Opinion
18-00036-01-CR-W-BCW
03-27-2023
UNITED STATES OF AMERICA, Plaintiff, v. SHAWN BURKHALTER, Defendant.
REPORT AND RECOMMENDATION
Lajuana M. Counts United States Magistrate Judge
This matter is currently before the Court on Defendant Shawn Burkhalter's Motion to Suppress DNA Evidence (Doc. #1153). For the reasons set forth below, it is recommended that this motion be denied.
I. INTRODUCTION
On February 21, 2018, the Grand Jury returned a fourteen-count Indictment against defendants Shawn Burkhalter, Joshua Nesbitt, Joslyn Lee, Nickayla Jones, Autry Hines, Rachel Ryce, and Sharika Hooker. On July 30, 2019, the Grand Jury returned a fifteen-count Superseding Indictment against defendants Burkhalter, Nesbitt, Jones, Hines, Ryce, Hooker, and Anthony Peltier. On July 30, 2019, the government also filed a Notice of Intent to Seek the Death Penalty against defendants Burkhalter and Nesbitt. On October 6, 2021, the Grand Jury returned a fifteen-count Second Superseding Indictment against defendants Burkhalter and Nesbitt.
All of the other defendants charged in the previous indictments had entered guilty pleas.
On August 30, 2022, the government filed a Notice of Withdrawal of the Notice of Intent to Seek Death Penalty. On September 6, 2022, the Grand Jury returned a fifteen-count Third Superseding Indictment against defendants Burkhalter and Nesbitt. Defendant Burkhalter is charged in all counts of the Third Superseding Indictment. The charges are as follows: Count One (Illegal Drug Distribution Conspiracy), Count Two (Cocaine Possession/Distribution), Counts Three and Five (Discharge of Firearm in Furtherance of Crime of Violence or Drug Trafficking Crime), Count Four (Marijuana Possession/Distribution), Counts Six and Seven (Murder Resulting From the Use of Firearm in Crime of Violence or Drug Trafficking Crime), Count Eight (Witness and Evidence Tampering Conspiracy), Count Nine (Murder of Potential Witness), Counts Ten, Eleven, and Twelve (Witness and Evidence Tampering), Count Thirteen (Robbery Affecting Interstate Commerce), Count Fourteen (Brandishing of Firearm in Furtherance of Crime of Violence), and Count Fifteen (Felon in Possession of a Firearm).
An evidentiary hearing on defendant Burkhalter's Motion to Suppress DNA Evidence was held on September 29, 2022. Defendant Burkhalter was represented by appointed counsel Lance D. Sandage and Eric K. Klein. The Government was represented by Assistant United States Attorneys David Raskin and David Wagner. The Government called Jeremy Riddle and Scott Gillespie as witnesses. Both Mr. Riddle and Mr. Gillespie were employed by the Raytown Police Department at the time relevant to the issues raised in the subject motion. 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 October 2, 2015, Scott Gillespie, who at that time was a detective with the Raytown Police Department, was participating in an interview of Shawn
Burkhalter at Metro Patrol in Kansas City after Burkhalter was picked up in regard to a homicide investigation. (Tr. at 29-30.) During the interview, Burkhalter was asked for a DNA sample. (Tr. at 37-38.) Burkhalter responded that he thought his DNA was already on file. (Tr. at 38.) The officers told Burkhalter that they needed a new sample. (Tr. at 38.) Burkhalter did not agree to provide a new sample. (Tr. at 38.)
2. On October 2, 2015, Jeremy Riddle, who at that time was a detective with the Raytown Police Department, applied for a search warrant for two buccal swabs from the mouth of Shawn Burkhalter. (Tr. at 5; Gov. Exh. S115 at 2-3.) Detective Riddle testified that the focus of the investigation was a murder that took place outside Mama China, a restaurant in Raytown, Missouri. (Tr. at 5.) Detective Riddle's only involvement in the investigation was recovering some video and then applying for this search warrant. (Tr. at 5-6.)
