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United States v. Sherrod

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

October 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GABRIEL SHERROD, Defendant.

          REPORT AND RECOMMENDATION

          SARAH W. HAYS UNITED STATES MAGISTRATE JUDGE

         This matter is currently before the Court on Defendant's Motion to Suppress Evidence (doc #26). For the reasons set forth below, it is recommended that the motion be denied in part.

         I. INTRODUCTION

         On September 19, 2016, a criminal complaint was filed against defendant Gabriel Sherrod. On October 12, 2016, the Grand Jury returned a one-count indictment against defendant Sherrod. The indictment charges that on September 17, 2016, defendant, having been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessed firearms, to wit, a Smith & Wesson, model 422, .22-caliber semi-automatic handgun; a Remington, model 500, .22-caliber rifle; a Winchester, model 1897, 12-gauge shotgun; a Savage Arms, model 93R17, .17-caliber rifle; and a Stevens Arms, double-barrel, 12-gauge shotgun.

         On May 13, 2017, defendant Sherrod filed a Motion to Suppress Evidence. An evidentiary hearing was held on June 28, July 6, and July 7, 2017. Defendant Sherrod was represented by Gerald Gray II. The Government was represented by Assistant United States Attorney David Raskin. The Government called Officer Timothy J. Trost, Detective Frank Rorabaugh, Sergeant Ronald Hunter, and Officer Chase Kuehl of the Kansas City, Missouri Police Department as witnesses. The defense called XXXXX, Amy Sherrod and defendant Sherrod to testify.

         II. FINDINGS OF FACT

         On the basis of the evidence presented at the evidentiary hearing, the undersigned submits the following proposed findings of fact:

