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United States v. Calhoun

United States District Court, D. Connecticut

February 16, 2017

UNITED STATES
v.
SHANNON CALHOUN

          RULING AND ORDER ON MOTION TO SUPPRESS

          STEFAN R. UNDERHILL UNITED STATES DISTRICT JUDGE.

         On the evening on April 13, 2016, several Bridgeport police officers breached the apartment where Shannon Calhoun was staying without first obtaining a warrant. They assert that their otherwise unlawful entry was justified by exigent circumstances. While in the apartment, officers identified various items of contraband, including a gun, a large amount of cash, and a baggie of what appeared to be cocaine.[1] The officers arrested Calhoun and later obtained a search warrant for the apartment on the basis of, inter alia, the contraband they had identified. A subsequent search pursuant to the warrant uncovered several firearms, ammunition, quantities of various controlled substances, and other indicia that Calhoun was involved in the drug trade. On the basis of that evidence, Calhoun was indicted for possession with intent to distribute cocaine base and MDMA in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c); and unlawful possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Calhoun moved to suppress the government's evidence against him. (doc. 31) A suppression hearing was held on February 7, 2017, and the parties submitted post-hearing briefs thereafter.

         Based on my findings of fact, set forth below, Calhoun's Fourth Amendment rights were violated when the police entered the apartment where he was staying without a warrant, and were further violated when they exceeded even the scope of the warrant exception they assert should have applied. Calhoun is therefore entitled to a suppression of the evidence found as a result of the warrantless search, and his motion is granted.

         A. Burden of Proof

         “[T]he burden of production and persuasion generally rest upon the movant in a suppression hearing.” United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980) (collecting cases). “In a motion to suppress physical evidence, the burden of proof is initially on the defendant. Once the defendant has established some factual basis for the motion, the burden shifts to the government to show that the search was lawful.” United States v. O'Neill, 2016 WL 6802644, at *8 (W.D.N.Y. Nov. 17, 2016) (citation omitted). “The standard of proof on the party who carries the burden is preponderance of the evidence.” Id. Accordingly, the government has the burden to show that exigent circumstances justified the initial entry and search. See United States v. Lopez, 723 F.Supp. 229, 234 (S.D.N.Y. 1989).

         B. Findings of Fact

         Around 10:16 p.m.[2] on April 13, 2016, two people called 911 to report shots fired in the vicinity of a CVS Pharmacy in Bridgeport, CT. Recording of 911 Calls, (Gov't Ex. 2). The second caller also stated that a man had threatened a woman in the parking lot, and had broken the window of her car using a gun. The second caller asserted that she fled after the assault took place and she heard shots fired in the area behind her. She described the aggressor as a stocky black man in dark clothing, and stated that after he broke the car window he drove away in a black BMW. (Gov't Exs. 2, 49) Around the same time, an off-duty police officer who lived in the area called the Bridgeport Police Department to report that she heard shots fired and then saw a black sports-utility vehicle drive quickly away from the area. (Gov't Ex. 49); see also (Azevedo Test.). When an officer arrived at the CVS shortly thereafter, the owner of the car that had been attacked identified the aggressor as Shannon Calhoun, and provided the officer with the license plate number for his car as well as Calhoun's address, 49 Ridgewood Place, which was approximately one block away. (Gov't Exs. 52, 53, and 54); see also (Martinez Test.). The car was also registered at 49 Ridgewood Place.[3] None of the people interviewed at the CVS indicated that Calhoun had been shot or was otherwise seriously injured, beyond the potential injuries to his hand sustained as a result of punching through a car window. See (Gov't Exs. 53 and 54).

         Officers Diaz and Ortiz arrived at 49 Ridgewood Place approximately five minutes[4] after the initial calls. See Recording of Police Channel One (Gov't Ex. 1); Police Incident Report (Gov't Ex. 49). A black BMW sedan was located outside of 49 Ridgewood Place (Gov't Ex. 6), [5]and an officer confirmed that the hood of the car was warm, indicating that the car had recently been driven, see (Gov't Ex. 1). A few minutes after locating the car, officers at the scene also identified a small amount of blood in the front portion of the driver's seat of the car, on the console, and on the gear shift. See (Gov't Exs. 7 and 8) (depicting a small amount of what appears to be blood on the gear shift, console, and driver's seat); see also (Gov't Ex. 49) (indicating a report of “fresh blood in front seat of [the BMW]”). Specifically, the officer who first reported seeing blood in the car over Channel One stated that there was “not a lot, only a couple of drops.” (Gov't Ex. 1) Shortly thereafter, an officer stated that it was “definitely the suspect's vehicle.” Id. An officer then identified Shannon Calhoun as “the suspect” over Channel One. Id.

