Opinion
No. IP 03-199-CR-01-B/F.
June 23, 2004
ENTRY DENYING DEFENDANT'S MOTION TO SUPPRESS
Defendant Peter Brown ("Mr. Brown") is charged with two counts of unlawful possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The charges arise from evidence obtained during a search of Mr. Brown's Noblesville, Indiana apartment on October 22, 2003. This matter comes before the Court on Mr. Brown's Motion to Suppress. A suppression hearing was held on April 5, 2004, at which Mr. Brown argued that he did not give consent to search his apartment and therefore that the fruits of the search are inadmissible as evidence at trial. For the reasons explicated on the record at the hearing and as set forth in detail below, we DENY Defendant Peter Brown's Motion to Suppress.
Statement of Facts
We held a hearing on Defendant Peter Brown's ("Mr. Brown") Motion to Suppress on April 5, 2004. At the suppression hearing, Detective Shirley Berry, an employee of the Marion County Sheriff's Department and an investigator with the United States Marshal Service Fugitive Task Force testified that she was assigned to find the fugitive, Mr. Brown, because he was in violation of probation. He was on probation for dealing cocaine, a felony. (The Government later introduced into evidence a Judgment and Conviction Order against Mr. Brown for dealing in cocaine or a narcotic drug, a felony, in Cause No. 49-G05-9309-CF-122560.) Records from the Justice Information System of Indianapolis, Marion County show that a warrant for Mr. Brown's arrest issued on June 30, 2000, in connection with the dealing-in-cocaine probation violation. (Gov. Ex. 29). In addition to this dealing-in-cocaine felony conviction, Detective Berry testified that Mr. Brown had several previous felony convictions, including criminal homicide, dealing cocaine, and other narcotic charges. She also stated that, as a convicted felon, it was illegal for Mr. Brown to possess a firearm.
In the course of her investigation, Detective Berry testified that she learned that Mr. Brown had used or was using aliases, specifically John Kelly and Chris Freeman. In October 2003, Detective Berry became aware that Mr. Brown was renting apartments in Carmel and Noblesville, Indiana, under these aliases. On cross examination, Detective Berry revealed that a woman, Lachina Williams (aka Lachina Smith) was possibly residing with Mr. Brown. On October 22, 2003, in the morning, Detective Berry testified that she went to the address 1328 Millers Court in the North Lake apartment complex in Noblesville looking for Mr. Brown. Mark Hess, a sergeant with the IPD assigned to the U.S. Marshal Task Force, and Hamilton County Sheriff's Deputies, Lieutenant Ray Robert, Captain Kevin Jowitt, and Detective Kerry Mulligan accompanied Detective Berry that morning.
According to Detective Berry, on the morning of October 22, 2003, the Task Force detectives had to reason to believe that Mr. Brown was at home alone in his apartment. They had been informed that a car matching the description of Mr. Brown's vehicle was parked outside the apartment; it was registered to one Chris Freeman. In addition, apartment management staff confirmed that an apartment had recently been rented to one John Kelly. Finally, the detectives asked maintenance to enter the apartment to perform a furnace repair, and maintenance confirmed that Mr. Brown was in the apartment at that time. Detective Berry and Sergeant Hess, in separate testimony, both stated that they did not ask the maintenance man to search the apartment; he merely informed the detectives that the man whose picture they had given him, Mr. Brown, was in the apartment.
The apartment was located on the second floor of the complex. Detective Berry, Sergeant Hess, and Captain Jowitt all testified that they entered a hall-like common area outside of Mr. Brown's apartment's front door while the other two Hamilton County detectives secured the back door, which was on a second story balcony. The detectives, uniformed and weapons drawn, knocked on the door. A black male, who Detective Berry recognized from pictures to be Peter Brown, came to the door quickly wearing only a bathrobe. When Mr. Brown opened the door, Sergeant Hess testified that he identified himself as a U.S. Marshal with a badge, reached in, placed his hands on Mr. Brown, brought him out to the common hallway outside his apartment, placed him face down on the floor, and arrested him. The door to the apartment remained open.
