United States District Court, E.D. Missouri, Eastern Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE
accordance with the Memorandum filed herein, IT IS HEREBY
RECOMMENDED that Defendant's Motion to Suppress Evidence
and Statements (Doc. 23) be GRANTED.
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).
in this case will be set at a later date before the Honorable
Catherine D. Perry.
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
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
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
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.
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.
October 2016 Statutory Rape Investigation of
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.
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.
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.
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.
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.
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.
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.
April 2017 Firearms Investigation of Holloman
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.
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.
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.
April 20, 2017, Arrest of Holloman
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.
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.
Search of the Loft Apartment
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?
Q. And then what ...