3. The Application for Search Warrant provided in part:
On 9-10-2015 at approximately 1754 hours, Det. Krefft reported hearing several gun shots in the area of Mama China .... When Officers arrived on scene they located the victim, later identified as Danny Lamont Dean . . . with several gun shot wounds to his chest as well as his right arm. Mr. Dean was transported by EMS to Research Medical Center . . . where he was pronounced dead at 1823 hours by medical staff.
On 9-10-2015 at about 1800 hours, Officer Uriel Ojeda conducted a car check on a silver Chevrolet Camaro . . . that had been reported leaving the scene of the shooting. The vehicle was being driven by Cornell T. Brown ....
After investigators reviewed video footage of the incident, they discovered that Mr. Dean had gotten into the Camaro with Mr. Brown in the parking lot just prior to the shooting. It appeared in the video that a drug sales transaction had taken place. It also appeared that the suspect had got into the back seat of the vehicle
that Mr. Dean had arrived in, a green colored Nissan Altima .... The vehicle was towed to the Raytown Police Annex ....
Investigators discovered a conversation, via text messages, on the victims phone with Mr. Brown. The conversation appeared to be discussing prices for various amounts of narcotics.
On 09-11-2015 Raytown Investigators gained a search warrant for the interior of the green Nissan Altima. At about 1430 hours, Kansas City Police Crime Scene Technician Hudson responded and processed the vehicle. CST Hudson recovered nine DNA swabs and four hinge lift cards from the interior of the vehicle. The recovered items were taken to the Kansas City Police Crime Laboratory for analysis.
On 09-12-2015 Raytown Investigations Unit received an anonymous tip that Shawn Burkhalter, a black male, 26 years of age, had been involved in the shooting. Investigators located images of Mr. Burkhalter on social media and observed him to have numerous tattoos. A witness at the scene of the homicide had told investigators that the suspect had numerous tattoos.
On 09-14-2015, at approximately 1730 hours, Detective Jimmy Wolsey responded to Mr. Burkhalter's listed address .... While at the address, Detective Wolsey observed Mr. Burkhalter, who he identified by having seen numerous photographs on social media and recognizing a large tattoo on Mr. Burkhalter's neck, arrive at the address in a small SUV, with at least two other black males. Detective Wolsey attempted to contact Mr. Burkhalter after Mr. Burkhalter exited the vehicle. Mr. Burkhalter asked Detective Wolsey, “Is this about the Raytown homicide?” Detective Wolsey told Mr. Burkhalter that he had a parole absconder warrant. Mr. Burkhalter then fled on foot and was not located.
On 09-16-2015 Detective Jimmy Wolsey completed a computer worksheet requesting a stop order be entered for Mr. Burkhalter. A stop order for Mr. Burkhalter was entered in the Police Computer by Booking Technician Nicole Grivno.
On 10-02-15 Kansas City, Missouri police officers located Shawn Burkhalter and took him in custody for the stop order.
(Gov. Exh. S115 at 2-3.) Traci Stansell, a prosecutor for Jackson County, Missouri, signed the Application for Search Warrant, along with Detective Riddle. (Tr. at 8; Gov. Exh. S115 at 3.) Detective Riddle testified that when he submitted a search warrant application to a judge, he relied on the prosecutor's determination that there was sufficient probable cause. (Tr. at 9.)
4. The search warrant for two buccal swabs from the interior of the mouth of Shawn Burkhalter was signed by Judge Jeffrey C. Keal on October 2, 2015, at 4:54 p.m. (Gov. Exh. S115 at 1.) The search warrant was executed that same day. (Tr. at 10; Gov. Exh. S115 at 4.)
5. Detective Gillespie testified that while he was not involved in applying for the search warrant for the buccal swabs, he was involved in the execution of that warrant. (Tr. at 30.) Detective Gillespie testified that the interview was concluding when he received the search warrant from Detective Riddle. (Tr. at 30.) Detective Gillespie testified that he showed Shawn Burkhalter the search warrant on his phone that Detective Riddle had e-mailed and then took two swabs of Burkhalter's mouth and recovered them. (Tr. at 30.) Detective Gillespie testified that he relied on the judge's determination that there was probable cause to issue the warrant when he executed the warrant. (Tr. at 31.)
