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United States v. Yarbrough

United States District Court, N.D. Alabama, Middle Division

January 8, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY MILES YARBROUGH, Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         Our Constitution provides many important protections. Among them, the Fourth Amendment's prohibition on unreasonable searches and seizures embodies a particular concern about and constitutional protection against governmental intrusion into one's home. See generally United States v. Jones, 565 U.S. 400, 405-07 (2012) (Scalia, J., explaining the historic roots of the Fourth Amendment in property rights and common law trespass); Kentucky v. King, 563 U.S. 452, 459 (2011) (“It is a basic principle of Fourth Amendment law, we have often said, that searches and seizures inside a home without a warrant are presumptively unreasonable.”) (quotation marks omitted). This case sets the presumption that a warrantless search of one's home is unreasonable and unconstitutional against the oft-used “protective sweep, ” which permits officers to search a home based upon a reasonable belief that it contains a person posing a danger to the officers or other people. Because the Government has not carried its burden of proving that the searching officer had a reasonable belief that defendant Anthony Miles Yarbrough's home harbored a dangerous individual, the warrantless search of his house fails to meet constitutional muster.

         A grand jury indicted Mr. Yarbrough on one charge of being a felon in possession of two firearms, in violation of 18 U.S.C. § 922(g)(1). Mr. Yarbrough moved to suppress evidence seized during a protective sweep, statements made after the protective sweep, and evidence seized during a second search to which he had consented. (Docs. 12, 22). The magistrate judge held an evidentiary hearing on that motion. (Docs. 12, 22). After the evidentiary hearing, the magistrate judge entered a report and recommendation, recommending that the court deny Mr. Yarbrough's motion. (Doc. 21). Mr. Yarbrough filed objections to the report and recommendation. (Doc. 23).

         The court reviews a magistrate judge's report and recommendation according to the Federal Magistrates Act, which provides: “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). This court has reviewed the full transcript of the hearing and all exhibits in the record, in addition to the report and recommendation, and briefing from both parties. For the reasons stated below, in view of the serious Fourth Amendment rights at stake, the court finds that the Government did not overcome the presumption that the warrantless search violated the Constitution. So the court hereby REJECTS the magistrate judge's report and recommendation. The court WILL GRANT Mr. Yarbrough's motion to suppress the evidence and the statements.

         I. BACKGROUND

         1. Evidentiary Hearing

         At the evidentiary hearing, two Cherokee County Sheriff's Office investigators, Thomas Monroy and Matthew Sims, testified on behalf of the Government. (Doc. 22 at 4-5, 49). Mr. Yarbrough's mother, Linda Yarbrough, and John Jennings, witnesses to the arrest of Mr. Yarbrough and the search and seizure of evidence from his house, testified on behalf of the defense. (Id. at 62-63, 67). The court will describe in detail their testimony and the other evidence submitted before addressing the magistrate judge's factual findings.

         Investigator Monroy testified that he began investigating Mr. Yarbrough because of anonymous tips that the Sheriff's Office received. (Id. at 5-6). According to Investigator Monroy, the anonymous tips informed the Sheriff's Office that “[t]here was lots of activity at [Mr. Yarbrough's] house.” (Id. at 6). When the magistrate judge asked Investigator Monroy “[w]hat was the nature of the criminal activity that was described, ” he responded “[p]ossible drug activity, ” (id. at 32), and that “a lot of [the tips] just say a lot of traffic, lot of traffic in and out.” (Id. at 33). The tips did not mention guns or give any specifics about the number of people that might be involved in any activity at the house. (Id. at 32-33). Investigator Monroy also testified that he had no “belief that those anonymous tips were verified or truthful at that time.” (Id. at 6).

