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United States v. Holloman

United States District Court, E.D. Missouri, Eastern Division

November 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL HOLLOMAN Defendant.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE

         In accordance with the Memorandum filed herein, IT IS HEREBY RECOMMENDED that Defendant's Motion to Suppress Evidence and Statements (Doc. 23) be GRANTED.

         The parties are advised that they have fourteen (14) days in which to file written objections to this report and recommendation pursuant to 28 U.S.C. §636(b)(1), unless an extension of time for good cause is obtained, and that failure to file timely objections may result in a waiver of the right to appeal questions of fact. See Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).

         Trial in this case will be set at a later date before the Honorable Catherine D. Perry.

         MEMORANDUM

         This matter was referred to the undersigned United States Magistrate Judge for all pretrial matters pursuant to 28 U.S.C. § 636(b). Defendant Michael Holloman is charged in an indictment with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The charges stem from Holloman's warrantless arrest on April 20, 2017, and a subsequent search of his girlfriend's nearby apartment, which resulted in officers' seizure of a handgun from the kitchen of the apartment.

         Holloman filed a motion to suppress evidence and statements challenging the constitutionality of his arrest and the search of his girlfriend's apartment. (Doc. 23). Specifically, Holloman contended his arrest violated the Fourth Amendment because it was based solely on a “wanted” bulletin issued by someone other than the arresting officer. Holloman also challenged the search on grounds that it was conducted without a warrant and without valid consent. Holloman contends that any statements and evidence arising from his arrest and the subsequent search must be suppressed as the fruits of the illegal arrest and search.

         The undersigned held an evidentiary hearing on September 7, 2017. The United States presented the testimony of St. Louis Metropolitan Police Department Detective Bradford Ellis. The United States also offered two exhibits into evidence which included a consent-to-search form and an audio recording of Holloman's statement. Defense counsel questioned the United States' witness but did not offer any additional testimony or evidence. After hearing oral arguments from counsel, the undersigned continued the hearing so that the parties could supplement the record with additional evidence, including evidence regarding the “wanted” bulletin and the facts and circumstances surrounding its issuance.

         The evidentiary hearing continued on September 22, 2017. At the time of the supplemental hearing, the United States presented a copy of the “wanted” bulletin, see Govt. Ex. 3, and testimony by Detective Kelli Swinton, who testified about the events leading up to the issuance of the “wanted” bulletin. At the close of the hearing, counsel requested, and were granted, time to file post-hearing briefs after a transcript of the hearing was filed. Post-hearing briefing concluded on October 18, 2017, and the matter is now ready for a ruling.

         Based on the evidence presented at the evidentiary hearing and the written submissions of the parties, I make the following findings of fact and conclusions of law.

         I. FACTUAL FINDINGS

         A. October 2016 Statutory Rape Investigation of Holloman

         On October 11, 2016, St. Louis Metropolitan Police Detective Kelli Swinton (“Det. Swinton”) was working as a Child Abuse Detective when a School Resource Officer contacted her to report alleged sexual abuse by a teacher at a school. Det. Swinton responded to the school and interviewed the principal of the school and the victim's mother. Det. Swinton also participated in an interview of the victim, who was a minor. On October 17, 2016, Det. Swinton conducted or participated in a more detailed recorded forensic interview of the victim.

         Det. Swinton's initial and forensic interviews revealed that Defendant Michael Holloman, who was employed by the YMCA at the time, was assigned by the YMCA to teach weightlifting at an alternative school where the victim was a student. The victim met Holloman at the school and reported that there was an attraction between herself and Holloman. Their relationship progressed with the pair communicating via telephone and Facebook Messenger. During a homecoming dance that took place on or about October 1st or 2nd of 2016, the victim and Holloman reportedly had sexual contact in Holloman's hotel room. The victim initially denied that she had sexual contact with Holloman but later recanted that denial.

