U.S. v. Wattree

• Decision Date: 11 April 2008
• Docket Number: Case No. 07-2015-JWL.
• Parties: UNITED STATES of America, Plaintiff, v. Michael WATTREE, Defendant.
• Court: U.S. District Court — District of Kansas

544 F.Supp.2d 1262

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

Case No. 07-2015-JWL.

United States District Court, D. Kansas.

April 11, 2008.

Terra D. Morehead, Office of United States Attorney, Kansas City, KS, for Plaintiff.

MEMORANDUM & ORDER

JOHN W. LUNGSTRUM, District Judge.

Defendant Michael Wattree was charged by indictment (doc. # 1) with two counts on October 23, 2007. The first count alleges that he was a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Count 2 alleges that Mr. Wattree was an unlawful user of a controlled substance in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). There are currently three motions by Mr. Wattree pending before the court: Motion to Dismiss Count 1 (doc. # 15), Motion to Suppress (doc. # 16), and Motion to Determine Admissibility of Custodial Statements (doc. # 17). The Court held a hearing on February 26, 2008, and the parties have filed supplemental briefing on the Motion to Dismiss. The Motion to Dismiss is granted in part as to the aggravated escape conviction but denied in part as to the burglary conviction. The Motion to Suppress is denied. Last, the Court finds that the custodial statements by Mr. Wattree are admissible.

FINDINGS OF FACT

Kansas City, Kansas police officers received a complaint that a black male was selling narcotics to local high school students out of a residence. On October 20, 2007, Heather Shondell, later identified as Mr. Wattree's wife or Ms. Wattree, was stopped for a traffic violation near that residence. She was cited for driving on a suspended license and for an outstanding misdemeanor warrant in Kansas City, Kansas. She was issued a failure to appear summons and released. The other individual in the car was Ms. Thibodeau, who was arrested for possession of drug paraphernalia. She told the officers that she believed Mr. Wattree was selling drugs out of the house. Sergeant Hallmark, who took the information, ran Mr. Wattree's name and found that he had several outstanding warrants.

Officer Bundy was a uniformed officer of the Kansas City Kansas Police Department Community Oriented Policing Problem Solving Unit, otherwise known as the nighttime community policing unit. On October 21, 2007, he was notified of the complaint and the traffic stop that took place the prior day. That afternoon, officers set up to watch the traffic to and from the house. They did not see an unusual amount of traffic, but around 5:00pm, the officers saw Mr. and Ms. Wattree leave the residence in the same vehicle in which Ms. Wattree was pulled over the previous day. Sergeant Hallmark pulled them over a few blocks from the residence based on the knowledge that Mr. Wattree had outstanding warrants. Mr. Wattree was handcuffed and taken to Officers Bundy and Erwin's vehicle. Officers Bundy and Erwin had followed Sargeant Hallmark in a separate police car.

Officer Bundy stood outside the vehicles to watch the passenger, Ms. Wattree, and saw what he believed to be a small bag of marijuana go out the passenger's side window. Officer Bundy picked up the bag and had Ms. Wattree and her infant child get into Sergeant Hallmark's car, which was an uncaged vehicle. Without handcuffing Ms. Wattree, Officer Bundy told her they were going to issue her a misdemeanor summons for the possession of marijuana. Officer Erwin issued her the ticket shortly after the initial stop of the vehicle and both officers signed it. When the officers gave her the summons, they told Ms. Wattree that she was free to go.

Officer Bundy testified that Ms. Wattree was aware that this summons was being issued in lieu of taking her to jail. Issuing a summons is the usual procedure for a misdemeanor when a child is present, so the child does not have to go into state custody. Officer Bundy, however, never verbalized to Ms. Wattree or any other officer this concern about her child going into custody. The words, "protective custody," were never stated to Ms. Wattree or another officer because the officers already knew that was the standard procedure.

After the summons was issued, Officer Bundy spoke to Ms. Wattree about the complaints they had received about the sale of marijuana from the house. She admitted there was a small bag of marijuana in the house but stated that Mr. Wattree did not sell drugs. The officer inferred that she was alluding to personal drug use when she mentioned the small bag. When asking her these questions, the officer's intent was to see if she was going to give consent to search the house. In light of the possible search of the house and officer safety concerns, the officer asked Ms. Wattree whether there were any guns in the home. Ms. Wattree told the officers there was a gun at the residence, which Mr. Wattree purchased for home protection. When asked if she or Mr. Wattree had any felony convictions, she said that she did not, but that Mr. Wattree had been convicted of a felony but did not know the details.

