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United States v. Allen

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

January 30, 2018




         Before the Court is the Magistrate Judge's Report and Recommendation (the “Report”), dated December 1, 2017. (ECF No. 40.) The Report recommends that Defendant Demario Allen's Motion to Suppress (ECF No. 21) be denied. (Id. at 165.) Allen filed timely objections to the Report on December 20, 2017. (ECF No. 46.) The same day, the Government stated that it had no objection to the Report's findings of fact or conclusions of law. (ECF No. 47.)

         For the reasons stated below, Allen's objections are OVERRULED and the Report is ADOPTED. Allen's Motion to Suppress is DENIED.

         I. Background

         A. Factual Background

         On the morning of March 28, 2016, Officer Marc Kloek of the Memphis Police Department (“MPD”) responded to a call for an auto theft at 4840 Bowen Avenue in Memphis, Tennessee (“the Residence”). (Evid. Hr'g Tr., ECF No. 34 at 56:11-22, 62:25-17:2.) At the Residence, Officer Kloek noticed a white truck in the yard and a white Mercury Sable in the driveway. (Id. at 57:3-6, 63:3-9.)

         Officer Kloek was met at the Residence by Candice Burchett, who told him that her silver vehicle had been stolen. (Id. at 56:24-1.) Allen was also present at the Residence. (Id. at 65:11-23.) According to Officer Kloek, Burchett was polite and cooperative. (Id. at 57:9-11.) When Officer Kloek completed the report about Burchett's stolen vehicle, he returned to patrol service. (Id. at 57:16.)

         Several hours later, Officer Kloek heard a radio report of a robbery involving a white truck and a white Mercury Sable. (Id. at 57:21-12:2, 66:19-21.) Recognizing the description of the vehicles he had seen at the Residence, Officer Kloek returned to the Residence and saw a white truck and a white Mercury Sable. (Id. at 58:5-19.)

         Officer Kloek knocked on the door and asked Burchett if she knew anything about a robbery. (Id. at 58:11-13.) Officer Kloek noticed that Allen was at the Residence. (Id. at 58:21-13:9.) According to Officer Kloek, Burchett was not cooperative, so he stopped questioning. (Id. at 58:11-15.) Officer Kloek left the Residence to confer with Officer Manuel Saldana, who had responded to the robbery report. (Id. at 70:6-25:4.)

         Officers Kloek and Saldana returned to the Residence with the robbery victim to conduct a “single shot” -- a procedure that allows the victim an opportunity to identify a perpetrator after an incident. (Id. at 59:23-14:8, 71:1-13.) The victim identified Burchett from the robbery. (Id. at 72:21-23.)

         After Burchett had been positively identified by the robbery victim, she was handcuffed and detained in the back of Officer Kloek's squad car for approximately fifteen minutes until a lieutenant arrived. (Id. at 73:10-17.) Based on Burchett's statements, the officers concluded that Allen was no longer at the Residence. (Id. at 79:19-25, 86:6-8.) Officer Kloek also noticed the white truck that had been on the property was gone. (Id. at 79:17-20.)

         Shortly after Burchett had been detained, several of Burchett's family members arrived to retrieve Burchett's children. (Id. at 91:3-5, 88:15-22.)

         Lieutenant Greenleaf.[1] then arrived at the Residence. He contacted Allen by telephone and attempted to convince Allen to return to the Residence. (Id. at 91:6-19.) Allen then emerged from the Residence, speaking on the telephone with Lieutenant Greenleaf. (Id. at 91:21-25.) Officer Saldana and another officer took Allen into custody as Allen walked out of the Residence. (Id. at 92:24-25, 93:2-3.) Allen was handcuffed and placed in the back of a squad car. (See id. at 102:25; 120:16-18; 125:11-13.) Burchett's children also emerged from the Residence. (Id. at 92:8-12.)

         Detective John Hampton and Officer Theresa Alcover arrived at the Residence. (Id. at 102:19-25, 103:1-3.) By then, three squad cars, three officers, and two lieutenants were at the Residence. (Id. at 115:24-25, 116:1-5.)

         Detective Hampton determined through a utility database that Burchett paid the utilities at the Residence. (Id. at 96:11-19.) Burchett also told the officers that she rented the Residence. (Id. at 106:6-7.)

         Officer Joshua Stanley arrived at the Residence. (Id. at 124:5-23.) He spoke with Allen while Allen was detained. (Id. at 125:11-13.).[2] Officer Stanley does not recall Allen objecting to the search of the Residence. (Id. at 127:1-7; 130:2-12.)

         While Allen was detained, Detective Hampton and Officer Alcover spoke with Burchett, asked for consent to search the Residence, and provided Burchett a consent-to-search form. (Id. at 96:20-24.) After describing the contents of the form to Burchett, the officers removed Burchett's handcuffs. (Id. at 112:23-25.) Without asking any questions or becoming observably agitated, Burchett reviewed and signed the consent forms to search the Residence and vehicles. (Id. at 96:24, 100:23-25, 101:1-4.)

         Burchett then accompanied the officers in searching the Residence. (Id. at 61:7-24.) Officers found articles matching the description of those stolen from the robbery victim and a firearm and ammunition in the Residence and garage. (See Id. at 97:4-8, 100:20-22, 101:14-19, 117:14-17.)

         B. ...

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