1. On September 17, 2016, at 8:11 p.m., Officer Timothy Trost accepted a check the welfare call at 316 Elmwood Avenue that showed pending on the computer in his vehicle. (Tr. I[1] at 7-8, 34) The call originated from a 911 call for service at 6:22 p.m. (Tr. I at 9, 34) Officer Trost contacted the calling party to obtain more information prior to responding to the address. (Tr. 1 at 9-10) The caller explained that she was concerned for the safety of her grandchildren because of the bizarre activities of her daughter and son-in-law. (Tr. I at 10-11) The caller provided the children's first names and ages. (Tr. I at 9) The caller also identified her daughter by name, Amy, and gave the name of her son-in-law, the children's father, Gabriel. (Tr. I at 10-11, 46-47) Officer Trost found the name Gabriel Sherrod in his computer's database. (Tr. I at 12) Officer Trost related the description of Gabriel Sherrod that was in the database to the caller and she confirmed that was him. (Tr. I at 12) The database showed that there was a felony warrant for burglary for Gabriel Sherrod. (Tr. I at 12)
2. Before he could respond to 316 Elmwood Avenue, Officer Trost was diverted to an alarm call at a church at Independence and Elmwood. (Tr. I at 13-14) The church is just a few blocks away from 316 Elmwood Avenue. (Tr. I at 14) The officers who responded to the alarm call at the church (Officer Stewart, Sergeant Weimhold, and Detective Hunter[2]) as well as Officer Chase Kuehl and Officer Vaccaro assisted Officer Trost in responding to 316 Elmwood Avenue. (Tr. I at 14) The officers knocked on the door and determined that they were at the wrong house since the Hispanic family living there did not meet the description of a black male and a white female at the residence and the Hispanic family stated that no Gabriel lived at that residence. (Tr. I at 15) The officers then determined that the call actually related to 316 North Elmwood Avenue, which was not far from 316 Elmwood Avenue. (Tr. I at 15)
3. The officers responded to 316 North Elmwood Avenue shortly after 10:00 p.m. (Tr. I at 15, 36) They parked their vehicles three or four houses down the street and walked as a group to the house at 316 North Elmwood Avenue. (Tr. I at 15-16) The lights were on in the residence. (Tr. I at 16) As the officers were walking up to the residence, the door opened and a child (estimated to be nine or ten years old)[3] walked out with a bag of trash. (Tr. I at 16) The officers had a conversation with the child on the sidewalk. (Tr. I at 16) Officer Trost asked the child if he was XXXXX[4] and he said that he was, but that he was called XXXXX . (Tr. I at 17, 61; Tr. III at 65) Officer Trost asked the child if his dad was home. (Tr. I at 17; Tr. III at 65) XXXXX testified that he did not answer the officer's question. (Tr. III at 65) Officer Trost testified that the child paused suddenly and looked unsure and then turned around and walked towards the house. (Tr. I at 17) Officer Trost, Sergeant Weimhold, and Detective Hunter followed the child to the front of the house while the other officers walked to the rear of the property. (Tr. I at 17) XXXXX testified that while he did not look to see if the officers were following him, he “had a good feeling that they probably were.” (Tr. III at 75) XXXXX testified that he did not tell the officers that they could not come in or to leave him alone. (Tr. III at 75) XXXXX testified that his father was sitting in the living room, but he did not ask his father for help. (Tr. III at 75)
4. Officer Trost testified that the door to the residence was already open.[5] (Tr. I at 18) Officer Trost testified that the child walked in without attempting to close the door.[6] (Tr. I at 18, 64, 66) Officer Trost stepped into the house and said, “Gabriel?” in a calm, collected voice. (Tr. I at 18; Government's Ex. 20 at File 5513, 10:07:59) Officer Trost was wearing a police officer's uniform and had his gun holstered at that time. (Tr. I at 18) Officer Trost testified that he then observed a tall back male stand up from a couch and flee towards the rear of the residence.[7] (Tr. I at 18) Officer Trost and Detective Hunter followed. (Tr. I at 69; Tr. III at 5)
5. Officer Trost announced to the other officers that they had a runner. (Tr. I at 18) Officer Trost testified that at this time, he also observed piles of firearms within the residence in the front entryway. (Tr. I at 18-19) Officer Trost yelled “Gun, ” to let the other officers know that there may be a gun involved. (Tr. I at 19)
