U.S. v. Troxel

• Decision Date: 17 April 2008
• Docket Number: Case No. 07-20051-JWL.
• Citation: 547 F.Supp.2d 1190
• Parties: UNITED STATES of America, Plaintiff, v. John D. TROXEL, Defendant.
• Court: U.S. District Court — District of Kansas

547 F.Supp.2d 1190

UNITED STATES of America, Plaintiff, v. John D. TROXEL, Defendant.

Case No. 07-20051-JWL.

United States District Court, D. Kansas.

April 17, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Terra D. Morehead, Office of United States Attorney. Kansas City, KS, for Plaintiff.

MEMORANDUM & ORDER

JOHN W. LUNGSTRUM, District Judge.

On October 23, 2007 Mr. Troxel was indicted in a Superseding Indictment on three counts of being an unlawful user of a controlled substance who possessed firearms, (doc. # 18) The matter is presently before the Court on Mr. Troxel's Motion to Suppress (doc. # 14) and the Government's response thereto (doc. # 23). The Court conducted an evidentiary hearing on the Motion on March 17, 2008. After thoroughly considering the parties' arguments and the evidence, the Court denies the Motion in part and orders supplemental briefing on the remaining issues, as set forth by the Court in Part IV.

FINDINGS OF FACT

Sergeant Chambers of the Anderson County Sheriffs Department received a phone call from Ms. Norma Troxel on July 28, 2006, around 8:50pm. Ms. Troxel said that her husband, the defendant in this case, was tearing up their house, that he had been up four or five days on some kind of drug, that they had a dispute, and that she had taken her dog and left the residence. She said the house was located at 18084 Northwest 2500 Road, Williamsburg, Kansas, about a mile east of Colorado Road. It is in a rural area. Sergeant Chambers advised her to stay away from the residence and that the officers would try to locate Mr. Troxel to see what the situation was. Ms. Troxel responded that if there was a red car in the driveway, Mr. Troxel would be at the residence.

Sergeant Chambers and Trooper Jason Mills of the Kansas Highway Patrol responded to a house on 2500 Road. Sergeant Chambers saw a white and brown double-wide trailer with a red car in the driveway, but with no identifying address numbers. The officers knocked on the door, but there was no response. The officers called Ms. Troxel and met her about a mile away where she was waiting.

When Sergeant Chambers initially arrived, Ms. Troxel told him that she and Mr. Troxel were having problems because Mr. Troxel thought that she was going through his items. He said that Ms. Troxel implied to him that the argument was about Ms. Troxel going through Mr. Troxel's items in his room, also referred to as the "gun room."¹

Sergeant Chambers asked Ms. Troxel for consent to go into the residence to look for Mr. Troxel. She agreed and accompanied the officers to the home at which the officers had previously been. The red car was still in the driveway. She unlocked the back door and let the officers in. Sergeant Chambers had Ms. Troxel accompany them because he thought it was safer for her to be with them than outside when Mr. Troxel's exact location was unknown. Sergeant Chambers identified himself as he entered but did not hear any noise in response.

Immediately upon entering, the officers observed that cabinets were torn off and drawers were broken in the kitchen. In the living room, there was a broken fan and a potted plant had been thrown against the wall. Sergeant Chambers checked the bathroom, including behind the shower curtain, but did not find Mr. Troxel.

Sergeant Chambers then went into the "gun room," which was a small room that had a big gun vault, a work bench, and no door. Sergeant Chambers testified that there was nothing in the room that was feminine or would have led him to believe that it was Norma's room. Ms. Troxel was waiting in the hallway. The sergeant entered the room and checked behind boxes by the work bench, which was on the east and north wall. He then walked over to check the gun vault, which was on the opposite wall. As he walked towards the gun vault, he passed a wooden stool that had a plastic, one gallon one quart ice cream bucket sitting on top of it with no lid. As he walked passed it he looked down and saw several syringes inside the bucket. The sergeant also saw a "dugout," a wooden container used to hold marijuana and tube to smoke it, on top of the work bench. When he picked it up, he could smell the marijuana.

