United States v. Owen
| Decision Date | 01 December 2014 |
| Docket Number | Case No. 14–CR–0162–CVE. |
| Citation | 65 F.Supp.3d 1273 |
| Court | U.S. District Court — Northern District of Oklahoma |
| Parties | UNITED STATES of America, Plaintiff, v. Joshua Eli OWEN, a/k/a Joshua Owens, a/k/a Joshua Owen, Defendant. |
Gary Louis Davis, United States Attorney's Office, Tulsa, OK, for Plaintiff.
Before the Court is defendant's motion to suppress evidence (Dkt. # 17). Defendant is charged as a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (count one), and with possession of a firearm after conviction of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. §§ 922(g)(9), 924(a)(2) (count two). Dkt. # 13. Defendant moves to suppress the firearm that Tulsa Police Department (TPD) officers recovered during a dispatch call of domestic assault and battery with a firearm, arguing that the officers' entry into the residence, sweep, investigation, and seizure of the firearm, all without a warrant, violated the Fourth Amendment. Dkt. # 17, at 2–6. Plaintiff responds that defendant lacks standing to assert a Fourth Amendment violation, that the officers' actions are within exceptions to the Fourth Amendment's warrant requirement, and that the independent source doctrine applies. See Dkt. # 21, at 2–7. The Court held an evidentiary hearing on November 24, 2014,1 at which Chelsi Moore, TPD Officer Mitchell Franklin, and TPD Officer Derek Sullins testified.
On July 26, 2014, Officers Franklin and Sullins responded to a dispatch call of domestic assault and battery with a firearm at a residence in the 100 block of North 37th West Avenue in Tulsa, Oklahoma. As part of the encounter, officers seized a firearm. The testimony of the witnesses at the evidentiary hearing as to the events of that night, including the recovery and seizure of the weapon, is summarized below.
The officers responded to the dispatch call at approximately 10:00 p.m. on July 26, 2014. When the two officers arrived, they knocked on the front door. Moore opened the door halfway and stood in the doorway while speaking to the officers. Both officers testified that Moore looked disheveled and upset. Officer Franklin testified that she was visibly shaking; Officer Sullins testified that he saw marks on her face, although he was unsure if the marks were simply dirt. To both Officer Franklin and Officer Sullins, Moore's actions and manner were those they would expect of a victim of domestic abuse. The officers explained their presence, saying they had received a call about an argument between Moore and her boyfriend involving a firearm. They asked Moore if there had been an argument and if her boyfriend was in the residence; she denied that an argument had occurred and said that her boyfriend was not present. The officers explained that they needed to enter the home in order to determine the safety and welfare of the occupants, saying that they would ensure that all was well and then they would leave. Moore opened the door wider and stepped back, gesturing. The officers entered the home; neither officer explicitly asked Moore for permission to enter, nor did Moore explicitly deny them permission to enter. Upon entering, the officers performed a sweep of the residence, discovering Moore's two young sons (ages seven and five years) and defendant.
The officers found defendant in the residence's master bedroom. Officer Franklin entered the room and placed defendant in handcuffs. He told defendant that he was not being arrested but that he was being detained while the officers analyzed the situation. Together, the officers escorted defendant to the residence's enclosed front porch. Other officers, including TPD Corporal Dan Miller, had arrived by this time; one of these officers remained with defendant on the porch while Franklin, Sullins, and Miller stayed with Moore inside the residence. At some point while Moore was on the porch, he told an officer that he had a prior felony conviction.
Officer Sullins and Corporal Miller conversed with Moore in the kitchen, while Franklin stood nearby. Moore was much more forthcoming with Corporal Miller, who had previously been to Moore's home in response to a domestic abuse call not involving defendant. Moore told Corporal Miller that she and defendant were dating, and she admitted that they had gotten into a loud verbal altercation. However, in response to his questioning she denied that there was a firearm in the residence. At that point, one of Moore's children interjected, stating that there was a firearm and that he knew where it was located. Officer Franklin testified that he asked the child to tell him where the firearm could be found. Officer Sullins initially testified that Officer Franklin directed the child to divulge the location, although he later stated that he could not recall if Officer Franklin asked or directed the child.
