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United States v. Davis

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

November 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BOBBY R. DAVIS, Defendant.

          ORDER AND OPINION (1) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND (2) DENYING DEFENDANT'S MOTION TO SUPPRESS

          BETH PHILLIPS, CHIEF JUDGE

         Defendant Bobby Davis has been charged in a Superseding Indictment with being a felon in possession of two firearms. He filed a Motion to Suppress, (Doc. 26), contending that evidence and statements should be suppressed. The Honorable Lajuana M. Counts, United States Magistrate Judge for this District, held a hearing on April 11, 2019, and she issued a Report recommending that the Motion to Suppress be denied. (Doc. 52.) Defendant objects to Judge Counts's Report and Recommendation (“the Report”).

         The Court has conducted a de novo review as required by 28 U.S.C. § 636(b)(1). In particular, the Court has reviewed the parties' submissions before the hearing, the transcript from the hearing, the exhibits admitted during the hearing, Defendant's objections and the parties' briefing on those objections. Having conducted this review, the Court adopts the Report as the Order of the Court and denies the Motion to Suppress; the Court's discussion is intended to augment, not supplant, the Report's recommended findings and conclusions.

         I. BACKGROUND

         At approximately midnight on May 8, 2018, Officer Blayne Newton of the Kansas City (Missouri) Police Department, (“KCPD”) was patrolling as a one-person crew when he saw a silver Pontiac that appeared similar to one that had run from him the night before. Officer Newton attempted to initiate a traffic stop, but the Pontiac fled at a high rate of speed. Officer Newton stopped the pursuit due to the risk involved in a high-speed chase on a minor charge. He was not able to see the occupant(s) in order to get a description.

         Detective Jarrel Berryman (then a patrol officer with KCPD) was on patrol with his partner, (Officer Wasner), and he saw a Pontiac that matched the description of the one that dispatch reported had fled from Officer Newton. Detective Berryman and Officer Wasner began following the Pontiac; at some point, the Pontiac accelerated and began running through stop signs. Detective Berryman saw the Pontiac spin out and come to a stop near 45th Street and Montgall; at that point, Detective Berryman and Officer Wasner were twenty to thirty yards from the Pontiac. Detective Berryman reported that he saw a “black male, looks like a black shirt, black shorts” exit the Pontiac, but in making this report he stated that the suspect ran north on Wabash, not Montgall. Detective Berryman's observation and radioed report occurred sometime between 12:12:54 and 12:13:00. Detective Berryman and Officer Wasner approached the Pontiac and, at 12:13:15, drove past it to look for the person who ran.

         Officers (including Officer Newton) set up a perimeter. Based on his testimony, (Tr. at 50) and his dashcam video, Officer Newton turned north on Wabash at 42nd Street at approximately 12:15:54. As he approached the intersection at 41st and Wabash he passed a black male with short hair wearing black shorts and a black shirt, walking north; this person proved to be the Defendant. When Officer Netwon passed, Defendant quickened his pace and changed direction to go south of and behind the house at the corner of 41st and Wabash. Given the reported direction the Pontiac's driver ran, the proximity of 41st and Wabash to 45th and Montgall, Defendant's apparent efforts to avoid him, and the fact that Defendant matched the description communicated by Detective Berryman, Officer Newton exited his car (at approximately 12:16:17) and went to the back of the house from the other side. Defendant went into an alleyway that led to the back of a building on 41st and Prospect. Officer Newton ordered Defendant to get on the ground and observed that Defendant had a small black object in his hand that he believed to be a firearm. Defendant turned his body and put the object behind a piece of plywood that was leaning against the building.

         Defendant's shorts were black with a green stripe up the sides and at the bottom. At 12:17:11, Officer Newton radioed Detective Berryman to ask if the Pontiac's driver was wearing shorts with a green stripe. Detective Berryman could not confirm or deny whether the person he saw was wearing shorts with a green stripe.

         At approximately 12:18:04, Detective Berryman and Officer Wasner returned to the Pontiac. This time, they observed a pair of sandals in the street; Detective Berryman reported that the “guy has no shoes on.” Detective Berryman and Officer Wasner got out of their car and inspected the Pontiac; at approximately 12:19:03 Officer Wasner stated that he observed an “ID that fell out of the car over here” and Detective Berryman indicated that he saw it too. Neither Detective Berryman nor Officer Wasner looked at the identification.

         Meanwhile, Officer Newton had placed Defendant in handcuffs and at 12:18:49 advised him that he was not under arrest. At some point Officer Newton was joined by Officer Garza in the alley (or at least, somewhere outside the dashcam's view). They walked Defendant to Officer Newton's car, reappearing in the dashcam's view at approximately 12:19:53 and arriving at the car at 12:20:03. At 12:20:37, Officer Newton left Defendant with Officer Garza to see what Defendant had put behind the plywood. While he was out of view of the dashcam his microphone was still providing audio; at 12:21:48 he reported that he found a gun behind the plywood.

         Meanwhile, at 12:22:35, Officer Garza moved Defendant to the sidewalk, out of view of the dashcam. Officer Garza was also out of view of the dashcam starting at 12:23:25. At approximately 12:26:10, Officer Newton's dashcam recorded a report radioed from dispatch that there were outstanding warrants for Defendant's arrest.

         At some point Officer Newton left the alleyway and joined a Sergeant at the Sergeant's car out of the dashcam's view and had a discussion with him. Officer Newton announced that he was going to get a camera to take pictures and returned in view of his dashcam at approximately 12:29:36. As he approached, at 12:29:41 he told Officer Garza that Defendant “ditched a gun back there.” Defendant protested and, in the course of doing so at approximately 12:29:53 stated that he was a felon.

         Defendant was later taken to the police station where he was interviewed by Detective Troy Schwalm. Detective Schwalm advised Defendant of his Miranda rights both orally and in writing. During the interview, Defendant denied possessing the gun Officer Newton found in the alley - but he admitted that he had a firearm in his residence. Detective Shwalm then obtained a search warrant for Defendant's house; during the search officers found a shotgun in a bedroom closet.

         The alleyway that Officer Newton followed Defendant into is accessible to the public; it is not fenced off, there is no gate, and there is nothing preventing anyone from walking into it. There are no signs indicating that it is private property. The alleyway leads to the back of a building; there was a door, above which was as sign stating “Reality ...


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