When Sergeant Hess asked Mr. Brown to identify himself, Detective Berry testified that Mr. Brown declared himself to be John Kelly. Mr. Brown testified that he answered, "Who are you looking for?" All witnesses recalled that Mr. Brown then asked if he could return to the apartment to put on some clothes, a request the detectives denied. Sergeant Hess testified that he warned Mr. Brown that if he was not truthful with the officers, then he could go downtown in his bathrobe.
When the defendant finally admitted to being Peter Brown, Detective Berry testified that he again asked to put on his clothes. The officers said that if they were going to reenter the apartment to allow him to get dressed, then they would have to do a security check for weapons and other people. Sergeant Hess testified that it was a matter of officer safety. On the stand, Detective Berry further explained that a security check is "a protective sweep to make sure there were no weapons in the apartment that could harm any of the police officers that were going to enter." She testified that Mr. Brown agreed to let the officers back in his apartment so that he could change clothes, and that Mr. Brown gave this "okay" freely; he was not threatened or promised anything. Mr. Brown, however, denies that he consented to the detectives' reentrance into the apartment.
Mr. Brown did not sign a consent to search form because, according to Detective Berry, the officers did not intend to search the apartment. Per routine, Sergeant Hess testified that he asked the defendant if there were weapons or any other persons in the apartment, and that Mr. Brown responded that no other persons were in the apartment, but that there was a handgun in the bedroom. On the stand, Mr. Brown denied that he told the officers about any firearms in the apartment. The Hamilton County deputies who had been guarding the rear, second story balcony door came inside, entered through the front door with the detectives, and then performed a security check of the apartment.
Detective Berry stated that, after searching the couch in the living room area for weapons, she and Sergeant Hess brought Mr. Brown into the living room area and let him sit on the couch while the Hamilton County detectives conducted the security check. Sergeant Hess testified that he understood the deputies to be conducting a "protective sweep," not a search. Although Detective Berry did not participate in the security check, she observed the Hamilton County detectives do a "quick once-over" of the kitchen before proceeding down the hall to the two bedrooms near the back of the apartment. In the back bedroom, Lieutenant Robert testified that he found a handgun, and that, in a closet of a second bedroom filled with workout equipment (the "workout room"), Detective Mulligan discovered a rifle.
Within two to five minutes from the beginning of the security check, Lieutenant Robert and Detective Berry testified that he called to her that he had found a handgun in the bedroom, in an open dresser drawer containing men's clothing. (Gov. Ex. 5-6). She went back to observe the scene. The handgun was not loaded at the time, but next to the gun, lay an ammunition magazine. (Gov. Ex. 12). Again, within two to five minutes, Lieutenant Robert and Detective Berry testified that Detective Milligan let them know that he had found a rifle in the closet of the workout room. (Gov. Ex. 7-10). When Detective Berry entered the workout room, the gun case had been removed from the closet and opened up. Inside were the rifle, a couple of loaded magazines and ammunition. (Gov. Ex. 16-17). Lieutenant Robert testified that the security check that he performed at Mr. Brown's apartment differed from a search that he would typically perform in executing a search warrant because he did not look thoroughly through the area that he was checking, but rather checked quickly to assure his safety and that of the other officers.
After the weapons were recovered, Mr. Brown was unhandcuffed and allowed to dress. Detective Berry testified that she took the weapons into custody as evidence. In addition to the guns, Detective Berry recovered certain miscellaneous documents and identification, including an Indiana driver's license. (Gov. Ex. 1). The driver's license had Mr. Brown's picture on it; however, it was issued in the name of Chris Freeman. Detective Berry testified that she took the driver's license from a wallet laying in plain view on a table in the living room. Mr. Brown, however, stated that she took the wallet out of his pants and that it was not in plain view. When asked "Why would you have looked in the wallet if you weren't doing a search?" Detective Berry answered that she was still trying to prove Mr. Brown's identity and to obtain the names of any other aliases that he had been using. In addition, on redirect, she testified that it is helpful for the arrestee to have some form of identification with them at the time of processing at the police station.
