U.S. v. Saari

• Decision Date: 14 December 1999
• Docket Number: No. 99-20077 G.,99-20077 G.
• Citation: 88 F.Supp.2d 835
• Parties: UNITED STATES of America, Plaintiff, v. Michael SAARI, Defendant.
• Court: U.S. District Court — Western District of Tennessee

88 F.Supp.2d 835

UNITED STATES of America, Plaintiff, v. Michael SAARI, Defendant.

No. 99-20077 G.

United States District Court, W.D. Tennessee, Western Division.

December 14, 1999.

COPYRIGHT MATERIAL OMITTED

Tracy Lynn Berry, Assistant U.S. Attorney, Memphis, TN, for plaintiff.

Thomas J. Gibson, Assistant Fed. Defender, Memphis, TN, for defendant.

ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

GIBBONS, District Judge.

Before the court is defendant Michael Saari's motion to suppress evidence. Saari argues that all evidence, including statements, resulting from the unconstitutional search and seizure of his person and his residence, should be suppressed. The court referred this motion to United States Magistrate Judge Diane Vescovo pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Vescovo held a hearing on October 25, 1999, regarding Saari's motion to suppress. On November 1, 1999, the magistrate judge filed a report and recommendation.

Judge Vescovo recommended granting Saari's motion to suppress all the evidence seized during a search of his person and of his apartment, including specifically all of the firearms, ammunition, and any statements made by Saari. The United States filed objections to the magistrate judge's report and recommendation. Saari filed a response to the United States' objections. In the United States' objections, it argued that the issue of defendant's arrest was not clearly presented in defendant's motion to suppress, and therefore requested permission to present further evidence on that issue. On December 10, 1999, the court held an additional hearing to allow the United States an opportunity to present evidence on the issue of defendant's arrest.¹

The court adopts the magistrate judge's report and recommendation in this order with respect to the proposed findings of fact with several exceptions that are set forth later in this order. The court also makes additional findings of fact based on the evidentiary hearing held in this court on December 10, 1999. In addition, the court incorporates the magistrate judge's report and recommendation in this order with respect to Section II. Consent to Enter the Apartment, Plain View and Protective Sweep, and Section III. The Validity of the Search Warrant. With respect to Section I. The Arrest of the Defendant, the court finds that the magistrate judge's report was correct in its conclusions, but now deems it appropriate to set forth more explicitly the basis for this court's finding on the issue of defendant's arrest.

In the proposed finding of facts, the magistrate judge found that there was no indication that anyone had spoken to Anne Saari, defendant's ex-wife. Before this court, Officers Galeocredo Bateman and Robert C. Bridges both testified that they spoke to Ms. Saari, and questioned her about the defendant before proceeding to defendant's apartment.² The magistrate judge also found that Officers Currin and Bridges bypassed Ms. Saari's house. In the district court, Bridges testified that he and Currin were in separate cars and that he went to Ms. Saari's house and interviewed her about the disturbance and obtained enough information to fill out a report. Ms. Saari advised Bridges that defendant was armed at all times and had a history of being armed. Bridges then proceeded to defendant's apartment. The court finds credible the testimony of Bridges and Bateman concerning the contacts with Ms. Saari.

With respect to the findings regarding the police officers' initial contact with defendant and subsequent events, the court finds the facts as follows. Upon arriving at defendant's apartment, the four officers decided to approach the house and make contact with defendant. Cleveland testified that the front door was closed and the shades were drawn, but he saw some movement inside the apartment through the drawn shades. Defendant's apartment was on the second floor. Cleveland and Currin positioned themselves on a landing approximately in front of defendant's front door. Bridges stood about four steps down from the landing and Bateman was positioned at the bottom of the steps.³ Cleveland had a 12-gauge, pump-action shotgun drawn and in a "low ready" position, that is, pointed at approximately forty-five degrees toward the ground in front of the door. Currin had his service weapon drawn. Bridges testified that he drew his service weapon after officers Cleveland and Currin made contact with defendant and then immediately went to the top of the stairs. Bateman testified that she waited on the first floor with her gun drawn until she heard that defendant had been disarmed at which time she went to the second floor.