The child did not respond verbally to Officer Franklin, but instead went to the master bedroom. Officer Franklin followed the child into the room; he was the only person in the room with the child. He testified that the child walked to a dresser near the bed, opened a drawer, and pulled out the firearm. Officer Franklin immediately retrieved the weapon from the child. Officer Franklin then returned to the kitchen and asked Moore about the firearm. She said that the weapon belonged to her and that she had gotten it as protection against a previous abusive boyfriend. She later told officers that they could take the firearm and that she no longer wanted it. Both officers testified that, in their experience, it is better to remove a firearm from a potential domestic abuse situation in case of a re-escalation after officers leave. The officers explained to Moore that they would put the firearm into evidence; if she decided to reclaim it, she need only go to the TPD evidence storage facility. The officers then released defendant, and before 11:00 p.m. they left the residence.
Moore and her two children live in a residence in the 100 block of North 37th West Avenue, Tulsa, Oklahoma. Moore and defendant began dating approximately one month prior to July 26, 2014. Although defendant did not reside with Moore, he had spent three to four nights sleeping at Moore's residence in the week prior to the altercation and had kept some of his clothing there. However, he had not transferred all of his belongings, he did not pay rent, and he maintained a separate residence with his mother. Moore had not given him a drawer in her dresser in which to store his possessions. Defendant arrived at Moore's home on July 25, 2014, and he spent that night and the following day with her and her children. According to Moore's testimony, defendant possessed the firearm when he arrived at her home on July 25.
On the afternoon of July 26, 2014, Moore and defendant began drinking, consuming what was, for Moore, a significant amount of alcohol. While she and defendant were drinking, Moore and her children saw defendant handle the firearm, holstering and unholstering it. Later that night, Moore and defendant got into a heated argument;3 Moore's children, who were present at the time, became frightened and ran to Moore's sister's nearby home. Moore testified that her sister called the TPD, although Moore was unaware of the call prior to officers' arrival. Moore answered a knock on her door to find TPD officers. She thought that there were three officers at the door. The officers already knew defendant's first name and asked specifically if he was present. Moore could not recall the entire conversation she had with the officers at the door, including whether she denied defendant's presence. She could not recall if she gave explicit consent for the officers to enter, but she did not deny them permission to enter. She testified that the officers entered the home and remained in the living room, and that defendant approached the officers from the bedroom. She did not testify that defendant was found in the bedroom. Moore did not see the officers place defendant in handcuffs or take him to the enclosed front porch.
Moore claimed that, at some point, her sister arrived, bringing Moore's children back to the residence. By this time, Moore was in the kitchen with several officers while defendant remained handcuffed outside. One of the officers speaking to Moore was Corporal Miller, with whom Moore was previously acquainted. Miller asked if there was a firearm in the residence, and Moore said that there was no firearm. One or both of Moore's sons then told officers that there was a firearm and that he or they would show the officers where it was located. Moore testified that the officers neither asked the children about the firearm prior to the independent assertion that one was present, nor told the child or children to find the firearm for the officers. One of the children led an officer to the master bedroom, and the officer returned with the firearm. When the officer asked her about the firearm, Moore said that the gun belonged to her. She testified that she lied to the officers about her ownership of the gun in order to keep defendant out of prison.
Although the Court finds that Moore was credible as to the inception and course of her relationship with defendant, it also finds that her memory of many important details (including the number of officers at the door, whether the children were present when officers arrived, where officers placed defendant in handcuffs, and whether one or both of her children told officers about the firearm) may have been clouded by her consumption of alcohol on the date in question. Therefore, the Court relies primarily on the officers, whom the court finds credible, for the most accurate account of the events on the evening of July 26, 2014.
The purpose of a suppression hearing is “to determine preliminarily the admissibility of certain evidence...
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