U.S. v. Radford

• Decision Date: 17 July 2000
• Docket Number: No. Crim.A. 99-50049.,Crim.A. 99-50049.
• Citation: 106 F.Supp.2d 944
• Parties: UNITED STATES of America, Plaintiff, v. Jason Von RADFORD, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

106 F.Supp.2d 944

UNITED STATES of America, Plaintiff, v. Jason Von RADFORD, Defendant.

No. Crim.A. 99-50049.

United States District Court, E.D. Michigan, Southern Division.

July 17, 2000.

Richard J. Amberg, Jr., Waterford, MI, Kenneth R. Sasse, Flint, MI, David W. Wright, Bloomfield Hills, MI, for defendant.

James C. Mitchell, U.S. Atty's Office, Bay City, MI, for U.S.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS

GADOLA, District Judge.

Presently before the Court is defendant Jason Von Radford's motion to suppress evidence and statements. Said motion was filed on June 28, 2000. The government responded to defendant's motion on June 29, 2000. On July 13, 2000, an evidentiary hearing on defendant's motion was conducted, the Honorable Paul V. Gadola, presiding.

For the reasons set forth below, the Court shall GRANT defendant's motion to suppress evidence and statements.

I. FACTUAL BACKGROUND

During the evidentiary hearing on July 13, 2000, the government presented testimony of the following five witnesses: (1) Sgt. Alan R. McLeod; (2) Sgt. Mark Blough; (3) Officer Tracy Bird; (4) Sgt. Richard Hetherington; and (5) Officer Karl Petrich. Defendant did not testify nor present any defense witnesses. The Court will make clear, in the discussion below, the stark inconsistencies revealed by the testimony of the various government witnesses.

On February 6, 1998, Flint police officers observed one Talmadge Butler pull into the driveway of a residence located at 2002 Proctor, Flint, Michigan. Mr. Butler was driving a 1988 blue Cadillac. The vehicle had been followed to that residence as part of the investigation and surveillance of suspected drug traffickers in the City of Flint area.

At approximately 11:36 a.m., Butler, the sole occupant, exited the vehicle and entered the residence. He was observed to be empty-handed. Shortly thereafter, at 11:42 a.m., Butler left the residence and returned to the vehicle. At this point, there is disagreement as to what, if anything, was seen in Butler's hands.

Sgt. McLeod, who was not at the scene, was listening to the police radio when Butler exited the residence. According to the sergeant, Officer Petrich, who was watching the residence, stated over the radio that Butler exited the residence carrying "something." However, this allegation was flatly contradicted by the testimony of Officer Petrich at the evidentiary hearing. According to Petrich, he never saw Butler carrying anything out of the house.

After exiting the residence, it is uncontested that Butler reached into his vehicle, opened the hood and began "messing around" in the area where the battery would usually be found. After a few seconds, Butler closed the hood, re-entered the car, and proceeded to leave the scene.

Sgt. McLeod further testified that Officer Petrich also reported over the radio that the suspect, later identified as Butler, placed a "brown paper bag" under the hood of the blue Cadillac. Again, at the hearing Officer Petrich vehemently denied that he ever saw Butler place anything under the hood of the car. Instead, Officer Petrich testified that Butler was simply "messing around" in the area where the battery would usually be found.¹

After Butler drove away from the residence, a marked Flint police car was asked to intercept the Cadillac and perform a vehicle stop. However, Butler refused to stop and led officers on a short chase which ended when Butler rammed two police cars in an attempt to flee the scene. Butler was arrested. Officer Randolph Tolbert opened the hood of the Cadillac and found a brown paper sandwich bag behind the left front headlight. The bag contained approximately 90 grams of crack cocaine.

Shortly after Butler was apprehended, at approximately 12:00 p.m. (noon), the police officers at the residence observed defendant Jason Von Radford exit the house in the company of his four year-old son. Defendant entered his car, started it, and was preparing to leave the driveway of the residence when officers, with guns drawn, ordered defendant to exit the vehicle. Defendant was handcuffed and detained. At this juncture, according to Sgt. McLeod's testimony, the officers had no specific information that defendant was involved in any criminal activity.

At 12:05 p.m., Sgt. McLeod and Officer Villareal knocked on the front door of the residence located at 2002 Proctor. Defendant was with them on the front porch when they knocked on the door. At the evidentiary hearing, Sgt. McLeod stated that he heard "running footsteps" inside the residence. Sgt. McLeod allegedly turned to defendant and asked whether there was anyone inside the residence. According to the sergeant, defendant responded, "Yes, and he [meaning the individual inside] should open the door." Sgt. McLeod testified that defendant never consented to the officers' entry into the residence. Sgt. McLeod further testified that because of the "running steps" he feared loss of evidence and decided to kick in the door.

