United States District Court, N.D. Alabama, Middle Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
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
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.
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.
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
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).
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.
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).
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).
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).
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).
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).
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
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).
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.
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).
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).
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.
Magistrate Judge's Factual Findings and Credibility
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.
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,
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