         Investigator Monroy ran a records check on Mr. Yarbrough and found outstanding warrants for the arrest of Mr. Yarbrough and his wife, Shelly Yarbrough. (Id. at 6, 11). Investigator Monroy did not testify about the nature of the warrants, although the Government asserted (without evidence) in response to the motion to suppress that the warrant for Mr. Yarbrough's arrest “was issued in relation to a bond revocation for use/possession of drug paraphernalia and possession/receipt of a controlled substance.” (Doc. 20 at 1). Investigator Monroy went by Mr. Yarbrough's house “a couple of times to serve the warrant on him, and had verified that that was his place.” (Doc. 22 at 6). But Mr. Yarbrough was not home on those occasions. (Id.).

         Then, on August 31, 2016, an “anonymous neighbor[ ]” sent a text message saying that Mr. Yarbrough was home, “that everybody was there and he was there.” (Id. at 7). The text message did not give any details about how many people would be at the house. (Id. at 32). Based on that text message, Investigator Monroy, Investigator Sims, and Officer Tyler Perea headed to Mr. Yarbrough's house to serve the arrest warrants. (Id. at 7-8, 40-41, 43).

         According to a dispatch log, Investigator Monroy and Investigator Sims arrived at Mr. Yarbrough's house at 5:53 pm. (Id. at 33, 41-42; Doc. 24-1 at 1). They found Mr. Yarbrough and two other men standing around a pickup truck, with another vehicle parked nearby. (Doc. 22 at 9-11, 51). Mr. Jennings confirmed that he, Mr. Yarbrough, and a man named Bobby were standing near two trucks in Mr. Yarbrough's yard when the investigators arrived. (Id. at 63-64). Investigator Monroy testified that he knew Mr. Yarbrough owned one of the trucks and that the other two men in the yard told him that the other vehicle belonged to them. (Id. at 31).

         According to Investigator Monroy's testimony, immediately after arriving at Mr. Yarbrough's house, the investigators placed handcuffs on all three men in the yard, who were compliant. (Id. at 10, 19). The investigators patted them down and did not find any weapons or contraband. (Id.). Investigator Monroy then asked Mr. Yarbrough if his wife was in the home, to which Mr. Yarbrough responded that she was. (Id. at 21).

         Investigator Monroy approached the house to execute the arrest warrant on Mrs. Yarbrough. (Doc. 22 at 11). He found the front door open but the screen door closed. (Id.). From outside the screen door, he announced that he was from the Sheriff's Office and “hollered” Mrs. Yarbrough's name. (Id. at 11-12). He then saw Mrs. Yarbrough run from one part of the house into another room, which he later discovered was the bathroom. (Id. at 12-13). She closed the door behind her, which Investigator Monroy testified was often a sign of “[h]iding or trying to get rid of other evidence such as narcotics evidence.” (Id. at 13). But he testified that he did not hear the toilet flush. (Id. at 23).

         Investigator Monroy entered the house and then the bathroom and placed Mrs. Yarbrough under arrest. (Id. at 13-14). No one asked Investigator Monroy whether he found any contraband or weapons on Mrs. Yarbrough or in the bathroom, and he did not testify that he found or saw anything. (See generally Id. at 23). He then walked her back outside to the porch of the house and left her with Investigator Sims, Mr. Yarbrough, and the two other men. (Id. at 14). Investigator Monroy “immediately” reentered the house to do a protective sweep. (Id. at 43). He explained that doing a protective sweep alone is “not as safe, ” and “[y]ou would always want at least two people, ” but although “one person clearing the house is not the greatest thing to do, [ ] sometimes you have to.” (Id. at 16).

         Investigator Monroy testified that the protective sweep took “less than” one minute. (Id. at 31). He testified that he did not know if anyone else was in the house. (Id. at 15). But when the prosecuting attorney asked him if he thought “that someone could possibly be inside the home still, ” he answered, “Yes.” (Id.). He also testified, however, that he had neither seen nor heard any other people in the house. (Id. at 23-25). During the sweep, he saw two shotguns in the corner of the master bedroom and an open Altoids tin holding a baggie containing a crystallike substance. (Id. at 15). He seized and secured the guns but left the Altoids tin where it was. (Id. at 15-16).