In addition, Detective Berry found a receipt for the handgun that had been recovered in the bedroom. She testified that she discovered it in plain view on a dresser or right next to the dresser in a basket in the bedroom. (Gov. Ex. 6). When asked why she took the receipt, Detective Berry responded that "It was not in his name, and he was not allowed to have a weapon. And it was also trying to prove some type of identity, and that the weapon was not stolen." (Tr. p. 26; Gov. Ex. 2). The receipt was in the name of "L. Williams." After the officers recovered the weapons and determined that no one else was in the apartment, Detective Berry testified that she stepped outside to allow Mr. Brown to dress in the company of the male detectives.
At the close of her testimony, Detective Berry stated that most probation forms, especially in cases involving narcotics, contain a consent to search provision. The parties stipulated that, in this case, Mr. Brown signed the Order of Probation in Cause No. 49-G05-9309-CF-122560, which reads as follows:
Paragraph 4: You shall permit authorized representatives of the probation department or local law enforcement agencies to enter your residence, and you shall submit to a search of your person, your vehicle, or your property at any time.
Paragraph 7: You shall not possess a firearm, destructive device, or other dangerous weapons.
In the course of the hearing, the Government also introduced evidence to challenge Mr. Brown's credibility and show him to be dishonest. Mr. Brown testified that he had filled out a rental application in the course of obtaining his apartment. One of the questions on this application asked whether he had ever been convicted of a felony. Mr. Brown, under the alias of John Kelly, answered "no." Although at the time he signed the apartment rental application Peter Brown had been convicted of three felonies, Mr. Brown reasoned, illogically, that because none had been committed under the name of John Kelly, John Kelly did not have a felony record. Similarly, Mr. Brown admitted that he lied about his identity when he applied and signed for a driver's license, a car registration and numerous credit cards under the alias of Chris Freeman.
Legal Analysis
We began the suppression hearing by noting that the trial, which was to follow in the afternoon of April 5, 2004, was timely under the Interstate Agreement on Detainers Act, 18 U.S.C. § App. 2, Art. IV (c), a conclusion with which both parties agreed. Should the trial later be found untimely, the continuance requested by the defendant, which moved the trial date from February 9, 2004, to April 5, 2004, as well as his late-filed motion to suppress constitute good cause for the additional time necessary to bring this matter to trial.
Next, we considered the issue raised by the motion to suppress: whether defendant did, in fact, consent to a search of his apartment. This entry supplements and memorializes our analysis from the bench at the suppression hearing. We note that at the conclusion of the suppression hearing, we adopted the testimony of the law enforcement officers as it does not differ substantially from one officer to the next. As well, we found Mr. Brown's testimony not believable because Mr. Brown generally is not believable. Specifically, "Mr. Brown has a penchant for lying when it suits his purposes, as he basically admitted on the stand that he makes up names whenever it serves his purposes, and he has an extensive pattern of doing this, using various aliases, and particularly misusing official . . . records and documents to try to establish that he is somebody other than Peter Brown." (Tr. p. 108).
With regard to the security check, we found that it comported with a protective sweep as that term is defined in Maryland v. Buie, 494 U.S. 325 (1990). First, the arrest warrant gave the police every right to enter the home to search for the defendant.Id. at 334. However, in this case, there was no need to search for the defendant as he quickly answered the door, within 10-15 seconds according to Sergeant Hess. In the course of arresting Mr. Brown, Sergeant Hess brought him just outside of the front door of the apartment, leaving the door open. The witnesses, including Mr. Brown, were unanimous in their testimony that, at this time, Mr. Brown was handcuffed and in his bathrobe, with no clothes on underneath the robe. He asked twice to put on some clothes, at which point Detective Berry said that before she allowed him to reenter the apartment to dress, she would have to do a security check for weapons and people. In such a situation, it is not unreasonable that Mr. Brown would have acquiesced to the check, which we find he did voluntarily.
