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United States v. Gillom

United States District Court, D. Kansas

April 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GARY L. GILLOM (01), Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge.

         Defendant Gary L. Gillom has filed a Motion to Suppress Evidence (Doc. 27). The government responded to Mr. Gillom's motion (Doc. 28). Mr. Gillom submitted a Supplement to his motion (Doc. 36), and the government submitted a response to the Supplement (Doc. 43). The court conducted an evidentiary hearing on February 6, 2017. At the end of that hearing, Mr. Gillom asked for leave to submit additional briefing to address issues identified during the hearing. The court established a schedule and Mr. Gillom submitted a Post-Hearing Brief on Motion to Suppress (Doc. 50). The government filed a Response to Mr. Gillom's Post-Hearing Brief (Doc. 51). After carefully considering the evidence and the parties' submissions, the court denies Mr. Gillom's motion.

         I. Factual Background

         On July 11, 2016, law enforcement officers executed an arrest warrant for Mr. Gillom at a residence in Kansas City, Kansas. Before executing the warrant, officers surveilled the residence. Officers observed a woman leaving the house, and she left the area in a car she was driving. Two officers stopped the car about 10 blocks from the residence. The officers told the woman that they had stopped her for a safety belt violation and because the tags did not match the car. The officers questioned the woman, and she identified herself as Lashandra Darden. The officers eventually asked the woman to step out of the car. In response to additional questions, Ms. Darden confirmed that she owns the residence that officers were watching and that Mr. Gillom is her brother. Ms. Darden told officers that Mr. Gillom was inside the residence, along with her three daughters, ages 14, 9, and 8.

         Ms. Darden was traveling with a friend, Trey, an African American male. Trey was riding in the front passenger seat of the car when the officers stopped Ms. Darden. Ms. Darden testified that, initially, she was worried during the traffic stop because of recent police shootings of African American males. Ms. Darden said that she had talked to her children about how to interact with the police. She has told them to stay calm and comply with officers' requests because she wants her kids to stay safe and come home.

         Despite her worries, Ms. Darden described her conversation with the officers as a pleasant one. She testified that the officers were not rude or aggressive. They did not threaten her, mistreat her, or use violence in any way. The officers did not promise Ms. Darden anything or lie to her. The officers told Ms. Darden that they were not going to give her a ticket for the traffic violations. And, they ended the traffic stop by giving Ms. Darden a verbal warning. Also, the officers told Ms. Darden's passenger that they would help him after he expressed concerns that the traffic stop may cause him to miss a court date. Specifically, the officers told Ms. Darden that they would contact the court to explain why Trey did not appear for court and make sure he did not get into trouble for missing his court date.

         During the traffic stop, one of the officers asked Ms. Darden if she would provide a key to her house so that officers could enter the home to arrest Mr. Gillom. Ms. Darden agreed to give the officers her house key because she did not want law enforcement kicking in her door or breaking windows to gain entry to the home. Ms. Darden also told the officers that she was worried about her children because they were in the house. And, she told the officers that she wanted to go to the house right then. The officers told Ms. Darden that she couldn't go to the house until after officers had arrested Mr. Gillom.

         After Ms. Darden provided her house key, officers drove it over to Ms. Darden's residence. Using the key, officers entered the home and arrested Mr. Gillom. Ms. Darden returned to her home after the arrest. When she arrived, she saw Mr. Gillom sitting outside of the house. And then, she saw officers escort Mr. Gillom into a vehicle and drive him away. Ms. Darden also saw her daughters outside the home. Her daughters were wearing pajamas and no shoes.

         Ms. Darden estimates that about 15 officers were around the house, both inside and outside the residence. As Ms. Darden stood outside her home, two Deputy United States Marshals approached her and spoke with her about providing consent to search the residence. One of them was Deputy United States Marshal Chris Johnson. Deputy Johnson explained that the officers wanted to check the residence for some evidentiary items. He also told Ms. Darden that she and her family could not enter the home until the search was completed. Deputy Johnson explained to Ms. Darden that she had two options. The first option was for Ms. Darden to consent to the search of her home. Her consent would allow the officers immediate access to the home to complete their search, and Ms. Darden and her family could reenter their home when the search ended. The second option would require the officers to seek a warrant from a judge. The officers told Ms. Darden that the search warrant process could take anywhere from an hour until the end of the day. And, during that process, the officers would not allow Ms. Darden, her family, or anyone else to go into the home. It is, the officers testified, standard law enforcement procedure for officers to prohibit entry into a residence that officers intend to search so that evidence remains preserved.

         Ms. Darden testified that she asked the officers what they were searching for, and they told her that they were looking for a weapon. Ms. Darden told them that she had no weapons in her home, and she gave permission to the officers to search the residence. Deputy Johnson presented Ms. Darden with a form giving the officers consent to search. Ms. Darden signed the form. It provided:

These deputies are authorized by me to take from my premises any letters, papers, materials, or other property which they may desire.
This written permission is given by me to the above-named person(s) voluntarily and without threats or promises of any kind.

         Doc. 36-2 at 1. Ms. Darden testified that she never read the language on the form before signing it. But Deputy Johnson testified that it appeared to him that Ms. Darden read the form before signing it.

         Ms. Darden also testified that the officers never threatened her when she signed the form. Instead, the officers told Ms. Darden that they intended to get a warrant, that obtaining the warrant could take some time, and that they could not let her back into the home until they had searched the house. Ms. Darden described the conversation with the officers as pleasant. She said that the officers were not aggressive during their conversation. But, Ms. Darden was mad that the officers would not let her into the house because one of her daughters needed to use the restroom. After Ms. Darden signed the form, the officers let her escort her daughter into the house to visit the restroom.

         Deputy Johnson testified that Ms. Darden was cordial and cooperative, and she did not seem afraid during their conversation. He thought that Ms. Darden seemed more concerned about her friend Trey missing his court date. Deputy Johnson gave his business card to Trey. He instructed Trey to give it to his attorney and to tell his attorney to call him if Trey had any issues with missing the court date. Indeed, Deputy Johnson received a call from Trey a few days later. Deputy Johnson told Trey that he had contacted the court to explain why Trey had missed the court date. Deputy Johnson also testified that he was not required to contact the court for Trey. But, he did so because he wanted to help Trey after he and Ms. Darden had cooperated with the officers.

         After Ms. Darden signed the consent form, the officers searched her home for about 15 to 20 minutes. The officers never found a weapon in the home. And, according to Ms. Darden, none of the officers told her that they were looking for items in the home other than a weapon. But, Deputy Johnson testified that he also had told Ms. Darden that the officers were looking for other items. Deputy Johnson spoke with Detective Victor Riggin of the Topeka Police Department after Mr. Gillom's arrest. Detective Riggin was investigating Mr. Gillom's suspected involvement with an aggravated robbery in Topeka, Kansas. Detective Riggin told Deputy Johnson that law enforcement was looking for a weapon, a cell phone, and a Darth Vader hooded sweatshirt that one of the suspects had worn during a recent robbery. So, officers searched for those items ...


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