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United States v. Freeman

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

June 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MAURICE FREEMAN, Defendant.

          REPORT AND RECOMMENDATION

          SARAH W. HAYS UNITED STATES MAGISTRATE JUDGE

         This matter is currently before the Court on defendant Freeman's Motion to Suppress Evidence (doc #21). For the reasons set forth below, it is recommended that this motion be denied.

         I. INTRODUCTION

         On December 7, 2017, a criminal complaint was filed against defendant Maurice Freeman. On December 12, 2017, the grand jury returned a one-count indictment against defendant Freeman. The indictment charges that on or about December 6, 2017, defendant, having been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessed a firearm.

         On March 27, 2018, an evidentiary hearing was held on defendant's motion to suppress. Defendant Freeman was represented by retained counsel, Matthew J. O'Connor and Keith N. Willison. The Government was represented by Assistant United States Attorney David Raskin. The Government called Sergeant Steve McClintick, Detective Blaine Seymour, and Detective Aaron King of the St. Joseph, Missouri Police Department and Captain Shawn Collie of the Buchanan County Sheriff's Office as witnesses. The defense called no witnesses to testify.

         II. FACTS

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

1. On December 6, 2017, at approximately 10:00 a.m., Detective Blaine Seymour began conducting surveillance on 625 South 14th Street in St. Joseph, Missouri. (Tr. at 38-39) The purpose of the surveillance was to attempt to locate a subject by the name of Derrick Ashley, Jr. (Tr. at 38) Detective Seymour testified that Ashley, Jr. was a suspect in a shooting case. (Tr. at 38) Detective Seymour was not investigating that case; he was merely assisting in another detective's investigation. (Tr. at 38-39) When he initially arrived in the area, Detective Seymour observed a silver Pontiac four-door vehicle parked behind a tan Buick SUV. (Tr. at 42) Detective Seymour observed two middle-aged black males inside the Pontiac. (Tr. at 42) Approximately 30 to 45 minutes later, Detective Seymour observed Derrick Ashley, Jr. exit the target residence and appear to have a short conversation with the occupants of the Pontiac. (Tr. at 44) Detective Seymour advised his sergeant, as well as several other units who were monitoring the same radio frequency, that he had seen Ashley, Jr. (Tr. at 39-40) The information was used to obtain a search warrant for 625 South 14th Street. (Tr. at 40, 64-65; Government's Ex. 9)
2. Detective Seymour testified that as he continued his surveillance, he observed the Pontiac leave the area and a maroon Cadillac arrive at the scene. (Tr. at 45) Detective Seymour testified that Derrick Ashley, Sr., and Juanisha Ashley exited the Cadillac. (Tr. at 45-46) Ashley, Sr. stood on the sidewalk and Juanisha Ashley walked up towards the residence. (Tr. at 46) Shortly thereafter, the Pontiac returned and parked behind the Cadillac. (Tr. at 46) Detective Seymour then saw Derrick Ashley, Jr. exit the target residence again and walk down to the Pontiac. (Tr. at 47) Detective Seymour saw Ashley, Jr. remove a large bag of dog food from the vehicle and walk back up to the residence. (Tr. at 47) Detective Seymour testified that when the time came to execute the search warrant, he was to secure any people located in the vehicles in front of the residence. (Tr. at 48) Detective Seymour testified that as he was approaching the vehicles, there were Special Response Team operators walking that way as well. (Tr. at 48) As he approached the tan Buick, Detective Seymour testified that he began to smell a strong odor of fresh marijuana. (Tr. at 48-49) Detective Seymour testified that the odor of marijuana got stronger as he got closer to the Pontiac. (Tr. at 49) Detective Seymour testified that the Pontiac's sunroof was open. (Tr. at 49)
3. Sergeant Steve McClintick testified that he was involved in the execution of the search warrant at 625 South 14th Street. (Tr. at 5) Sergeant McClintick was a member of the Special Response Team, a team that serves high-risk warrants. (Tr. at 3-4) Prior to the execution of the search warrant, officers were briefed regarding the circumstances of the warrant. (Tr. at 5) Detective Aaron King testified that he briefed the Special Response Team. (Tr. at 65) Sergeant McClintick testified that the officers were told that the main subject they were looking for was Derrick Ashley, Jr., the subject of a couple different open case investigations, which included a street level robbery, a bank robbery, and a shooting incident. (Tr. at 5-6) Ashley, Jr. was known to be armed with firearms at the time he was involved in the bank robbery. (Tr. at 6) Detective King testified that he believed there would be guns within the residence. (Tr. at 65) There was also a high potential for other subjects, including a second suspect in the bank robbery, to be present at the house to be searched. (Tr. at 6)
