United States District Court, D. Colorado
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 ...