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United States v. Kendricks

United States District Court, M.D. Florida, Tampa Division

September 5, 2017

UNITED STATES OF AMERICA
v.
DANIEL R. KENDRICKS

          ORDER

          Charlene Edwards Honeywell United States District Judge.

         This 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.[1] The Court, having considered the motions and being fully advised in the premises, will deny Kendricks' motion to suppress and motion to supplement.

         I. BACKGROUND AND FACTS[2]

         In 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, 23:21-23.

         The 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.

         Bliss, 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.

         Bliss 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.

         Cappiello 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.

         Cappiello 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.

         Cappiello 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.

         At the 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 was stolen.

         II. DISCUSSION

         The 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).

         A. Supplementing the Record with the Assistant United States Attorney's Notes

         “Extrinsic 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).

         Indeed, 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. at 30.

         Here, 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] safe
• Kendricks sat down where he was laying down and went to smoke a cig[arette]
• Trying to go outside to . . . smoke
• 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 ...

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