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United States v. Allen

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

December 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DEMARIO ALLEN, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS

          DIANE K. VESCOVO, CHIEF UNITED STATES MAGISTRATE JUDGE

         On October 27, 2016, the grand jury returned an indictment charging the defendant, Demario Allen (“Allen”), with possession of a firearm and ammunition as a convicted felon in violation of 18 U.S.C. § 922(g). (Indictment, ECF No. 1.) The charge arises from a warrantless search of a residence located at 4840 Bowen Avenue, Memphis, Tennessee 38122, by the Memphis Police Department (“MPD”) based on statements made by a robbery victim and consent by a resident of the home. During the search, the police found a firearm and ammunition allegedly belonging to Allen, along with items taken in the robbery.

         Before the court is the June 30, 2017 motion of Allen to suppress items seized during the search of the residence and garage. (Mot. Suppress 8, ECF No. 21.) The government filed a response on July 14, 2017. (ECF No. 23.) The motion was referred to the United States Magistrate Judge for a report and recommendation. (ECF No. 22.)

         The court held an evidentiary hearing on September 27, 2017. At the hearing, the government called five witnesses: Officer Marc Kloek (“Officer Kloek”), Officer Manuel Saldana (“Officer Saldana”), Detective John Hampton (“Detective Hampton”), Officer Theresa Carlson[1] (“Officer Carlson”), and Detective Joshua Stanley (“Detective Stanley”). The government also introduced into evidence two exhibits: a collective exhibit of the consent to search forms, (Ex. 1), and a second collective exhibit of pictures of the house, garage, and items found in the garage, (Ex. 2). Allen did not call any witnesses or enter any exhibits.

         At the evidentiary hearing, Allen requested additional time to file a supplemental brief addressing whether the search was invalid because Allen either objected to the search or was unable to object to the search due to his detention.[2] The court granted the request, and on November 6, 2017, Allen filed a supplemental brief in support of his motion to suppress. (ECF No. 38.) The government responded on November 20, 2017. (ECF No. 39.)

         After careful consideration of the statements of counsel, the testimony of the witnesses, the evidentiary exhibits, and the entire record in this case, this court submits the following findings of fact and conclusions of law and recommends that the motion to suppress be denied.

         I. PROPOSED FINDINGS OF FACT

         The government's first witness, Officer Kloek, has worked as a police officer for MPD for approximately seventeen years. (Tr. 10:7-10.) Officer Kloek testified that on March 28, 2016, around 7 a.m., he responded to a call regarding an auto theft at 4840 Bowen Avenue in Memphis, Tennessee. (Id. at 10:11-22, 16:25-17:2.) Upon arriving at the residence, Officer Kloek noticed a white truck in the yard and a white Mercury Sable in the driveway. (Id. at 11:3-6, 17:3-9.) Officer Kloek stated that he met with Candice Burchett (“Burchett”) at the residence, who told him that her silver vehicle had been stolen. (Id. at 10:24-1.) According to Officer Kloek, Burchett was polite and cooperative. (Id. at 11:9-11.) On cross examination, Officer Kloek testified that Allen was also at the house at the 7 a.m. visit, but he was more focused on Burchett since she called in the complaint. (Id. at 19:11-23.) Officer Kloek completed the auto-theft report regarding Burchett's stolen vehicle and returned to patrol service. (Id. at 11:16.)

         Officer Kloek testified that a couple hours later, around 9 a.m., he heard a radio report of a robbery involving a white truck and a white Mercury Sable. (Id. at 11:21-12:2, 20:19-21.) Recognizing the descriptions of the vehicles from earlier that morning, Officer Kloek returned to 4840 Bowen Avenue; the white Mercury Sable was still in the driveway, and the white truck was still in the yard. (Id. at 12:5-19.) Officer Kloek knocked on the door and asked Burchett if she knew anything about a robbery. (Id. at 12:11-13.) According to Officer Kloek, Burchett was not cooperative, so he ceased questioning. (Id. at 12:11-15.) Officer Kloek noticed Allen at the residence, but as earlier, his attention was on Burchett. (Id. at 12:21-13:9.)

         Officer Kloek testified that he left 4840 Bowen Avenue to confer with Officer Saldana, who had responded to the robbery report. (Id. at 24:6-25:4.) Officer Kloek and Officer Saldana decided to return to 4840 Bowen Avenue, along with the robbery victim, to conduct a “single shot, ” a procedure which would give the victim an opportunity to identify whether he recognized anyone at the residence from the robbery. (Id. at 13:23-14:8, 25:1-13.) When Officer Kloek returned to 4840 Bowen Avenue to conduct the “single shot, ” he saw the white Mercury Sable in the driveway but did not see the white truck that had been in the yard. (Id. at 33:17-20.) Officer Kloek testified that to conduct the “single shot, ” he knocked on the door while Officer Saldana and the robbery victim remained out of sight. (Id. at 14:4-8, 26:4-23.) Officer Kloek stated that he talked to Burchett on the porch. (Id. at 26:16-18.) Officer Kloek then received a signal from Officer Saldana that the robbery victim identified Burchett from the robbery. (Id. at 26:21-23.)

         Officer Kloek testified that after the positive identification, he handcuffed and detained Burchett in the back of his squad car. (Id. at 15:7-9, 26:21-23.) Officer Kloek stated that Burchett remained handcuffed in the back of his squad car for fifteen minutes until the lieutenant arrived on the scene. (Id. at 27:10-17.) According to Officer Kloek, the officers who arrived on the scene obtained consent from Burchett to search the residence. (Id. at 27:23-24.) About ten minutes after Burchett signed the consent form, Officer Kloek accompanied her into the house as the search was performed. (Id. at 28:3-15.) Officer Kloek testified that approximately thirty minutes passed from the time of the “single shot” when Burchett was initially detained to the time he accompanied her into the house after she consented to the search. (Id. at 31:15-32:9.)

         Officer Kloek stated that at some point during the search, Allen emerged from the house. (Id. at 28:21-29:7.) According to Officer Kloek, Allen was arrested and detained in the rear of a squad car with handcuffs. (Id. at 30:1-2.)

         The government's second witness, Officer Saldana, has been a police officer with MPD for eight years. (Id. at 35:17-20.) Officer Saldana testified that he responded to the 9 a.m. radio dispatch on March 28, 2016, reporting a robbery involving a white pickup truck. (Id. at 35:21-36:2.) Officer Saldana testified that he was driving northbound on Mendenhall trying to locate the white pickup truck described in the police broadcast, when he saw a white male run into the street flailing his arms. (Id. at 36:3-15.) Officer Saldana stopped and discovered this was the victim of the robbery. (Id. at 36:15-16.) The victim told Officer Saldana that he was robbed at Bowen and Mendenhall and then approached and robbed a second time by the same people three blocks up Mendenhall. (Id. at 36:18-22.) The victim told Officer Saldana that the assailants drove a white Mercury Sable and a white pickup truck. (Id. at 36:25-37:16.)

         Officer Saldana's testimony regarding the “single shot” was consistent with Officer Kloek's testimony. Officer Saldana testified that, upon arriving at 4840 Bowen Avenue to conduct the “single shot, ” the victim identified the white Mercury Sable as a car involved in the robbery. (Id. at 39:2-3.) Officer Saldana also stated that the victim made a positive identification of Burchett during the “single shot.” (Id. at 9-15.) After she had been taken into custody, Burchett told Officer Saldana that Allen was ...


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