United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge.
matter comes before the Court upon Defendant Daniel
Kendricks' Motion to Suppress Fruits of Illegal Search of
Home and Request for Evidentiary Hearing (Doc. 16),
Kendricks' Memorandum of Law in Support of Motion to
Suppress Fruits of Illegal Search of Home (Doc. 49), and
Kendricks' Motion to Supplement the Record or in the
Alternative Grant the Motion to Suppress due to a Giglio
Violation (Doc. 55). The Government responded in opposition
to both motions and the memorandum of law. Docs. 24, 54, 57.
An evidentiary hearing was held on June 6, 2017, and
continued on July 26, 2017. During the hearing on June 6,
2017, Detective Jeffrey Bliss, Deputy Sean Cappiello, and
Deputy Timothy Eason testified on behalf of the Government,
and Emma Kendricks testified on behalf of Kendricks. Doc. 47.
During the July 26, 2017 hearing, Kendricks conducted a
supplemental cross-examination of Cappiello. The Court, having
considered the motions and being fully advised in the
premises, will deny Kendricks' motion to suppress and
motion to supplement.
BACKGROUND AND FACTS
October 2016, the Manatee County Sheriff's Office was
investigating an individual referred to as D.G. for homicide
based on reports that he was seen walking with the homicide
victim just prior to the victim being shot and killed. Tr.
7:1-23. Two days after the homicide, Detective Jeffrey Bliss
spoke with D.G. at Palmetto High School, and D.G. indicated
that he lived at 1904 2nd Avenue West, Palmetto, Florida (the
“residence”), which was owned by D.G.'s
grandmother, Emma Kendricks. Tr. 8:2-11, 12:18-19, 23:18-20.
Based on the facts learned during his investigation, Bliss
authored and obtained an arrest warrant for D.G. for the
crime of second degree murder, which listed his address as
the residence. Tr. 10:1-6, 11:22, 12:6-7; Gov't Ex. 1.
Bliss also authored and obtained a ten-day search warrant for
the residence, which expired on October 16, 2016. Tr. 10:1-6,
residence is a three bedroom, two bathroom home with a one
car garage. Tr. 19:15-17. At the front of the home is a gated
chain-link fence. Gov't Ex. 2-3. The gate opens to a
driveway leading to the garage. Gov't Ex. 3. Connected to
the left of the driveway is a sidewalk that leads to a patio
area and the residence's front door. Id. To the
right of the garage is additional driveway and parking space.
Id. The front door opens to a living area, which has
a doorway to the garage. Tr. 36:7-9, 13-16. Upon entering the
garage from the residence, there is one couch facing the
garage door, and another couch positioned against the wall,
perpendicular to the first, so that the couches form a
backwards L when facing the garage door. Def. Ex. 1. There is
some space between where the couches would otherwise meet,
and additional space between the second couch and the garage
door. Id. These spaces cannot be clearly viewed from
the doorway into the residence. Def. Ex. 2. In the middle of
the garage, there is a glass table. Def. Ex. 1-3.
together with a team of detectives, went to the residence the
day the warrants were obtained, October 6, 2016, at which
time Emma Kendricks, Kendricks, and Louis Davis, a family
friend, were present. Tr. 12:13-21, 18:13-16. D.G. was not
present, and had not been to the residence for a day or two,
but Emma Kendricks confirmed that D.G. resided there. Tr.
18:3-8. Bliss read the search warrant to the occupants and
the detectives searched the residence. Tr. 13:7-10. Kendricks
and Emma Kendricks directed Bliss to a box of D.G.'s
personal items on the floor of the main living room, and
Bliss was told that D.G. slept on the couch of the living
room. Tr. 13:11-18.
continued to search for D.G. after the search warrant was
executed. Tr. 13:20-16:14. He received various tips,
including that D.G. remained in the area and was receiving
assistance from family. Tr. 16:1-10. Based on these reports,
on the evening of October 16, 2016, Bliss asked Detective
Sean Cappiello, who worked in the warrants unit, to search
for D.G. at the residence. Tr. 16:3-20, 25:15-17.
arrived at the residence around 5:30 or 5:45 on the morning
of October 17, 2016, accompanied by Deputy Timothy Eason,
Cappiello's partner in the warrants unit, and Canine
Deputy Jared Wolfe. Tr:28:6-10, 30:7-16. When the officers
arrived at the residence, the gate to the driveway was open.
Tr. 31:9-11. Cappiello walked to the front door, while Eason
waited at the garage door, and Wolfe went around the right
side to the back of the residence. Tr. 33:5-9, 34:12-20,
35:2-9. Cappiello knocked on the door and, eventually, Davis
answered. Tr. 35:14-20. Cappiello explained that he had an
arrest warrant for D.G. and that the officers were there to
look for him. Tr. 35:24-36:2. Davis responded that he did not
believe D.G. was inside the residence, but advised that the
officers could enter the residence. Tr. 36:4-6.
and Eason entered the residence, and Davis knocked on the
door leading into the garage. Kendricks, who had been laying
on one of the couches in the garage, opened the door. Tr.
36:7-21. Cappiello explained again that he was there to
execute the warrant for D.G., and, although Kendricks did not
believe D.G. was there, he told the officers they could look
for D.G. Tr. 37:3-6. The officers searched the entire
residence, except the garage, and Cappiello asked Kendricks
where D.G. would be if he was there. Tr. 37:8-17. Kendricks
responded that D.G. would be in the garage. Tr. 37:17-18.
entered the garage, followed by Kendricks, then Eason. Tr.