6. Defendant Sherrod ran out the back of the residence and was taken into custody outside the kitchen door. (Tr. I at 19; Tr. III at 5, 32-33) From the kitchen, Officer Trost observed Sherrod on the ground being handcuffed. (Tr. I at 19) Officer Kuehl was one of the officers who placed Sherrod under arrest and handcuffed him. (Tr. III at 33) Officer Kuehl testified that he noted that there was a lot of swelling in Sherrod's arms, wrists and fingers. (Tr. III at 33) Officer Kuehl walked Sherrod along the side of the house to the patrol wagon which had been moved to the front of the house. (Tr. III at 34) Officer Kuehl searched defendant Sherrod's person and discovered a brown tarry substance in a clear plastic bag in Sherrod's pocket. (Tr. III at 34) The officers requested that EMS come to the scene to check on the swelling in Sherrod's arms and make sure that he was medically cleared before being transferred to a booking station. (Tr. III at 35) EMS responded to the scene and Sherrod was medically cleared. (Tr. III at 35) Officer Kuehl testified that Sherrod was allowed to speak with his wife and children and to give them a hug before he was transported. (Tr. III at 36) Officer Kuehl testified that he was with defendant Sherrod from the moment Sherrod was arrested in the back of house up until the time Sherrod was dropped off at the police station. (Tr. III at 36) Officer Kuehl testified that defendant Sherrod never said that the officers could not search the residence. (Tr. III at 36) The subject of searching the residence at 316 North Elmwood simply did not come up. (Tr. III at 36)
7. After defendant Sherrod was arrested, Officer Trost, who was still inside the house, walked back where he had originally entered the house. (Tr. I at 20) In that front room, Officer Trost observed two or three piles of firearms, as well as a handgun on the floor by the couch. (Tr. I at 20; Government's Exs. 2, 3, 4, 6, 8, and 9) Officer Trost testified that he also saw numerous syringes, a syringe that had a black liquid inside, a spoon with residue on it, and a scale in the front room. (Tr. I at 20; Government's Exs. 7 and 10) Based on his training and experience, Officer Trost drew the conclusion that there was drug use within the residence. (Tr. I at 20)
8. Officers performed a protective sweep of the residence. (Tr. I at 22) The officers found a black powder firearm above the door in one of the bedrooms. (Tr. I at 22)
9. Officer Trost contacted Detective Rorabaugh for guidance given the discovery of firearms and the fact that defendant Sherrod had a felony warrant. (Tr. I at 22-23) Detective Rorabaugh conducted a database search regarding Gabriel Sherrod's criminal history and determined that Sherrod was a convicted felon. (Tr. I at 23; Tr. II at 6) Detective Rorabaugh did not find a felony conviction for Amy Sherrod, who was present in the residence. (Tr. II at 6, 23-24) Detective Rorabaugh told Officer Trost to place Gabriel Sherrod on a 24-hour hold for the investigation of being a felon in possession of a firearm, but that Amy Sherrod would not be arrested as such. (Tr. II at 6, 14)
10. Detective Rorabaugh advised Officer Trost that the officers should attempt to obtain consent so that they could search the entire residence. (Tr. I at 23) Officer Trost testified that he spoke to Amy Sherrod, who advised that she was defendant Sherrod's wife, [8] and obtained consent to search from her. (Tr. I at 23-24, 79) Officer Trost testified that Ms. Sherrod appeared to be under the influence of some kind of substance, but appeared coherent enough to understand what Officer Trost was saying.[9](Tr. I at 100, 111, 117) Officer Trost testified that he explained the consent to search form to Ms. Sherrod and advised her that she could sign the consent to search form or refuse to sign the form; it was her choice. (Tr. I at 24) Officer Trost testified that he told Ms. Sherrod that if she did not sign the consent form, she would be going to jail because of the “stuff” at the house and her city warrant.[10] (Tr. I at 49, 80, 84) On cross-examination, Officer Trost was asked: “You gave her an option, sign it or go to jail, correct?” and Officer Trost answered, “Yes.” (Tr. I at 84) Ms. Sherrod asked Officer Trost questions, which he answered, and she ultimately agreed to sign the consent to search form. (Tr. I at 24) Officer Trost testified that based on his interactions with Ms. Sherrod, he believed that she resided in the home.[11] (Tr. I at 24, 109-10) During Officer Trost's interactions with Ms. Sherrod, defendant Sherrod was still at the scene, at the patrol wagon. (Tr. I at 24; Tr. III at 51-52) Defendant Sherrod was not a part of the conversation Officer Trost was having with Ms. Sherrod.[12] (Tr. I at 24-25)
11. Detective Hunter was the officer who filled out the consent to search form with Ms. Sherrod. (Tr. III at 6-8; Government's Ex. 13) Detective Hunter testified that another officer had already obtained Ms. Sherrod's verbal consent. (Tr. III at 5-6, 8) Detective Hunter allowed Ms. Sherrod to read the form and asked her if she understood everything. (Tr. III at 8) Detective Hunter testified that Ms. Sherrod gave no indication that she did not understand what was going on and that he believed that she did understand. (Tr. III at 9) Detective Hunter described Ms. Sherrod's demeanor as cooperative. (Tr. III at 9) Detective Hunter testified that Ms. Sherrod appeared to be coherent. (Tr. III at 28) Ms. Sherrod printed and signed her name.[13] (Tr. III at 8) The form stated that Ms. Sherrod was consenting to a search of “my residence, 316 Elmwood.”[14] (Tr. III at 7-8; Government's Ex. 13) Detective Hunter testified that there was no doubt in his mind when Ms. Sherrod signed the consent to search form that she was indeed a resident of 316 North Elmwood. (Tr. III at 9) Detective Hunter testified that while he would typically attempt to obtain consent from the party who was the subject of the investigation if that person was ...

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