U.S. v. Hardeman
| Citation | 36 F.Supp.2d 770 |
| Decision Date | 25 January 1999 |
| Docket Number | No. 98-50025.,98-50025. |
| Parties | UNITED STATES of America, Plaintiff, v. Walter Wimb HARDEMAN, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Saul A. Green, United States Attorney, by James Mitchell, Asst. U.S. Atty., Flint, MI, for Plaintiff.
Wallace Capel, Federal Defenders Office, Flint, MI, for Defendant.
Presently before the Court is defendant Walter Wimb Hardeman's motion to suppress evidence filed on October 26, 1998. The government filed its answer and brief in response on November 9, 1998. Defendant has not filed a reply brief. Defendant seeks to exclude statements, the shotgun, handguns and ammunition found by officers of the Flint Police Department after their entry into defendant's residence absent a warrant. The government has conceded that it will not seek to introduce any evidence obtained subsequent to Mr. Hardeman's arrest, to wit: the two handguns and ammunition. The crucial issue in dispute between the parties is whether in fact defendant consented to the entry of the officers into his residence at approximately 7:00 p.m. on December 6, 1997. An evidentiary hearing was conducted on December 8, 1998, and continued on December 21, 1998.
For the reasons set forth below, this Court will grant defendant's motion to suppress.
According to police reports, on December 6, 1997, at approximately 5:30 p.m., two uniformed Flint police officers in a marked patrol car observed Cedric Hardeman leave defendant's house, located at 6681 Webster, Flint, Michigan. Officer Meyer, one of the officers on patrol, claimed to have information from other officers and a confidential informant that defendant Hardeman, i.e. Walter Hardeman, was living at 6681 Webster and was trafficking in cocaine. Officer Meyer was aware, according to reports, that defendant had been convicted of a drug felony charge in the past.
After exiting the residence, Cedric Hardeman entered the passenger side of a burgundy Chevrolet Corsica, driven by one Johnny Jackson. The officers subsequently confirmed by radio that this vehicle possessed a "wanted" status, meaning that although there was not enough probable cause to file a stolen vehicle report, if sighted the vehicle was to be stopped, the occupants identified, and information passed on to the officer investigating the case. See Defendant's Brief in Support of Motion to Suppress, p. 2. The officers tailed the vehicle and then attempted to pull it over. A high speed chase ensued, which resulted in a minor traffic accident, and subsequently a foot chase. Jackson, the driver, was arrested approximately one block from the abandoned Corsica. A police tracking dog led to the discovery of a cellular telephone and $2,101 in cash, and Cedric Hardeman hiding under a large, fallen tree.
Cedric Hardeman was arrested on two outstanding misdemeanor warrants charging reckless driving and transporting liquor. Cedric Hardeman eventually claimed ownership of the $2,101 in cash, as well as an additional $1,541 found on his person. Subsequent to the arrests of Cedric Hardeman and Jackson, Sgt. Blough, Officer Meyer, along with four other Flint police officers "went to 6681 Webster Road to further investigate possible drug activity at that location." See Government's Brief in Support of Response to Defendant's Motion, p. 2. Sgt. Blough was dressed in plain clothes, while Officer Meyer was in uniform, and no guns were drawn at the time of the initial entry.
The parties are in complete disagreement concerning the events surrounding the officers' initial entry into the residence. As the testimony described below will show, the government claims that Sgt. Blough and Officer Meyer stood on the porch of the residence and knocked on the door, while the remaining officers stayed behind in the yard. The government maintains that the door was answered by a Black male, later identified as defendant Walter Hardeman. Sgt. Blough then allegedly identified himself as a Flint police officer, investigating the arrests of two subjects who had left the residence earlier in the evening. At this point Sgt. Blough purportedly asked Mr. Hardeman if he could speak to him inside the residence, whereupon defendant turned around and walked back into the home. According to the government, at this point only Sgt. Blough and Officer Meyer entered the residence, the remaining officers remaining outside.