38:10-14. After Cappiello walked around the couch facing the
garage door, he saw a firearm on the glass table. Tr.
38:16-39:1. Cappiello advised Eason of the gun's
presence, and Eason immediately turned and observed the
firearm on the table. Tr. 70:23-71:6. Although other items
were on the glass table, none obscured Cappiello's or
Eason's view of the firearm, and Cappiello did not move
any objects in order to see the firearm. Tr. 39:3-12,
71:4-89. Cappiello seized the firearm and disarmed it to make
it safe. Tr. 40:21-25.
time of the seizure, Kendricks was unsecured and standing
between the officers. He sought to sit on the couch, or go
outside to smoke a cigarette, but Cappiello directed that
Kendricks should remain in the garage because of Wolfe's
presence with the canine outside. Cappiello called teletype
to determine whether the firearm was stolen, and Kendricks
asked Cappiello what he was doing. Cappiello responded that
he was calling in the gun, and Kendricks inquired whether he
was going to prison. Cappiello responded that Kendricks would
not, as long as he was not a convicted felon, and Kendricks
responded that he had been to prison. After this statement
was made, teletype confirmed that Kendricks was a convicted
felon. Subsequently, the officers learned that the firearm
Fourth Amendment guarantees “[t]he right of the people
. . . against unreasonable searches and seizures” in
the absence of a warrant based on probable cause
“supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.” U.S. Const. amend. IV.
“When ‘the Government obtains information by
physically intruding' on persons, houses, papers, or
effects, ‘a search within the original meaning of the
Fourth Amendment' has ‘undoubtedly occurred.'
” Florida v. Jardines, 569 U.S. 1, 133 S.Ct.
1409, 185 L.Ed.2d 495 (2013) (quoting United States v.
Jones, 565 U.S. 400, 406 n.3, 132 S.Ct. 945, 950-51 n.3,
181 L.Ed.2d 911 (2012)) (internal citation omitted). To deter
lawless police conduct, evidence seized in violation of the
Fourth Amendment must be excluded. See Terry v.
Ohio, 392 U.S. 1, 12 (1968). A warrantless search is
per se unreasonable, “subject only to a few
specifically established and well-delineated
exceptions.” Arizona v. Gant, 556 U.S. 332,
338 (2009) (quotation marks and citation omitted).
Supplementing the Record with the Assistant United States
evidence of a witness's prior inconsistent statement is
admissible only if the witness is given an opportunity to
explain or deny the statement and an adverse party is given
an opportunity to examine the witness about it, or if justice
so requires.” Fed.R.Evid. 613(b). “In order to
introduce a prior inconsistent statement, ‘the court
must be persuaded that the statements are indeed
inconsistent.' ” United States v.
Simpkins, 240 F.App'x 334, 342 (11th Cir. 2007)
(quoting United States v. Hale, 442 U.S. 171, 176,
95 S.Ct. 2133, 45 L.Ed.2d 99 (1975)); see also United
States v. Jones, 913 F.2d 1552, 1564-65 (11th Cir. 1990)
(holding that the district court did not abuse its discretion
in prohibiting impeachment of a witness with prior deposition
testimony because the deposition testimony was not
inconsistent with the trial testimony and “[e]xclusion
of prior consistent testimony is proper under Fed.R.Evid.
613.”). Additionally, “a witness may not be
impeached with a third party's characterization or
interpretation of a prior oral statement unless the witness
has subscribed to or otherwise adopted the statement as his
own.” United States v. Saget, 991 F.2d 702,
710 (11th Cir. 1993); see also United States v.
Carter, 776 F.3d 1309, 1328-29 (11th Cir. 2015).
courts have previously declined to allow witnesses to be
impeached by an attorney's interview notes. In United
States v. Almonte, 956 F.2d 27, 28 (2d Cir. 1992), an
attorney took notes of interviews with Drug Enforcement
Agency (“DEA”) agents, and the defense sought to
discredit the agents during trial by introducing the
Assistant United States Attorney's (“AUSA”)
notes. The Government objected to use of the notes because
they were not a verbatim transcript, but instead a shorthand
summary of the statements. Id. at 29. The appellate
court affirmed the district court's conclusion that the
notes could not be attributed to the witnesses. Id.
following the first hearing, the AUSA disclosed to Kendricks
notes of the AUSA's interview with Cappiello because of
potential discrepancies with the testimony during the first
hearing. During the first hearing, Cappiello testified that
“well, we had a conversation, myself and Mr. Kendricks,
because he asked if he was going to get arrested and I told
him if he was a convicted felon, he told me, yes, I went to
prison so there right then is when I made the decision to
call to confirm that.” Tr. 56:1-6. Cappiello further
testified that Kendricks “told [Cappiello] at first-he
asked if he was going to go to jail, and [Cappiello] said,
well, if you're a convicted felon, yeah, you were lying
right next to [the firearm].. . . . [A]nd then [Kendricks]
said, well, I've been to prison. That's when
[Cappiello] called Teletype.” Tr. 57:10-16. The
AUSA's notes contain the following bullet points:
• Goes in [to the garage] and makes it [the firearm]
• Kendricks sat down where he was laying down and went
to smoke a cig[arette]
â¢ Trying to go outside to . . . smoke
â¢ Don't do it b/c Wolfe is out there w/the dog
• Called in to make sure he's a felon from the
garage 10-15 mins
• What are you doing? What's going on
• Making sure you're not a felon
• He says . . . just got out of prison
• While he was on phone, got word back. Just got the
felon status back. Told [Cappiello] he had 18 [felonies]
• Immediately arrest ...