4. Sergeant McClintick testified that six or seven Special Response Team officers rode to the address to be searched in a police armored vehicle. (Tr. at 6-7) The officers were wearing green uniforms with black tactical vests that have police patches on the front and the back. (Tr. at 10-11) Various detectives who were conducting surveillance on the residence were giving live updates as the officers were approaching the residence. (Tr. at 7) The officers were advised that there was a tan Buick SUV parked directly in front of the house, which was owned by one of the primary residents. (Tr. at 7) A red Cadillac Escalade SUV, which was used by Derrick Ashley, Sr., was parked behind the Buick. (Tr. at 7) While they were en route, the main suspect, Ashley, Jr., was seen coming out onto the front porch. (Tr. at 7) A few minutes later, a silver Pontiac four-door was observed pulling up and parking behind the red Cadillac SUV. (Tr. at 7) Ashley, Jr. was observed walking out and meeting with the occupants of that car and then returning to the house. (Tr. at 7) Sergeant McClintick testified that “[o]nce we were advised that the main suspect went out and made contact with the occupants of that car that now, for SRT [Special Response Team] purposes, added them to the equation of the problem that we were going there for.” (Tr. at 36)
5. When the officers in the armored vehicle arrived at the residence, Sergeant McClintick and two other team members branched off and went up 14th Street, clearing each car (the tan Buick SUV, the red Cadillac Escalade SUV, and the silver Pontiac four-door) to identify, locate and detain anybody in those vehicles. (Tr. at 8) Other team members established a perimeter on the outside of the residence. (Tr. at 9) Sergeant McClintick testified that anytime persons are located outside the residence to be searched, they are detained for officer safety. (Tr. at 8-9) A secondary reason for detaining persons outside the residence is to identify them and determine whether they are third parties to the investigation for whom the detectives might be looking. (Tr. at 9) Sergeant McClintick testified that as he moved past the tan Buick SUV and the red Cadillac Escalade SUV, he saw that each of these vehicles was unoccupied. (Tr. at 9)
6. Sergeant McClintick testified that when he was about going past the Cadillac, he could see two black males sitting in the front seats of the Pontiac. (Tr. at 9) By the time he got to the back of the Cadillac, Sergeant McClintick testified that he could smell marijuana. (Tr. at 9) At that same time, Sergeant McClintick could clearly see the two males in the Pontiac from their chests up. (Tr. at 9-10) The male in the passenger's seat was laid back in the seat looking down the sidewalk at the Special Response Team members who were approaching the house. (Tr. at 10) The driver was leaned forward with his hands down towards the floorboard while also looking down the sidewalk at the team members. (Tr. at 10-11) Sergeant McClintick testified that he assumed the driver was either retrieving something or concealing something under the seat. (Tr. at 11) Sergeant McClintick started addressing the subjects in the Pontiac, repeating that he was the police and that they needed to shut off the car and get their hands up. (Tr. at 10) Sergeant McClintick testified that the subjects in the Pontiac could hear him because the sunroof on the car was open. (Tr. at 10) The passenger turned and looked at Sergeant McClintick, sat up in his seat, and put his hands up on the windshield. (Tr. at 10) The driver then looked over at Sergeant McClintick, shut the car off, and put his hands up on the windshield. (Tr. at 10) Sergeant McClintick testified that the smell of marijuana was stronger as he approached the Pontiac, clearly coming out of the car through the sunroof. (Tr. at 11-12)
7. Sergeant McClintick opened the passenger's door of the Pontiac and directed the passenger, who turned out to be Derrick Ashley, Sr., out of the car. (Tr. at 12) Officers on the driver's side of the Pontiac were directing the driver, who turned out to be Maurice Freeman, out of the car. (Tr. at 12) Detective Seymour testified that as he got to the Pontiac, there were three or four Special Response Team operators around the Pontiac. (Tr. at 49) One of them opened the driver's door and Detective Seymour reached in, placed a hand on Freeman's wrist, and placed him in handcuffs. (Tr. at 49) Detective Seymour testified that when the car door was opened, the odor of marijuana continued to get stronger. (Tr. at 49) Sergeant McClintick testified that he recognized both the driver and passenger from previous dealings, but he could not recall their names. (Tr. at 12, 35) As he approached the Pontiac, Sergeant McClintick had no idea that Freeman was in the driver's seat. (Tr. at 34) Sergeant McClintick testified that Ashley, Sr., and Freeman ...

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