United States v. Suggs

          ORDER DENYING MOTION TO SUPPRESS

          WILLIAM J. MART NEZ UNITED STATES DISTRICT JUDGE.

         The Government charges Defendant Perry Wayne Suggs, Jr. (“Suggs”), with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). (ECF No. 24.) Currently before the Court is Suggs's Motion to Suppress, arguing that evidence against him was obtained through two unconstitutionally overbroad search warrants. (ECF No. 54.) The Court held an evidentiary hearing on February 25, 2019. (ECF No. 77.) For the reasons explained below, the Court denies Suggs's motion.

         I. BACKGROUND

         The Court makes the following findings of fact based on the testimony and exhibits received at the evidentiary hearing.

         A. The Shooting

         On January 3, 2018, a man named Daniel Johnson was crossing a street at a crosswalk in Colorado Springs and prevented a black BMW sedan from turning. Johnson and the driver of the BMW exchanged words, upon which the driver pulled out a black handgun and fired it at the ground near Johnson's feet. The driver sped away but a mother and daughter, who had been behind the black BMW in traffic, observed the incident and followed the BMW to the next intersection. They obtained a photo of the BMW's license plate (Colorado plate OXD692).

         B. Menter's Investigation

         At some point, the police were called. A patrol officer with the Colorado Springs Police Department, Adam Menter, was the first on the scene. While there, he recovered a silver Smith & Wesson .40 caliber shell casing with the word “Speer” printed on it. He also viewed the license plate photo taken by the mother and daughter, who had returned to the scene of the shooting.

         When police interviewed Johnson about the incident, ^[1] he was fairly certain that the license plate was UXD692, only one character off from the actual plate. Johnson described the shooter as a black male with a dark complexion, a small goatee, probably in his late 20s or early 30s, with a thin to medium build.

         After obtaining this evidence, Menter continued the investigation. Using databases available to law enforcement, he found that license plate OXD692 was registered to a black BMW sedan owned by Suggs and associated with 2525 Nadine Drive, Colorado Springs. Menter found Suggs's profile in a police database and the associated photo showed a black male with a dark complexion and a goatee. Menter arranged for that photo to be part of a double-blind sequential photo line-up presented to Johnson. When Johnson reached Suggs's photo, he stated he was 80% certain that the man in the photo was the same one who shot at him.

         Menter investigated Suggs further through a police database and found that he had been convicted in Colorado state court of felony menacing and felon-in-possession, and had been investigated multiple times for burglary, felony assault, and domestic violence. He was also a confirmed member of the Gangster Disciples street gang.

         C. The Nadine Drive Warrant

         Menter authored an application for a warrant to search the home associated with Suggs at 2525 Nadine Drive in Colorado Springs. In his affidavit in support of a warrant (Attachment A to the application), Menter recited his investigation in detail. (ECF No. 54-1 at 4-6.)^[2] He further noted, based on his “training and experience, ” that he is “aware that parties with gang affiliations and a history of violent criminal behavior” are “likely” to “possess more than one firearm.” (Id. at 6.)

         Concerning the scope of the search warrant, Menter's Attachment B to the warrant application proposed searching for and seizing the following items:

         GENERAL INFO

• General photographs of the scene

• Indicia of residency

• Identification which would identify any occupants of

• the residence GUNS INVOLVED

• Any and all firearms: specify if known

• Any and all ammo: specify if known

• Any documentation showing the ownership of a

• firearm

• Any and all sales records showing the purchase of a

• firearm

• Any projectiles

• Any and all spent shell casings

• Any item commonly used to carry and transport a

• firearm (i.e. holster & gun carrying case, magazines,

• cleaning kits) VEHICLE

• Indicia of ownership of vehicle

• Vehicle registration MISCELLANEOUS

• Any item identified as being involved in crime

NO OTHER ITEMS ARE SOUGHT FOR SEIZURE

(Id. at 7 (formatting in original).) Menter derived this list by drawing on a template, which he usually does because, as a patrol officer, he does not regularly write warrant applications.

         A Colorado state court judge issued the warrant. The warrant states that the reviewing judge found probable cause to search for items that “[had] been used as a means of committing a criminal offense” and items that are “illegal to possess.” (Id. at 2.) The warrant described the scope of items to be seized by cross-reference to “Attachment ‘B' which is hereby incorporated in [sic] reference.” (Id. at 1.) The warrant did not incorporate Attachment A (Menter's affidavit) by reference. The judge also issued warrants for Suggs's arrest and for the search of his black BMW sedan, which are not challenged here.

         D. Suggs's Arrest

         The next day, January 4, 2018, Menter and another officer named Bergstresser set up surveillance of 2525 Nadine Drive at about 5:30 PM. The black BMW sedan was parked in front of the house, but the officers saw no activity. Just before 6:00 PM, the officers observed an unrelated incident-a man chasing a woman down the street-and decided to break off their surveillance to address that situation. They used their patrol vehicles to catch up with the footchase, taking them out of sight of 2525 Nadine Drive. As they were dealing with that situation, Bergstresser noticed Suggs's black BMW driving by. At Menter's direction, Bergstresser returned to his patrol vehicle and followed the black BMW until the Colorado Springs version of a SWAT team, known as the Tactical Enforcement Unit (“TEU”), arrived to assist in what would presumably be the execution of the arrest warrant for Suggs. The TEU's participation was considered prudent given Suggs's alleged volatile behavior the day before and his criminal record.

         The TEU soon arrived and the officers approached the driver of the black BMW, which had been parked at a gas station. The TEU officers identified Suggs and arrested him there pursuant to the previously issued warrant. A member of the TEU obtained a house key from Suggs, who told the officers that no one else was inside 2525 Nadine Drive but that he had two dogs there in kennels. Menter, having resolved whatever situation led to the footchase, showed up at the gas station later, just in time to see Suggs being placed in the back of a patrol vehicle.

         E. Execution of the Nadine Drive Warrant

         Having obtained a house key from Suggs, the TEU then assembled at Suggs's Nadine Drive residence. They were led by TEU officer (and acting sergeant) Teresa Tomczyk, and their goal was to “clear” the residence, or in other words, to look for any persons or things that might pose a threat to the officers who would execute the search warrant.

         The Nadine Drive residence is a west-facing single-family structure with a carport attached to the south side of the home. It looked ...