United States v. Scott, Case No. 15-40010-01-DDC

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
PartiesUNITED STATES OF AMERICA, Plaintiff, v. TREMAIN VAUGHN SCOTT (01), Defendant.
Docket NumberCase No. 15-40010-01-DDC
Decision Date22 July 2015


Case No. 15-40010-01-DDC


July 22, 2015


On January 21, 2015, United States Marshals Service (USMS) personnel, working alongside officers assigned to the Shawnee County Sheriff's Department Fugitive Task Force, conducted a "knock and talk" at a residence located at 3041 Southeast 12th Court in Topeka, Kansas. The officers sought to execute an arrest warrant for Nicholas Johnson. The residence belonged to Tearra Parker. After the officers entered Ms. Parker's residence, they identified and arrested Nicholas Johnson. The officers then executed a "protective sweep" of Ms. Parker's residence, during which they found the defendant in this case, Tremain Scott, hiding in a closet. The officers also found a firearm in the closet. Later, Mr. Scott later admitted he had handled this weapon occasionally for self-defense purposes. Mr. Scott now has been charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

Mr. Scott has filed a motion seeking to suppress both the firearm and the statements he made to officers as fruit of an unlawful entry into and search of Ms. Parker's residence (Doc. 18). The government has filed a response (Doc. 23). After the Court conducted an evidentiary hearing on this motion on June 22, 2015, the parties filed supplemental briefs (Docs. 33 and 34).

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Having considering the evidence and arguments the parties have presented, the Court denies Mr. Scott's motion for the reasons explained below.1

I. Factual Background

On January 21, 2015, USMS Deputy Jerry Viera and officers with the Shawnee County Sheriff's Department Fugitive Task Force arrived at Southeast 12th Court in Topeka, Kansas, to execute an arrest warrant for Nicholas Johnson. As the officers approached the home, they heard a window slam shut. The officers also heard movement in the apartment consistent with people attempting to conceal themselves inside. Deputy Viera then banged on the door and announced that officers were present with an arrest warrant for Mr. Johnson.

Initially, Ms. Parker refused to open the door. The officers managed to communicate with her through the closed door, however, and told her, again, that they had an arrest warrant for Nicholas Johnson. When Ms. Parker continued to refuse to open the door, the officers contacted the maintenance worker at the apartment complex to obtain a key. They also informed Ms. Parker that she was violating her Department of Housing and Urban Development ("HUD") lease by harboring fugitives and permitting people not designated on the lease to live at her apartment. The officers concede they said this with the hope that it would persuade Ms. Parker to open the door. After about 10 minutes passed, the officers became concerned that the individuals inside might be arming themselves or concealing evidence. They advised Ms. Parker that if she did not open the door, they would break it down.

Eventually, Ms. Parker relented and opened the door. Almost immediately, the officers observed Mr. Johnson inside the apartment, in plain view in the living room. After identifying Mr. Johnson, approximately five law enforcement officers entered the apartment, guns drawn, to

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arrest him. Deputy Viera testified that, at this moment, he became concerned that someone else might be hiding in the apartment's bedroom. There was no door separating the bedroom from the living room, but a bed sheet hung in the hallway and blocked officers' view into the bedroom. Deputy Viera asked Ms. Parker if there was anyone else in the apartment. She replied that there was not.

With Ms. Parker and Mr. Johnson in handcuffs, the officers proceeded to conduct a "protective sweep" of the apartment. While the officers executed the sweep, Ms. Parker and Ms. Johnson remained seated on the living-room couch. Deputy Viera entered the bedroom with Officer Sinclair. He testified that while he was checking the bedroom, he heard Officer Sinclair give verbal commands to somebody behind him. Deputy Viera turned and saw an individual he identified as the defendant in this case, Tremain Scott. Mr. Scott had been hiding in the bedroom closet. Mr. Scott had an outstanding warrant for his arrest on a domestic battery charge, so the officers also placed him under arrest.

After the officers arrested Mr. Scott, they took Mr. Johnson outside the residence. They also placed Ms. Parker under arrest for obstructing their execution of the arrest warrant. Ms. Parker remained in handcuffs for another 10 minutes, when the officers "unarrested" her. By this point, Corporal Ruben Salamanca with the Shawnee County Task Force had arrived on the scene. After the officers released Ms. Parker from custody, Corporal Salamanca spoke with her and obtained her consent to search her apartment. Ms. Parker consented verbally and by signing a written "consent form." Ms. Parker testified that she consented to the search only because she thought that the officers were going to search her home one way or another, with or without her consent. She also testified that she believed the officers would arrest her and take away her housing if she did not agree to a search.

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Based on her oral and written consent, the officers proceeded to search the rest of her apartment. During the search, they located a firearm in the closet near the front entrance. This firearm is the subject of the current felon in possession prosecution against the defendant, Tremain Scott.

II. Analysis

Mr. Scott asserts that three Fourth Amendment violations occurred during the events leading to his arrest and the discovery of the firearm. He argues that: (1) the officers' entry into Ms. Parkers' residence was unlawful under Payton v. New York, 445 U.S. 573 (1980); (2) the officers were not permitted to conduct a protective sweep under the circumstances; and (3) Ms. Parker did not voluntarily consent to the officers' search of her apartment. On these grounds, Mr. Scott moves to suppress, "any evidence obtained during the illegal search of his temporary residence, [and] any evidence obtained as a result of the illegal seizure of his property." Doc. 33 at 1.

A. Whether the Arrest Warrant Authorized Entry Into Ms. Parker's Home

The Supreme Court has held that "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within" the dwelling. Payton v. New York, 445 U.S. 573, 603 (1980). But the standards governing the legality of an officer's entry into a residence differ depending on whether the residence belongs to the arrestee or a third person. See United States v. Thompson, 402 F. App'x 378, 382 (10th Cir. 2010). Payton sets forth the standard governing entry into a suspect's own home. Id. "In light of Patyon," the Tenth Circuit "has created a two-prong test for determining whether an arrest warrant alone is sufficient to justify entrance into a home." Id. "For their entrance to be lawful, officers must have a reasonable belief the arrestee

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(1) lives in the residence...

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