Officer Bundy testified that it was his understanding of the law that no convicted felon can ever possess a gun. He also testified that he knew it was unlawful for people who use marijuana to possess a gun. He never specifically stated on what basis he seized the firearm.¹

Officer Bundy read and explained a consent-to-search form to Ms. Wattree and informed her that she had the right to refuse consent. The form stated that she freely and voluntarily gave her consent to search her residence and authorized the officers to remove any evidence of any violation of the law. Ms. Wattree, then outside the police vehicle, signed the form.

While Officer Bundy was speaking to Ms. Wattree, Officer Erwin spoke to Mr. Wattree in Officer Erwin's police vehicle. Mr. Wattree started out being uncooperative, but once he was placed in the vehicle he became cooperative and then eventually started crying. The officer asked him, "What is wrong?," to check his general welfare. Mr. Wattree replied that he was a convicted felon and he had a new baby, so he did not want to go back to jail. Mr. Wattree did not provide any details about his prior conviction. He was transported to Wyandotte County Jail.

Sergeant Hallmark ran a check on Mr. Wattree through a dispatcher using the Alert system, and the "J codes," which represent charges against a person, came back for assault, burglary, theft, and narcotics. Officer Bundy, who heard the radio communications, testified that based on his training and experience when someone has as many J codes as Mr. Wattree, there is usually a conviction on at least one. Officer Erwin also shared with Officer Bundy that Mr. Wattree stated he was a convicted felon.

The officers took Ms. Wattree back to the house, where she let the officers enter. She directed the officers to the basement where she and Mr. Wattree lived and also pointed out the dresser drawer where the firearm, a magazine, and a holster were located. The officers recovered all three items. During the search, the officers also seized a small bag of marijuana and drug paraphernalia and testified that was indicative of personal drug use. All the items were seized from one open room in the basement where the Wattrees were living. Ms. Wattree was cordial and even friendly with the officers throughout the search. She never told the officers to stop the search.

Sergeant Hallmark contacted Detective Sutton, who is assigned to the ATF Task Force, between 6:15pm and 6:30pm on that Sunday evening. Detective Sutton gives his number to officers in order to assist them in determining whether a person is a convicted felon and if they are in violation of any gun laws. Detective Sutton understood that they called him because the officers believed that Mr. Wattree had a prior felony conviction.

Detective Sutton arrived after the search of the home and the seizure of the gun, so any information he obtained was after the challenged gun seizure. Most of the officers were outside the house. He spoke to Sergeant Hallmark. Detective Sutton first said he could not recall whether Sergeant Hallmark told him anything about Michael Wattree's marijuana use at the time the detective arrived at the scene. He added that the big issue was his convicted felon status, so the marijuana was a side note. Detective Sutton then explained that Sergeant Hallmark told him that they knew Mr. Wattree was a convicted felon from information obtained on the scene, that the officers had recovered marijuana from the house, and that Michael Wattree was alleged to have been selling marijuana from the house.

Ms. Wattree was inside the home. She said that she was willing to talk to Detective Sutton and was cooperative. She informed him that Mr. Wattree smoked marijuana daily to control his bipolar issues, that she and Mr. Wattree lived at the residence, that Mr. Wattree was a convicted felon, and that Mr. Wattree bought the firearm sometime in January 2007 when the couple lived in Missouri.

After leaving the scene, Detective Sutton usually verifies the convicted felon status through a certified journal entry of judgment, but could not go to a courthouse on that night since it was Sunday. He instead pulled up the convictions on the Kansas Department of Corrections Website, which shows how long ago a conviction occurred, when the sentence expired, and what the underlying offense was. He saw that Mr. Wattree had an expired sentence as of October 9, 2002. He later obtained the court documents related to the sentence, which indicated convictions for burglary and aggravated escape from custody.

Based upon the information from the KDOC website, the detective went to speak with Mr. Wattree at the jail on that Sunday night. He told Mr. Wattree that he was there to investigate the complaint of him having a gun at the residence and the drugs involved. He advised him of his rights with the assistance of an advice of rights form. He drew a line by each right...