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United States v. Tillman

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

July 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSHUA R. TILLMAN, and SHAWNDREY DEMOND REYNOLDS, Defendants.

          REPORT AND RECOMMENDATION

          LAJUANA M. COUNTS UNITED STATES MAGISTRATE JUDGE

         This matter is currently before the Court on Defendants' Joint Motion to Suppress (Doc. #31). For the reasons set forth below, it is recommended that this motion be denied.

         I. INTRODUCTION

         On February 7, 2018, a Criminal Complaint was filed against defendant Joshua R. Tillman. On February 21, 2018, the grand jury returned a one-count Indictment against defendants Tillman and Shawndrey Demond Reynolds. The Indictment charges that on or about February 6, 2018, defendants, having been convicted of at least one crime punishable by imprisonment for a term exceeding one year, aiding and abetting each other, knowingly possessed firearms and ammunition, to wit: a Glock Model 22, .40 caliber semi-automatic handgun loaded with nineteen rounds of 9 mm ammunition in the attached magazine and one 9 mm round in the chamber, a Springfield Armory XD9, 9 mm semi-automatic handgun loaded with thirteen rounds of 9 mm ammunition in the attached magazine and one 9 mm round in the chamber, twenty-five rounds of Fiocchi brand .45 caliber ammunition, and a handgun extended magazine containing twenty-four rounds of .45 caliber ammunition.

