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United States v. Robinson

United States District Court, M.D. Alabama, Northern Division

January 25, 2018

UNITED STATES OF AMERICA
v.
TIMOTHY CORTEZ ROBINSON

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          Susan Russ Walker U.S. Magistrate Judge

         This case is before the court on defendant Timothy Cortez Robinson's motion to suppress (Doc. 8), and the government's response (Doc. 12). The court held an evidentiary hearing on the motion on December 19, 2017. For the reasons discussed below, the motion to suppress is due to be denied.

         FACTS

         Defendant is charged with unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). See Doc. 1. The firearm and ammunition that give rise to this charge were seized from defendant on July 12, 2017, following a home visit by defendant's federal probation officer. See Doc. 8. It is this home visit - and specifically, a search of defendant's bedroom that occurred during the visit - that forms the basis of defendant's motion to suppress. See id.

         On June 18, 2013, defendant pled guilty to unlawful possession of a firearm by a felon. See Gov. Ex. 1 at 1. On October 2, 2013, this court sentenced defendant to 37 months of imprisonment, followed by three years of supervised release. See Id. at 2-3. One condition of defendant's supervised release was that he “not possess a firearm, ammunition, destructive device, or any other dangerous weapon.” See Id. at 3. Another was that defendant “submit to a search of his person, residence, office and vehicle pursuant to the search policy of this court.” See Id. at 4. On December 28, 2015, United States Probation Officer Daniel Turner - who has been a federal probation officer since June 2015, and was responsible for supervising defendant from December 28, 2015 until defendant was arrested in July 2017 - met with defendant and instructed him concerning the terms and conditions of his supervised release. See Gov. Ex. 1 at 4. Defendant signed and dated the terms and conditions, acknowledging that these had been read to him and that he “fully underst[oo]d the conditions … .” See id. Turner also signed the document.

         The events giving rise to the instant motion began in May 2017. According to Turner, defendant failed to appear for a drug test in May 2017, and again on June 8, 2017. Failure to appear for a drug test constitutes “noncompliant behavior” under the terms of defendant's supervised release, so Turner, accompanied by probation officer Kevin Poole, visited defendant at his home on June 9, 2017. The purpose of the visit was to “follow up on the reason why” defendant had missed his drug test. According to Turner, the visit was “pretty typical.” Defendant's mother was home, [1] and there were some other family members there, including some young children whom defendant's mother was babysitting. Turner accompanied defendant to the bathroom to perform a drug test, while Poole went to defendant's bedroom. After completing the drug test, which returned a negative result, defendant “exited the bathroom and led the way to his bedroom where Poole already was.” The officers and defendant then stood in the doorway to the bedroom, which was customary during a home visit at that location. Turner counseled defendant that his failure to appear for a drug test constituted non-compliance, but because defendant had passed the at-home test, Turner decided that there was “no reason” to notify the court of defendant's noncompliance.

         Approximately two minutes after the officers left the home, and while the officers were in the car, Poole told Turner that he had seen a “pearl-handled knife on the dresser, sort of on the other side behind the TV.” According to Turner, Poole said that it was “[n]ot [hidden] behind the TV …, but [was situated] where it wouldn't be visible from entering the bedroom, ” and described the knife as “approximately [four] inches in the closed position.” Turner testified that he believes Poole “just wanted [him] to have this information, for any future contacts … .” According to Turner, whether a knife was a “dangerous weapon” as contemplated by defendant's condition of supervision depended upon its presentation. Turner testified that although the knife was “described to [him] as a knife, ” he did not know whether the knife was being presented as a “weapon or a tool.” Turner explained that if, for example, a knife was hidden in a pillowcase, he would think it was weapon, not a tool. Turner did not return to the home to investigate whether there was, in fact, a knife present. When asked whether he knew or had reason to suspect that defendant had been in violation of his supervision at the time Poole relayed his observations to Turner, Turner replied, “no.”

         The next month - on July 11, 2017 - defendant appeared for a drug test, which he passed.[2] The following day, on July 12, 2017, Turner conducted a monthly home visit. Turner testified that this visit was “routine” and “not about the knife, ” but that he did “want[] to identify the knife.” Turner testified that it is standard for him to conduct home visits with those whom he is supervising. During the period spanning from December 2015 to July 2017, Turner had visited defendant on numerous occasions. In the visits leading up to the encounter at issue in this case, defendant was always compliant with Turner's instructions, and defendant's instances of non-compliance related only to “substance abuse.”

