United States v. Childers
| Decision Date | 27 September 2021 |
| Docket Number | CRIMINAL 20-211 PAM/ECW |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. VICTOR LEE CHILDERS, Defendant. |
| Court | U.S. District Court — District of Minnesota |
REPORT AND RECOMMENDATION
On September 29, 2020, Defendant Victor Lee Childers (“Childers” or “Defendant”) was indicted on one count of Felon in Possession of Firearm. (Dkt. 4.) This matter is before the Court on Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure (Dkt. 22); and Defendant's Motion to Suppress Statements, Admissions, and Answers (Dkt. 23). This case has been referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C § 636 and Local Rule 72.1.
The Court held a motion hearing on June 10, 2021. (Dkt. 32.) Ruth Shnider, Assistant U.S. Attorney, appeared on behalf of the United States of America. Douglas Olson, Office of the Federal Defender, appeared on behalf of Childers, who was present at the hearing on the instant motion. The briefing in this matter concluded on August 27, 2021. (Dkt. 47.) For the reasons stated below, the Court recommends that Defendant's Motion to Suppress Evidence Obtained as a Result of Search and Seizure (Dkt. 22) be denied and that Defendant's Motion to Suppress Statements, Admissions, and Answers (Dkt. 23) be granted in part and denied in part.
At the June 10, 2021 hearing, Burnsville Police Officer Erica Huston testified about her encounter with Childers on the morning of July 25, 2020, which led to Childers' arrest.
Officer Huston testified that she responded to a “shots fired call” on July 25, 2020 before 8:00 a.m. (Dkt. 38 (Transcript) at 5.) The initial information received by police was that there were three males firing rounds into the water at the Riverfront Park area of Burnsville on Black Dog Road. (Id. at 6.) Officer Huston received the information through dispatch via the computer in her vehicle. (Id. at 6.) According to Officer Huston, a civilian had called 911 to report this information. (Id. at 6.) The initial dispatch communicated that there was a white male, 26 to 28 years of age, wearing a black t-shirt, on the shore shooting a 9-millimeter into the water, or possibly a .45 caliber weapon, but that the reporting party did not see the gun. (Id. at 7, 21; Gov't Ex. 1.)
Officer Huston testified that the situation evolved as the dispatcher was getting more information. (Dkt. 38 at 8.) The reporting civilian informed dispatch that there were three males, two black males and one lighter-skinned male. (Dkt. 38 at 7-9; Gov't Ex. 1.) No. witnesses identified any vehicle associated with the suspects at any point prior to the stop. (Dkt. 38 at 24-25.) Officer Huston was in route when the description about the suspects came from dispatch. (Id. at 22.) The reporting party also provided information that the first suspect was near where the water drops off and where the barges are location. (Dkt. 38 at 8-9; Gov't Ex. 1.)
Officer Huston testified that based on this information, she believed that several offenses were in progress, including a violation of a city ordinance against having a firearm in a park and felony reckless discharge of a firearm. (Dkt. 38 at 10.) Officer Huston also had a concern for public safety, as members of public were at the park where the report of shots originated. (Id. at 10.)
Officer Huston arrived at the scene toward the riverfront park area, and eventually met up with her partner, Officer Jimenez. (Id. at 11, 22.) She initially approached one individual getting out of a vehicle on the side of the road to see if this was the suspect she was looking for. (Id. at 27.) Officer Huston noted that three to four other officers were with Officer Jimenez. (Id. at 23.) At that point, Officer Huston looked to her left and saw three people exit a wooded area and go into the parking lot. (Id. at 11.) She testified that the suspects were approximately 50-75 yards away from her at the time, although she further testified that they could have been at a distance similar to the length of the courtroom, and noted that she was bad with distances. (Id. at 28.) Officer Huston testified that she instructed Officer Jimenez and the other officers with him to stop the individuals because they matched the description of the individuals provided by dispatch. (Id. at 11, 24, 28.) Officer Huston also testified that she believed that the individuals were the three suspects mentioned by dispatch because they were the only people she saw, there were no other individuals moving around, and the individuals coming out of the woods matched the description from dispatch-a light-skinned white male wearing a black t-shirt and two black males. (Id. at 12-13.) Officer Huston testified that she believed at that time that the three individuals could be armed and dangerous. (Id. at 13.) Officer Huston testified that this was a high risk stop because it dealt with a possible felony involving a firearm. (Id. at 14.) According to Officer Huston, felony stop procedures include officers drawing their guns and securing the occupants in a vehicle due to concerns relating to weapons. (Id. at 14.) According to Officer Huston, the vehicle at issue was parked and never moved. (Id. at 26.) Officer Huston agreed that Officer Jimenez conducted a felony stop of the vehicle with the three suspects and wrote the same in her report. (Id. at 25-26.)