         Officer Blackwell responded to the call of shots fired, and arrived at 49 Ridgewood Place shortly thereafter. He was informed by officers already at the scene about the incident at the CVS involving the black BMW parked outside of the residence. (Blackwell Test.) He observed a few drops of what appeared to him to be “fresh blood” in the front seat of the car. Id. Blackwell and the other officers at the scene spent approximately fifteen minutes searching the area for shell casings. See (Gov't Ex. 49); (Blackwell Test.). None were found; however, in the course of that search, the officers discovered a single drop of what appeared to be fresh blood on the sidewalk approximately seven feet from the car, and three additional drops of blood on the porch outside the door of 49 Ridgewood Place. See (Gov't Exs. 11-13) (depicting drops of blood on sidewalk and porch). There was also a small amount of blood on the door handle and screen door of the residence. (Blackwell Test.); (Borona Test.) (describing the blood as a “smudge”). Blackwell saw a light on in the second floor of the residence. He pounded on the door and announced the police presence for approximately five minutes, receiving no response. Neither Blackwell nor any other officer appears to have heard any noises from the residence or seen any indication of property damage or disruption other than the few small spots of blood.

         Detective Borona also responded to the shots fired call. (Borona Test.) He initially went to the CVS, and arrived at 49 Ridgewood Place while Blackwell was pounding on the door of the residence. Id. Borona viewed the drops of blood inside the car and on the sidewalk, and then asked his sergeant for permission to breach the residence.[6] Specifically, he stated that there was blood leading from the BMW to the residence, a possible injured party inside, and he thought that he had “exigency.” See (Gov't Ex. 1). He breached the door and entered with a canine unit, followed by Blackwell.[7] (Blackwell Test.) Borona commanded any people in the residence to come out with their hands up.[8] (Borona Test.) Calhoun came out into the main hallway of the apartment with his hands up and was forced to the ground. See (Blackwell Test.); (Borona Test.) He had a bloody cut on his finger. Blackwell detained Calhoun with handcuffs and conducted a pat-down of Calhoun's person. (Blackwell Test.) The Incident Log indicates that Calhoun was arrested at or around 10:38 p.m., approximately two minutes after the breach and 20 minutes after the initial report of shots fired. See (Gov't Ex. 49); (Borona Test.) (confirming that approximate timing).

         The officers then conducted a protective sweep of the residence. The government witnesses provided conflicting testimony regarding the precise sequence of that sweep. Both Blackwell and Borona stated that they observed additional blood on the floor of the bathroom. Blackwell asserted that he looked past the door of the front bedroom to assess whether any threats or people needing assistance were present, and observed a large amount of money and what appeared to be a small bag of narcotics on the bed. (Blackwell Test.)

         Borona also asserted that he conducted a protective sweep of the front bedroom, and stated that in the course of his sweep he saw “packaging material” on the bed. Borona subsequently clarified that “packaging material” referred to narcotics. (Borona Test.) He did not recall seeing Blackwell do a sweep of the front bedroom. Borona initially testified that he did not enter any of the other rooms because at that point he knew no one else was in the apartment. Sergeant Amato, however, testified that Borona was in the kitchen apparently after the scene had been secured. (Amato Test.) And when Borona was confronted with his inconsistent previous statement to the government that he had also seen a firearm with what appeared to be blood on it on the floor of a closet in the back bedroom, see (Gov't Exs. 26 and 28) (depicting gun in closet), Borona explained that he had seen that weapon during “a walk-through” conducted “after the scene had been secured.” (Borona Test.) Borona then explained that the weapon had been identified by other, unidentified officers during the initial protective sweep. Detective Martinez similarly testified that he was called to the residence because officers had located a firearm, and that he was called to the scene to conduct a walk-through after the need for a protective sweep had ended in order to prepare a search warrant affidavit. (Martinez Test.) The gun that Martinez testified to having seen in the closet did not have blood on it. Id. He also testified that during the subsequent search conducted after the officers obtained a warrant, a different gun with blood residue on it was found, but he asserted that gun could not have been found in plain view. Id.

         Sergeant Amato, a Gang Intelligence Sergeant who worked as a liaison to the State Police, heard the shots-fired call while doing unrelated paperwork. (Amato Test.) Amato testified that he decided to respond to the scene after hearing that Calhoun had been identified as the “suspect” because Amato had had extensive previous dealings with Calhoun and thought he could offer assistance in identifying Calhoun if needed. Amato arrived after the scene was secured. See (Gov't Ex. 49) He testified that he saw Borona and Blackwell in the kitchen supervising Calhoun, who was in handcuffs. (Amato Test.) Amato also entered the front bedroom and saw narcotics and money on the bed, although he did not suggest that observation was made in the course of a protective sweep. Amato testified that he commented to Calhoun that it was “amazing that a domestic finally caught him, ” and then left the premises because it was “not his case.”

