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United States v. Porter

United States District Court, M.D. Tennessee, Nashville Division

June 1, 2018

UNITED STATES OF AMERICA
v.
ANTONIO M. PORTER

          MEMORANDUM AND ORDER

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE

         Antonio M. Porter has filed a Motion to Suppress evidence found during a search of his home on July 25, 2017. (Docket No. 27.) The court held an evidentiary hearing on the motion on March 15, 2018, after which Porter and the United States filed post-hearing briefs. (Docket Nos. 43, 46, 47.) For the reasons set out herein, Porter's motion will be denied.

         I. BACKGROUND

         At around 4:20 in the morning on July 25, 2017, three Pulaski Police Department (“PPD”) officers-Patrol Officer Adam Oglesby, Patrol Officer Andy Griggs, and Lieutenant Justin Young-approached Porter's home to execute an arrest warrant on Porter. (Docket No. 42 at 20.) The officers parked a street over and made their way to the home, passing first through the back yard. (Id. at 95.) Lieutenant Young described the home as follows:

It's in a residential neighborhood. The house sits at the end of a city street, on the right shoulder of the road. It is a double-wide mobile home and clearly marked . . . on the front door-correction, above the front door. . . . [T]o the rear of it, there's a residence probably 40 yards behind it on the adjoining street. In front of it, a residence sits across the street, and there's one to the-it would be to the north that would probably be about 20 to 30 yards away as well.

(Id. at 20-21.) A photograph of the front of Porter's home that was admitted into evidence shows the double-wide apparently mounted on a stationary stone base, which would require a visitor approaching the front door of the home to ascend a few wooden steps onto a small, railed wooden porch. (Ex. 5.)

         Lieutenant Young went to the front door, while Officer Griggs went to the back door and Officer Oglesby remained on one side of the house. (Docket No. 42 at 21-22.) Lieutenant Young knocked on the front door and got no response. He then went around and joined Officer Griggs at the back, where he knocked on that door. After a short time, Lieutenant Young heard a male voice through the door asking who was there. Lieutenant Young replied that it was the police. At that point, Lieutenant Young returned to the front door, where he was joined by Officer Oglesby. Officer Oglesby knocked on the front door while Lieutenant Young stood on the stairs of the porch. (Id. at 22-23.) Porter's girlfriend, Dezaray Furr, opened the front door. (Id. at 24.) When asked how widely Ms. Furr had opened the door, Lieutenant Young said that she had opened it “probably 10 inches, just cracked the door enough to look out of [it].” (Id. at 25.) Ms. Furr was “standing behind the door with her face looking out.” (Id.)

         Lieutenant Young testified that, prior to Ms. Furr opening the door, he had not smelled any odor of marijuana on the premises. (Id.) However, “[w]hile speaking with Ms. Furr, ” he testified, he “could smell an odor of marijuana coming from inside the residence.” (Id.) He estimated that he was one or two feet away from the door itself at the time, having ascended the stairs to the porch. (Id. at 25-26.) He testified that he had no basis for believing that the smell was coming from anywhere other than the residence and rated the strength of the smell as “a 5 or a 6” on a scale of 1 to 10. (Id. at 26-27.)

         Officer Oglesby also testified that, prior to Ms. Furr opening the door, he had not detected any odor of marijuana, but, “[o]nce the door had opened, and [he] began speaking with her, [he] detected the odor of what [he] knew to be marijuana.” (Id. at 96.) He testified that he initially thought he detected what he thought was the smell of green marijuana, but, the longer he stood on the porch in front of the opened door, the more he “detected a smoky odor . . . [o]f burnt marijuana.” (Id. at 96.) On the same scale of 1 to 10, he placed the smell at ¶ 5. (Id. at 97.)

         Ms. Furr went back into the house momentarily and returned with Porter. (Id. at 27.) Lieutenant Young explained to Porter that the officers were there pursuant to an arrest warrant. Porter exited the home without incident and was placed under arrest on the front porch. (Id. at 28.) At some point during their interactions with Porter and/or Ms. Furr, the officers came to learn that there were several children inside the house. (Id. at 33, 101.)

         As Lieutenant Young was taking Porter to his patrol vehicle, Porter mentioned that his home had recently been “shot up.” (Id. at 29.) Porter showed Lieutenant Young bullet holes in the exterior of the home associated with the shooting. After that brief detour, Lieutenant Young took Porter the rest of the way to the patrol car and placed Porter in the rear. Lieutenant Young testified that, once inside the car, he asked Porter for his consent to search the home. Porter said that he would allow officers to search some, but not all, of the home. Lieutenant Young rejected that proposition and informed Porter that he could either consent to a full search or the police “would have to get a search warrant for the residence.” (Id.) Porter did not consent to the search. Lieutenant Young testified, however, that Porter did volunteer an explanation for the marijuana odor in the home-specifically, that he had smoked “a marijuana cigarette . . . before he went to bed” and “there might be a blunt left in the residence.” (Id. at 30.)

         At some point immediately or shortly thereafter, Lieutenant Young stepped out of his car and called Lieutenant Joey Turner, an officer in PPD's criminal investigation division. (Id.) Lieutenant Young described the situation generally, including the odor of marijuana and Porter's decision not to consent to a search, and requested that Lieutenant Turner send a drug investigator “to come draft a search warrant.” (Id. at 31.) After the call, Lieutenant Young testified, he informed Officers Oglesby and Griggs that a search warrant would be forthcoming and instructed them to “to make sure nobody else was inside the residence.” (Id.) When asked whether it was common practice for PPD to enter into a residence to “secure” it prior to obtaining a warrant, Lieutenant Young responded that it was. He identified officer safety and preventing destruction of evidence as the reasons for doing so.[1] (Id. at 33.) Lieutenant Young conceded that he had no reason to believe Ms. Furr might be armed and dangerous, other than her association with Porter.[2] (Id. at 34-35.)

         After his instructions to Officers Oglesby and Griggs, Lieutenant Young left to transport Porter to the county jail. (Id. at 34.) Lieutenant Young testified that, while he was transporting Porter, he received a call from Investigator Kenneth Bass, the drug investigator who had been called on for the preparation of the warrant application for Porter's home. According to Lieutenant Young, he explained to Investigator Bass, “that while placing Porter into custody, we could smell the odor of marijuana coming from the residence.” (Id. at 36.) When asked specifically whether he had told Investigator Bass that the residence “was going to be secured prior to the issuance of a search warrant, ” Lieutenant Young responded: “I believe I told him that the residence would be secured, and we'd be waiting on him.” (Id. at 37.) Lieutenant Young testified that “to secure a residence, ” in the ordinary parlance of his PPD colleagues, “[m]eans just to make sure there's nobody still inside the residence, keep people from coming in, ” which officers would accomplish by entering the residence and doing a “protective sweep.” (Id.)

         Investigator Bass testified that he had been at home, in bed, when he received a call from his supervisor describing the situation at the Porter house. He got up and, while on his way to the police department, placed the aforementioned call to Lieutenant Young. (Id. at 133-34.) His description of the conversation was substantially similar to Lieutenant Young's. (Id. at 134-35.) Investigator Bass testified that he had had some familiarity with Porter before July 25, 2017, including that Porter had been the subject of an arrest involving possession of marijuana for resale in 2012. (Id. at 132.) Investigator Bass also testified that, through unnamed informants, police had ‚Äúlearned that ...


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