United States v. Wertenberger
| Decision Date | 10 August 2021 |
| Docket Number | 20-00203-01-CR-W-DGK |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. SIMON WERTENBERGER, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
REPORT AND RECOMMENDATION
This matter is currently before the Court on Defendant Simon Wertenberger's Motion to Suppress Evidence filed on March 15, 2021. Doc. 31. The Government filed Suggestions in Opposition on April 12, 2021. Doc. 39. Defendant did not file a reply, and the time for doing so has passed. L.R 7.0(c)(3). For the reasons set forth below, it is recommended that Defendant's motion be DENIED.
On August 26, 2020, the Grand Jury returned a three-count indictment charging Defendant Wertenberger with possession with the intent to distribute less than fifty kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i); and being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Doc. 11. The alleged offenses involve items discovered in a vehicle driven by Defendant after he was stopped by law enforcement in Buchanan County, Missouri. The basis for the stop and the subsequent search and seizure is the subject of Defendant's pending motion to suppress.
On June 22, 2021, the undersigned held an evidentiary hearing on Defendant's motion to suppress. Mr. Wertenberger was present and represented by counsel, Lacon Smith. The Government was represented by Assistant United States Attorneys Brad Kavanaugh and Mike Green. At the evidentiary hearing, three witnesses testified: (1) Detective Richard Woodley, (2) Deputy Dennis Yager, and (3) Sergeant Samantha Crawford. Additionally, seven exhibits were admitted into evidence:
Based on the evidence adduced at the evidentiary hearing, the undersigned submits the following findings of fact:
1. In July and August 2020, Detective Richard Woodley, an officer with twenty-six years of experience, was assigned to the St. Joseph Police Department's (“SJPD”) Crimes Against People Unit. Tr. at 4.[1] He has been a SJPD detective for six years and mainly investigates simple assaults, violations of orders of protections, and occasionally domestic situations. Tr. at 4-5.
2. In the summer of 2020, Stacy Wertenberger applied for and received four ex parte orders of protection against her estranged husband, Defendant Simon Wertenberger, from the Buchanan County Circuit Court for herself and her three children. Tr. at 6-7, 81-82. Defendant is the biological father of Mrs. Wertenberger's two daughters, and the stepfather of her son. Tr. at 6, 81.
3. The ex parte orders of protection prohibited Defendant from communicating with Mrs. Wertenberger and granted her full custody of the three children. Tr. at 7. In July and August 2020, there were five alleged violations of the ex parte orders of protection and full orders of protection by Defendant, which are discussed infra. Tr. at 7-11.
4. The first alleged violation occurred on July 11, 2020. Tr. at 8-9. Mrs. Wertenberger reported she was at Taco John's, 1300 South Belt Highway, St. Joseph, Missouri when Defendant pulled up next to her and told her to stop having police come by the house. Tr. at 9, 14. Defendant then allegedly reached around under his seat and said, “You don't know how bad I want to shoot you right now.” Tr. at 9.
5. On July 27, 2020, the Buchanan County Circuit Court issued a full order of protection for Mrs. Wertenberger which awarded her full custody of the children and prohibited any contact between Mrs. Wertenberger and Defendant. Tr. at 82-85; Ex. 4. At that time, Defendant had custody of the children, which violated the court's order. Tr. at 82-83. In the full order of protection, the circuit court also directed the Buchanan County Sheriff's Department (“BCSD”) to assist Mrs. Wertenberger in obtaining custody of the children. Tr. at 65, 85; Ex. 4.
6. On that same date, the second alleged violation occurred. Tr. at 9, 82-85. Defendant allegedly contacted Mrs. Wertenberger via Facebook video chat message, which she answered because Defendant still had custody of their children. Tr. at 9. During their conversation, Defendant allegedly asked Mrs. Wertenberger how court went, made a hand gesture similar to that of a gun, and said something to the effect of “I'll start with your son first.” Tr. at 910.
7. The third alleged violation occurred on August 1, 2020, at the St. Joseph Rec Center, 2700 Southwest Parkway, St. Joseph, Missouri. Tr. at 10. Mrs. Wertenberger reported she was at the Rec Center to pick up her son when Defendant exited his vehicle and began walking toward her. Tr. at 10. Mrs. Wertenberger felt compelled to lock her door and roll up her window. Tr. at 10. Defendant allegedly told her, “I'll smoke you and your son.” Tr. at 10.
