U.S. v. Kirk
| Decision Date | 14 October 2005 |
| Docket Number | No. CRIM. 4:05CR52.,CRIM. 4:05CR52. |
| Citation | 392 F.Supp.2d 760 |
| Parties | UNITED STATES of America v. Levon Watts KIRK. |
| Court | U.S. District Court — Northern District of Mississippi |
Presently before the Court is Defendant's motion to suppress. On October 4, 2005, the Court heard testimony and oral argument in the above styled case addressing Defendant's motion. Upon due consideration of the testimony and proof presented, the Court finds that the motion should be denied.
On the morning of June 19, 2004, Levon Watts Kirk and a juvenile female arrived at the Fairfield Inn in Greenville, Mississippi. While Kirk went inside to see if he had enough "complimentary" points to obtain a room, the juvenile waited outside. Prior to entering the hotel, Kirk transferred a firearm, cigarettes, and keys to the juvenile. Upon arriving in the room, Kirk instructed juvenile to place the firearm on the bed. The juvenile stated that she put the gun under the left side of the mattress to get it out of the way.
On that same morning at 9:30 A.M., Officers Mark Hodges and Ozell Clay of the Greenville Police Department were dispatched to the Fairfield Inn in reference to the welfare of a female juvenile. Upon arrival, the officers met with Christine Tills, who told them that she was concerned because her sixteen-year-old daughter was in a hotel room with Levon Kirk. Officer Hodges was familiar with Kirk and was aware that Kirk had an outstanding warrant for his arrest for contempt of court. Officer Hodges called and confirmed the warrant. The officers then summoned hotel security, which informed the party that Levon Kirk and the juvenile were in Room 312.
Security Officer John Norals escorted Christine Tillis and the officers to Room 312. The group knocked on the door and waited. After a few moments, Levon Kirk opened the door. Christine Tillis asked Kirk if her daughter was in the room. Kirk told her "no," but then stated, "You can check the room if you want to." Christine Tillis entered the room and found her daughter in the corner dressing herself. Hodges advised Kirk that there was an outstanding warrant for his arrest and told him to place his hands behind his back. Kirk attempted to run and struggle, but the officers handcuffed Kirk and took him away.
Security Officer Norals returned to Room 312 after a family member asked for personal items belonging to the juvenile female. There is disputed testimony as to whether the juvenile told them she left items in the room or another family member told them. While in the room, Norals noticed a small black gun that was sticking out from between the mattress on the left side of the bed. Norals notified the police because it was hotel policy to notify the police when a weapon was found in the room. Officer Clay returned to the room and stated he could see an object between the mattress. When Norals lifted the mattress, Officer Clay retrieved the firearm.
During an interview, the female juvenile told Greenville Police that the gun found in Room 312 belonged to Levon Kirk. She explained that Kirk had given it to her earlier in the day and that she placed it between the mattress. The juvenile signed a statement and testified in front of the grand jury that Kirk gave her the gun and that it was his. In addition, she told the grand jury that she was going to change her story, but knew it was a lie to do so. During the suppression hearing, the female juvenile told a completely different story and stated that the gun was not Kirk's but instead belonged to her brother's friend. Upon cross-examination, she stated that she had made a statement and testified in front of the grand jury that the gun did belong to Kirk. Kirk was advised of his Miranda rights, but chose not to make a statement.
Kirk has been charged as a career criminal in possession of a firearm 18 U.S.C. § 924(e), and with delivering a firearm into the possession of a known juvenile 18 U.S.C. § 922(x)(1)(A). The Defendant now moves to suppress the admission of this evidence and challenges his detention at trial based upon the Fourth and Fifth Amendments of the United States Constitution and Section 23 of the Mississippi Constitution. Defendant's motion was one sentence long and did not contain any authorities or facts to support his assertions. A hearing was held in Aberdeen on October 4, 2005. In addition, counsel were provided an opportunity to file supplemental briefs; the Defendant elected not to do so.
