some pills, a glass pipe for smoking methamphetamine, an unidentified number of empty baggies, and a leafy substance believed to be marijuana. Defendant was also a suspect in an “ongoing investigation of moving large amounts of Methamphetamine from Wichita Kansas to Neosho Missouri” and had been tracked going back and forth between Wichita and Neosho. The warrant also states that “[w]e have several sources of information stating that [Defendant] goes to Kansas and brings back large amounts of methamphetamine and stores it at the storage units.” Finally, the warrant states that a source indicated that Defendant received a money order in June 2015 for an unspecified amount from David Mitchell, who was arrested on August 18, 2015 after a search of his vehicle revealed 15.9 grams of methamphetamine. Mitchell was charged with drug trafficking. Mitchell was arrested at the same storage facility as Defendant and also had storage units there.

         After officers received a search warrant for Defendant's storage units and searched them, officers applied for a warrant to search Defendant's residence. The affidavit in support of the search warrant for Defendant's residence contained the same information in the affidavit for the search of the storage units and added the following information:

On August 26, 2015, deputies served a search warrant on three storage units that are being rented to Andrew Sisco and located three stolen motorized vehicles, packaging that appears to be for a large quantity of narcotics, and several items of drug paraphernalia. (Doc. 29-1, p. 3.)
I offer the opinion that the above listed residence has been used for furtherance of ...

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