         While Investigator Monroy did the protective sweep, Investigator Sims had Mr. and Mrs. Yarbrough, Mr. Jennings, and Bobby detained outside. (Doc. 22 at 64-65). Mr. Jennings and Investigator Sims testified that they saw Investigator Monroy leave the house with the guns. (Id. at 54, 65). And Mr. Jennings testified that at some point, he heard Mr. Yarbrough tell the police “something about the-that he didn't care if they did look or something, but I don't know-I didn't hear that part.” (Id. at 65).

         The court pauses here to address the timing of these events, which is unclear. The investigators arrived at the house at 5:53 pm. (Doc. 24-1 at 1). Two minutes later, at 5:55 pm, Investigator Monroy radioed Officer Perea, who was still on his way to the house: “We've got suspects in custody, you can slow down.” (Stipulated Exh. 2 at 1:10-1:19). At the evidentiary hearing, Investigator Monroy testified that by the time of the 5:55 pm dispatch call, he had both Yarbroughs in custody. (Doc. 22 at 76). Then, at 5:58 pm, Investigator Monroy announced, “1027 times four, ” and he began reading identifying information about the suspects, including Mrs. Yarbrough, to dispatch. (Stipulated Exh. 2 at 1:27-2:33). But no one mentioned the discovery or seizure of the shotguns to dispatch until 6:38 pm. (Id. at 4:38-4:42). No one at the evidentiary hearing addressed when Investigator Monroy conducted the protective sweep between these dispatch calls.

         In any event, sometime after the protective sweep, the investigators let Mr. Jennings and Bobby leave. (Doc. 22 at 65). Mr. Jennings went to Mr. Yarbrough's mother's house and told her that the officers had arrested Mr. Yarbrough. (Id. at 65, 67). Mr. Yarbrough's mother then went over to his house, where she saw the guns lying on the bed of a truck. (Id. at 67-68). She sat on the porch with the Yarbroughs while the investigators sought consent to search the house. (Id. at 71). She testified that the investigators told the Yarbroughs that if they did not consent to search the house, “they would tear it up and stuff like that.” (Id. at 68). Investigator Monroy denied saying anything along those lines. (Id. at 74).

         At 6:40 pm, the Yarbroughs signed a consent form permitting the investigators to search their house and property. (Id. at 48; see also Evidentiary Hearing Gov't Exh. 1). Investigator Sims testified that he took Mr. Yarbrough's handcuffs off to allow him to sign the consent form, but the record contains no testimony about whether Mrs. Yarbrough was handcuffed. (Doc. 22 at 62).

         According to Mr. Yarbrough's motion to suppress, during the second search-the one conducted after the Yarbroughs consented-the investigators found and seized the Altoids tin from the bedroom, plus three glass pipes, scales, a clear plastic bag holding a crystal-like substance, and a false Pepsi can containing a spoon. (Doc. 12 at 3). Mr. Yarbrough denied ownership of the Altoids tin but admitted that he owned the shotguns found during the initial sweep. (Id.). Like much of the timing in this case, whether Mr. Yarbrough made those statements before or after consenting to the search is unclear.

         2. Magistrate Judge's Factual Findings and Credibility Determinations

         In his report and recommendation, the magistrate judge made some factual findings and credibility determinations. The court “may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). If a party objects to certain factual findings, the court reviews de novo those factual findings, id.; but if the party does not object to specific factual findings, the court reviews them only for clear error. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); Doe v. Univ. of Alabama in Huntsville, 177 F.Supp.3d 1380, 1383-34 (N.D. Ala. 2016).

         The witnesses at the evidentiary hearing agreed about most of what happened at Mr. Yarbrough's house on the day of the searches, and for the most part, the report and recommendation faithfully recites the uncontested testimony. The magistrate judge made only a few explicit factual findings or credibility determinations:

1) The anonymous tips informed law enforcement officials that “the defendant's residence exhibited ‘lots of' drug activity and traffic.” (Doc. 21 at 1, 8-9).
2) The Yarbroughs gave verbal consent for a search of their home at some point after they were arrested. (Doc. 21 at 3).
3) Investigator Monroy completed the protective sweep before making the 5:55 pm radio dispatch indicating that he had ...

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