United States District Court, E.D. Tennessee, Chattanooga Division
REPORT & RECOMMENDATION
SUSAN K. LEE, Magistrate Judge.
Before the Court is a motion to suppress filed by Defendant Hershell Chrisman ("Defendant") [Doc. 18], in which Defendant seeks to suppress all evidence resulting from or traceable to his arrest, including the search of his person and the surrounding area and his statements to law enforcement officials. Plaintiff United States of America ("the government") filed a response in opposition [Doc. 25]. The motion to suppress was referred for a report and recommendation pursuant to 28 U.S.C. § 636(b) [Doc. 20].
An evidentiary hearing on the motion to suppress was held on November 14, 2014. In its response and during the hearing, the government acknowledged that it will not attempt to use in its case-in-chief certain evidence that Defendant was seeking to suppress. At the conclusion of the hearing, Defendant acknowledged that, given the concession of the government not to use certain evidence and the testimony presented during the hearing, the only aspect of Defendant's motion to suppress evidence remaining for resolution by the Court is Defendant's request to suppress a non-Mirandized statement allegedly made by Defendant that the government contends was spontaneous and not the result of custodial interrogation.
After fully considering the evidence and argument, I FIND the remaining statement at issue was not made in response to custodial interrogation. Thus, I RECOMMEND that Defendant's motion to suppress be DENIED.
During the evidentiary hearing, the government offered the testimony of McMinn County Sheriff's Deputy Douglas Benton, the only witness presented during the hearing. The largely uncontested and unchallenged testimony of Deputy Benton that remains relevant to the sole issue for Court resolution is briefly summarized below.
On the afternoon of September 16, 2013, Deputy Benton and Sergeant Mike Hays of the McMinn County Sheriff's Department were investigating another matter when they went to a residence at 198 County Road 128 looking for a subject with an outstanding arrest warrant. This residence was known to the officers, and they had executed warrants on other wanted persons at the residence in the past. As a result, the officers were familiar with the layout of the residence and the property.
As Deputy Benton watched the residence from a nearby field where he was obscured by the tree line, he observed Defendant on the back porch relieving himself. Deputy Benton immediately recognized Defendant and knew there was an outstanding state warrant for Defendant's arrest for violation of probation. Although Officer Benton had been actively looking for Defendant to execute the arrest warrant, he had no idea Defendant would be present at the residence.
After observing Defendant go back into the residence, Deputy Benton approached the main entrance door and knocked. When an unknown individual answered the door, Deputy Benton asked where "Pookie" (the nickname for Defendant) was. When the individual responded that he did not know "Pookie, " Deputy Benton explained he was referring to the man who had just been on the back porch. In response, the individual indicated Defendant was in the bedroom.
Deputy Benton, who had by then been joined at the entranceway by Sergeant Hays, entered the residence to apprehend Defendant. They did not seek consent or permission to enter because they had a warrant for Defendant's arrest. They found Defendant lying in a bed in a makeshift bedroom. Deputy Benton instructed Defendant to get up and interlace his fingers over his head because he was under arrest and Defendant cooperatively did so. Deputy Benton frisked Defendant incident to arrest and felt a magazine for a firearm in one of Defendant's front pants pockets. Deputy Benton removed the magazine and discovered it was loaded.
Deputy Benton, who had known Defendant for many years, was aware that Defendant had a prior felony conviction and was also aware that Defendant had suffered grievous injuries in a recent motorcycle accident. Deputy Benton described the arrest encounter as courteous and friendly, with no possibility that Defendant could flee due to his injuries, although Defendant had fled from arrest on at least one past occasion.
Sergeant Hays, who was in the makeshift bedroom with Defendant and Deputy Benton, spotted a handgun in the next room about nine to 12 feet away from Defendant and informed Deputy Benton he had spotted a gun. For officer safety reasons, it is standard police practice to inform fellow officers when a gun in seen in plain view. In response to hearing Sergeant Hays comment to Deputy Benton that he had seen a gun, Defendant spontaneously stated the magazine found in his pocket did not fit the gun as the magazine would have to be filed to fit the gun.
The magazine in Defendant's pocket had been "filed." The officers found that the gun on the table had a different loaded magazine in it. Defendant denied that the gun was his. Thereafter, Defendant was asked if his fingerprints would be on the gun and Defendant responded that his fingerprints would be on it because he had picked up and handled the gun.
On cross examination, Deputy Benton was asked, "With regard to the discussions that you previously talked about [on direct examination] about the clip, you pulled the clip out. Who was the first person to say something about the clip?" Officer Benton responded, "I don't recall if I said anything or if ...