U.S. v. Smalls
| Decision Date | 24 October 2008 |
| Docket Number | Case No. 08-20726-CR. |
| Citation | 617 F.Supp.2d 1240 |
| Parties | UNITED STATES of America, v. Frederick SMALLS, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE is before the Court upon Defendant's Motion to Suppress Due to Illegal Search of Residence and Motion to Suppress Statements. (D.E. 16, 17.) The matter was referred to Magistrate Judge Andrea M. Simonton who on October 16, 2008, issued a Report recommending that Defendant's Motion to Suppress Due to Illegal Search of Residence be denied, and that the Motion to Suppress Statements be granted in part, only as to the use in the Government's case in chief of statements made in response to the questioning by Sgt. Carballo regarding injuries he sustained during the course of his arrest, and denied in part as to the remaining statements. (D.E. 31.) Defendant filed objections to the portions of the Magistrate Judge's Report recommending denial of the motion to suppress physical evidence on Oct 21, 2008. (D.E. 32.) The court has considered Defendant's objections but agrees with the analysis on which the Magistrate Judge's Report is based, particularly her conclusions that the officers had the right to seize contraband and firearms in plain view and contraband and firearms that they encountered in connection with their protective sweep of the Defendant's apartment. The Court further agrees that the law did not require the officers to remove the Defendant from and secure him outside the apartment while they sought a search warrant. Having conducted a de novo review of the record and being otherwise fully informed in the premises, it is hereby,
ORDERED AND ADJUDGED that the Magistrate Judge's Report is RATIFIED AFFIRMED AND ADOPTED.
This matter arose upon Defendant Frederick Smalls' Motion to Suppress Due to Illegal Search of Residence (DE # 17), and Motion to Suppress Statements (DE # 16). The Honorable Ursula Ungaro, United States District Judge, has referred this matter to the undersigned United States Magistrate Judge (DE # 20). The Government filed a combined response in opposition to both motions (DE # 24), and the Defendant filed a Reply (DE # 25). An evidentiary hearing was held on October 1, 2008. For the reasons stated below, and based upon a review of the record as a whole, it is hereby RECOMMENDED that the Motion to Suppress Due to Illegal Search of Residence (DE # 17) be DENIED; and, that the Motion to Suppress Statements (DE # 16) be GRANTED IN PART, only as to the use in the Government's case in chief of statements made in response to the questioning by Sgt. Carballo regarding injuries the Defendant sustained during the course of his arrest, AND DENIED IN PART, as to the remaining statements.
Defendant Frederick Smalls is charged in a four-count Indictment with offenses that occurred on or about February 27, 2008 (DE # 1). Specifically, he is charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 1); possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count 2); possession of cocaine, in violation of 21 U.S.C. § 844(a) (Count 3); and possession of a firearm in furtherance of the drug trafficking crime alleged in Count 2, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 4). The evidence which forms the basis for these charges was obtained during the course of a police investigation which led to the entry of the police into the residence of Mr. Smalls, and the seizure of marijuana, cocaine, a digital scale, a firearm, and currency, all of which were inside that residence.
The Defendant alleges that on February 27, 2008, the police officers illegally arrested him when, after he opened the door to his residence in response to their knock, they physically pulled him outside and handcuffed him, and that thereafter they illegally entered his apartment and conducted a warrantless search of the apartment which resulted in the seizure of marijuana, cocaine, a digital scale, a handgun and currency (DE # 17 at 2). The Defendant contends that the seizure of evidence was illegal, and that incriminating statements he made thereafter were the result of the illegal actions and must be suppressed as fruit of the poisonous tree (DE # 17 at 2-3).
In response, the Government asserts that Smalls voluntarily opened his door, at which time the police observed marijuana and a digital scale in plain view. The Government contends that these observations, combined with a tip that Fred Smalls was selling narcotics from that apartment and the odor of burning marijuana emanating from the apartment when the police approached, established probable cause to believe that contraband and evidence were located in the apartment. In addition, the Government asserts that exigent circumstances arose at that time, which justified the entry into the apartment to arrest the Defendant and preserve the evidence; and which permitted the police to conduct a protective sweep of the apartment as well. The Government further contends that once the police were lawfully inside the apartment, they were entitled to seize evidence in plain view, including evidence seen during a protective sweep of the apartment, without obtaining a warrant (DE # 24 at 7-11).
In his Reply, relying on United States v. Santa, 236 F.3d 662 (11th Cir.2000), the Defendant focuses on the argument that the Government cannot sustain the burden of demonstrating that exigent circumstances justified a warrantless entry (DE # 25). The Defendant emphasized this argument at the conclusion of the evidentiary hearing, arguing that, under the Government's version of events, the police could have lawfully arrested Mr. Smalls at his doorway, but they were required to effectuate this arrest outside the apartment; they were not permitted to enter the apartment to arrest him without a warrant since they did not have probable cause to believe that anybody else was inside the apartment, and thus there were not exigent circumstances to justify the entry (Tr. at 197).
In addition, the Defendant contends that his post-arrest statements must be suppressed since they were made in response to custodial interrogation that occurred prior to the time he was advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), and they were involuntarily made (DE # 16). The motion states that the facts recited in this motion are derived from police reports and the depositions that occurred while parallel criminal proceedings were pending in state court (DE # 16 at 2). The undersigned notes that the facts alleged in this motion differ from the statement of facts included in the Motion to Suppress which challenges the legality of the search, and also differ from the testimony given by the Defendant at the evidentiary hearing. These disparities are resolved in the Findings of Fact set forth below. Specifically, the Defendant alleges that the police responded to his residence and knocked on the door based on an anonymous tip that Mr. Smalls was in possession of narcotics and two firearms; that when Mr. Smalls answered his front door, the officers smelled marijuana emanating from the residence and observed marijuana on the living room couch, at which point Mr. Smalls was asked to kneel down on the floor of his apartment. Mr. Smalls was asked if there were firearms in the apartment, and he denied this. Mr. Smalls then made a slight movement toward the couch, and the police saw the butt of a handgun protruding from between two cushions on the couch. At that point, Mr. Smalls was pushed down on the floor and handcuffed; and, the officer retrieved the gun from the couch. The officer then made the following inquiry, "I thought you said there were no guns in the apartment?" Mr. Smalls responded to this inquiry by making incriminating statements, including that the firearm belonged to him. The Defendant seeks to suppress these statements.
In addition, the Defendant seeks to suppress statements he made to Miami-Dade Police Sgt. Carballo, who was investigating an injury Mr. Smalls sustained during the course of his arrest; specifically, a cut above Mr. Smalls' eye. These statements were made at his apartment complex while he was receiving treatment for this cut by fire rescue personnel.
In response, the Government contends that the statements made by Mr. Smalls inside the apartment, after the firearm was discovered, were spontaneous statements that were not in response to interrogation. Specifically, the Government contends that Detective Andrade was not engaged in the functional equivalent of interrogation when he exclaimed, upon seeing a firearm, (DE # 24 at 4). Therefore, the Government argues that the Defendant's response, was not in response to interrogation and was voluntarily made, and therefore the absence of prior Miranda warnings does not render those statement inadmissible (DE # 24 at 5, 11-13).
In addition, the Government contends that the statements the Defendant made after Sgt. Carballo asked him how he had obtained the cut above his eye, were not responsive to the question, and therefore were spontaneously volunteered and are admissible despite the absence of Miranda warnings (DE # 24 at 13-14). Specifically, the Government asserts that after the...
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