6. Detective Gillespie testified that before he left Metro Patrol, he e-mailed the application and search warrant to Detective Wells, who then printed it off to put in Shawn Burkhalter's property. (Tr. at 31.)
7. Detective Riddle testified that he did not intentionally misrepresent anything in the warrant application. (Tr. at 45.)
While Mr. Gillespie is now a patrol officer with the Kansas City, Missouri Police Department (Tr. at 28), for purposes of this Report and Recommendation, the Court will refer to him as Detective Gillespie.
While Mr. Riddle is no longer employed in law enforcement (Tr. at 3), for purposes of this Report and Recommendation, the Court will refer to him as Detective Riddle.
Detective Riddle testified that he does not recall how many suspects there were in this crime. (Tr. at 26.) Defendant Riddle testified that he was merely applying for a search warrant for buccal swabs for one of the suspects. (Tr. at 26.)
The Incident Report for the anonymous tip states in part: “The tip was regarding a tipster that said that they overheard a conversation that the 3 suspects involved are Shawn Burkhalter, an unknown black male they call ‘T' from Minnesota, and an unknown black female.” (Tr. at 20; Def. Exh. 27.) Another report, which was written prior to Detective Riddle's Application for Search Warrant, identifies “T” as Joshua Nesbitt. (Tr. at 24; Def. Exh. 28.)
Detective Riddle testified that he does not know the identity of this witness. (Tr. at 8.) Detective Riddle cannot recall where he obtained this information, but assumes that it came from another officer, another detective, or a supplemental report. (Tr. at 8, 14, 17.) Detective Gillespie testified that he believes this witness was Caylen Dozier. (Tr. at 31-32.) Detective Gillespie participated in two interviews of Mr. Dozier, one immediately following the homicide and one the next day. (Tr. at 32.) Mr. Dozier had driven the victim to Mama China. (Tr. at 32.) Mr. Dozier stated that there were four people in the suspect vehicle, two males and two females, and that they all had tattoos, some on their arms. (Tr. at 32.) Mr. Dozier also mentioned that someone had gotten into his car with the victim and that that person probably had tattoos. (Tr. at 32-33.) Detective Gillespie testified that Mr. Dozier did not say the person had numerous tattoos. (Tr. at 42.) Detective Riddle testified that he cannot recall whether he reviewed the report of the interview of Mr. Dozier before submitting the application for the warrant. (Tr. at 45.) Detective Riddle testified that it is possible that another detective or supervisor told him that the witness said the suspect had numerous tattoos. (Tr. at 46.)
III. DISCUSSION
Defendant Burkhalter seeks to suppress the results of the DNA analysis from the buccal swabs taken from him on October 2, 2015. (Motion to Suppress DNA Evidence at 1; Doc. #1153.) Defendant Burkhalter argues that the search warrant for the buccal swabs was invalid based on the following:
• The Court should suppress the results of the search because there was not probable cause to believe the search would yield relevant evidence; and
• The affidavit in support of the search [warrant] contained false information and omitted exculpatory information in violation of Franks v. Delaware.(Id. at 1 and 4.) In its Memorandum in Opposition to Burkhalter's Motion to Suppress DNA Evidence (Doc. #1172), the government responds to these arguments and further contends:
• A warrant was not required to perform the buccal swab.(Doc. #1172 at 3.)
A. Necessity of a Search Warrant
The government argues that a search warrant was not required to obtain a DNA sample from defendant Burkhalter because Burkhalter was on parole at the time and Missouri law allows the warrantless collection of a biological sample from an individual on parole. (Doc. #1172 at 3-5.) In its briefing, the government states that “Burkhalter's criminal history records indicate that his DNA had previously been collected and analyzed in 2011.” (Id. at 5, n. 2.) When Burkhalter was asked for a DNA sample during the interview, he responded that he thought his DNA was already on file. (Fact No. 1.)