The Fourth Amendment protects against illegal searches and seizures. U.S. Const. amend. IV. When, as the case is here, a warrantless search or seizure is challenged, the government bears the burden of establishing its validity by a preponderance of the evidence. U.S. v. Matlock, 415 U.S. 164, 178 n. 14, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974) (); U.S. v. Wallen, 388 F.3d 161, 164 (5th Cir.2004) ().
"There is no question that [a] wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and such private wrongdoing does not deprive the government the right to use the evidence.'" United States v. Jenkins, 46 F.3d 447, 460 (5th Cir.1995) (quoting United States v. Bazan, 807 F.2d 1200, 1202 (5th Cir.1986), cert. denied, 481 U.S. 1038, 107 S.Ct. 1976, 95 L.Ed.2d 816 (1987)); Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). However, if a private citizen acts as a government agent or instrument, then that citizen violates the Fourth Amendment by engaging in an unlawful search. Bazan, 807 F.2d at 1202. See Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564 (1971).
In Bazan, the Fifth Circuit adopted the Ninth Circuit's two-pronged test to determine whether a private party has acted as a government agent. 807 F.2d at 1203; e.g. United States v. Pierce, 893 F.2d 669, 677 (5th Cir.1990). The Ninth Circuit held that the two critical factors in the instrument or agent analysis are: (1) whether the government knew of or acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement or to further his own ends. United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982). "[D]e minimis or incidental contacts between the citizen and law enforcement agents ... will not be subject to Fourth Amendment scrutiny." Id. The government must be an active participant or an encourager of the private citizen's actions for the citizen to become an instrument of the state. Id.
In the case sub judice, the searches(s) were performed by private parties. The first search was Christine Tillis' search for her daughter. Ms. Tillis was a private citizen and her motives were purely personal, the location and safeguarding of her daughter. The second search involved Security Guard John Norals' search of Room 312 for the juvenile's personal belongings. Norals was acting on behalf of Tillis' family, at their suggestion, and at the suggestion of his hotel superiors. The government was not a participant in his search, nor was it the encourager of it. Norals' search was intended to find personal belongings when he spotted the firearm between the mattress. Therefore, the Court finds that Tillis and Norals were private parties and neither was acting as a government agent or instrument. Thus, the Court finds no Fourth Amendment violation.
The "plain-view" doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable. Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306, 110 L.Ed.2d 112 (1990). The "plain-view" doctrine must justify an exception to concerns implicated to seizures rather than searches. Id. The criteria for the "plainview" doctrine were laid down by Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). "It is well established that under certain circumstances the police may seize evidence in plain view without a warrant." Coolidge, 403 U.S. at 453, 91 S.Ct. 2022. The Supreme Court has found the plain view doctrine applicable in several instances. First, the police may inadvertently find evidence while in "hot pursuit" of a fleeing suspect. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Second, an object comes into plain view during a search incident to an arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Finally, the police officer is not searching for evidence against the accused, but comes across an incriminating object. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).
In Horton, the Supreme Court modified its plain-view doctrine by adding a few conditions. First, the Supreme Court stated it was an essential predicate that the officer seizing the evidence did not violate the Fourth Amendment in arriving at the place the evidence could be plainly viewed. Horton, 496 U.S. at 137, 110 S.Ct. 2301. The Court also stated that the item must be in plain view, and its incriminating character must be readily apparent. Id.; Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1154, 94 L.Ed.2d 347 (1987).
In the present case, a police officer did not conduct the search of the room that led to the discovery of the firearm. Hotel Security Guard John Norals was the person who spotted the gun. Norals was searching for personal items belonging to the female juvenile. The firearm he found was in plain view because it was protruding out between the mattress. Norals did not arrive at the scene of...
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...Fourth Amendment and such private wrongdoing does not deprive the government the right to use the evidence.' " United States v. Kirk, 392 F.Supp.2d 760, 764 (N.D.Miss.2005) (quoting United States v. Jenkins, 46 F.3d 447, 460 (5th Cir.1995)). "However, if a private citizen acts as a governme......
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