U.S. v. Russ

• Decision Date: 18 February 2011
• Docket Number: Case No. 4:10–cr–309.
• Citation: 772 F.Supp.2d 880
• Parties: UNITED STATES of America, Plaintiff,v.Damien T. RUSS, Defendant.
• Court: U.S. District Court — Northern District of Ohio

772 F.Supp.2d 880

UNITED STATES of America, Plaintiff,

v.Damien T. RUSS, Defendant.

Case No. 4:10–cr–309.

United States District Court, N.D. Ohio, Eastern Division.

Feb. 18, 2011.

Linda H. Barr, Office of the U.S. Attorney, Youngstown, OH, for Plaintiff.

MEMORANDUM & ORDER

KATHLEEN McDONALD O'MALLEY ^*, Circuit Judge.

On July 27, 2010, Defendant Damien T. Russ (“Defendant” or “Russ”) was charged in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Before the Court is Defendant's Motion to Suppress (Doc. 24), in which he asks this Court to suppress “all evidence obtained during and after the seizure of the Defendant and during the search by law enforcement officers.” Specifically, Russ seeks to suppress the firearm at issue, which, according to the government, Russ discarded while fleeing from police officers. The government filed a response to the Motion (Doc. 25), and the Court conducted a suppression hearing on December 16, 2010. Given the vague and cryptic nature of the parties' initial briefing, the Court ordered a transcript of the suppression hearing, and instructed the parties to file simultaneous supplemental briefs within ten days from receipt of the transcript. The final transcript of the suppression hearing was filed on December 28, 2010, and both parties filed their supplemental briefs on January 10, 2011 (Docs. 30 and 31.) Russ's Motion, having been fully heard and briefed, is now ripe for consideration. For the reasons articulated below, Russ's Motion to Suppress is DENIED.

I. BACKGROUND

On July 10, 2010, Deputy U.S. Marshal William Boldin (“DUSM Boldin”) and Christopher Bordonaro, a detective with the Lordstown Police Department, were working as members of the Northern Ohio Violent Fugitive Task Force, a task force administered through the U.S. Marshals Service. Specifically, DUSM Boldin and task force officer (“TFO”) Bordonaro were assigned as partners working as part of the Violence and Gun Reduction and Interdiction Program (“V–GRIP”). In that capacity, at roughly 2:30 a.m., DUSM Boldin and TFO Bordonaro (referred to collectively as “the Officers”) responded to a call to assist the Warren Police Department with a large fight taking place at the Powerhouse Bar and Grill located in Warren, Ohio. DUSM Boldin testified that “there had been several shootings” and “gun-related crimes” at the Powerhouse, “mostly occurring at bar closing time.” (Doc. 29, Suppression Hearing Transcript, at 39:18–24.) The Officers arrived at the Powerhouse in an unmarked, dark colored Dodge Charger. DUSM Boldin was driving the vehicle, and TFO Bordonaro was in the passenger seat. Both officers were wearing bulletproof vests marked with the name of their particular law enforcement agency.¹

When the Officers arrived at the Powerhouse, they first pulled into the parking lot by the front entrance, which is on the south side of the building. ( Id. at 5:20–6:9.) While there, the Officers, along with other members of the task force, dispersed the crowds that had gathered in the parking lot in conjunction with the large fight. ( Id.) They then proceeded to the back parking lot, which is on the north side of the building. DUSM Boldin testified that he was driving at an “[e]xtremely slow” speed and that they were “just patrolling the area.” ( Id. at 102:24–103:1.)

When the Officers pulled into the back parking lot, they observed a white Cadillac parked near the employee entrance of the bar and a second vehicle parked to the left of the employee entrance staircase. ( Id. at 23:7–18.) They also observed two individuals near the employee entrance—Russ and a woman later identified as Michelle Jones, Russ's girlfriend. DUSM Boldin testified that he parked his vehicle in such a way that it was not blocking either vehicle from exiting. Indeed, Boldin explained that he “parked farther to the north end of the parking lot ... which is why [Jones] was actually able to pull out in her car when she left, because my car was still there.” (Doc. 29 at 103:20–104:3.)

The Officers observed Russ walking down the stairs from the employee entrance towards the Cadillac but noticed that, when he saw the officers pull into the lot, Russ “started to walk away from the car.” ( Id. at 28: 1–5.) DUSM Boldin recognized Russ from prior “law enforcement contacts with him,” but could not recall his name or why he remembered him. ( Id. at 40:25–41:10.) The Officers exited their vehicle and DUSM Boldin approached Russ. Boldin testified that,

immediately as I started to walk close to him, before I could really even say or do anything, he appeared startled, he appeared nervous, basically took a fighting stance. He clenched his fist, got a very determined look on his face, and began looking to his left and his right every rapidly.