The case law provided by the government confirms the constitutionality of DNA indexing statutes. Perhaps this was the context for the collection of the defendant's DNA in 2011. However, the issue currently before the Court is not the collection of defendant Burkhalter's DNA for inclusion in a DNA databank system. Rather, the officers sought to obtain Burkhalter's DNA for use in their investigation of the homicide of Danny Dean.
In Maryland v. King, 569 U.S. 435 (2013), the Court upheld the taking of a DNA sample from an arrestee pursuant to a state statute as a legitimate police booking procedure, as well as the inclusion of that information in a DNA database. However, when that swab was matched to an unsolved prior crime and the defendant was charged with that crime, detectives obtained a search warrant and took a second sample of DNA from the defendant. Id. at 441. In United States v. Evans, 427 F.Supp.3d 87, 92-93 (D.D.C. 2019), the court explained that when the government seeks a buccal swab, not as part of a routine booking procedure, but for the purpose of obtaining evidence, the government is required to show individualized suspicion, that is probable cause that the DNA is evidence of a crime.
Here, the officers swabbed defendant Burkhalter to gather evidence for use in the investigation. They were, therefore, required to obtain a search warrant.
B. Probable Cause
Defendant Burkhalter argues that the affidavit in support of the search warrant failed to establish probable cause to believe “(i) that DNA had been recovered from the Altima, and (ii) that Mr. Burkhalter's DNA would be found in the Altima-i.e. that Mr. Burkhalter was the person who entered the Altima with the decedent.” (Doc. #1153 at 2.)
The United States Supreme Court has set forth the following with respect to what is required for a valid search warrant:
The Fourth Amendment requires that search warrants be issued only “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” . . . [T]his Court has interpreted [these words] to require only three things. First, warrants must be issued by neutral, disinterested magistrates. Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that “the evidence sought will aid in a particular apprehension or conviction” for a particular offense. Finally, “warrants must particularly describe the ‘things to be seized,'” as well as the place to be searched.Dalia v. United States, 441 U.S. 238, 255 (1979) (citations omitted). With respect to the requirement that a magistrate determine that probable cause exists before issuing a search warrant, the Court has advised:
The task of the issuing magistrate is simply to make a practical, common-sense decision where, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that . . . evidence of a crime will be found in a particular place.Illinois v. Gates, 462 U.S. 213, 238 (1983). “The determination of probable cause is made after considering the totality of the circumstances.” United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007).
The duty of a court reviewing a magistrate's determination of probable cause is “simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (internal quotation and citation omitted). Further, “[a] magistrate's determination of probable cause should be paid great deference by reviewing courts.” Id. at 236 (internal quotation and citation omitted).
With respect to defendant Burkhalter's first argument (that because no DNA had yet been developed from the subject vehicle, there was no DNA profile from which to compare the defendant's DNA, and hence no probable cause to believe that the defendant's DNA would yield evidence of wrongdoing), courts appear to be split on the issue, as set out in the briefing submitted by the parties. With no binding precedent presented by the parties or uncovered by the Court in its own research of the issue, the Court finds the following reasoning set forth in United States v. Sedillo, 297 F.Supp.3d 1155 (D.N.M. 2017), persuasive:
In so concluding that probable cause exists, the Court determines that the Fourth Amendment does not require the United States to confirm that the evidence collected-in this case, the clothing-will yield a viable DNA sample before swabbing the arrestees for DNA. Probable cause is not a granular inquiry. Instead, it requires the Court or a Magistrate Judge to evaluate the totality of a case's circumstances to determine whether a search for information is justified based on the available evidence. Certainly, there must be a connection between the item or location to be searched and the crime, but the United States need not establish to a certainty that there will be relevant evidence in the place they seek to search.Id. at 1181.