8. The fourth alleged violation occurred on August 8, 2020, at the South Belt Highway Walmart. Tr. at 10, 16-17. Mrs. Wertenberger reported that Defendant was at Walmart to relinquish custody of the older child to her, but he continued to keep custody of the younger child. Tr. at 10. Mrs. Wertenberger called the SJPD at 10:41 p.m., reporting Defendant's contact with her two hours prior. Tr. at 17-18.
9. The fifth alleged violation occurred on August 9, 2020, when Mrs. Wertenberger claims Defendant sent her ten to twelve video messages. Tr. at 11, 20.
10. All five alleged violations were assigned to Detective Woodley with the SJPD to investigate. Tr. at 11. At no point in his investigation did Detective Woodley speak with Mrs. Wertenberger or obtain evidence or records to corroborate her allegations against Defendant. Tr. at 14-17, 20.
11. Based on his investigation, Detective Woodley believed each incident violated the orders of protection. Tr. at 11. He prepared a probable cause statement for each instance and requested an arrest warrant for Defendant. Tr. at 11, 21-22.
12. The SJPD issued three separate BOLOs[2] for Defendant on July 28, August 2, and August 9, 2020[3] for the alleged violations that previously transpired. Tr. at 12-13; Ex. 7. The BOLOs requested law enforcement agencies to arrest Defendant regarding the investigation of the violations of the orders of protection. Tr. at 13. The July 28, 2020 BOLO, which was issued in response to the alleged incident that occurred on July 27, 2020, also stated Defendant may have his two daughters with him. Tr. at 13.
13. Sergeant Samantha Crawford has worked with the BCSD for over thirty-two years. Tr. at 78-79. She currently directs civil process, transport, and warrants for the department. Tr. at 79. She is responsible for serving papers, such as eviction papers, ex parte orders, notices of hearings, full orders of protection, and probate warrants. Tr. at 34, 79.
14. During the summer of 2020, Sergeant Crawford was asked to serve Defendant with the four ex parte orders of protection entered against him. Tr. at 79, 84-85; Ex. 4. During the sergeant's attempts to locate and serve Defendant, she contacted Mrs. Wertenberger who advised her that Defendant was not employed and often drove rental vehicles. Tr. at 80.
15. After the full order of protection was entered on July 27, 2020, Mrs. Wertenberger also reported to Sergeant Crawford that Defendant continued to keep custody of the children. Tr. at 82-83. Sergeant Crawford testified that Defendant's custody of the children constituted a violation of the full order of protection. Tr. at 82-83.
16. Between July 28, 2020, and August 11, 2020, the BCSD civil process department attempted to serve Defendant with the July 27, 2020 full order of protection on ten occasions without success. Tr. at 86-89; Ex. 5. After every unsuccessful contact attempt, Sergeant Crawford left a form in the door at the house identified as Defendant's residence on the full order of protection, indicating her desire to speak with the resident. Tr. at 90-91; Ex. 6.
17. On August 11, 2020, Sergeant Crawford asked Deputies Leonard Hill and Dennis Yager[4] for assistance in locating and serving Defendant with the July 27, 2020 order of protection and obtaining custody of the children. Tr. at 34-35, 37, 74, 87, 91-92. Sergeant Crawford provided Deputy Yager with the address listed for Defendant on the July 27, 2020 full order of protection: 3206 North Woodbine Road, Apartment B. Tr. at 34-36, 64-65; Ex. 4.
18. She also informed Deputy Yager that Defendant often drove rental vehicles. Tr. at 64. She explained to the deputies that the court order included a request to the sheriff's department to assist with obtaining custody of the children and returning them to their mother. Tr. at 65, 74.
19. On August 11, 2020, Deputy Yager was not aware of the SJPD police reports or probable cause statements. Tr. at 65. He was also not aware of the BOLOs being issued for Defendant. Tr. at 72. Deputy Yager was not advised of any of the underlying circumstances or claims leading up to the ex parte orders. Tr. at 65. He had no knowledge of any threats made by Defendant and was not aware of any emergency situation indicating Defendant posed an ongoing or imminent threat to the children. Tr. at 65-66.
20. At approximately 10:44 a.m. on August 11, 2020,...
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