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United States v. Malone

United States District Court, W.D. Tennessee, Western Division

September 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTWOINE MALONE, Defendant.

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT COURT JUDGE.

         Before 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.)[1] 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.

         I. BACKGROUND

         On July 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.)

         While 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 Residence.

         According 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, 115.)

         Malone 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.

         Sergeant 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 cooperative.

(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, 120:1-6.)

         According 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, 100:13-15.)

         Sergeant 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.)

         Malone 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.)

         Sergeant 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 ...


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