Here, evidence was presented in the Application for Search Warrant that “the suspect had got into the back seat of the vehicle that Mr. Dean had arrived in, a green colored Nissan Altima” and that after obtaining a search warrant for the interior of the Altima, a crime scene technician recovered “nine DNA swabs and four hinge lift cards from the interior of the vehicle.” (Fact No. 3.) As in Sedillo, this Court does not believe that the Fourth Amendment requires the government to confirm that the DNA swabs collected will yield a viable DNA sample before swabbing defendant Burkhalter for DNA.
However, even in cases where courts found that there was no probable cause for issuing a buccal swab search warrant in the absence of proof that viable DNA evidence existed on the item to which the buccal swab was to be compared, the courts upheld the search warrants where the officers relied in good faith on the warrant. See United States v. Jennings, Case No. 21-cr-60193-BLOOM, 2021 WL 5235292, at *9 (S.D. Fla. Nov. 10, 2021); United States v. Williams, No. 3:17-cr-00238, 2019 WL 4276992, at *3 (M.D. Tenn. Sept. 10, 2019) (“even if the Court were to adopt Defendant's suggested interpretation of Fourth Amendment law as it pertains to warrants to obtain buccal swabs, the good-faith exception to the exclusionary rule defeats Defendant's motion”); United States v. Myers, Crim. No. 14-135 (ADM/LIB), 2014 WL 3384697, at *8 (D. Minn. July 10, 2014) (“although some district courts have held that absent law enforcement's recovery of comparison sample of DNA, a buccal swab search warrant is unsupported by probable cause, this principle is not so clearly established . . . that law enforcement unreasonably neglected this requirement”); United States v. Robinson, Criminal No. 11-325(1) (DWF/LIB), 2012 WL 948670, at *1 (D. Minn. Mar. 20, 2012) (assuming, without deciding, that a search warrant for a defendant's DNA was issued in error where the firearm had not yet been DNA tested, suppression was not appropriate where the warrant was executed in good faith). Therefore, even if the Fourth Amendment required the government to confirm that the DNA swabs collected from the vehicle would yield a viable DNA sample before swabbing defendant Burkhalter for DNA (which the Court does not believe to be the case), because law enforcement relied in good faith on Judge Keal's issuance of the buccal swab search warrant, the argument for suppression on this basis must fail.
The Leon good-faith exception supports the admissibility of evidence seized pursuant to a warrant if it appears that the officer executing the warrant was acting in “objectively reasonable reliance” on a warrant issued by a neutral judge. See United States v. Leon, 468 U.S. 897, 922 (1984). Under this exception, “[i]n the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” Id. at 926.
Defendant Burkhalter next argues that probable cause was not established that his DNA would be found in the green Nissan Altima because there was not sufficient evidence that he was the person who entered the vehicle. According to the Affidavit for Search Warrant, the “suspect” had entered the back seat of the green Nissan Altima; investigators received an anonymous tip that Shawn Burkhalter had been involved in the shooting; a witness at the scene of the homicide told investigators that the “suspect” had numerous tattoos; officers located images of Burkhalter on social media which showed Burkhalter to have numerous tattoos; and when investigators attempted to contact Burkhalter outside his residence, Burkhalter asked, “Is this about the Raytown homicide?” and then fled on foot. (Fact No. 3.)
While there was a statement about an outstanding arrest warrant for defendant Burkhalter between Burkhalter's question about the Raytown homicide and his flight (Fact No. 3), the Court does not find this fact to detract from the inference that Burkhalter fled because of his involvement in the homicide and, in any event, the affidavit provided the information about the parole absconder warrant statement to Judge Keal for his consideration.
Defendant Burkhalter argues that the anonymous tip that he was involved in the shooting was not corroborated in any meaningful way and, thus, does not support a finding of probable cause. (Doc. #1153 at 3.) The Court disagrees. When investigators attempted to contact defendant Burkhalter, Burkhalter brought up the subject of the Raytown homicide and then fled. The Court finds that this conduct by the defendant corroborated the anonymous tip that Burkhalter was involved in the shooting. Defendant Burkhalter also argues that the generic statement of the witness that the “suspect” had tattoos (without “a description of these tattoos, their number, or location”) does not support a finding of probable cause because thirty to forty percent of Americans in the age range of defendant Burkhalter have tattoos. (Doc. #1153 at 3-4.) While the Court finds that the statement that the “suspect” had tattoos could not, by itself, provide probable cause, it can be considered in the totality of the circumstances. The converse of the defendant's statistics is that sixty to seventy percent of Americans in the age range of defendant Burkhalter would not fall within the witness's description.