         However, Turner testified that he was aware that defendant had a “violent criminal history, ” and that on “at least three occasions, one including the latest federal offense for which he was on supervised release[, ] … he had shot other individuals.” Turner said that “during one of his sentences with the Department of Corrections, [defendant] was reprimanded or given some sort of noncompliance sanction for possessing - I believe the terminology was [-] a prison shank, ” which Turner said he understands to be “[a]nything that could be a sharp-edged weapon, pointed.” According to Turner, the probation office conducts risk assessments on all convicted offenders. Turner testified that defendant's risk assessment “indicates that he needs a minimum of monthly contact[, ] [s]o, that's the minimum standard … in his case, [but], [w]e can go beyond that minimum standard.” Thus, Turner visited defendant “at a minimum monthly.”

         During defendant's term of supervised release, it was routine for Turner to visit defendant at his home, which is a mobile home located at “5700 Bell Road, Lot 54, Montgomery, Alabama, ” and owned by his mother.[3] The only occasions on which the visits either occurred somewhere outside the home, or did not occur at all, [4] were when defendant was “in treatment” in Dothan or in custody in the Montgomery County Jail for “some old warrants that he was taking care of, ” and on one occasion when Turner met defendant in a Wal-Mart parking lot because it was a “middle ground from where [defendant] was traveling … .”[5] Turner estimates that he had somewhere between “eight to [twelve] home contacts” with defendant prior to the visit at issue. Typically, the home visit is a “very short contact.” Turner testified that he “either drug screen[s] [defendant] in the bathroom and then go[es] to [defendant's] room, or … just go[es] to [defendant's] room.” Turner usually has defendant walk in front of him while he is in the home for “officer safety, ” particularly when they enter defendant's bedroom. According to Turner, the visit is

just about me laying eyes on his environment; what's typical. It's an unannounced contact, so he doesn't have time to straighten up, and I get to observe what his environment is like. So[, ] it's typically very short. I just look around the room. I see if I notice anything out of the ordinary or that he shouldn't have. Typically, we just have a brief conversation, shake hands, and then I may walk through the living area or the kitchen area of the residence. But[, ] typically[, ] I'm just at the front of the house close to his bedroom, and it's brief. I usually leave right after that.

         According to Turner, from the outset during the July 12, 2017 home visit, defendant's behavior was markedly different from all prior home visits. First, defendant “answered the door promptly, but … failed to open the door.” Turner testified that although defendant is accustomed to his visiting, and knows that Turner is going to enter the home, this time defendant “only opened the door enough to put his head out[, ] … did not open the door[, ] … and waited until [Turner] … instructed him to open the door … .” According to Turner, the fact that he had to instruct defendant to open the door was a change from prior visits.

         Turner testified that once defendant opened the door, he “turned around without any prompting and walked directly into the bathroom.” Defendant “most likely just expected that [he] was going to ask [defendant] to perform a urinalysis, ” but because defendant had passed a drug test the previous day, Turner had no intention of testing him. After defendant walked into the bathroom, Turner advised him that there would be no test and they should just go into his room and talk, as they had done in all prior home visits. Turner then instructed defendant to go ahead and walk into his bedroom. During a typical home visit, Turner and defendant “just get in the doorway” and have a brief conversation, during which Turner observes the bedroom. But Turner testified that on this occasion defendant walked into his bedroom and immediately sat at the head of the bed - “in the area where the pillows would be” - “with his feet off the side of the bed.” According to Turner, it was atypical for defendant to place so much distance between himself and Turner. It was also peculiar for defendant to take a seat. Turner said that, prior to the home visit giving rise to the instant indictment, defendant had never sat down, nor was he instructed to sit, during a home visit. Instead, Turner explained, after he and defendant “get in the doorway, ”

[Defendant] will linger to the right of the doorway, and I'll take a step or so to the left and face him. The doorway will be to my right by the time I turn and face him, and that allows me access to see 95 percent of the room. I can't see all the nooks and crannies, but I can see the majority of the room. But[, ] typically[, ] it's a brief enough contact that we're both just standing in the doorway.

         According to Turner, he “never” lets defendant out of his sight during these visits.

         Turner further testified that defendant's attire was unusual on that day; he was wearing shorts, with no shirt. Turner said that defendant is typically fully clothed during his home visits, except on one occasion when Turner arrived to find defendant shirtless. In that instance, defendant “asked [Turner] if he could put a shirt on before [they] went any further.”

