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United States v. Burchfiel

United States District Court, D. Kansas

January 14, 2020

United States of America, Plaintiff,
Howard Dale Burchfiel, Defendant.


          J. Thomas Marten, Judge

         The indictment charges defendant Howard Dale Burchfiel unlawfully possessed a shotgun in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2), having previously been convicted of a felony, namely attempted murder in 2009. The matter is before the court on the defendant's motion to suppress evidence relating to the shotgun. The court heard evidence and argument relating to the motion on January 8, 2020, and denies the motion for the reasons stated at the hearing and as further provided in this Order.

         The evidence establishes that on June 17, 2017, at 8:27 in the evening, the Topeka Police Department received a 911 call from an American Medical Response (AMR) employee, reporting a white man, approximately 30-35 years of age, was in possession of a shotgun while on parole and that the man was walking south with a woman in the 1000 block of Harrison Street, entering an alley and going eastbound. Two more calls, made by defendant's mother (Joy Burchfiel) and brother (Billy Shumway), reported that the defendant was drunk and out-of-control, asking that the dispatcher “send them right now, ” and then following this up by asking “why aren't you fucking here?” Another call reported that AMR was nearby with a witness to the man shooting off a shotgun.

         Officers Gary Schwinn and Jason Oyler responded to the call in their marked patrol vehicle, and their investigation was recorded on their body cameras. Joy Burchfiel greeted the officers by asking that they not “shoot her kid, ” and that she could not “take this shit anymore.” The officers walked down the alley to Shumway's residence at 1008 N.W. Harrison. Shumway identified his brother by name and stated that he had “lost his damn mind.” The officers asked if the defendant was armed, but Shumway did not answer. When they asked him again, he responded that “he might.” Shumway and Joy Burchfiel indicated that the defendant had left and gone to his own residence. With Shumway's consent, the officers briefly searched the house to determine if the defendant might be inside.

         Shumway told the officers the defendant had recently been released on parole, was drunk and belligerent and had broken their window and front gate when they threatened to call his parole officer. Shumway and Joy Burchfiel denied that the defendant had fired a weapon. At some point, however, dispatch informed the officers that AMR had again reported to 911 that a witness reported shots from a shotgun at the Shumway residence.

         The officers then went to the defendant's nearby residence at 1008 N. W.Van Buren. From outside the gate of the high metal fence surrounding the house, the officers saw a camouflage-colored shotgun, resting on the roof which covers the narrow porch extending across the front of the house. This narrow roof area extends only a few feet out from the house, and is immediately below two second story windows on the front of the house.

         Seeing smoke from the backyard, the officers then walked around the back of the house, where they found a small fire burning, and a white male getting into the driver's seat of a vehicle parked in the alley just on the other side of the backyard fence. The man told officers that he was there to visit the defendant, but said he was not at home.

         Around this time, Joy Burchfiel arrived at the residence. She stated that she owned the house and paid all the bills on it, and offered to let the officers into the house to retrieve the shotgun, or to get a ladder and retrieve it herself. The officers declined this offer after communicating with dispatch, and learning that the house was listed in the name of one Charles Porubski.

         Joy Burchfiel indicated that she believed the defendant was inside, but when the officers knocked on the door they received no answer. They could see lights on in the two windows just above the place where the shotgun rested.

         The video shows that the officers were at the residence for at least half an hour, during which time they discussed with a supervisor the best approach to the situation. During this time, another officer interviewed the AMR employee who had called 911. The man reported he had been driving north on Harrison in the 1000 block when he noticed on the east side of the street a shirtless, tattooed, bald, white male (matching the description that officers had been given of the defendant) yelling at the occupants of a residence. He heard a large boom coming from the area where the yelling was occurring, looked over to that area, and saw the shirtless, tattooed, bald, white male running east in the alleyway towards N. W.Van Buren Street and carrying a shotgun.

         Officer Schwinn asked Joy Burchfiel if the shotgun on the roof was the only firearm that the defendant had. She said she did not know he had a shotgun, but based upon the information she had heard over the police radio, this had to be the defendant's shotgun, and the only one she was aware of.

         The video indicates that the officers were concerned that further attempts to contact the defendant inside the house might produce a confrontation, or cause defendant to barricade himself inside. At some point, the officers decided to retrieve the shotgun without making contact with the defendant.

         Schwinn was selected to retrieve the shotgun because he was smaller and would present a more difficult target if the defendant was watching. Two officers lifted Schwinn up and he retrieved the shotgun.

         It is unclear where the defendant actually was when this occurred. The government, arguing that an exigent circumstances situation existed, contends that the defendant was inside the house, or at least that's where the officers believed him to be. The defendant argues there was no ...

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