The Court notes these statistics are skewed for purposes of identifying an individual with tattoos as they would include those individuals who only have tattoos which are typically covered by clothing.
This Court finds that Judge Keal had a substantial basis for concluding that the information contained in the affidavit provided sufficient probable cause to issue the buccal swab warrant. However, even if probable cause were lacking (which the Court does not believe to be the case), because law enforcement relied in good faith on Judge Keal's issuance of the buccal swab search warrant, the defendant's argument for suppression must again fail.
Defendant Burkhalter argues that the Leon good-faith exception does not apply because the officers could not have harbored an objectively reasonable belief in the existence of probable cause given that the affidavit contained “no facts giving rise to a determination of probable cause that Mr. Burkhalter ever entered the Nissan Altima.” (Reply in Support of Motion to Suppress DNA Evidence at 9; Doc. #1186.) Again, as set forth above, according to the Affidavit for Search Warrant, the “suspect” had entered the back seat of the green Nissan Altima, investigators received an anonymous tip that Shawn Burkhalter had been involved in the shooting, a witness at the scene of the homicide told investigators that the “suspect” had numerous tattoos, officers located images of Burkhalter on social media which showed Burkhalter to have numerous tattoos, and when investigators attempted to contact Burkhalter outside his residence, Burkhalter asked, “Is this about the Raytown homicide?” and then fled on foot. (Fact No. 3.) Given these facts, the Court finds that the officers could harbor an objectively reasonable belief that defendant Burkhalter entered the Nissan Altima.
C. Falsehoods and Omissions
Defendant Burkhalter argues that he is entitled to suppression of the evidence seized during the execution of the search warrant because of the following false or misleading statements in the affidavit given in support of the search warrant:
• On 09-12-2015 Raytown Investigations Unit received an anonymous tip that Shawn Burkhalter, a black male, 26 years of age, had been involved in the shooting.
• Investigators located images of Mr. Burkhalter on social media and observed him to have numerous tattoos. A witness at the scene of the homicide had told investigators that the suspect had numerous tattoos.(Doc. #1153 at 4-6.) Defendant Burkhalter further argues:
• “[L]aw enforcement knew the suspect who had entered the Altima was not Mr. Burkhalter.”(Id. at 4.)
The Eighth Circuit Court of Appeals has set forth the following with respect to warrant affidavits that are found to contain falsehoods or omissions:
A search warrant may be invalid if the issuing judge's probable cause determination was based on an affidavit containing false or omitted statements made knowingly and intentionally or with reckless disregard for the truth. Franks v. Delaware, [438 U.S. 154, 171 (1978)]. To prevail on a Franks claim the defendants must show: (1) that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included in the affidavit; and (2) that the affidavit's remaining content is insufficient to establish probable cause. The same analysis applies to omissions of fact. The defendant must show: (1) that facts were omitted with the intent to make, or in reckless disregard of whether they make, the affidavit misleading; and (2) that the affidavit, if supplemented by the omitted information, could not support a finding of probable cause. . . .United States v. Reinholz, 245 F.3d 765, 774 (8th Cir.), cert. denied, 534 U.S. 896 (2001). The Reinholz court noted that “the exclusionary rule does not apply to negligent misrepresentations or omissions.” Id. at 775.
With respect to the first statement cited by the defendant, that officers had received an anonymous tip that Shawn Burkhalter had been involved in the shooting, the evidence presented at the hearing supports this statement. The Incident Report for the anonymous tip states in part: “The tip was regarding a tipster that said that they overheard a conversation that the 3 suspects involved are Shawn Burkhalter, an unknown black male they call ‘T' from Minnesota, and an unknown black female.” (Fact No. 3, n. 5.) The fact that the tip also stated that two others were involved does not make the statement in the affidavit that the officers had received an anonymous tip that Burkhalter was involved in the shooting false or misleading.
