United States v. Harris
| Decision Date | 02 October 2020 |
| Docket Number | Case No. 4:20-cr-00027 KGB |
| Parties | UNITED STATES OF AMERICA PLAINTIFF v. GARY LEVELL HARRIS DEFENDANT |
| Court | U.S. District Court — Eastern District of Arkansas |
Pending before the Court is defendant Gary Levell Harris's motion to suppress (Dkt. No. 22; 23). The government responded to Mr. Harris's motion (Dkt. No. 31). The Court conducted a hearing on the motion to suppress on July 13, 2020, at which Mr. Harris and the government presented evidence and argument for the Court's consideration (Dkt. Nos. 33; 34; 35; 36). Mr. Harris and the government also filed post-hearing briefs (Dkt. Nos. 39; 40). Along with his motion to suppress, Mr. Harris has filed a motion to amend order setting conditions of release (Dkt. No. 32), to which the government responded (Dkt. No. 38).
For the following reasons, the Court denies Mr. Harris's motion to suppress and denies his motion to amend order setting conditions of release (Dkt. Nos. 22; 23; 32).
In his motion to suppress, Mr. Harris acknowledges that the government obtained an indictment against him that alleges he is a convicted felon who, on December 14, 2019, and December 19, 2019, possessed ammunition in violation of 18 U.S.C. § 922(g)(1) (Dkt. No. 22, ¶ 1). Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(C), Mr. Harris moves this Court to suppress the physical evidence seized and his inculpatory statements made to North Little Rock Police Department ("NLRPD") officers on December 14, 2019, and December 19, 2019. He maintains that NLRPD officers illegally arrested him on December 14, 2019, in violation of the ruling in Payton v. New York, 445 U.S. 573 (1980) (Dkt. Nos. 22, ¶¶ 3-4; 23, at 1). Further, he maintains that the unwarranted search of his home and seizure of ammunition on December 19, 2019, violated the Fourth Amendment of the United States Constitution because he claims that the probable cause affidavit did not state facts that demonstrated there was a reasonable belief that officers would find firearms and ammunition inside Mr. Harris's home and that facts stated in the probable cause affidavit were derived from the illegal December 14, 2019, search and seizure (Dkt. No. 22, ¶¶ 6-8). Mr. Harris also argues that the search was unreasonable because of the method in which the search was carried out on December 19, 2019 (Dkt. No. 22, ¶¶ 9-10).
Mr. Harris argues that NLRPD officers violated his Fourth Amendment rights on December 14, 2019, when they entered his home and made a warrantless arrest. Mr. Harris also argues that, after NLRPD officers illegally arrested him, the written consents to search his vehicle and house were invalid and flowed from his illegal arrest, such that the illegal arrest requires the invalidity of his later consents. Mr. Harris maintains that, for the same reasons, any incriminating statements he made on December 14, 2019, are also invalid. Mr. Harris asserts that, as a result, the evidence seized December 14, 2019, should be suppressed under the Fourth Amendment's Exclusionary Rule.
The government argues that Mr. Harris was not arrested but "was detained pending the officers' investigation into the shooting of the dog and stepped outside the home prior to officers' handcuffing him." (Dkt. No. 31, at 7). Essentially, the government argues that this was an investigative stop under Terry v. Ohio, 392 U.S. 1, 25-30 (1968), that only needed to be supported by reasonable, articulable suspicion that criminal activity is afoot, not the probable cause necessary for an arrest (Dkt. No. 31, at 8). The government asserts that, during a Terry stop, "officers may check for weapons and may take any additional steps 'reasonably necessary to protect theirpersonal safety and maintain the status quo during the course of the stop'" (Dkt. No. 31, at 9 (quoting United States v. Miller, 974 F.2d 953, 957 (8th Cir. 1992)).
The government also argues that, "even if he was initially detained in his home, there existed exigent circumstances for officers to detain him on his front porch." (Dkt. No. 31, at 7-8, 13-15). "The searches in Payton occurred in the absence of any exigent circumstances, and the court reserved judgment as to what circumstances, if any, might otherwise justify a warrantless entry." United States v. Williams, 633 F.2d 742, 744 (8th Cir. 1980). For these reasons, the government asserts that law enforcement officers' "legitimate concern for the safety of themselves or others" may amount to exigent circumstances when "focusing on what a reasonable, experienced police officer would believe." United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir. 2003)). The government relies, in part, on United States v. Meidel, 764 F.3d 844, 845 (8th Cir. 2014), and United States v. Poe, 462 F.3d 997, 1001 (8th Cir. 2006) ().