Upon entering the residence, Sgt. Blough reports that he observed five additional subjects, including: Derrick Alfonzo Weather-spoon, Ramona Anderson, Laraina Winfrey, as well as two male juveniles. Both parties agree that Sgt. Blough then asked if there were any drugs or weapons in the residence, whereupon defendant replied, "Yes, I have a shotgun in the closet." Defendant thereafter willingly led Officer Purcell, who had by that time entered the residence, to the southeast bedroom in order to retrieve the firearm. In the southeast bedroom closet, defendant showed the officer a Stevens 12-gauge shotgun, Model No. 820B, with no serial number. Officer Purcell checked the weapon to make sure it was unloaded, and then returned with the shotgun and defendant to the living room.
After returning to the living room, Officer Meyer asked defendant if he was a convicted felon. Defendant allegedly replied, "Yeah, I was convicted of a felony." Sgt. Blough then attempted to obtain Hardeman's consent to search the remainder of the house. Defendant Hardeman refused his consent for this search, and was placed under arrest on two outstanding misdemeanor warrants and for being a convicted felon in possession of a firearm, and was removed from the premises.
As to the time frame surrounding the events which transpired subsequent to defendant's arrest, there is considerable disagreement. Nevertheless, it is clear that Sgt. Blough then attempted to obtain a search warrant to search the remainder of defendant's home by contacting a Genesee county assistant prosecuting attorney. Blough testified that he went outside the residence and used his car phone to call the prosecutor in the hope that he could obtain a search warrant for the home. Thereafter, the sergeant left the scene to meet with the prosecutor downtown in an attempt to secure the warrant. The assistant prosecuting attorney, after being advised of the relevant circumstances, refused to seek a warrant for a search of defendant's residence. It may reasonably be inferred that the assistant prosecuting attorney concluded that there was not a sufficient legal basis upon which to seek a warrant for a search of defendant's home. Nevertheless, despite the lack of a search warrant and the prosecutor's decision to decline to seek a search warrant, police officers remaining at the scene proceeded to search the living room and bedroom. Sgt. Blough could not give an accurate estimation of the time which expired between the time he left for the meeting with prosecutor and the subsequent search. As a result of the post-arrest search, two handguns and ammunition were found. Id. The government has wisely conceded that these items will not be introduced into evidence, and defendant has not been charged with any crime in connection with these items.1
Since the parties are in dispute regarding the facts surrounding the officers' initial entry into defendant's residence, the Court will set forth the essential testimony of government witnesses Sgt. Mark Blough and Officer William Meyer. Thereafter, defendant's version of events will be summarized hereinbelow through a review of the testimony of defendant's witnesses, Ramona Anderson, Laraina Winfrey, and Derrick Alfonso Weatherspoon.
According to Sgt. Mark Blough, upon arrival at defendant's residence, the sergeant and Officer Meyer went to the porch of the house and knocked on the door. Sgt. Blough was not in uniform. However, Officer Meyer was in uniform, and neither had guns drawn. The other officers did not enter onto the porch area at this point, and were dressed in uniform. After knocking on the door, Sgt. Blough testified that "[t]he door was opened by a subject [defendant Hardeman] and I talked with him." Transcript of December 21, 1998 Hearing, p. 6. Sgt. Blough further stated that he proceeded to advise Mr. Hardeman that he and Officer Meyer were police officers, investigating Id. at 7. The following dialogue reflects Sgt. Blough's recollection of the crucial events impacting upon the consent issue:
After Sgt. Blough and Officer Meyer entered the house, defendant was questioned by the sergeant as to whether there were any drugs or guns in the house. Both defendant and the government agree that Mr. Hardeman then replied that he had a shotgun, located in the closet of his bedroom. Sgt. Blough instructed Officer Purcell to go with defendant to retrieve the shotgun. According to Sgt. Blough's testimony, Officer Purcell and defendant returned with the shotgun shortly thereafter, during which time Sgt. Blough remained in the living room, speaking with...
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