(Doc. 29 at 42:1–5.) Based on Russ's behavior, DUSM Boldin “felt that there was something wrong,” and asked Russ “if everything was okay.” ( Id. at 42:16–19.) Russ responded “no,” and “[a]s he was saying that he began to clench his fists” and took a “fighting stance.” ( Id. at 42:21–24.) Boldin testified that, at that point, he:

felt that something was going to happen. I wasn't sure if he was going to run, if he was going to assault me, or what was going to happen, but I saw indicators that something bad was going to happen, something out of the ordinary. I immediately started to yell at him not to do it, whether it was going to be to run or fight, or whatever he was going to do. I said, “Don't do it.”

( Id. at 42:25–43:6.) As he was telling Russ “don't do it,” DUSM Boldin recalls that Russ “was raising his hand towards me, kind of swung his left arm towards me, and began to run.” ( Id. at 43:8–9.) DUSM Boldin testified that, as Russ “began to charge and swing” at him, Boldin grabbed at Russ, but his grabbing “was in response to [Russ's] aggressive action.” ( Id. at 104:4–9.) ² Russ made “a pushing kind of contact” with Boldin, causing Boldin to lose his balance momentarily on the gravel parking lot. ( Id. at 43:12–18.) As he was regaining his balance and turning to chase Russ, DUSM Boldin noticed a “shiny object in his right waistband area” which he “instantly recognized [ ] as a firearm.” ( Id. at 43:17–21.)

DUSM Boldin yelled to TFO Bordonaro that Russ had a gun, and used his radio to notify other officers in the area that they were chasing an individual who had a firearm. Both of the Officers pursued Russ on foot, and TFO Bordonaro deployed his taser, which struck Russ in the back but was ineffective in stopping him. ( Id. at 10:17–11:15.) The Officers testified that they lost sight of Russ temporarily, but ultimately located him hiding behind trees and bushes near the front porch of a house. ( Id. at 47:3–19.)

Although the Officers ordered Russ to come out from his hiding place, Russ failed to comply and had to be physically removed. He was then arrested, but did not have the firearm on his person at the time of arrest. (Doc. 29 at 49:10–19.) Accordingly, a canine unit responded to the scene to search for the weapon. The dog searched along the path Russ had traveled, and alerted the Officers to a specific area to search. ( Id. at 49:10–50:2.) DUSM Boldin observed the weapon laying on the ground in the identified area, and waited for officers from the Warren police department to photograph the gun and take it into evidence. ( Id. at 50:21–51:2.) TFO Bordonaro testified that, although the ground conditions in the area were wet, he observed that the firearm appeared to be dry. ( Id. at 17:10–17; see id. at 34:1–8; see also id. at 63:1–8 (DUSM Boldin similarly testified that the gun was dry).) Neither Boldin nor Bordonaro handled the firearm. TFO Bordonaro testified that he did not know whether the weapon was tested for fingerprints or if any ballistics were run. ( Id. at 34:9–11.)

At the suppression hearing, Russ offered the testimony of his girlfriend, Michelle Jones, who paints a different picture of the events that took place on July 10, 2010. Jones testified that they were at the Powerhouse that night because Russ worked there as a freelance photographer. At the time of the encounter, Russ had been taking photographs of patrons at the Powerhouse for approximately six (6) months. (Doc. 29 at 69:17–70:7.) Around 3:00 a.m., she and Russ were getting ready to leave the Powerhouse, and exited through the employee entrance on the north side of the building where they had parked their cars. According to Jones, she had parked her 2006 Pontiac Solstice roughly two (2) feet behind Russ's Cadillac.

Jones testified that, as she and Russ were walking to their cars, a “black Charger just swarmed into the parking lot.” ( Id. at 75:13–16.) According to Jones, the Charger stopped facing the Cadillac at a diagonal in such a way that prevented Russ from getting into his car and blocked both of them from exiting the parking lot. ( Id. at 77:21–78:7.) Jones testified that DUSM Boldin “jumped out the car and went up to Damien and grabbed his shoulder.” In response, Russ swung his arm around in an effort to “maneuver the police officer's hand from his shoulder.” ( Id. at 78:8–25.) The next thing Jones recalls is Russ tossing his camera to her before he took off running. Jones testified that she was scared during the encounter and did not know if she had a right to leave during the interaction with the Officers. ( Id. at 80:13–21.) Once the Officers started to chase Russ, Jones got in her car and left, though she asserts she needed to drive over a curb to do so. ( Id. at 80:5–8.)

Jones testified that she had spent roughly six (6) hours at the Powerhouse with Russ and never saw a gun on him. She explained that, if Russ had a gun on his person she would have noticed it while they were slow dancing or when Russ was taking pictures, because “every time he would lift his camera his underwear would show” and the only thing on his belt was a key chain that had on it two sets of car...