Once inside the residence the officers found one Thomas Jefferson Atkins and his young son. Defendant was taken inside the residence. No Miranda warnings were provided to defendant at this time. Nor were they provided until approximately five hours later after defendant had been transported to the police station. During the time he was handcuffed and detained inside the residence, defendant told officers the location of crack cocaine, wrapping material, two digital scales, and firearms inside the house. Defendant also apparently made inculpatory statements.

According to the testimony of Officer Bird, defendant was very concerned that the cocaine recovered would be attributed to Mr. Atkins, the other occupant found inside the residence. In light of this concern, Defendant allegedly volunteered that the cocaine was his. Officer Bird testified that no questions were asked by the officers prompting this statement, although the officer admitted that she had engaged in a conversation with defendant.

At this juncture, Sgt. McLeod left the residence in order to obtain a search warrant. Sgt. McLeod testified that when he returned to police headquarters and began preparing the affidavit in support of search warrant, he telephoned Officer Petrich at the 2002 Proctor residence to ask him questions about what he had observed that day. See Affidavit and Application for Search Warrant, attached as Exh. D to Defendant's Brief. Officer Petrich took the call in the upstairs bedroom of defendant's residence.

Concerning their conversation, Sgt. McLeod maintains that Petrich initially stated that he did not see the brown paper bag when Butler exited the house, but that he had seen "something." McLeod further maintains that Petrich, however, stated that he did see Butler place a bag under the hood of his car prior to leaving the scene. According to McLeod, from these statements the sergeant made an "assumption" or "conclusion" that Petrich had observed the bag in Butler's hands immediately upon exiting the residence. This "assumption" was the basis for his affidavit statement that "Officer Petrich observed Talmadge Butler exit the ... west front door of 2002 Proctor carrying a brown paper bag." See Affidavit and Application for Search Warrant, ¶ 8.

Sgt. McLeod's version of their conversation is completely at odds with Officer Petrich's testimony. Petrich testified that he told Sgt. McLeod on the telephone that he had seen Butler messing around under the hood, close the hood and then drive away. According to Petrich, as mentioned above, Petrich never saw Butler carrying "something" out of the house. Petrich testified that he also did not see the suspect put anything in the car. According to Petrich, during their conversation Sgt. McLeod indicated that he would state in his affidavit in support of search warrant that Officer Petrich had observed the brown paper bag so that they could "get into the house." See Report of Sgt. Richard D. Hetherington, attached as Exh. A to Defendant's Brief.

Immediately after their conversation, Officer Petrich testified that he approached Sgt. Hetherington to seek his advice. See id. Sgt. Hetherington later prepared a report concerning what Petrich told him regarding the telephone conversation with Sgt. McLeod. Officer Petrich was concerned because Sgt. McLeod apparently was going to make false statements in his affidavit. The following language contained in Sgt. Hetherington's report summarizes the telephone conversation between Petrich and McLeod:

Ofc. Petrich ... indicated that Sgt. McLeod inquired whether or not Ofc. Petrich observed a "brown paper bag" when Butler was exiting the residence [2002 Proctor], and messing around under the hood. Ofc. Petrich stated that he replied that he did not. Ofc. Petrich advised that Sgt. McLeod then stated that the affidavit would indicate that Ofc. Petrich "had" observed the brown paper bag, so that we could "get into the house."

Exh. A to Defendant's Brief, p. 2 (emphasis added). Sgt. Hetherington's testimony at the evidentiary hearing fully supports the statements made in his report.

Based on the affidavit containing Officer Petrich's alleged observations, Sgt. McLeod obtained a search warrant for 2002 Proctor, Flint, Michigan. See Exh. C attached to Defendant's Brief. The warrant was executed between 3:20 and 3:25 in the afternoon of February 6, 1998. The search lasted approximately two hours. During the search, Officer Bird located approximately 200 grams of cocaine, in both crack and powder form, hidden in a dog food bag, as well as another firearm.

At approximately 4:58 p.m., defendant was provided with Miranda warnings after being transported from the residence to the Flint police station. According to Sgt. McLeod, at that time defendant stated that he wanted an attorney. Sgt. McLeod then testified that even though defendant had asked for an attorney and no interrogation occurred, defendant thereafter blurted...