United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten, Judge
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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
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 ...