         Following the foregoing interviews, Det. Swinton attempted, unsuccessfully, to obtain a criminal history of Holloman. Det. Swinton was unable to verify the reported sexual contact via any physical or DNA evidence. Because the victim deleted all of the relevant content from her account, Det. Swinton was unable to verify the reported Facebook Messenger contact. Det. Swinton verified that Holloman had a Facebook account; however, she found no evidence to corroborate contact between the victim and Holloman. Det. Swinton reviewed the hotel's surveillance video and believed that it confirmed Holloman's presence at the hotel on the night of the homecoming dance. However, none of the video footage showed Holloman with the victim. A witness who attended the dance confirmed that the victim was absent during the time of the alleged sexual encounter, but neither the witness nor any other eyewitness saw Holloman at the hotel or otherwise saw Holloman and the victim together.

         Det. Swinton subpoenaed Holloman's employment records from the YMCA and used that information to attempt to contact him for an interview. She left him messages and may have spoken to him on one occasion, but he never voluntarily came in to be interviewed. After unsuccessfully attempting to interview Holloman, on October 29, 2016, Det. Swinton entered Holloman's information into a police database as “wanted” so that other police officers who might encounter Holloman in the State of Missouri would take him into custody to be interviewed.

         As it was explained at the evidentiary hearing, “[a] wanted is basically what detectives put out for an individual who is suspected of doing a crime.” See Evid. Hrng. Tr. I (Doc. 31), p. 19. An officer who wants to enter a “wanted” into the police database must get the approval of his or her sergeant before entering the “wanted.” Id. at p. 20. When St. Louis Metropolitan Police see a “wanted” in the computer as being active, they are supposed to “apprehend the subject, ” take the arrestee to the police station, and call the detective who entered the “wanted” so that the officer who issued the “wanted” can question the person at whatever police station the person is taken to. Id. at pp. 20-21. See also Evid. Hrng. Tr. II (Doc. 36), p. 13.

         Det. Swinton testified that a suspect interview is typically “the final stage” of a sex crimes investigation. Id. at p. 11. In Holloman's case, she “placed him ‘wanted'” toward the end of her investigation because she had been unable to conduct a voluntary “suspect interview.” See Id. at pp. 11-12. Although she could have noted “do not detain” when she entered the “wanted, ” Det. Swinton did not do so. Thus, as entered, the “wanted” bulletin signaled to other police that Holloman should be detained for questioning in connection with suspected statutory rape second. The “wanted” bulletin provided Holloman's name, date of birth, height, weight, and other personal identifiers, including the presence of tattoos. It indicated that he lived at an address in Fairview Heights, Illinois. It did not indicate that Holloman was armed and/or dangerous. See Govt. Ex. 3.

         After entry of the “wanted” on October 29th, Det. Swinton's investigation remained open. Although she testified that she believed she had probable cause for a warrant as of October 29, 2016, Det. Swinton did not present the case to a Circuit Attorney or otherwise attempt to obtain a warrant until after Holloman was taken into custody on April 20, 2017. Det. Swinton's explanation for not seeking a warrant was that she considered it be a “best practice” to interview a suspect before seeking a warrant: “[I]deally as an investigator, I would rather take the prosecuting attorney a confession. So the only way I'm going to get a confession is if I have the opportunity to interview the suspect.” Evid. Hrng. Tr. II (Doc. 36), p. 42. The day after Holloman was taken into custody, he was transported to police headquarters to be interviewed by Det. Swinton. Following that interview, Holloman's statement was used as part of an application for a warrant for statutory rape.

         B. April 2017 Firearms Investigation of Holloman

         On April 5, 2017, Detective Bradford Ellis (“Det. Ellis”), an eleven year veteran of the St. Louis Metropolitan Police Department (“SLMPD”), received a tip from a confidential source that Holloman was a convicted felon who was known to be in possession of a firearm. The confidential source gave Det. Ellis a description of Holloman, provided his date of birth, and advised that Holloman was “staying in the [Cupples Station Lofts] with an unknown black female.” Evid. Hrng. Tr. I (Doc. 31), pp. 7-8. Det. Ellis did not determine whether the tip was based on personal knowledge. In fact, Det. Ellis acknowledged that the tip from the confidential source was no different than an anonymous tip he might receive through Crime Stoppers. Id. at 25-27.

