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United States v. Mitchell

United States District Court, W.D. Missouri, St. Joseph Division

May 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JEREMY A. MITCHELL, Defendant.

          REPORT AND RECOMMENDATION

          MATT J. WHITWORTH UNITED STATES MAGISTRATE JUDGE

         Before the Court is defendant Jeremy A. Mitchell's motion to suppress evidence. (Doc. 23). The Government has filed suggestions in opposition. (Doc. 24). A hearing was held on the motion during which the parties presented evidence. (Doc. 35). Defendant Jeremy Mitchell was charged on August 29, 2017, in a one-count indictment with felon in possession of a firearm (Count 1). Defendant Mitchell's motion to suppress argues that the warrantless entry into the residence of 212 Texas Avenue, resulting in the evidence used in prosecution of him for possession of a firearm in this case, violated his Fourth Amendment rights. Defendant Mitchell argues that all physical evidence and any related testimony that was obtained as a result of the warrantless entry into the residence must be suppressed.

         Statement of Facts

         On December 5, 2016, Stephen Clark an investigator with the Buchanan County Drug Strike Task Force received information from a concerned citizen regarding the location of Justin C. Lay. Lay had two active arrest warrants in Buchanan County, one of which was a felony warrant. Investigator Clark had been involved in investigating Lay prior to this date, during which time a controlled buy of methamphetamine was made from Lay and surveillance of Lay was also conducted. Based on the prior investigation Officer Clark knew Lay by appearance, and knew he was likely in possession of a firearm and methamphetamine, and involved in the sale of methamphetamine. Investigator Clark had previously attempted to arrest Lay on his outstanding warrants, but Lay had not been apprehended. Law enforcement had been unable to arrest Lay because Lay would flee the scene erratically in his vehicle causing danger to the public, and thereby causing officers to not pursue him when he fled.

         On the evening of December 5, 2016, Investigator Clark received information from a concerned citizen that Lay was at the residence of 212 Texas Avenue. The concerned citizen gave a physical description of Lay and stated he was wearing a red shirt with a black hoodie underneath. The concerned citizen was providing information to Investigator Clark as to Lay's comings and goings from the 212 Texas Avenue residence.[1] The concerned citizen reported that with Lay was an unknown white male wearing a plaid jacket (later identified as Jeremy Mitchell). Both Lay and the unknown male wearing the plaid jacket (Mitchell) were reported to have firearms.

         Investigator Clark called for a briefing with other investigators around 9:30 p.m. on December 5, 2016, for the purpose of planning an attempt to arrest Lay that evening on his outstanding arrest warrants. The plan was to surveille the residence of 212 Texas Avenue and when Lay was seen coming outside, the investigators would let Lay get a few steps away from the residence, but not near his vehicle, at which time they would attempt to take him into custody. The investigators had no plan to enter the residence at 212 Texas Avenue in attempt to arrest Lay on his active warrants. The basis for the plan were the investigators lack of first-hand knowledge that Lay was inside the residence at 212 Texas Avenue, safety concerns related to Lay being known to erratically flee in his vehicle, and knowledge that Lay was likely armed. Investigator Clark had specific information on this date that Lay and the unknown male with him (Mitchell) were armed inside the residence at 212 Texas Avenue.

         The investigators arrived at the area of 212 Texas Avenue, around 9:40 p.m. The residence was the left side of a duplex. Parked in front of the residence was a green Chevy Blazer that Officer Clark recognized as the vehicle Lay was known to drive. The investigators set up surveillance at different locations around the area of the residence in order to be able to see when Lay exited the residence. One officer, Captain Collie, was situated to the North East of the residence parked in a parking lot; another officer, Investigator Terry White, was situated to the South of the residence at the back; and four officers were in a vehicle parked just down the block from the residence. The four officers in the vehicle in the front of the residence were the arrest team, and included Officer Stephen Clark, Investigator Josh Hewitt, Investigator Mike Smith, and Investigator Chris Brinton.

         At about 10:42 p.m. the investigators in the vehicle parked on the street near the front of the residence noticed some movement from the duplex's left front door. The investigators were able to see the front door area of the duplex as the front porch light was turned on and a street light was also illuminating the duplex. Investigator Clark could see a white male opening the front door of the duplex and walking outside. The white male could be seen wearing a red shirt with a black hoodie underneath of it, and Investigator Clark recognized Lay's face based on past investigations involving Lay. Investigator Clark was able to identify the white male exiting the residence as Justin Lay. After exiting the duplex, Lay walked out of the yard and then got on the sidewalk and started to proceed to the East.

         At this point, because Lay had exited the residence and had walked in a direction away from his vehicle, the investigators decided to attempt to take Lay into custody. The investigators exited the vehicle and said “Police. Don't move.” The investigators were wearing vests clearly marked “Sherriff” on the front and back and displayed a Deputy Sherriff's badge. Investigator Clark observed Lay turn his head back to look at the investigators and then make an abrupt movement with his right hand to the side and then continue to walk down the sidewalk to the East. The extension of Lay's arm and hand to the right gave investigator Clark the impression that Lay might have been throwing an object to the right of him. Lay ultimately stopped and complied with the investigators directives and was taken into custody. Lay was promptly searched incident to arrest and nothing was found on his person. Investigators had information that Lay had a pink firearm but it was not found. While Lay was being arrested he started a commotion. This commotion delayed the investigators from searching the area near where Lay was arrested and where he was seen making an arm motion like he might be throwing an object.

