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United States v. Spates

United States District Court, N.D. Illinois, Western Division

May 11, 2018

United States of America, Plaintiff,
v.
Darrien Spates, Defendant.

          ORDER

          Philip G. Reinhard Judge.

         For the following reasons, defendant's motion to suppress [41] is denied. Within 10 days the lawyers are to confer whether this case will proceed to a trial or a guilty plea. The court's courtroom deputy shall thereafter be contacted to schedule a date for a guilty plea or status for a trial.

         STATEMENT-OPINION

         On November 15, 2017, defendant filed a motion to suppress in this case [41], arguing that officers violated his Fourth Amendment rights by entering his apartment under an unnecessary and unlawful protective sweep which turned into a warrantless search. He further argues the consent to search given by his girlfriend, Jennifer McKinney (“McKinney”), was coerced. On December 5, 2017, the government filed a response to defendant's motion. See [45]. A hearing on the motion to suppress was held on December 20, 2017. Defendant filed a post-hearing memorandum on April 4, 2018 [57] and the government filed a response memorandum on April 25, 2018 [61]. This matter is now ripe for the court's review.

         I. Factual Background.

         As an initial matter, when considering the factual background of this case, the court draws on the testimony of McKinney and three police officers that testified at the suppression hearing. The court also takes into account an affidavit filed by defendant with his motion to dismiss; however, that affidavit addresses only his statement that he was staying at McKinney's apartment for several days prior to November 3, 2015, and that numerous items of his personal property and effects were at that apartment on November 3.[1] Because the resolution of a motion to suppress is a fact-specific inquiry, the court makes credibility determinations based on the witnesses' demeanor and the consistency of their testimony with each other and during cross examination. United States v. Thompson, 496 F.3d 807, 808 (7th Cir. 2007); United States v. Sands, 815 F.3d 1057, 1061 (7th Cir. 2015) (“Credibility determinations made by the district court are clearly erroneous only if they are ‘completely without foundation.'”).

         The following is a brief recitation of the relevant facts based on the court's credibility assessment of McKinney and the three officers' testimony.

         On November 3, 2015, Rockford police officers Erdal Kaya and Joshua Carpenter responded to a 911 call at 1034 Benton Street, Apartment 4. A downstairs tenant of the Benton Street residence told the police he called 911 after hearing a gun shot coming from the upstair apartment. Shortly after hearing the shot, the downstairs resident said he heard someone moving in the upstairs apartment and then saw a black male coming downstairs from that apartment and walking around the yard. After that, he heard someone going back upstairs. Officers Kaya and Carpenter arrived at the residence at approximately 9:30 p.m. and went directly to the upstairs apartment where they knocked on the door. When the defendant came to the door, Officer Kaya recognized him immediately as having a warrant out for his arrest. Defendant stepped out onto the porch area outside the door and Officer Kaya placed defendant under arrest by securing him with handcuffs and searched his person. Officer Kaya located a spent .40 caliber shell casing in defendant's right front pocket. Officer Kaya did not locate a weapon on defendant. While being placed under arrest and searched, defendant told the officers that there was a six-year-old child inside the apartment. He further told the officers there was no one else in the apartment. The officers testified that based on their training and experience, individuals who speak with law enforcement officers sometimes lie to the police. Following his search of defendant's person, Officer Kaya secured defendant inside his squad car.

         Within minutes, Officer Duane Johnson and other officers arrived at the house. Since defendant had told the officers the child's name, the officers began calling the child's name into the apartment, but the child did not respond. Officers Carpenter and Johnson, along with another officer, then entered the upstairs apartment. Once inside the apartment, the officers went from room to room and looked in any place where a person could hid. The officers found the six-year-old child on the couch in the main living room area of the apartment. Officer Johnson took the child downstairs to his mother, Jennifer McKinney. The officers then left the apartment. This sweep of the apartment lasted between one and two minutes. During this sweep, the officers did not see a weapon; however, Officer Carpenter saw what he believed to be drugs and drug paraphernalia. Officer Johnson testified that at the time he believed there was potentially a weapon in the apartment. He also testified a child in an apartment with a firearm could pose a variety of dangers to the child and to others.