The second challenged statement was that a witness at the scene told investigators that the suspect had numerous tattoos, while Detective Gillespie, who interviewed the witness, testified that the witness said the person probably had tattoos, rather than that the person had numerous tattoos. (Fact No. 3, n. 6.) Detective Riddle could not recall whether he reviewed the report of the interview of Mr. Dozier before submitting the application for the warrant. (Id.) Detective Riddle testified that it is possible that another detective or supervisor told him that the witness said the suspect had numerous tattoos. (Id.) Regardless, Detective Riddle testified that he did not intentionally misrepresent anything in the search warrant application. (Fact No. 7.) It is not disputed that the witness to the homicide stated that the suspect had tattoos. The Court finds that at most, Detective Riddle was negligent in including the word “numerous” when describing what the witness told investigators. As set out above, the exclusionary rule does not apply to negligent misrepresentations.
In the briefing, the defendant argues “the witness only said the suspect possibly had tattoos.” (Doc. #1153 at 4.) While this argument is consistent with the Incident Report of Caylen Dozier's interview (Def. Exh. 26), in the video of the interview, Mr. Dozier does state that the person probably had tattoos (Gov. Exh. S117 at 08:00.)
Finally, defendant Burkhalter argues that law enforcement knew that the suspect who had entered the Altima was not Burkhalter. In support of this argument, defendant Burkhalter cites to a Raytown Police Department Incident Report (Def. Exh. 28) and states: “That report describes how Raytown police determined Mr. Nesbitt, not Mr. Burkhalter, ‘matched the witnesses description from the homicide and had the same build as our suspect from the TIPS Hotline call[.]'” (Doc. #1153 at 5.) This report (Def. Exh. 28) describes Detective Franklin McDevitt's contact with Joshua Nesbitt on September 14, 2015. The Court finds that defendant Burkhalter exaggerates the significance of the statement in the report. On the day of the shooting, Mr. Dozier described the suspect as a tall black male in his 20s with braided hair and a medium skin tone. (Def. Exh. 25.) The day after the shooting, Mr. Dozier described the suspect as a medium complexioned black male in his 20s, who probably had tattoos. (Def. Exh. 26 at 1.) Later in that interview, Mr. Dozier added that the subject was skinny. (Def. Exh. 26 at 4.) While defendant Nesbitt has a slighter build that defendant Burkhalter, the Court finds that Mr. Dozier's description of the suspect could also describe Burkhalter. Further, while the report (Def. Exh. 28) states that the individual stopped (Nesbitt) had the “same build as our suspect from the TIPS Hotline call,” the Incident Report relating to the tip (Def. Exh. 27) does not provide any information regarding a suspect's build. Finally, if, as defendant Burkhalter argues, the officers “knew” when they had contact with Nesbitt on September 14, 2015, that he was the person who entered the Altima and subsequently shot and killed Danny Dean, the Court finds it unlikely that the officers would have released Nesbitt. Defendant Burkhalter has not presented evidence to suggest that at the time Detective Riddle applied for the buccal swab search warrant, law enforcement knew that the suspect who had entered the Altima was not Burkhalter.
Thus, the Court finds that defendant is not entitled to the suppression of any evidence under Franks.
IV. CONCLUSION
Based on the foregoing, it is
RECOMMENDED that the Court, after making an independent review of the record and applicable law, enter an order denying Defendant Shawn Burkhalter's Motion to Suppress DNA Evidence (Doc. #1153).
Counsel are reminded they have fourteen days in which to file any objections to this Report and Recommendation. A failure to file and serve objections by this date shall bar an attack on appeal of the factual findings in this Report and Recommendation which are accepted or adopted by the district judge, except on the grounds of plain error or manifest injustice.