         On January 25, 2019, an evidentiary hearing was held on Defendants' Joint Motion to Suppress. Defendant Tillman was represented by appointed counsel, Mark A. Thomason. Defendant Reynolds was represented by appointed counsel, John Jenab. The Government was represented by Assistant United States Attorney Bruce A. Rhoades. The Government called FBI Special Agent Michael G. Mrachek as a witness. The defense called Danielle Saffold 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 February 6, 2018, FBI Special Agent Michael G. Mrachek was the coordinator of the Fugitive Violent Crimes Task Force. (Tr. at 3.) At that time, the Task Force was composed of officers from the Kansas City, Missouri Police Department, the Kansas City, Kansas Police Department, the Johnson County, Kansas Sheriff's Department, and the Independence, Missouri Police Department. (Tr. at 3.) The Task Force was charged with executing arrest warrants for people wanted in those jurisdictions. (Tr. at 3.)
2. On February 6, 2018, at approximately 7:30 a.m., Special Agent Mrachek, along with Task Force Officers John Cooley, Shane Gaddis, Larry Chronister, and Aaron Gietzen, was conducting surveillance on 3800 East 69th Street in Kansas City, Missouri, looking for Ronnie Scott, a bank robbery suspect who was wanted on a federal arrest warrant. (Tr. at 4.) Special Agent Mrachek had information that the house at this address was owned by Scott's family. (Tr. at 4.) The officers had identity information for Scott, i.e. height, weight, pictures of him (Def. Exhs. 502, 503), hairstyle, etc. (Tr. at 7, 38.) The officers were conducting surveillance to see if they could identify Scott coming or going from the house. (Tr. at 4.) Each officer had his own vehicle. (Tr. at 5.) Special Agent Mrachek was located half a block southwest looking through a lightly wooded area where he could see the street and the house. (Tr. at 5.) The other officers were located so that they would have different viewpoints and also be in a position to react if Scott was identified. (Tr. at 5.) At some point, Task Force Officer Gietzen left the scene, leaving Special Agent Mrachek and Task Force Officers Cooley, Gaddis, and Chronister to continue the surveillance. (Tr. at 6.)
3. At approximately 9:20 a.m., Special Agent Mrachek observed a silver SUV pull around the corner in front of the house and back into the driveway. (Tr. at 6.) Special Agent Mrachek was not able to see who was in the vehicle. (Tr. at 6.) No. one exited the vehicle. (Tr. at 7.) After approximately fifteen minutes, Special Agent Mrachek asked two of the officers to drive by the vehicle to see if they could get a view of the occupant. (Tr. at 7.) Task Force Officer Gaddis did a drive-by, but stated that he could not see anything definitive. (Tr. at 7.) Task Force Officer Chronister did a subsequent drive-by and advised that the driver was similar in appearance to Ronnie Scott, that “it's a possibility that he's our guy.” (Tr. at 7, 46.) The officers could not run the tags on the vehicle because the vehicle was backed in and there was no license plate on the front of the vehicle. (Tr. at 34.) Special Agent Mrachek made the decision to approach the vehicle. (Tr. at 8.) Special Agent Mrachek testified that the reason for the approach was to arrest Ronnie Scott. (Tr. at 49.) Special Agent Mrachek advised the other officers that he would pull his vehicle in front of the vehicle backed into the driveway, blocking the vehicle. (Tr. at 11.) The other officers would take up positions around him and in the rear of the residence. (Tr. at 11.) The officers would conduct “a felony car-type stop” of the vehicle. (Tr. at 11.)
4. Special Agent Mrachek explained that in a felony car stop, officers give verbal commands for the occupants of the vehicle to exit one at a time. (Tr. at 11.) For officer safety reasons, they are directed to back towards the officers. (Tr. at 11.) The officers give the commands from a position of cover with their firearms drawn. (Tr. at 11.) Special Agent Mrachek testified that these precautions were necessary for officer safety considering it was a bank robbery warrant. (Tr. at 48.)
5. Special Agent Mrachek pulled his vehicle into the driveway facing the vehicle which was backed into the driveway. (Tr. at 11.) Special Agent Mrachek activated the emergency lights on his unmarked police vehicle, opened his door, and began giving verbal demands, initially from behind the door of his vehicle. (Tr. at 12.) Special Agent Mrachek estimated that he was approximately ten feet from the individual in the driver's seat of the vehicle. (Tr. at 13-14.) This was the first time Special Agent Mrachek was able to see the individual in the driver's seat as he was not in a position to see inside the vehicle from his original surveillance position. (Tr. at 15.) Special Agent Mrachek testified that the individual in the driver's seat was not initially responding to Mrachek's verbal commands to show his hands and to exit the vehicle. (Tr. at 15.) Special Agent Mrachek did not realize there was a passenger in the vehicle until Task Force Officer Cooley, who was to Mrachek's left, advised him of the passenger. (Tr. at 14, 16.) Special Agent Mrachek then repositioned himself to the other side of his vehicle for security purposes. (Tr. at 15.)
6. Task Force Officer Chronister was located at the back of the residence to ensure that no one was going to come out from there. (Tr. at 19.) Task Force Officer Gaddis was on Special Agent Mrachek's right side. (Tr. at 19.)
7. Special Agent Mrachek testified that he continued to give verbal commands for the driver to exit the vehicle. (Tr. at 20.) Special Agent Mrachek testified “there [were] things going on in there or just general being startled or something going on that he did not … immediately respond to my demands.” (Tr. at 21.) Eventually, the driver came out, walked back to the officers, and was taken into custody. (Tr. at 20.) Special Agent Mrachek and Task Force Officer Gaddis dealt with the driver (later identified as Shawndrey Reynolds). (Tr. at 21, 49.) Task Force Officer Cooley dealt with getting the passenger (later identified as Joshua Tillman) out of the vehicle after the driver was secured. (Tr. at 20-23, 49.) Special Agent Mrachek testified that when the two individuals exited the vehicle, all the officers could smell the odor of marijuana coming from the vehicle. (Tr. at 31.)
8. Special Agent Mrachek testified that after the driver and the passenger were both secured and handcuffed, the next task was for an officer to clear the vehicle to make sure there were no other occupants posing a danger to the officers at the scene. (Tr. at 21, 24.) Task Force Officer Gaddis[1] went alongside the vehicle to view the inside to make sure there were no other occupants in it. (Tr. at 24.) Task Force Officer Gaddis determined that there was nobody else in the vehicle, but he did view a gun. (Tr. at 25.) Special Agent Mrachek testified that the handgun was in plain view on the floorboard on the driver's side. (Tr. at 31.) The officers did not attempt to retrieve the handgun at that time. (Tr. at 25.)
9. Special Agent Mrachek testified that at this point, the officers were pretty sure that neither of the individuals they had handcuffed was Ronnie Scott. (Tr. at 25.) However, the individuals were not released because of the handgun in plain view in the vehicle, as well as the odor of marijuana coming from the vehicle. (Tr. at 49-50.) The officers attempted to identify these individuals and to find out what their association was to the residence. (Tr. at 25.) Special Agent Mrachek testified that the officers were fairly certain as to the identity of one of the individuals, Joshua Tillman, but the other one they were not. (Tr. at 26, 30-31.) Tillman gave the officers his name and said that he was on parole for robbery in Kansas. (Tr. at 31.) Special Agent Mrachek understood this to mean that Tillman was a convicted felon. (Tr. at 31.) At some point, Task Force Officer Cooley contacted a sergeant who authorized a hold of Tillman for investigation of ...

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