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United States v. Denson

United States District Court, Tenth Circuit

September 10, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
STEVEN J. DENSON, Defendant.

MEMORANDUM AND ORDER

MONTI L. BELOT, District Judge.

This matter is before the court on:

Defendant's Motion to Suppress (Doc. 13); Government's Response (Doc. 15); and Defendant's Supplemental Memorandum (Doc. 21).

The court held an evidentiary hearing on the motion on September 5, 2013, and took the matter under advisement.

I. Facts.

The court finds the following facts from the evidence presented. Defendant Steven J. Denson was convicted by the State of Kansas on two counts of aggravated robbery and was sentenced to a term of confinement. He was paroled from Kansas Department of Corrections' (KDOC) custody on May 3, 2012.

Defendant failed to report as directed by his parole officer, causing his parole officer to request an "absconder warrant" from the KDOC Secretary of Corrections.[1] The Secretary, as authorized by K.S.A. ยง 75-5217, issued a warrant on November 7, 2012. The warrant directed any officer who was authorized by Kansas law to make arrests to arrest defendant and to take him into custody so he could be returned to the KDOC and brought before the Kansas Parole Board. Section 75-5217(g) provides that law enforcement officers shall execute warrants issued by the Secretary in the same manner as any arrest warrant.

KDOC Special Enforcement Officer Brandon Bansemer, whose duties include finding and apprehending KDOC absconders, was assigned the case. Bansemer knew that in addition to the absconder warrant defendant had outstanding bench warrants for other matters. Bansemer investigated defendant's whereabouts in November 2012 but exhausted all available leads. In February 2013, he discovered through an additional check with Westar utility company that defendant was listed as the primary account holder on a recently activated account at 1645 N. Hillside in Wichita. The account was activated on February 5, 2013. Bansemer also found a Keyionna Miller listed on the account and determined that she had an outstanding warrant for a probation violation.

Bansemer contacted U.S. Deputy Marshal Joshua Moff in Wichita, who was in charge of the local U.S. Marshals Fugitive Task Force. The task force assisted KDOC agents in apprehending KDOC fugitives. Bansemer arranged for two marshals and two other officers to meet with him in the vicinity of 1645 N. Hillside on the morning of February 27, 2013, to attempt to execute the KDOC arrest warrant. Bansemer decided upon an early morning operation - about 8:30 a.m. - to increase the odds that defendant would be at the residence. His investigation indicated defendant had no employment and no registered vehicle.

Bansemer and another officer set up surveillance on the back door of the residence, which was part of a duplex, and observed for about 20 minutes. No one entered or left the residence in that time. Bansemer eventually went around to the front of the residence, and as he did so he noticed what looked like fairly recent footprints in the snow leading from the back door to the front of the house. He checked the house's electric meter and saw that it was spinning very rapidly, indicating to him there was likely someone inside using a significant amount of electricity. There was a van parked in the front of the residence. It was snow-packed, indicating it had been stationary for some time. The van was registered to someone other than defendant.

There were several glass panes in the front door of the residence and officers at the front door could see couches, an open suitcase, and other items inside the residence. The agents knocked on the front door and announced their presence as police officers. They continued knocking for several minutes but got no response and saw no motion. A neighbor came out of the adjoining duplex unit and left the area. After continued knocking produced no results, Deputy Moff decided to go back to his car to get a "Ranger, " a doppler radar device that could indicate the presence of persons inside the house. He returned a few minutes later and used the device.[2]

The agents knocked and announced their presence again - louder this time - and in doing so knocked a piece of plywood off the door that was nailed over a missing glass pane. After agents yelled in through the opening and still got no response, they reached through the empty window pane and were able to unlock the door. They entered the house and quickly saw an individual in bed in one of the house's two bedrooms. They yelled at the man - whom agents eventually recognized as Steven Denson - to get out of bed and show his hands. Defendant did so and was compliant with the officers' directives as they moved to put handcuffs on him. They cleared the area around him for weapons and moved him to a couch in the residence.

The agents knew that defendant, who had some history of violent offenses, was reported to be a member of a local street gang. They also knew that Keyionna Miller was listed on the residence and that she had a warrant for her arrest. Based on a reasonable belief and concern that others who could pose a danger were present in the house, officers went through the each room of the house to determine who, if anyone, was present. Officers started with defendant's bedroom and fanned out to other rooms, including the only other bedroom in the house. Deputy Moff entered this other bedroom. Although defendant disputed the timing and sequence of these events, the credible testimony was that Moff entered the other bedroom within a minute or two of when the officers arrested defendant and placed him on a couch in the living room.

Moff could see when he entered the spare bedroom that it was completely void of furniture. He saw what appeared to be a closet and went to look inside.[3] He stuck his head in to view the entire closet and when he did so he saw two long guns leaning up against the closet wall. Moff summoned another officer ...


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