         After bringing the child downstairs and outside, Officer Johnson joined Officer Kaya who was speaking with McKinney. McKinney was the tenant of the upstairs apartment where she lived with her child. Defendant, who had been a friend of McKinney's since childhood, had been staying at her apartment for several previous nights and had some personal belongings at her apartment. On the night of defendant's arrest, McKinney was next door with her landlord and another woman helping the landlord clean that property. At some point in the evening, she heard police officers outside her apartment and the woman she was cleaning with heard the officers calling out McKinney's child's name. Once outside, a police officer brought McKinney's son to her. Officer Kaya then spoke with McKinney and she provided him with a signed written consent form to search her apartment.

         Officer Kaya testified his conversation with McKinney was short. McKinney was 27 years old at the time, was a high school graduate, and could read and write English. Officer Kaya asked McKinney if she knew if there were any firearms in her apartment and she said she did not know of any. He then asked her if she would agree to a search of her apartment. Officer Kaya believed McKinney knew and understood the written consent form, she agreed to the search of her apartment the first time Officer Kaya requested, she was not surrounded by police officers nor was she handcuffed or in police custody. No one made any physical contact with McKinney, told her she was not free to go, or told her that officers already knew there was a gun in her apartment. Officer Kaya testified that while he could not recall all the details of his interaction with McKinney, he typically followed the same procedure when attempting to obtain a person's consent to search. His procedure was to explain the consent form, fill out any necessary information, and ask the person to sign the form and note the time. He also testified that he routinely advised the person to read the form before signing and would explain to them their right to refuse consent. Additionally, as a mandated reporter, Officer Kaya would advise a parent that he will call the Department of Children and Family Services (“DCFS”) if he believes a minor may be in danger. Officer Kaya did not recall if he told McKinney that he would be contacting DCFS, but he testified it would be his practice to do so if a minor is located in a residence with a gun. It was Officer Kaya's practice to advise parents that DCFS will be contacted and would investigate, but he would not tell them that DCFS would be taking away their child. Officer Kaya did not recall telling McKinney that it would look incriminating for her or that DCFS would take away her child if she did not sign the consent form. Officer Johnson was present when Officer Kaya was speaking with McKinney and spoke with her only briefly. Officer Johnson made no threats to McKinney, did not tell her that her child would be taken from her or that she would look guilty if she did not sign the consent form. Officer Johnson did not tell McKinney that it would be in her best interest to sign the form.

         McKinney testified she signed the consent search form and wrote in the time of her signature. She testified she did not read the form and could not recall if any officer advised her that she did not have to sign. However, McKinney testified she knew she could refuse consent. McKinney testified that the officers advised her that DCFS would be notified because it was harmful for her child to be in an apartment with weapons. She testified the officers told her it would make her look guilty if she refused to sign the consent form. She also testified that the officers told her it would look better to DCFS if she signed the form. McKinney stated her child was with her when she signed the form so she knew officers had been inside her apartment prior to her signing the consent, but she did not know whether they had already searched her apartment or whether they found the weapon or any drugs inside her apartment at that time. Despite her testimony that she would not have signed the consent form but for the officers' representations, she knew she had the ability to refuse to sign.

         After McKinney signed the written consent to search form and before a firearm was found inside the apartment, Officer Kaya spoke with defendant in Officer Kaya's squad car. Defendant told Officer Kaya he did not know anything about a shot fired inside the apartment. He told Officer Kaya he found the spent shell casing and put it in his pocket. Based on his demeanor, Officer Kaya did not believe defendant was telling the truth about the shot fired in the apartment and the spent shell casing. Defendant admitted to Officer Kaya he was a convicted felon. During the consent search of the apartment, the officers located a Springfield XD-40 firearm behind two boots on a shelf in a bedroom closet. Officer Kaya testified that based on the circumstances, if McKinney had not provided a written consent to search the apartment, he would have sought a search warrant.

         II. ...


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