         Lay started a commotion following his arrest by continually yelling back toward the duplex, from which he had just exited. Lay was yelling the name “Tiffany” over and over. The investigators believed that Lay was trying to alert somebody in the duplex of his arrest and possibly seek the assistance of a person in the duplex who may have a weapon. The investigators did have information that inside the duplex with Lay there was likely a white male wearing a plaid jacket (Mitchell) that had a firearm. The investigators had also not found the pink firearm that Lay was reported to have had, and so there was also concern that this firearm might still be in the duplex. Out of concern for their safety, along with the thought they might be able to get consent to search the duplex, Investigators Clark, Brinton and Collie went up onto the front porch of the duplex and knocked on the front door in an attempt to make contact with whoever was still inside (known as a knock and talk). Investigators Smith and Hewitt stayed out in the street area with Lay. On the front porch of the duplex Captain Collie knocked on the front door and a male voice from inside the residence said “Who is it?” Captain Collie responded “Police”. Shortly thereafter, the door to the duplex was partially opened by a white male wearing a plaid jacket (Mitchell). Based on past experience/dealings Officer Clark recognized the white male in the plaid jacket as Jeremy Mitchell. Captain Collie, however, was not familiar with Mitchell. Investigator, Captain Collie, began a conversation with Mitchell there at the door, but the conversation was interrupted. As Captain Collie started to introduce himself, there was a second white male subject (later identified as Joshua Mack) behind Mitchell who looked over Mitchell's shoulder and yelled “Cops”. This second white male subject, Mack, then took off running toward the back of the residence. The actions of Mack caused Captain Collie to feel threatened and Captain Collie reacted by stepping into the residence and moving past Mitchell yelling “Police Stop” at Mack, as Mack ran to the back of the residence. Captain Collie testified that he entered the residence and gave chase to the second male subject, Mack, because he was concerned that he was running to get a gun. Captain Collie testified that at the time the investigators had information that at least one and maybe two firearms were inside the residence.

         When Captain Collie gave chase to the second male subject, Mack, he chased him through the living room and dining room type area and through the kitchen, which were all open rooms, and caught up with Mack at the back of the kitchen. Captain Collie ordered Mack to the ground. Mack laid on the ground on his stomach but kept trying to reach into his waistband area. At that time Captain Collie had drawn his gun and was telling Mack to show his hands. Mack started to show his hands and then started reaching for his waistband again. It was at this point that Investigator Brinton got to the kitchen and helped handcuff Mack. Mack was checked for warrants and was patted down for weapons. It was confirmed that Mack had a felony parole violation warrant.

         When Captain Collie gave chase after Mack through the residence, Investigators Clark and Britton had stepped into the residence for safety purposes and to assist Captain Collie. Once inside the residence the investigators saw two female individuals and a child. One of the females was later identified as Tiffany Peterson. Investigator Britton followed Captain Collie to the back of the residence to assist. Investigator Clark stayed at the front of the residence. Investigator Clark recognized Mitchell as being the white male wearing a plaid jacket that had been identified by the concerned citizen as being with Lay that day and as having a firearm. Out of concern that Mitchell had a gun, Investigator Clark instructed Mitchell to show his hands and to get onto the ground in a prone position. Investigator Clark testified that he was also aware that Mitchell had a felony conviction for felon in possession of a firearm. When ordered to get on the ground, Jeremy Mitchell complied with the instructions and Investigator Clark put Mitchell into handcuffs for the purpose of detaining him. The investigators detained Mitchell and Mack in the residence because of concern for the safety of the situation. The investigators testified they did not know what was going on, that Mack had acted in a threatening manner at the door, and the investigators had information leading them to believe that Mitchell had a firearm and that there may be another firearm in the residence. While detained, Investigator Clark patted down Mitchell's outer clothing for safety purposes to ensure he did not have a gun or other weapon. When Investigator Clark started patting down Mitchell's outer clothing he felt a hard object in Mitchell's front pocket of his flannel jacket that was heavy and consistent with the feel of a firearm. Believing the item that he felt through Mitchell's front jacket pocket to be a firearm, Investigator Clark reached into the pocket to remove the firearm. Investigator Clark removed from Mitchell's front pocket a fully loaded magazine for a firearm and a holster that had a Kel-Tec .380 firearm in it. The firearm was black and silver in color and bore the serial number of KMZ42. When investigator Clark ran Mitchell's name and identifiers through radio dispatch, he was notified that Mitchell was on parole for possession of a firearm.

         Jeremy Mitchell told investigators that the firearm in his pocket wasn't his and that it belonged to his girlfriend, Tiffany Peterson, who had purchased it legally. Investigator Collie followed up on this information with Tiffany Peterson who was also inside the residence at 212 Texas Avenue at the time the investigators made entry. Tiffany Peterson was asked if she had any firearms in the residence. She responded yes that in the upstairs of the duplex she had a firearm that was locked up. Tiffany Peterson showed Investigator Brinton and another investigator the upstairs location to which she was referring. When the officers went upstairs no firearm was located, rather what Peterson had was paperwork showing she was in the process of purchasing a firearm. The paperwork was not complete.

         Subsequent to the commotion inside the duplex, the investigators searched the area where Lay was taken into custody and the adjacent area where Lay was seen possibly throwing something from his hand after he saw the investigators but before he was taken into custody. In the area where Lay was seen possibly throwing an object from his hand, Investigator Brinton located a Charter Arms pink revolver. The pink revolver was ...


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