United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
This matter comes before this Court on Stacy Fisher's Motion to Suppress (Doc. 20), which is joined by co-defendant Ashley Fisher. The Fishers contend that all evidence found in their residence after Stacy Fisher's arrest should be suppressed because it was found during an invalid protective sweep in violation of the Fourth Amendment. Because the Court finds that the evidence would have been inevitably discovered under a valid search warrant, the Court denies the motion in its entirety.
I. Factual and Procedural Background
In February 2013, a confidential informant notified the Sedgwick County Sheriff's Office that Stacy Fisher was selling cocaine from his residence at 815 N. Battin in Wichita, Kansas. The informant, who was a suspect in several recent retail thefts, reported that he paid off a drug debt to Fisher with stolen electronics and five one-gallon bottles of Tide laundry detergent on February 25, 2013, at Fisher's residence. The informant also reported that he was present when Fisher received a 30-30 rifle in exchange for drugs. During the course of the investigation, officers discovered an outstanding federal arrest warrant for Fisher for various violations of his supervised release stemming from his conviction for being a felon in possession of a firearm.
On February 28, 2013, federal and Sedgwick County officers executed this arrest warrant at Fisher's residence. A deputy U.S. Marshal knocked, announced law enforcement presence, and ordered the occupants of the residence to open the door. The officer repeated this action, and it was apparent that someone had come to the door, said "it's the cops" or "it's the police, " and retreated toward the hallway. After no further response, the officers forced the door open with a ram, knocking the door off its hinges and onto the living room floor. Once inside, officers encountered a young black female, later identified as the Fishers' 17-year-old daughter, who told officers that she and her mother, later identified as Ashley Fisher, were the only people in the house. Officers then directed Ashley Fisher and her daughter to leave the house, and the officers continued to call for Stacy Fisher.
After officers sent a dog into the house, Stacy Fisher eventually emerged and walked outside where he was handcuffed on the front porch and placed in a patrol car. An officer asked Fisher if anyone else was in the house. At the suppression hearing, the officer testified that Fisher "just smiled at me and didn't say a word." The officer testified that he was concerned that someone else may have been in the house because of Fisher's lack of response and his ties to a street gang. The officer then authorized a protective sweep to make sure that no one else was in the house. As officers went through the house, an officer lifted a mattress and discovered a handgun between the mattress and the box springs. Officers also discovered five laundry detergent bottles and several televisions in the basement.
Based on these discoveries and the information provided by the confidential informant, a sheriff's detective applied for a search warrant, which was issued and executed the same day. While executing the search warrant, officers seized a shotgun, ammunition, and approximately 20 grams of cocaine base. Officers then secured the residence by fixing the broken door.
In September 2013, a federal grand jury returned a five-count indictment charging Stacy Fisher and Ashley Fisher each with: 1) possession with the intent to distribute cocaine base, 2) being a felon in possession of the handgun, 3) being a felon in possession of the shotgun, 4) being a felon in possession of ammunition, and 5) possession of a firearm in furtherance of a drug trafficking crime. Stacy Fisher filed this Motion to Suppress (Doc. 20), and this Court has granted Ashley Fisher's motion to join the Motion to Suppress.
The Fishers challenge the search of their home, asserting that the seizure of evidence was the result of an unauthorized protective sweep. During this unauthorized protective sweep, the Fishers argue, officers found a handgun under a mattress and used this discovery to obtain a search warrant. Because looking under a mattress is not authorized during a valid protective sweep, the Fishers argue that the handgun was illegally obtained. In turn, the Fishers argue, that means the entire search warrant must be invalidated because the illegally obtained handgun served as the basis to meet the probable cause and particularity burden necessary to obtain the search warrant. As a result, all evidence found should be suppressed.
The government disagrees, asserting that the protective sweep was valid because the officers had a legitimate concern that other people could be inside the residence. Alternatively, the government argues that even if the Court finds that the protective sweep was unwarranted, the evidence should not be suppressed because it would have been inevitably discovered.
A. The Protective Sweep Was Appropriate for Officer Safety.
When the subject of an arrest warrant is found, law enforcement officers are allowed to conduct a brief search as an incident to the arrest, often called a "protective sweep." The legitimate purpose of a protective sweep is for officer safety. As a precautionary matter and without probable cause or reasonable suspicion, officers may look in closets and other spaces immediately adjoining the place of arrest from which another person could launch an attack. There must be articulable facts, taken together with the rational inferences from those facts, that would justify a reasonably prudent officer's belief that a person posing a danger to the officers could be in the area to be swept.
But a protective sweep does not authorize a full search of the premises. A protective sweep is limited to a "cursory inspection of those spaces where a person may be found" and "lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." In sum, the "Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief ...