Opinion
Case No. 3:20-CR-00576-JGC
08-10-2021
UNITED STATES of America, Plaintiff v. Craig A. THOMPSON, Defendant.
Vanessa V. Healy, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.
Vanessa V. Healy, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.
ORDER
James G. Carr, Sr. U.S. District Judge
This is a criminal case in which the defendant stands charged under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) with being a felon in possession of a firearm – namely, a shotgun and ammunition. Pending is his motion to suppress those items. (Doc. 12). Following a hearing and the government's submission of a post-hearing brief (Doc. 24), the defendant's motion is decisional.
For the reasons that follow, I grant the motion
Background
On July 14, 2020, law enforcement officers, including Toledo Police Department Sgt. William Shaner, had obtained an arrest warrant for the defendant's arrest on robbery and burglary charges. They saw the defendant arrive at and enter his home. As officers were approaching the residence, the defendant came out the front door. On seeing the officers, he retreated back inside and shut the door. On gaining entry, the officers encountered the defendant and another individual. They conducted a protective sweep, finding neither other occupants nor contraband. They restrained the defendant and his companion and placed both on the floor.
Sgt. Shaner noticed the shotgun at issue under a couch. The weapon was plainly visible, as the bottom of the couch was about six inches above the floor. The gun was near the front and was parallel to the length of the couch.
On seeing the weapon, Sgt. Shaner announced that there was a firearm. When he did so, the defendant volunteered that he had found it. This caused Sgt. Shaner to apprehend that the gun may have been stolen. He took the gun from under the couch.
To find out whether the weapon was stolen, Sgt. Shaner, after determining its serial number, called the Detective Bureau. He learned the gun was not stolen. He then asked about the defendant's prior record. He learned he had prior felony convictions.
That information led to the pending indictment and instant motion.
Discussion
The issue here is whether Sgt. Shaner took the gun in hand lawfully under the plain view doctrine. To establish the lawfulness of a seizure under that doctrine, the government must show: "(1) the object must be in plain view; (2) the officer must be legally present in the place from which the object can be plainly seen; (3) the object's incriminating nature must be immediately apparent; and (4) the officer must have a right of access to the object." United States v. Garcia , 496, F.3d 495, 508 (6th Cir. 2007).
Sgt. Shaner was lawfully inside the defendant's residence: armed with an arrest warrant, he and the other officers lawfully pursued the defendant inside after he tried to avoid the warrant's execution. See United States v. Santana , 427 U.S. 38, 42-43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). As noted, the weapon was plainly visible.
If Sgt. Shaner lawfully took possession of the weapon, then he had lawful access to it. Thus, the dispositive question is whether the shotgun's "incriminating nature [was] immediately apparent." Here, while Sgt. Shaner suspected that the gun was stolen, he did not know one way or the other. To be sure, he did not have to be certain. But, as the cases I discuss require, he had to have prior probable cause as to its contraband status before taking it in hand. Such cause arose only after he had picked up the gun, ascertained its serial number, called the Detective Bureau, and learned that the defendant was a felon.
In other words, finding out whether the gun was stolen required further investigation, which rendered it (and the ammunition) inadmissible. "[W]hen an item appears suspicious to an officer but further investigation is required to establish probable cause as to its association with criminal activity, the item is not immediately incriminating." United States v. Mathis , 738 F.3d 719, 732 (6th Cir. 2013).
The sequence here was similar to that which led to suppression in Arizona v. Hicks , 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). In that case, police officers were conducting a lawful search of the defendant's house in connection with a shooting. During the search, a police officer noticed stereo equipment that "seemed out of place." Id. at 323, 107 S.Ct. 1149. He suspected it was stolen. The officer moved the equipment so that he could record the serial numbers to determine if it was, in fact, stolen. The Court held that the police officer's moving of the equipment constituted a search for purposes of the Fourth Amendment. Because the officer acted only on the basis of suspicion, he had no constitutionally lawful authority to seize the stereo equipment.
The same holds true here: to find out whether his suspicion was well founded, Sgt. Shaner had to pick up the gun and view the serial number. This seizure and inspection preceded his ultimate determination that the defendant, as a felon, could not lawfully possess a shotgun.
Other Sixth Circuit cases are to the same effect. Thus, in a case with facts quite similar to those here, United States v. Gray , 484 F.2d 352 (6th Cir. 1973), troopers were executing a warrant when one of them noticed two rifles in plain view. The trooper picked up the rifles, copied down their serial numbers, ran the serial numbers, and only then determined that they were stolen. The Sixth Circuit held that the incriminating nature of the rifles was not immediately apparent because the trooper had no reason to believe the rifles were associated with criminal activity just by looking at them. Id. at 355. It was only after he copied down the serial numbers and ran them through the National Crime Information Center that he was able to connect the rifles to a crime. Id. Therefore, the trooper did not have probable cause to seize the weapons. Id. at 356.
Concealment, or, as here, attempted concealment of a firearm is not ipso facto indicia of illegality. See United States v. Lamb, 2012 WL 1156490, at *10 (S.D. Ohio) (fact that assault rifles found in defendant's safe were illegally fully automatic not immediately apparent); United States v. King, 2007 WL 1830761, at *15 (E.D. Tenn.) (gun in case not immediately incriminating).
To be sure, in some circumstances the incriminating nature of a firearm is immediately apparent. This was so in United States v. Truitt , 521 F.2d 1174 (6th Cir. 1975), where officers saw a sawed off shotgun in plain view. There, the seizure was lawful because the gun's illegal nature was immediately apparent. That's not the case here; nothing in the record suggests that the barrel was too short.
In light of the foregoing, I conclude that the shotgun's incriminating nature was not immediately apparent. There was nothing remarkable about the weapon itself. From all outward appearance, so far as Sgt. Shaner could tell, there was nothing illegal about it.
In sum, the applicable case law makes clear that firearms, by their mere appearance, are not automatically incriminating.
The government argues that the defendant's statement that he found the gun gave Sgt. Shaner probable cause, thus making the weapon admissible.
I disagree. As I've already noted, that statement simply created the suspicion that the gun may have been stolen. Not all found weapons are stolen; some may be. Here the defendant's statement was, at best, opaque – we know nothing about how, when, or where the defendant found the gun.
Indeed, Sgt. Shaner's subsequent actions make clear that he understood that he needed to find out more before he could learn whether the gun was incriminating. In other words, he understood – and properly so, as a well-trained officer would, that further investigation was necessary before he could ascertain the gun's incriminating character and seize it as evidence.
Thus, most simply put, the decision to pick up the weapon to see if it had a serial number, and if so, to find out whether the gun may have been stolen (and then abandoned) was based on that possibility – not probable cause to believe that such was the case. And he had to seize the weapon to find out whether that suspicion was merited.
That was not enough. Few Fourth Amendment doctrines are more firmly fixed in our law than the principle that what an officer learns after an unlawful seizure does not excuse the initial illegality. See United States v. Pearce , 531 F.3d 374, 381 (6th Cir. 2008). But that, in essence, is what the government asks me to hold here, namely, that because the seizure of the shotgun to check on its status led to learning that the defendant had a felony record, I should overrule the motion to suppress.
In any event, even if the Fourth Amendment allowed Sgt. Shaner to pick up the weapon, observe its serial number, and determine whether it was stolen, that justification expired when he learned the gun was not stolen. But he took the unrelated inquiry as to the defendant's criminal record.
Sgt. Shaner properly could have learned that information by calling the Detective Bureau after he had seen the gun and before picking it up. Then its seizure would have been entirely lawful.
I disagree, moreover, that the inevitable discovery doctrine enables admission of the weapon. Under that doctrine, "[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means [...] the evidence should be received." Nix v. Williams , 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).
In applying the inevitable discovery doctrine, I must "determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred." United States v. Mohammed , 512 F. App'x 583, 587 (6th Cir. 2013). The government can invoke the inevitable discovery doctrine where "the evidence demonstrates that routine procedures that police would have used regardless of the illegal search would have resulted in the discovery of the disputed evidence." Id.
Here, absent any indication in the evidence before me that Sgt. Shaner would have called to check on the defendant's prior record, I cannot conclude that discovery of his felon status was inevitable. It might well have happened – but to conclude that it would have happened calls for speculation. The inevitable discovery doctrine requires more. As the Supreme Court has explained, the doctrine "involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment." Nix, supra , 467 U.S. at 444, n.5, 104 S.Ct. 2501.
Possible alternative theories for upholding admission are likewise unavailing.
It might be argued that community safety justified seizure of the weapon. After all, the defendant was headed for the County Jail and his house would have been left vacant. Thus, there was a risk that someone might enter, find and take the gun, and ultimately cause injury to others. Aside from the speculative nature of that scenario, the community safety exception does not extend to such a situation.
The Sixth Circuit has held that "a police officer who discovers a weapon in plain view may at least temporarily seize that weapon if a reasonable officer would believe, based on specific and articulable facts, that the weapon poses an immediate threat to officer or public safety." United States v. Bishop , 338 F.3d 623, 628 (6th Cir. 2003).
The Sixth Circuit has applied this exception to situations in which there is an immediate threat of violence. For example, it held that temporary seizure of a firearm was permissible where police officers were still searching for a murder suspect and there was a four-year-old girl asleep in the house. United States v. Flores , 193 F. App'x 597, 605 (6th Cir. 2006). And in another case, the Sixth Circuit held that the police could temporarily seize a firearm where several of the defendant's friends were still on the premises and were not restrained. United States v. Frederick , 152 F. App'x 470, 472 (6th Cir. 2005). In both cases, it was possible that someone at the scene would have obtained the weapon and fired it had the police officers not seized it.
These cases stand in contrast to the current one, in which both defendant Thompson and his companion were handcuffed on the ground at the time that Sgt. Shaner noticed the weapon. The officers had already completed their protective sweep, and there was no one else in the house who could have obtained and fired the weapon. Therefore, there was no immediate threat to the officers or public safety that would have justified the seizure under this exception.
Similarly, one might argue that the inventory exception of South Dakota v. Opperman , 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), applies here.; i.e., that it was in the defendant's interest to take the gun into police custody to ensure it might not be stolen in his absence. But the Supreme Court established that exception to permit warrantless searches of impounded vehicles and has not extended it to searches of residences.
In fact, in a recent Supreme Court case, Caniglia v. Strom , ––– U.S. ––––, 141 S. Ct. 1596, 209 L.Ed.2d 604 (2021), the Court declined to expand the community caretaking exception to warrantless searches of residences, emphasizing the constitutional difference between searches of a person's vehicle and searches of a person's dwelling. The Court explained that it has "repeatedly declined to expand the scope of ... exceptions to the warrant requirement to permit warrantless entry into the home." Id. at 1600.
Conclusion
While it appears that Sgt. Shaner did not deliberately undertake to violate the Fourth Amendment, the law, as I understand and apply it here, requires exclusion of the firearm and ammunition in this prosecution.
It is, accordingly, hereby
ORDERED THAT the defendant's motion to suppress (Doc. 12) be, and the same hereby is granted.
So ordered.