According to Officer Huston, by the time she arrived to the suspects' location, they had been ordered out of the vehicle, handcuffed, and secured as part of a high-risk felony stop. (Id. at 14-15, 31.) Burnsville Police Officer William Berg, who also responded to the dispatch call, testified that when he arrived, the stop was occurring, and it was his understanding that officers were stopping individuals who they believed to be involved in the reported shooting incident. (Id. at 58.) The driver was identified as Vic Childers and the two other African American occupants were juveniles. (Id. at 14-15.)
Burnsville Police Officer Rick Porras testified that he also responded to a report of shots fired at Minnesota Riverfront Park off Black Dog Road and 35W. (Id. at 36.) By the time he arrived, he observed that his partners were already in the midst of conducting a high-risk felony stop of individuals they believed were likely to be involved with a shooting. (Id. at 36, 46.) Officers had their guns drawn. (Id. at 47, 65.) Officer Porras noted that as part of a felony stop, it is important to handcuff a suspect to keep the individual from being able to use a firearm, especially in this case where there had been reports of shots fired. (Id. at 37.) When he arrived, Officer Porras noticed that Childers was being placed into handcuffs by Officer Tim Swope. (Id. at 36-37.) Officer Porras told Officer Swope that he would take control of Childers. (Id. at 37, 48.) The juveniles were also ordered out of the vehicle and handcuffed.[1] (Id. at 66.)
Officer Porras testified that Childers asked him why the officers had stopped him and were messing with him, and he explained what the call was about and that the officers were attempting to figure out what was going on and that Childers would be released if he had nothing to do with the shots fired. (Id. at 38-40; Gov't Ex. 2 at 8:08:29-36.) Officer Porras conducted a pat-down search of Childers for officer safety, especially in light of the fact that this matter involved a “shots fired” call. (Id. at 38.) Officer Porras testified that since the officers were responding to a shots fired call, he was looking for anything that might hurt himself or his partners, such as hard objects, and in this case, he was looking for guns, gun parts, or ammunition since it was a shots fired call. (Id. at 38.) Childers was still handcuffed at this time, and while some officers had their guns drawn, Officer Porras and Childers were away from those officers and no officers had their guns drawn on Childers during his pat-down and questioning. (Id. at 49.) Officer Porras testified that at no point during this questioning had he read Childers his Miranda rights. (Id. at 50.)
When Officer Porras told Childers he was going to pat him down, Childers responded that Officer Porras was going to do a Terry search and pat him down for weapons, to which Officer Porras responded “hell yes” and that he was going to conduct a “great” search. (Gov't Ex. 2 at 8:08:48-54.) They proceeded to argue about the scope of pat-down search. (Dkt. 38 at 50.; Gov't Ex. 2 at 8:08:50-8:09:06.)
As he felt Childers' right pocket as part of the pat-down search, Officer Porras could tell based on his experience that Childers had ammunition in his pocket and proceeded to remove the ammunition. (Dkt. 38 at 38-39, 55.) Officer Porras testified that first he pulled out a cell phone, during which he also felt the bullets, and then went into the same pocket and pulled out a handkerchief (also referred to as a bandana). (Dkt. 38 at 51-52; Gov't Ex. 2 at 8:09:06-24.) Officer Porras asked Childers if there was anything illegal in the handkerchief, and Childers confirmed that there were bullets inside. (Dkt. 38 at 51, 53; Gov't Ex. 2 at 8:09:27-34.) Officer Porras announced to the other officers that he found ammunition on Childers. (Dkt. 38 at 41, 51-52; Gov't Ex. 08:09:27-35-36.) He also discovered a round of ammunition that may have fallen from a handkerchief that was retrieved from Childers. (Dkt. 38 at 42.) According to Officer Porras, Childers told him that they had found the bullets on the ground. (Id. at 53; see also Gov't Ex. 2 at 8:09:27-34.) Office Porras also asked him if he had a gun and Childers told him he did not have a gun and that there was no gun in the...
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