Based on his training, Sergeant Chambers believed the syringes were possible drug paraphernalia used to ingest methamphetamine, heroin, or cocaine. He asked Ms. Troxel both if Mr. Troxel was a diabetic who used insulin and also whether the syringes were used for their horses. Ms. Troxel said that he was not a diabetic, and they were not used for the horses. At the time when the officer was asking Ms. Troxel about the syringes, Ms. Troxel told the officer that the room was Mr. Troxel's room and that during the entire time they had lived at the house, she was not allowed to go into that room.² Sergeant Chambers did not clarify the details of the agreement about the room between Mr. and Ms. Troxel. Instead, he asked Ms. Troxel for consent to search the whole residence, including that room, for any other drug paraphernalia or drugs. She gave consent.

Sergeant Chambers then recovered a cooler that was on the floor next to the barstool, and he found a glass pipe with a piece of cotton and some residue on it, a cigar container with two syringes in it, rolling papers, a rolling machine, and a bag of green vegetation. Based on his experience, the sergeant thought that the residue was methamphetamine, but it was later determined by laboratory tests to be cocaine. He thought the cotton ball could have been used to strain the narcotics prior to injection. The sergeant thought this was consistent with methamphetamine use and Ms. Troxel's statement that Mr. Troxel had been up for four or five days on some kind of drug. The officer testified that a complete search for drugs or other drug paraphernalia was conducted that night. The officers searched the rest of the house, but Mr. Troxel was not found. At some point before the officers left the house. Ms. Troxel had told them that the physical and verbal abuse caused her to call the police and Sergeant Chambers believed a domestic battery had occurred.

The next day, July 29, 2006, another officer told Sergeant Chambers that he received a call from Ms. Troxel around 3:15pm. Sergeant Chambers went to the Troxel's residence around 4:00pm but there was no answer when he knocked on the door. The sergeant and the other officer returned to the sheriffs office. Ms. Troxel called the office because she wanted the officers to accompany her while she fed her horses. She indicated she was scared because when she went to the house that morning, Mr. Troxel was again tearing up the house and threw a cup of water at her car and cussed her out before she left. The officers went back to the house where they met Ms. Troxel, who again gave them consent to enter to find Mr. Troxel.

The officers entered the house and saw that it was "destroyed" and uninhabitable. They saw broken plumbing, no cabinets left on the wall, smashed television and chairs, and food all over the walls. All the rooms were similarly destroyed, with the exception of the "gun room." The "gun room" was cluttered and looked different than the day before but was not as trashed as the other rooms. The officers, led by a search dog, found Mr. Troxel lying on his bed, and he was taken into custody.

Sergeant Chambers again received consent from Ms. Troxel to search the residence. The sheriff that was with him suggested that Sergeant Chambers should get a search warrant before doing a complete search of the residence. The sheriff contacted Detective Valentine with the Anderson County Sheriffs Department. Detective Valentine testified that the information on the warrant and affidavit came from Sergeant Chambers. This included what items they had recovered during the July 28, 2006, search. He told the detective that some items were found in plain view and others in a cooler. He also told the detective the address was 18084 Northwest 2500 Road and described the physical description of the residence. At some point prior to obtaining the federal search warrant on August 2, 2006, it was determined that 18084 did not exist on that road and that the Troxel's address number was 14084. Detective Valentine said that he knew the officers had done a complete "walk through" search and that they wanted to do a complete search of the residence based on the search warrant. He did not include in the application why they thought they would find additional drugs or paraphernalia. He did not call Sergeant Chambers to verify that the information he had written was accurate. Sergeant Chambers and Trooper Mills waited at the residence while the search warrant was prepared and approved by the magistrate judge. The detective arrived with the search warrant, and the three officers completed a search of the home. They recovered a smoking device and a tin can with stems and seeds of marijuana in it on a shelf in the "gun room".

A few days later Ms. Troxel also turned over to the officers a pipe and a syringe that she had found. Around the same time, Sergeant Chambers ran a criminal background check on Mr. Troxel and found that he possibly had a prior felony conviction. He called the Bureau of Alcohol, Tobacco, Firearms, and Explosives because he knew about the guns in the house. On August 2, 2006, Special Agent Christopher Cannon with the ATF, applied for and received a search warrant for 14084 NW 2500 Road. He based the application in large part on the police report provided by Sergeant Chambers, as well as information from Ms. Troxel and other ATF agents. He said that but for the Anderson County investigation, he would not have applied for a search warrant for the Troxel's residence. Also, he included information in the application about the "gun room," such as that the gun vault was located within a room that Mr. Troxel did not allow Ms. Troxel to enter and that Mr. Troxel historically forbade her entry into the...