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United States v. Harris

United States District Court, D. Kansas

April 9, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
WESLEY LAVERN HARRIS, Defendant

For Wesley LaVern Harris, Defendant: Andrew J. McGowan, LEAD ATTORNEY, Office of Federal Public Defender - Topeka, Topeka, KS; Carl A. Folsom, III, LEAD ATTORNEY, Office of the Federal Public Defender, Topeka, KS.

For USA, Plaintiff: Jared S. Maag, LEAD ATTORNEY, Office of United States Attorney - Topeka, Topeka, KS.

MEMORANDUM AND ORDER

ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on Wesley Harris' Motion to Suppress Evidence (Doc. 11). Harris considers two warrantless searches of his motel room premature and unlawful. He denies that exigency justified the first search and that consent justified the second search and seizure. Additionally, he denies that inevitable discovery excuses the warrantless searches and seizure. Because the Court finds no exigency, no valid consent, and no meaningful assurance that officers inevitably would have obtained a warrant that uncovered the otherwise acquired evidence, the Court grants Harris' motion to suppress.

I. Factual and Procedural Background

During the early-morning hours of September 25, 2014, a masked man entered the Kwik Shop on 37th Street in Topeka, Kansas. To complement the Joker mask that veiled his visage, the man accessorized with cut-off fingers from costume gloves, a blue-black bag, and, ostensibly, a functional handgun. The man approached the counter. There, he assaulted the lone employee in the store. He demanded the register's money. He also looted scrolls of Kansas Instant Lottery scratch-off tickets from their dispenser behind the counter. Thrusting these items into his bag, the man departed--approximately $200 and several lottery tickets richer.

Topeka Police Department Officer Jared Strathman learned of the masked man's misdeeds at morning roll call that same day. Later that morning, a Kansas Lottery official notified police that someone attempted to cash stolen tickets at a different Kwik Shop in Topeka. Officer Strathman responded to the tip. He obtained a description of the would-be casher. Shortly thereafter, he located a female, H.B., matching the would-be casher's appearance. H.B. carried a duffel bag and backpack. Officers stopped H.B. for questioning. After a brief conversation, H.B. led officers around the block to a bush that concealed a small, black handbag that she previously had secreted. The bag contained numerous lottery tickets. Officers removed H.B. to the police station for further interview. But Officer Strathman parted ways to attend to another matter.

A second tip from a Kansas Lottery official called Officer Strathman away to the original robbery location. There, he investigated another would-be casher of stolen tickets. Officer Starthman reviewed video surveillance of the suspect. But officers failed to locate the black-outfitted, black male. Other duties ended Officer Strathman's pursuit.

Later that afternoon, a fellow officer asked Officer Strathman to assist in a search of the home of H.B.'s mother, C.B. The officers expected to find cash register coin trays discarded at C.B.'s home. C.B. gave officers consent to search her home and garbage. A thorough inspection produced no coin trays. But officers did recover one uncommon item, a $2 bill. Officer Strathman regarded the $2 bill as significant. He knew from previous investigations that such currency is infrequently used in ordinary commerce, but Kwik Shop routinely places a specifically identifiable $2 bill in each of its stores' cash registers. C.B. explained the bill's origins. Around 6 a.m. that morning in her home, she observed H.B. and a black male scratching off lottery tickets. The black male gifted the $2 bill to H.B.'s daughter.

Concurrent with these events, H.B. explained her possession of the stolen lottery tickets to F.B.I. agents.[1] H.B. first indicated that earlier that morning an unfamiliar black male approached her at the bus stop and sold her the tickets. She later admitted to knowing the man, specifically identifying him as her former, unfaithful boyfriend, " Wes." H.B. produced a photo of Wes. Throughout the interview, the F.B.I. agents confronted H.B. with incriminating charges. The agents strategically emphasized H.B.'s possession of stolen lottery tickets, the discovery of a meth pipe in H.B.'s belongings, previously gathered evidence that H.B. engaged in prostitution, and that her false statements to the agents would potentially result in her fourth conviction involving dishonesty--any of which might separate her from her daughter. Ultimately, H.B. admitted that she was in the car at the time of the robbery with Harris and directly received lottery tickets from him. At some point, the agents released (and perhaps re-interviewed) H.B.

Officer Starthman knew only portions of H.B.'s interview statements. Following the inspection of C.B.'s home, a fellow officer informed Officer Strathman that H.B. identified the black male previously with her that morning as " Wes." Officer Strathman returned to the station and viewed the photo of Wes that H.B. provided the F.B.I. agents. The photo presented a black male with a unique scar on his face. Officers began reviewing booking photos to identify the subject's last name. An emergency call, however, suspended their review.

Emergency dispatch received a 911 call from a panicked female located at C.B.'s home. The female caller screamed " He's here! Get the F.B.I.!" Officer Strathman responded to the call. He believed that H.B. made the call to indicate that Wes was at her home. He also believed that Wes might harm H.B. for speaking with law enforcement. When officers arrived, they encountered only H.B. Officer Strathman then returned to the station and matched the image of a scarred " Wes" to a booking photo of Wesley Harris. Harris was a suspect from a prior incident of lottery ticket theft.

The next lead brought officers to the apartment of a woman, W.R., suspected to know " Wes." Officer Strathman informed W.R. that they were looking for Wesley Harris. W.R. permitted the officers to search her apartment for Harris. A thorough sweep of the apartment confirmed that W.R. was the only present occupant. Officer Strathman then asked W.R. when she last saw Harris. W.R. indicated that Harris visited her earlier that morning. She also revealed that, at Harris' request, she drove him to the Country Club Motel and used her driver's license to rent him room 24. Officer Strathman contacted the Country Club Motel and verified that it had rented room 24 to W.R.

Several officers converged on the Country Club Motel in search of Harris. Initially, Officer Strathman visited with motel staff to verify again W.R.'s account and obtain a key to room 24. Key in hand, Officer Strathman joined the team of officers surrounding room 24. Room 24 offered its front door and adjacent window to the parking lot as the only entry and exit. No lights illuminated room 24's interior. No sounds communicated occupancy, much less danger or mischief. And officers did not observe or speak with anyone that observed any use to contradict room 24's bare quiescence. Indeed, the only apparent activity was the eventual tumult of pounding fists and shouts that officers wrought against room 24 to provoke a response.

When no response followed, Officer Strathman readied the room's key. At room 24's threshold, a fellow officer questioned whether they had authority to enter--no officer had yet applied for a search warrant. Officer Strathman nevertheless confirmed their authority to enter: " He's wanted for a felony." Officer Strathman handed over the key, and officers opened room 24's door. They announced their presence and demanded that any non-officer in the room appear. Giving no ...


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