Further, the government contends that Mr. Harris's "consent to search the residence was made voluntarily" and that "the consent was sufficiently attenuated" even if the initial encounter violated Payton (Id., at 8). Mr. Harris disagrees.
At the suppression hearing, NLRPD officer Scott Harton testified. Officer Harton is a patrol officer with 12 years of experience. He was working the 6:00 a.m. to 2:00 p.m. shift and was dispatched to 121 South Spruce street on December 14, 2019, as the secondary officer (Harris Ex. 1). He arrived first on the scene, found a dog that had been shot in the head at close range in the middle of the street, and made contact with the original caller, Ateasha Fitzhugh, who reported that an individual had shot a dog in the middle of the street (Gov. Exs. 6, 7). Based on the record before the Court, the alleged incident occurred at approximately 1:00 in the afternoon on aSaturday. It was a clear day in a residential neighborhood. A mother and several minor children witnessed the event. Officer Harton did not arrive with blue lights and sirens on because, as he testified, he did not know where the shooter was and did not want to draw attention to himself.
At a certain point, the dog's owner, Estefany Perez-Rodriguez, came out and reported that, although she heard the shot, she had not seen who shot her dog. Officer Harton assisted Ms. Perez in placing the dog in her car so that she could take the dog to the veterinarian. While Officer Harton helped Ms. Perez-Rodriguez load her dog into her car, Officer Steele, Officer Moyster, Officer Miller, Sergeant Bailey, and Lieutenant Lacy arrived on the scene. Officer Harton then returned to speak with Ms. Fitzhugh. During those conversations, Ms. Fitzhugh reported that she and her minor children saw an African American male exit 104 South Spruce with a handgun and shoot the dog in the head one time, walk over to a Grand Marquis, open the driver's side door, possibly put something in the car, and walk back inside the house.
Officer Steele also testified at the suppression hearing. He has 19 years of experience as a NLRPD officer, and he was the primary officer dispatched to 121 South Spruce on December 14, 2019. He arrived second on the scene. He stayed by the wounded dog when he arrived, observed Officer Harton speak to Ms. Fitzhugh, and witnessed Ms. Perez load the dog into her vehicle to seek treatment.
Officer Moyster, Officer Miller, Sergeant Baily, and Lieutenant Lacy also arrived on the scene. According to Officer Harton, while he was still speaking with Ms. Fitzhugh, the other officers along with Officer Steele attempted to make contact with Mr. Harris at the residence at 104 South Spruce (Gov. Ex. 1). Officer Moyster went around back on the east side of the residence, and Sergeant Bailey was on the west side. Officers Miller and Steele were on the west side closest to the door, and Officer Lacy was on the northwest corner. Officer Steele had a patrolrifle, which was an AR-15, and Sergeant Bailey had his pistol drawn as well. With an open palm, Officer Steele banged on a window announcing "NLRPD." Officer Steele did not approach the front door, as he was concerned about an active shooting event.
According to Officer Steele, Sergeant Bailey was on the west side because no one realized the house was a multiunit dwelling—either a duplex or triplex; Mr. Harris did not reside on the side where Sergeant Bailey was positioned. According to Officer Steele, Sergeant Bailey may have said, "NLRPD, we need to talk to you," while outside on the west side. He had a pistol drawn, pointed it at Mr. Harris as he exited his home, but dropped it at some point after Mr. Harris exited the residence.
According to Officers Steele and Harton, it took Mr. Harris approximately seven to ten minutes to open the door to the residence (Dkt. No. 23, at 3). Mr. Harris appears to dispute this timeline, claiming that he responded quickly (Dkt. No. 40, at 4-5). Mr. Harris takes the position that he "awoke from a mid-day nap to the sound of someone outside his house banging on his window and yelling, 'North Little Rock Police!'" (Dkt. No. 23, at 2). Officer Harton heard on the police radio that the other officers had made contact with Mr. Harris and, when he heard that, he looked over and observed Mr. Harris coming out of his front door. Officers Steele and Miller were underneath the window to the residence. Sergeant Bailey appeared from the left as Mr. Harris walked out the front door, motioned for Mr. Harris to step off the front porch, and pointed a pistol at Mr. Harris (Dkt. No. 40, at 5). Officer Steele testified that, when Mr. Harris exited the residence, the officers directed Mr. Harris to put his hands up and to make a complete circle, which he did. Mr. Harris was compliant.
Officer Harton then walked over and detained Mr. Harris at approximately 1:05 p.m. When he handcuffed him, Mr. Harris had just walked down the steps from his front porch and wasstanding in his yard. According to Officer Harton, he detained Mr. Harris for...
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