         Apparently at the conclusion of the protective sweep, Borona reported over Channel One that Calhoun was in custody. (Gov't Ex. 1) A person who appears to be the dispatcher stated that medics were available, and on that suggestion, Borona asked that medics be directed to the residence, although he asked for them to “hold off” briefly. Id. Borona further reported that Calhoun was “all bloody” and that “narcotics and cash” had been seen in the residence. Id. Neither Borona nor any other officer reported seeing a gun over Channel One.

         None of the testifying officers (Blackwell, Borona, Martinez, or Amato) served as an affiant for the search warrant affidavit, although Martinez testified that he reviewed and approved it. The warrant affidavit has both small and larger differences from the officers' testimony at the hearing. See Warrant Aff., (Gov't Ex. 51) at 2-4. Most notably, it states that “the State Police Troop G reported that they received a call of a person shot at 49 Ridgewood Place, ” id. at ¶3, which call is also noted in the Police Incident Report, (Gov't Ex. 49); however, neither the Channel One recording nor any of the testifying officers indicated that report was relied on to assess the situation at 49 Ridgewood Place. The warrant affidavit also asserts that officers at the scene described “a heavy odor of marijuana” after they breached the door, which none of the testifying officers described at the hearing. Warrant Aff. at ¶ 7. With respect to the contraband identified in the course of the protective sweep, the warrant affidavit lists a “black handgun with blood on it, ” that was allegedly observed in an open closet, as well as cash and a clear plastic bag with what appears to be cocaine in it. Id. On the basis of that affidavit, the police obtained a search warrant and found at the residence the considerable additional contraband that forms the basis of the instant charges.

         Crime Scene Reports submitted on April 20, 2016 also stated that “a black handgun with blood on it” or a “gun” was found during a protective sweep. See Crime Scene Report Narrative at 1-2, (Gov't Ex. 51). One of those reports states all of the contraband on the floor of the closet, including the visible gun, was “found by Detective Martinez, ” whom I note did not testify to his involvement in any protective sweep. Id. at 7. It is unclear from the report when that discovery is asserted to have taken place. Id.

         II. Discussion

         Calhoun challenges the government's evidence on three primary grounds: first, the officers' entrance into the residence was not justified by the exigent circumstances exception to the Fourth Amendment's warrant requirement, which the parties agree is the only exception that potentially applied; second, if the officers were lawfully on the premises, their search nevertheless exceeded the scope of a permissible protective sweep under Maryland v. Buie, 494 U.S. 325 (1990); and third, that the contraband items described in the warrant affidavit were not found pursuant to the plain view doctrine. The government disagrees with Calhoun's factual contentions, and further asserts that even if the initial entrance of the officers was improper, any Fourth Amendment violation was cured by the inevitable discovery doctrine. Finally, the government contends that the good faith exception to the exclusionary rule applies.

         For the reasons discussed below, I determine that the officers' entry was not justified by emergency circumstances. Taking the government's position here would result in a rule that allowed law enforcement to enter the residence of practically any person suspected of a gun-related crime, regardless of whether that person was believed to be injured. And while that rule might increase the effectiveness of law enforcement, it is simply not permitted under the Constitution. Moreover, there are strong indications that the Bridgeport Police Department blithely exceeded the permissible scope of a protective sweep in order to find additional evidence in this case, and, more troublingly, the Bridgeport Police Department may have a practice of doing so.

         A. Exigent Circumstances

         The warrantless entry into a home is presumptively unreasonable under the Fourth Amendment. See Welsh v. Wisconsin, 466 U.S. 740, 749 (1984); Payton v. New York, 445 U.S. 573, 586 (1980). An arrest within the home is “simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances . . . even when probable cause is clearly present.” Payton, 445 U.S. at 589. The government claims that the warrantless entry in this case was justified by exigent circumstances. The parties agree that the relevant exigency is described by the “emergency aid” doctrine, which has been articulated by the Supreme Court as follows:

Law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. This “emergency aid exception” does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises. It requires only an objectively reasonable basis for believing that a person within the house is in need of immediate aid.

Michigan v. Fisher, 558 U.S. 45, 47 (2009) (internal citations omitted) (quoting, inter alia, Brigham City v. Stuart, 547 U.S. 398 (2006)). Thus, the defining characteristic of the emergency aid doctrine is the officer's reasonable belief in an “urgent need to render aid or take action.”[9]Anthony v. City of New York, 339 F.3d 129, 135 (2d Cir. 2003) (internal quotation and citation omitted). The reasonableness of an officer's belief that the situation was sufficiently urgent “must be assessed in light of the particular circumstances confronting the officer at the time.” Kerman v. City of New York,261 F.3d ...


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