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United States v. Swan

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

April 15, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BARRETT C. SWAN, Defendant.

          REPORT AND RECOMMENDATION

          ABBIE CRITES-LEONI, UNITED STATES MAGISTRATE JUDGE

         This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). Pending before the undersigned is Defendant Barrett Swan's Motion to Suppress Evidence (Doc. 35) and a Motion to Sever Counts (Doc. 46). First, Swan requests the suppression of an incriminating statement he made while in custody at the Florissant Police Station. Swan argues that he had not received the benefit of the Miranda warning prior to making the statement. He further claims his statement was made during an attempted interview by the arresting officer.

         The Government filed a Brief in Opposition to the Motion wherein it characterized Swan's statement as being spontaneous and not in response to interrogation. (Doc. 39.) Following an evidentiary hearing, both parties submitted memoranda. (Docs. 54, 55.)

         Swan's Motion to Sever requests that Counts I and II of the Indictment be severed for trial so that he will not “be deprived of an appreciable chance for an acquittal due to unfair prejudice.” (Doc. 46 at 2.) The Government opposed this Motion, arguing that joinder was proper “because the offenses are of the same or similar character, ” and “Swan will not be prejudiced by the joinder of offenses.” (Doc. 47 at 5.)

         In consideration of the pleadings identified above, as well as the single exhibit admitted into evidence, the undersigned recommends that the following findings of fact and conclusions of law be adopted and that the Defendant's Motions be denied.

         I. Findings of Fact

         Swan is charged with two counts of possessing a firearm[1] after having previously been convicted of a felony. The first unlawful possession is alleged to have occurred on May 26, 2018; the second on August 1, 2018. Swan has prior felony convictions for drug trafficking from 2004 and 2006. Id. Swan does not request the suppression of any evidence related to Count I.

         On August 1, 2018, Florissant Police Department Officer Jonathan Kemp was on routine patrol. At approximately 3:20 a.m., he observed a red Ford Edge fail to stop at a stop sign. Officer Kemp initiated a traffic stop and the vehicle stopped. It was driven by a female; and there was a male passenger in the front passenger seat.

         Officer Kemp requested identification from both of the occupants. The driver provided her driver's license. Officer Kemp confirmed that she had a valid license and no arrest warrants. The information provided by the passenger, however, did not match the man's appearance. The passenger provided the social security number and date of birth for a female. Officer Kemp approached the vehicle again to advise the passenger that the information he provided was inconsistent with his appearance. The passenger was given a second opportunity to provide his identification. Officer Kemp explained that if the passenger did not provide valid identification, he would be taken to the police department to be fingerprinted.

         The passenger provided his correct name and social security number. When Officer Kemp ran that information on the computer in his patrol car, he learned that the passenger, Barrett Swan, had an active federal arrest warrant. Officer Kemp returned to the red Ford Edge and asked Swan to exit the vehicle. Swan was placed under arrest for the active warrant. As soon as Swan exited the passenger seat, Officer Kemp observed a handgun lying in that seat. The driver was immediately directed to exit the vehicle. Swan was handcuffed and the handgun secured. It was a nine millimeter Smith and Wesson with one live round in the chamber and seven additional rounds in the magazine.

         Officer Kemp placed Swan in his patrol vehicle for transport to the police station. Swan asked Officer Kemp if he could say goodbye to the driver. Officer Kemp obliged the request. While Swan was saying goodbye to the woman, he told her something to the effect of “I'm finished, ” or “I'm done.”

         Officer Kemp issued the driver three citations, including: failure to stop at a stop sign, failure to register the vehicle, and failure to maintain insurance. The driver was released from the scene.

         Swan, on the other hand, was taken to the police station. Swan was processed in the holdover room, which is where individuals in custody are booked and provided with a change of clothes. During this process, Officer Kemp explained that when the booking process was complete, Swan “would be escorted to an Interview Room and given the opportunity to talk about the firearm.” (Doc. 53, Suppression Hearing Transcript, hereinafter Tr., at 14.) In response to that information, Officer Kemp recalled that Swan stated something like “‘I'm not going to talk; we both know what you found in the car, and I'd rather be in the situation I'm in now than the situation that I was in in the past when I was shot and didn't have anything on me.'” Id. Swan had not been given the Miranda warning at that time. Officer Kemp noted that when an interview of a suspect is anticipated, he typically advises the person “that upon completion of the booking process, that they'll be escorted to the Interview Room to speak further about the case involved.” (Tr. 20.) In consideration of Swan's statement, Officer Kemp ceased talking to Swan.

         Officer Kemp contacted the investigating officer, Task Force Officer (TFO) Brian Eggers, to advise Eggers that Swan had been arrested. It was a short conversation as it was near 4:00 a.m. TFO Eggers had some follow-up communication with Officer Kemp. During one of the conversations, Officer Kemp relayed Swan's statement about why Swan possessed the firearm. Nearly four weeks after the incident, TFO Eggers prepared his written report and memorialized what he recalled of Officer Kemp's recollection of Swan's statement, as follows:

Prior to the interview, SWAN told Kemp “I'm not going to talk. We both know what you found in the car. I'd rather be in the situation I'm in now than be in the situation I was in in the past ...

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