United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT COURT JUDGE.
the Court is Defendant Antwoine Malone's Motion to
Suppress Evidence and Statements with Incorporated Memorandum
of Law, filed on April 21, 2017. (ECF No. 26.) The Government
responded on May 5, 2017. (ECF No. 28.) On July 7, 2017,
United States Magistrate Judge Tu M. Pham issued a Report and
Recommendation (the “Report”). (ECF No. 38.) The
Report recommends that the motion to suppress be denied.
(Id. at 214.) Malone filed timely objections to the
Report on July 28, 2017. (ECF No. 41.) The Government
responded to Malone's objections on August 11, 2017. (ECF
No. 42.) For the reasons stated below, Malone's
objections are OVERRULED and the Report is ADOPTED.
13, 2016, at about 9:00 p.m., the Millington Police
Department received a call from a woman, Danielle Arps,
saying that she had been the victim of a domestic assault at
a residence in Millington, Tennessee (“the
Residence”). Arps drove to a nearby shopping center.
Officer Nicholas McCarroll of the Millington Police
Department and Officer Clint Dixon of the Fayette County
Sheriff's Department were dispatched to meet Arps there.
(See Suppression Hr'g Tr., McCarroll Test., ECF
No. 33 at 66:5-14.) Arps told the officers that her husband,
Malone, had pulled a gun on her after becoming angry and
agitated during an argument at the Residence. (Id.
at 67:11-19.) The officers testified that Arps was scared and
frantic when they spoke to her. (Id. at 67:24-25.)
Officers McCarroll and Dixon met with Arps at the shopping
center, Officer James Kendrick of the Millington Police
Department was dispatched to the Residence. (See Suppression
Hr'g Tr., Kendrick Test., id. at 76:1-6.) At the
hearing, Officer Kendrick and Malone gave different accounts
of what happened when Officer Kendrick arrived at the
to Officer Kendrick, when he pulled up to the Residence,
Malone was standing in front of a car parked in the carport.
(Id. at 76:8-11.) Officer Kendrick testified that
only the non-emergency lights and spotlight on his patrol car
were on. (Id. at 77:5-12.) When Officer Kendrick got
out of the patrol car and attempted to speak with Malone
about the alleged domestic assault, Malone acted
“shifty, ” then entered the Residence.
(Id. at 76:17-21.) After seeing Malone enter the
house, Officer Kendrick assumed a defensive position behind
the car in the carport, but did not draw his gun.
(Id. at 77:13-19.) Officer Kendrick estimated that
Malone stayed inside the Residence for about twenty seconds
before coming outside unarmed. (Id. at 78:16-25.)
Officer Kendrick then spoke with Malone, who was responsive.
(Id. at 79:1-11.) Around this time, Officer Dixon
arrived on the scene. (Id. at 79:15-17.) The
officers handcuffed Malone and conducted a pat-down search
for weapons. (Id. at 79:21-25.) They found a small
bag of marijuana in Malone's pocket. (Id. at
79:21-25, 90:13-18.) The officers then placed Malone in the
back of a patrol car. (Id. at 80:1-5.) Officers
Kendrick and Dixon testified that they did not draw their
weapons at any point. (See id. at 85-86, 88-89, 90,
testified that he was with a group of people under his
carport after the altercation with his wife. (Id. at
159:16-22.) He testified he was doing laundry, taking clothes
from the outside dryer back into the Residence, when Officer
Kendrick arrived and tried to speak with him. (Id.
at 160:1-5.) Malone testified that, when he came back
outside, Officer Kendrick drew his gun, pointed it at Malone,
and ordered Malone to get to the ground and scoot toward
Officer Kendrick. (Id. at 160:6-10.) Malone was then
patted down, handcuffed, and placed in the back of the patrol
car. (Id. at 160:16-25, 161:1-2.) Malone does not
dispute that he had marijuana in his pocket.
Dennis Brunson of the Millington Police Department arrived on
the scene after Malone had been placed in the patrol car.
(Id. at 162:7-8.) After speaking to Officers
Kendrick and Dixon, Sergeant Brunson spoke with Malone, who
was in the back seat of the patrol car. Malone and Sergeant
Brunson disagree about their conversation. Sergeant Brunson
testified that he
went to the patrol car. Advised [Malone] of the nature of why
we were all there, what was going on. Advised that we were
going to need to locate this weapon and try to resolve all
this matter. I advised him of his Miranda rights.
And he advised that he understood, and he was willing to be
(Id. at 129:22-25; 130:1-2.) Sergeant Brunson
testified that, after being read his Miranda rights,
Malone responded “yes, I know my rights.”
(Id. at 144:12-17.) Officer Dixon also testified
that he heard Sergeant Brunson advise Malone of his
Miranda rights. (Id. at 119:24-25,
to Sergeant Brunson, Malone “advised that he put the
gun in his house.” (Id. at 130:17-18.)
Sergeant Brunson testified that he “asked for consent
to go retrieve that gun where the officers and I would have
consent to go into the residence, ” and also
“asked to search for weapons and narcotics.”
(Id. at 130:18-19.) Sergeant Brunson and Officer
Kendrick testified that Malone gave verbal consent to search
the Residence. (Id. at 96:23-25, 147:21-22.)
Sergeant Brunson testified that “[w]e were given
consent to search the house. We were given verbal consent
more than once”. (Id. at 147:21-22.) Officer
Kendrick recalled that Malone was asked “[c]an we go
get the gun, and is there anything else you want to tell us
about as far as the marijuana or any other drugs, ” and
that “[w]e asked [Malone] a very umbrella statement . .
. are there any other guns or weapons involved in any of
this? If so, let us know.” (Id. at 97:5-7,
Brunson testified that Malone “appeared to have all his
senses and faculties” and that Malone advised the
officers he was not “high” or impaired.
(Id. at 152:15-16, 25; 153:1.) Officer Kendrick
stated that Malone “did not appear to be on anything.
He appeared to be normal.” (Id. at 96:15-16.)
Officer Dixon also testified that Malone “didn't
appear to be high.” (Id. at 121:15-16.)
testified that he was never advised of his Miranda
rights on July 13, 2016. (Id. at 164:21-22.)
According to Malone, Sergeant Brunson told Malone that his
wife had said that Malone had a gun during the alleged
assault, and Brunson “was saying like he needed to get
in the house to get that gun.” (Id. at
162:23-15, 163:1-2.) Malone testified that he was scared and
that his state of mind on the search was “you the
police, you know. You're going to do what you want to do
anyway.” (Id. at 163:5-12.) Malone felt that
the search was “[m]ore like a force thing . . . I mean,
I'm going to do whatever the law tell me to do as far -
I'm not going to tell them no.” (Id. at
164:11-14.) He also testified he was “high” that
evening, having used cocaine earlier and smoked marijuana
just before his encounter with the police. (Id. at
165:1-8.) He further testified Sergeant Brunson told him that
he appeared to be “high.” (Id.)
Brunson, Officer Kendrick, Officer Randy Akers, the K-9
handler, and Malone went into the Residence, while Officer
Dixon stayed outside. They entered the Residence through the
door by the carport with Malone leading the way.
(Id. at 132:2-8.) Once inside, according to Sergeant
Brunson, Malone “led [the officers] through the
kitchen, down a hallway to the last room on your left.”
(Id. at 132:11-12.) Inside that room, the officers
located two firearms. (Id. at 83:23-25, 84:1-5.)
According to Sergeant Brunson, when the the second gun was
found, Malone said, “oh, that's my gun.”
(Id. at 84:11.) The officers also found ...