         Once defendant sat on the bed, Turner walked into the bedroom, turned left, and proceeded toward the dresser underneath the television. Turner walked in this direction because Poole had indicated that he saw the pearl-handled knife on the dresser. Turner testified that he did not intend to search defendant at this point, but he was concerned about officer safety and “wanted to get a visual of where this knife was.” According to Turner, the knife was described as “approximately four inches closed, ” which caused him to reason that it was likely “about double that” when opened. As noted above, Turner testified that a knife of that size could be construed as either a weapon or a tool, “depending on the presentation, ” and that as a condition of defendant's supervised release, he is not allowed to possess a knife as a weapon.

         By the time Turner reached the dresser and saw that there was no knife in that location - approximately five to six seconds after defendant first sat down on the bed - defendant was exhibiting more behavior that Turner found unusual. “[K]eeping his feet on the floor, ” defendant “reclined back along the head of the bed” - in other words, he lay horizontally on the bed - and then grabbed his cellular phone and brought up a Youtube video of an upcoming boxing match, which he said he had been watching. Turner testified that defendant then “showed [the video] to [him] as an indication of what he had been doing before [Turner] arrived.” Turner said that this behavior contrasted with previous visits, during which the part of the visit taking place in the bedroom was never long enough for a discussion of “that type of thing.” To Turner, the video “appeared to be a distraction”; Turner “felt that [defendant] was trying to conceal something on that part of the bed.” Because the knife was not on the dresser, Turner testified, he “just assumed the knife was somewhere in the area that he was concealing, either in the blankets or under the mattress.” According to Turner, the presentation of a knife in this manner - i.e., “hidden” or “within his reach while he's sleeping” - indicates an intent to use it as a defensive weapon, and possession of such a weapon is a violation of the terms and conditions of defendant's supervision.

         Ultimately, given Turner's awareness of defendant's violent criminal history, his knowledge of Poole's having reportedly seen a knife, his own determination that the knife was no longer in that location, and his observation of defendant's irregular behavior - i.e., defendant's not opening the door fully when Turner arrived; not wearing a shirt and not asking to get dressed; not staying in the doorway to the bedroom as usual, and instead putting considerable distance between them in the bedroom; and taking a seat and then reclining horizontally on the bed and discussing a Youtube video (all of which he had never done before and which appeared to Turner to be designed to conceal something and distract Turner from the concealed item's location) - Turner suspected that defendant was in possession of and attempting to conceal a dangerous weapon - i.e., a knife - in violation of the terms of his supervised release.

         Turner instructed defendant to get up, put his phone down, and stand in the doorway of the bedroom. With defendant positioned in the doorway, Turner realized that in order to walk around the bed to check the area where defendant had been lying, he would have to put his “gun side” close to defendant. This caused Turner concern for his own safety so, although he wanted to check the blanket and pillows in the area in which defendant had been reclining, Turner “made the decision that it would be better for [him] to lift that end of the mattress to check under the mattress before he had to walk past [defendant].” “[R]ather than passing [defendant] twice, [Turner] just decided to lift the mattress and then go check with the blankets and see if there was anything hidden … .” When Turner lifted the mattress, he “did so high enough so that [he] could see from the front of the bed all the way to the head of the bed.” He observed a “metallic item, ” which he could not identify at that time, but which was “obvious[ly]” concealed. Given its metallic appearance, Turner assumed that the object was a weapon. At that point, Turner escorted defendant to his vehicle, where he retrieved handcuffs and restrained defendant. A firearm and ammunition were recovered from under the mattress and, according to defendant's motion to suppress, defendant thereafter admitted to possessing the firearm.[6]

         The court also heard testimony from defendant's mother, Ms. Amelia Hardy. She said that in the time leading up to the arrest, the home had flooded and required renovations.Ms. Hardy testified that beginning in May 2017, and continuing into June 2017, she had used a box cutter, which “look[ed] kind of like a pocketknife, ” but “you would know … wasn't a knife, ” to “tak[e] up tile and stuff off the floor.” She further testified that after doing this work, she closed the box cutter and placed it on the dresser by the television in defendant's room. When asked whether she “would have left it [on the dresser by the television] in “June of 2017, ” Ms. Hardy responded,

Yes. It [had] been there for a while … Every time I would use it, I would put it in there - put it there. Because when I would go back in there - it wasn't like I was working in the room every day. So whatever day I would go in there, I would use it, and I would always put it back on the dresser so I [would] know where it [was] … .

         Contrary to Turner's testimony, Ms. Hardy testified that she was not present in the home on June 9, 2017 - the date on which Poole purportedly saw a pearl-handled knife on the dresser. Ms. Hardy ...


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