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United States v. Harvey

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

July 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRANCE S. HARVEY, Defendant.

          REPORT AND RECOMMENDATION

          LAJUANA M. COUNTS UNITED STATES MAGISTRATE JUDGE

         This matter is currently before the Court on defendant Harvey's Motion to Suppress Evidence. (Harvey Mot. to Suppress Evidence; Doc. #18.) For the reasons set forth below, it is recommended that the motion be denied.

         I. INTRODUCTION

         On October 23, 2018, the grand jury returned a one-count indictment against defendant Terrance S. Harvey. The indictment charges that on or about September 7, 2018, defendant Harvey, having been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessed a firearm, to wit: a Taurus, Model 85, .38 caliber revolver, bearing Serial Number KG 49550, which had been transported in foreign commerce.

         On June 5, 2019, an evidentiary hearing was held on defendant's motion to suppress. Defendant Harvey was represented by Assistant Federal Public Defender Stephen C. Moss. The Government was represented by Assistant United States Attorney Robert M. Smith. The Government called Chief Gordon Abraham of the Pleasant Valley, Missouri Police Department as a witness. The defense called no witnesses to testify.

         II. FINDINGS OF FACT

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

         1. Chief Gordon Abraham oversees the day-to-day operations of both the operational and administrative sides of the Pleasant Valley Police Department and the communications unit for the department. (Tr. at 4.) Chief Abraham's office is right across from dispatch, so he monitors what is going on in the field throughout the day. (Tr. at 4-5.) Every morning, Chief Abraham looks at the police reports from the previous day and night. (Tr. at 5.)

         2. On September 5, 2018, Capt. McGinley and Sgt. Cramer of the Pleasant Valley Police Department were dispatched to a disturbance at 6308 Ravena Road. (Tr. at 5-6.) The caller, Sharon McKinzie, identified the suspects as Kyle Gabauer and Tiffani Miller. (Tr. at 6-7.) Prior to the officers' arrival, Ms. McKinzie reported that the suspects had left. (Tr. at 6.) The responding officers, along with Chief Abraham, conducted an area canvass to try to locate the suspects. (Tr. at 6-7.) Chief Abraham was aware of the incident because he was monitoring the police radio from his desk. (Tr. at 7.) The officers were unable to locate either Gabauer or Miller. (Tr. at 7.)

         3. Sgt. Cramer responded to 6308 Ravena and spoke with Ms. McKinzie and the other residents of that address. (Tr. at 7.) Sgt. Cramer was advised that they suspected that Kyle Gabauer and Tiffani Miller had stolen handguns out of a vehicle that was parked at the residence. (Tr. at 8.) Gabauer and Miller had been at the residence the day before, September 4. (Tr. at 8.) When they left, the residents had difficulty finding a set of car keys. (Tr. at 8.) Eventually, they found the keys and then looked in their vehicle. (Tr. at 8-9.) They discovered that two handguns were missing. (Tr. at 9.) Gabauer and Miller returned to the residence on September 5. (Tr. at 9.) A physical altercation took place and this was the basis for the 911 call. (Tr. at 9-10.)

         4. On September 7, 2018, the Pleasant Valley Police Department received another call from the residence at 6308 Ravena. (Tr. at 11.) Officers responded and were advised that “Kyle” and a second subject described as a Hispanic male, both wearing dark clothing, had come to the residence and had left on foot. (Tr. at 11-12; Def. Exh. 3.) The caller believed that “Kyle had been no trespassed from the residence” and she was calling the police because she did not want them there. (Tr. at 12.) It was determined that “Kyle” was Kyle Gabauer, one of the persons involved in the altercation on September 5. (Tr. at 12.) To the officers' knowledge, a trespass warning had not been served on Gabauer. (Tr. at 12.) Chief Abraham was listening to this call from his office. (Tr. at 12.) Chief Abraham put out information about the incident on September 5 over the air on September 7. (Tr. at 13.) Chief Abraham advised that there had been a previous disturbance and that the subjects were possibly armed. (Tr. at 13.) Chief Abraham further advised that the previous incident involved stolen firearms. (Tr. at 13.)

         5. Chief Abraham responded to the area to assist in conducting an area check for the subjects involved in the disturbance who had, at this point, left the scene. (Tr. at 13-14.) Chief Abraham testified that part of the reason to track down these subjects was to serve notice of no trespassing at the residence on Ravena. (Tr. at 25, 27.) Chief Abraham testified that the other reason to track down Kyle Gabauer was that he had just been involved in another disturbance at 6308 Ravena. (Tr. at 27.) The people who resided at that residence did not want Gabauer there and he was still a suspect in the theft of the firearms from that residence. (Tr. at 27-29.)

         6. Claycomo Officer Brooks observed two males matching the subjects' description as provided by the calling party walking northbound across a Phillips 66 lot and put this information over the air.[1] (Tr. at 14.) Officer Brooks observed the two males approximately five minutes after the 911 call from 6308 Ravena. (Tr. at 15.) The Phillips 66 lot is approximately one and one-half blocks from the residence at 6308 Ravena. (Tr. at 15.) The Phillips 66 gas station is out of business and there are several other businesses in this area that have closed. (Tr. at 15.) There is little foot traffic in the area. (Tr. at 15.)

         7. Chief Abraham was close to the Phillips 66 lot when Officer Brooks put the information out over the air. (Tr. at 15.) Chief Abraham saw the two individuals walking northbound. (Tr. at 16.) Chief Abraham drove towards the Phillips 66, pulled into the parking lot, and exited his vehicle. (Tr. at 16.) Chief Abraham identified himself and advised the subjects to show him their hands, believing that they were possibly armed. (Tr. at 16.) Chief Abraham explained that he believed the subjects were possibly armed because he believed ...


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