United States v. Randolph
| Decision Date | 05 November 2015 |
| Docket Number | Criminal Action Number 14-00204-01-CR-W-BP |
| Court | U.S. District Court — Western District of Missouri |
| Parties | United States of America, Plaintiff, v. Terry W. Randolph, Defendant. |
Pending before the Court are the DEFENDANT'S MOTION TO SUPPRESS ANY AND ALL EVIDENCE TAKEN FROM DEFENDANT BY LAW ENFORCEMENT OFFICERS (Doc. #21) and DEFENDANT'S MOTION TO QUASH INDICTMENT AS FACTUALLY INCORRECT (Doc. #22), both filed on July 12, 2015, by defendant Terry W. Randolph ("Randolph"). On September 16, 2015, the undersigned held an evidentiary on Randolph's motion to suppress. Randolph was present and represented by his counsel, Kevin Jamison. The government was represented by Assistant United States Attorney Joseph Marquez. At the evidentiary hearing, testimony was given by Randolph as well as Officer Travis Gillihan with the Independence (Mo.) Police Department. Additionally, the following exhibits were admitted into evidence:
Number Description Gov't. #1-2 Photographs [house]
Gov't. #3-4 Photograph [inside of truck]
Gov't. #5 consent to search form Gov't. #6 Photograph [driveway]
On the basis of all the evidence adduced at the evidentiary hearing and the legal arguments advanced, the undersigned submits the following proposed findings of facts and conclusions of law as to both the motion to suppress and the motion to quash:
PROPOSED FINDINGS OF FACT1
1. Officer Travis Gillihan is employed with the Independence (Mo.) Police Department. Tr. at 4.
2. On February 22, 2014, Officer Gillihan was working as a patrolman when he was dispatched at 11:08 a.m. to 9930 East 31st Street in Independence. Tr. at 4, 20-21.
3. Two other officers (Sumsted and Flavin) were also sent to the address. Tr. at 5.
4. The police dispatcher reported that a suspected residential burglary was in progress. Tr. at 4.
5. Upon arriving at the scene with the other two officers, Officer Gillihan observed three people walking away from the residence, down the driveway toward where Officer Gillihan had parked his patrol vehicle. Tr. at 4-5, 21-22.
6. The three officers ordered the three individuals in the driveway to get down on the ground for purposes of officer safety. Tr. at 5-6, 22-23, 26.
7. Officer Gillihan placed one of the detained individuals (later-identified as Ms. Denton) in his patrol car. Tr. at 6.
8. Officer Gillihan then went back up the driveway to interview the other two individuals who were being detained by Officers Sumsted and Flavin. Tr. at 6-7.
9. Officer Gillihan learned that the two individuals were a Ms. Berning and Terry Randolph. Tr. at 7.
10. Officer Gillihan then proceeded to pat down Ms. Berning and Randolph, asking them at the same time, if they had any weapons on them. Tr. at 7.
11. Randolph responded that he did not have a weapon on him, but he did "have a gun in [his] truck." Tr. at 7, 23, 26-27, 30.
12. Officer Gillihan asked if the gun was loaded and Randolph said that it was not, but the magazine was loaded. Tr. at 7-8. 13. Randolph told Officer Gillihan that the gun was in the backseat of the nearby truck and that the truck belonged to him [Randolph]. Tr. at 8.
14. Officer Gillihan asked Randolph whether he was a felon and Randolph answered that he was; but that the felony was so long ago it did not matter. Tr. at 8, 19, 28, 36.
15. According to Randolph, a family friend had conducted a "computer check and determined that [Randolph] was no longer a felon." Tr. at 8-9.
16. Officer Gillihan ran Randolph's name through his dispatch and was informed that Randolph was a convicted felon from Oklahoma. Tr. at 19.
17. Officer Gillihan then proceeded to question all three detainees about their presence at the house and conduct an investigation into the possible burglary. Tr. at 9-10, 36.
18. Inasmuch as Officer Gillihan could not locate the out-of-state owner of the residence, he released the two females. Tr. at 10-11.
19. However, Officer Gillihan continued to hold Randolph so as to investigate further whether he was a felon in possession of a firearm. Tr. at 11.