         Based on the tip, Det. Ellis initiated a firearms investigation into Holloman. Specifically, Det. Ellis contacted the “realtime crime center, ” which ran Holloman's name through a certain computer database. Det. Ellis also obtained a photograph of Holloman from the Missouri State Highway Patrol and ran Holloman's name through the SLMPD's LE web system. Based on his investigation, Det. Ellis learned that Holloman had been “arrested” for Violation of Missouri Controlled Substance Law, Unlawful Use of a Weapon, and robbery “within several different states.” Det. Ellis also learned that Holloman was “wanted” by the SLMPD Sex Crimes Unit for statutory rape second. Id.at 7-8.

         Det. Ellis contacted Det. Swinton to confirm that the “wanted” she had entered in October 2016 was still active. Det. Swinton confirmed that it was still active but did not discuss the details of her investigation with Det. Ellis, and Det. Ellis did not share facts about his investigation with Det. Swinton. Using the photograph he obtained from the Missouri State Highway Patrol, Det. Ellis confirmed Holloman's identity by showing the photograph to the confidential source.

         C. April 20, 2017, Arrest of Holloman

         On April 20, 2017, Det. Ellis set up surveillance near the Cupples Station Lofts (the “Lofts”), the location where the tipster indicated Holloman was staying. Det. Ellis and two or more officers set up surveillance around 4:00 p.m. Around 4:30 p.m., Det. Ellis observed Holloman walking on the sidewalk toward the front door of the Lofts. Det. Ellis got out of his unmarked police car and approached Holloman with his gun drawn. He identified himself as police and ordered Holloman to show his hands and get down on the ground. Holloman complied. Det. Ellis handcuffed Holloman and searched him. Det. Ellis found no weapons on Holloman but seized a wallet and a single loose key found on Holloman's person during the search. Officers later determined that the key they seized was the front door key for the Loft apartment they eventually searched; however, the key did not open the exterior door of the Lofts building.

         Det. Ellis placed Holloman in his police car and advised Holloman that he was “under arrest and that he had an active warrant for statutory rape second.” Evid. Hrng. Tr. I (Doc. 31), p. 10. Reading from a card he carries with him, Det. Ellis advised Holloman of his Miranda rights. Id. at pp. 10-11. Det. Ellis acknowledged that the purposes of the “wanted” would have been satisfied if, after taking Holloman into custody, he had immediately taken him to the Justice Center for questioning by the Sex Crimes Unit or Det. Swinton. Id. at p. 50. However, Det. Swinton was not present at the time Holloman was taken into custody and there is no evidence to suggest that she had prior knowledge either of Det. Ellis' surveillance on April 20th or of Holloman's arrest. Det. Ellis did not immediately transport Holloman to the Justice Center, nor did he contact Det. Swinton to notify her that he had detained Holloman. Instead, Det. Ellis immediately proceeded to explain to Holloman that he was investigating allegations that Holloman was in possession of a firearm, and asked Holloman if he had any firearms or anything illegal in the apartment where he was staying. Evid. Hrng. Tr. I (Doc. 31), pp. 11-12.

         D. Search of the Loft Apartment

         Det. Ellis testified that Holloman denied having anything illegal in the apartment. Holloman told the detective he was “getting off work, he was going up to the loft to take a shower, change clothes and go to his son's baseball game;” thereby verifying for Det. Ellis the informant's statement that Holloman was staying at the Lofts. Id. Det. Ellis's initial testimony gave the impression that, almost immediately after being asked to search the apartment, Holloman consented to the search:

Q. So he's in the back of the car for a couple minutes. And then at some point you decide to seek consent from him to search the apartment?
A. Yes, I explained to him my investigation as far as him being in possession of narcotics and firearms.
. . .
Q. And what's that conversation like? What are you telling him in order to secure this consent? A. Basically I'm telling him my investigation as far as him being in possession of a firearm. And I was asking did he have any illegal items in the loft.
Q. And what was his response?
A. He told me he didn't. . . .
Q. Okay. And so you're in the police car, you're explaining to him your investigation, that you had evidence or that you had information that he had been seen with a gun, you asked him if he has any contraband or things inside the apartment he's not supposed to have, and he says no?
A. Yes.
Q. And then what ...

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