Then, Sergeant Hess asked Mr. Brown specifically whether there were any weapons or other people in the apartment, and Mr. Brown said no to people, but yes to weapons. At the suppression hearing, we found that such information regarding the presence of weapons in the apartment would be the kind of information that a seasoned law enforcement officer would latch onto and remember. Also, "Mr. Brown at this point is handcuffed, and he's wanting to put on his clothes; so, he has more reason than he might otherwise have had to admit that there were firearms [in the apartment] because he sensed they were going to be found anyway. He wasn't threatened or promised. He just wanted to get his clothes on." (Tr. pp. 106-107).
Under Buie, the police may walk through rooms adjacent to the one in which they make an arrest to ensure that no danger lurks within. The officers need not demonstrate any danger; they may look simply as a precaution. U.S. v. Brown, 64 F.3d 1083, 1086 (7th Cir. 1995). Moreover, Mr. Brown's admission that there were weapons on the premises is an "articulable fact" which, taken together with the rational inferences from that fact, would warrant a reasonably prudent officer in believing that the area to be swept harbors a danger to those on the arrest scene.Buie, 484 U.S. at 334.
The Buie Court emphasized that a protective sweep, aimed at protecting the arresting officers, is not a full search of the premises, and may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises. Id. at 335-36. Detective Berry and Lieutenant Robert testified that the sweep lasted two to five minutes and encompassed only obvious places where people or weapons might be hiding. The handgun was found in an open drawer. In a closet reasonably accessible to the viewer passing by was the rifle case, a telltale sign of a rifle or long gun of some sort. When Detective Berry went to the respective rooms to identify the guns and gather them up to be taken into custody, she also saw the handgun receipt lying in plain view on the dresser or on the laundry basket immediately adjacent to the dresser. Finally, Detective Berry said she saw Mr. Brown's wallet in plain view on a table in the living room. She had reasonable suspicion concerning whether Mr. Brown was being truthful about his identity. In the wallet, she found the driver's license with a photo matching the likeness of Peter Brown, but containing the false name of Chris Freeman, one of the defendant's known aliases. The Seventh Circuit has said that an investigating officer need not close his eyes to what he sees during the sweep, and any contraband that he observes in plain view may lawfully be seized. U.S. v. Arch, 7 F.3d 1300, 1303 (7th Cir. 1993) (citing Buie, 494 U.S. at 330).
Under the totality of the circumstances, we find that the security check as described above constituted a constitutionally permissible protective sweep under Buie. In addition, the security check was permissible under the doctrine of exigent circumstances. Exigent circumstances exist when police officers reasonably believe that preserving their own safety or the safety of others compels swift action and that they therefore cannot wait to obtain a search warrant. Mincey v. Arizona, 437 U.S. 385, 392 (1978); see also U.S. v. Ware, 914 F.2d 997, 1000 (7th Cir. 1990). The Mincey court, in its discussion of exigent circumstances, included as an example the search of an arrested suspect and the area within his control for weapons or evidence. A search of an arrested suspect (Mr. Brown) and the area within his control (his apartment) for weapons or evidence (the handgun, the rifle, the gun receipt, and the driver's license) is exactly what occurred in this case. See also U.S. v. James, 40 F.3d 850, 863 (7th Cir. 1994).
Thirdly, there is convincing evidence of Mr. Brown's consent, that he permitted the protective sweep to occur in order to get dressed before being taken to jail. Whether or not his consent was otherwise voluntary, Mr. Brown's consent was unequivocally established as a condition of probation. Paragraphs 4 and 7 of the Order of Probation permit authorized law enforcement representatives to enter the defendant's residence and to search his person, vehicle, or property at any time. Accordingly, for the reasons stated above, we DENY Defendant Peter Brown's Motion to Suppress.
Conclusion
For the reasons explained above, we conclude that the security check performed by the law enforcement officers was constitutionally permissible (1) as a protective sweep underMaryland v. Buie, 494 U.S. 325 (1990), and (2) under the exigent circumstances doctrine in Mincey v. Arizona, 437 U.S. 385, 392 (1978). We also find that Mr. Brown consented to the search of his apartment both in order to avail himself of the opportunity to get dressed and as a condition of his probation. Accordingly, we DENY Defendant Peter Brown's Motion to Suppress.
It is so ORDERED.