Cleveland and Currin knocked forcefully on defendant's apartment door and identified themselves as police as defendant answered the door. The officers were approximately four feet away from defendant. Cleveland testified that he thinks that defendant's door was still closed when the officers announced "police." Neither Currin nor Cleveland was able to recall whether defendant was ordered out or whether he came out. However, Cleveland testified that the officers would not have permitted defendant to stay inside his apartment. (Tr. at 65.) Defendant, on the other hand, specifically testified that when he opened the door, he was standing inside his apartment in the doorway. According to defendant, the officers had their weapons pointed at him and instructed him to step outside. The court finds defendant's uncontroverted testimony that he was ordered to come out of the apartment to be credible and finds as a fact that such order was given. Defendant testified that he stepped outside because he was ordered to do so and he was afraid of being shot. He stepped out with his hands above his head. While the guns were still trained on the defendant, one of the officers asked him if he had any weapons. Defendant informed the officers that he had a gun in the waistband of his pants. The officers then removed a handgun from defendant's waistband and placed him in handcuffs. Because it was dark, neither officer was able to see the weapon before they asked defendant to step outside and asked him if he had a weapon.

Because the court adopts the remainder of the magistrate judge's proposed facts, the court now turns to the conclusions of law. Defendant contends that his warrantless arrest violated the Fourth Amendment of the United States Constitution under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The United States argues that the doorway of a home is considered a public place, and, therefore, defendant was not entitled to the heightened level of Fourth Amendment protection described in Payton. The United States relies on the fact that the officers did not use subterfuge or coercive actions to force the defendant to open the door.

The United States asserts that because defendant opened the door and exposed himself to the public, the determination of whether a Fourth Amendment violation occurred is governed by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny.⁴ The United States argues that the facts available to the officers provided reasonable suspicion to support a brief investigatory stop of defendant.⁵ See id. The government then argues that after defendant appeared at the door and the officers determined that he had a weapon, they were justified in arresting him and seizing the weapon. The court finds that the officers' conduct from the time the defendant answered his door cannot be characterized as a brief investigatory stop. Reasonable suspicion would have supported a brief investigation of defendant if he had been encountered outside the apartment. See United States v. El-Gabrowny, 876 F.Supp. 495, 498-99 (S.D.N.Y.1994). However, in this case, "the use of force to compel the investigatory stop did not occur on the street but was directed at a private residence — a place entitled to special consideration under the Fourth Amendment." See United States v. Gori, No. 98 CR. 1163, 1999 WL 322651, at * 8 (S.D.N.Y. May 20, 1999) (quoting United States v. Gomez, 633 F.2d 999, 1006 (2d Cir.1980)).

The record indicates that "as a practical matter" defendant was under arrest from the inception of his encounter with the officers. See United States v. Morgan, 743 F.2d 1158, 1163 (6th Cir.1984) (citing Florida v. Royer, 460 U.S. 491, 503, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). Generally speaking, "an arrest requires either physical force ... or, where that is absent, submission to the assertion of authority. ... An assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest." California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (citation omitted). This standard is an extension of the traditional view that an arrest occurs only if "a reasonable person would have believed he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

In the instant case, the police officers' show of force and authority was such that a reasonable person would not have believed he was free to leave. The officers positioned themselves in front of the only exit from defendant's apartment. The officers knocked forcefully on the door announcing their presence. Defendant opened the door, and the officers confronted him from approximately four feet away with guns drawn and pointed at or near him. The officers then instructed defendant to step outside his apartment. Defendant stepped out with his hands raised over his head. Under these circumstances no reasonable person would have believed that he was free to remain inside his apartment. The actions of the officers constituted a show of physical force resulting in defendant's acquiescence to their assertion of authority. Therefore, defendant was placed under arrest when the officers blocked the only exit from his apartment, with guns...