20. Randolph was advised of his Miranda rights. Tr. at 11, 33.
21. Randolph waived his right to remain silent and agreed to speak with Officer Gillihan. Tr. at 11, 33.
22. Randolph consented to a search of his truck and signed the consent to search form. Tr. at 11-12, 17-18, 33-34; Gov't Ex. # 5.
23. Randolph understood the English language, was not impaired, and was told twice that he did not have to consent. Tr. at 11, 17-18, 32.
24. At that point, Officer Gillihan did a cursory search of the truck and located a gun case in the backseat floorboard behind the driver's seat. Tr. at 12, 17; Gov't Ex. #3.
25. Officer Gillihan did not open the gun case, but instead called out crime specialists to recover the property and take fingerprints. Tr. at 12.
26. Officer Gillihan then asked Randolph for consent to search his person, to which Randolph agreed. Tr. at 13.
27. A search of Randolph found a small amount of methamphetamine. Tr. at 13.
28. Randolph was then placed under arrest for possession of a controlled substance. Tr. at 13.
29. At that point, Officer Gillihan opened the gun case and observed a firearm. Tr. at 13, 17; Gov't Ex. #4.
In his motion to suppress, Randolph argues that his initial detention by law enforcement officers was unconstitutional, as was the warrantless search of his vehicle. To be sure, the Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. CONST. amend. IV. As made clear in the Fourth Amendment, though, the constitution does not forbid all searches and seizures, but only unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446 (1960). Nonetheless, as the United States Supreme Court pointedly noted over one hundred years ago:
No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.
Union Pacific Railroad Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001 (1891).
In many search and seizure scenarios, the question of legal authority (as well as reasonableness) is presumptively satisfied by a judicially-issued warrant. However, over the years, many exceptions to the warrant requirement have been recognized. For instance, and pertinent to the issue in this case, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the Supreme Court held that a law enforcement officer can stop and briefly detain a person for investigatory purposes, even without a warrant, if the officer has a reasonable suspicion -supported by articulable facts - that criminal activity "may be afoot," even if the officer lacks probable cause for an arrest. Id. at 30, 88 S.Ct. at 1884-85.
However, the officer conducting such an investigatory stop must be able to articulate something more than an "inchoate and unparticularized suspicion or 'hunch.'" Id. at 27, 88 S.Ct. at 1883. Moreover, the mere fact that an officer's suspicion or hunch, in fact, was well-founded is not dispositive for a constitutional analysis, rather, the Fourth Amendment requires "some level of objective justification for making the stop." INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763 (1984).
The concept of "reasonable suspicion" is not "readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329 (1983). In large part, common sense dictates the analysis of reasonable suspicion.
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behaviors; jurors as fact-finders are permitted to do the same and so are law enforcement officers.
United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695 (1981). As such, in evaluating the validity of a Terry stop, "the totality of the circumstances - the whole picture" must be considered. Id. at 417, 101 S.Ct. at 695.
In this case, viewing the totality of the circumstances, the Court finds that the facts known to the officers at the scene satisfied the test for reasonable suspicion. The officers were dispatched to the residence with information that a suspected residential burglary was in progress and, upon arriving at the scene, the officers observed three people walking away from the residence, down the driveway. These facts certainly would not have justified an arrest of Randolph, but they are sufficient grounds for a prudent law enforcement officer to conclude thatcriminal activity might be afoot and to initiate some investigation that would include a brief detention of Randolph.
Nonetheless, concluding that the initial stop of Randolph satisfies Terry does not end the inquiry. It is well-settled that "[a] Terry stop that is supported by reasonable suspicion at the outset may nonetheless violate the Fourth Amendment if it is excessively intrusive in its scope or manner of execution." El-Ghazzawy v. Berthiaume, 636 F.3d 452, 457 (8th Cir. 2011) (quoting United States v. Johnson, 592 F.3d 442, 451 (3d Cir. 2010)). Thus, Terry creates a dual inquiry whereby a court must examine (1) whether the investigatory stop is lawful at the outset, and (2) whether the manner in which the stop was conducted "was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879.
To conduct a protective frisk under Terry, officers must have specific articulable facts, which, along with rational inferences, support a reasonable suspicion that a suspect is potentially armed and...
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