United States v. Gunter

503 F.Supp.3d 379

UNITED STATES of America, Plaintiff,

v.Zaire Trevon Alexa GUNTER, Defendant.

CASE NO. 5:20-CR-00080-M

United States District Court, E.D. North Carolina, Western Division.

Signed November 25, 2020

Daniel W. Smith, United States Attorney's Office - EDNC, Raleigh, NC, for Plaintiff.

OPINION AND ORDER

RICHARD E. MYERS, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Zaire Trevon Alexa Gunter's ("Gunter") Motion to Suppress and Incorporated Memorandum of Law [DE 30]. Gunter moves to suppress all evidence discovered as a result of searches of his vehicle and residence in Raleigh, North Carolina, on September 20, 2019. Following briefing, the Court held an evidentiary hearing on November 16, 2020 at which the Court heard testimony and admitted evidence, including the arresting police officers’ body camera footage. Now, fully advised, the Court finds suppression is not warranted and denies Defendant's motion.

I. Procedural History

On February 6, 2020, Gunter was charged by indictment with (1) possession with the intent to distribute a quantity of marijuana in violation of 21 U.S.C. § 841(a)(1) ("Count One"); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) ("Count Two"); and (3) possession of a firearm that was in and affecting commerce, with knowledge he had previously been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924 ("Count Three"). DE 1. Gunter was arrested and appeared before Magistrate Judge Gates on March 4, 2020. DE 9. Judge Gates held a detention hearing on March 12, 2020 and granted the Government's motion for pretrial detention. DE 16, 17. Gunter has been granted several continuances for his arraignment [DE 19; DE 21; DE 23; DE 25; DE 28; DE 34], which is currently scheduled for the Court's January 5, 2021 term of court. Gunter filed the present motion on October 23, 2020 [DE 30], arguing that police officers’ initial entry into his residence without a warrant violated his Fourth Amendment rights and, thus, all evidence seized following the unlawful entry must be suppressed. The Government filed its opposition on November 6, 2020 [DE 35], asserting that no violation occurred because exigencies existed warranting the officers’ initial entry. The Court held an evidentiary hearing on November 16, 2020 [DE 36] at which two Raleigh police officers testified and both video and documentary evidence was admitted.

II. Factual Findings

The Court finds the following facts after considering the testimony and evidence presented at the November 16, 2020 hearing.¹

On September 20, 2019, the Raleigh Police Department received 911 calls from residents at an apartment complex at 3220 Walnut Creek Parkway in Raleigh, North Carolina. Govt. Ex. 2 at 6. The callers reported hearing male and female voices yelling at each other, and at one point, the female voice yelled, "stop hitting me!" Id. Raleigh Police Officers D. Scott, A. Dumonceau, and B. Merritt were dispatched to the address to investigate. Id. ; see also Def. Ex. 4, Def. Ex. 7. Officer Scott arrived first and encountered the building maintenance supervisor, who directed the officer to the apartment at which he heard yelling. Def. Ex. 1. Scott approached the apartment, stopped to listen, heard nothing, and knocked on the door. Id. Patience Lynch ("Lynch") answered the door carrying an infant in her arms. Id. The officer noticed that she had been recently crying. Tr. 9: 7-11. Scott asked Lynch to step outside, told her a maintenance guy was walking by, and asked what was going on. Def. Ex. 1. Lynch walked outside, closed the door behind her, and said she had been talking on the phone. Id. Scott asked twice whether anyone else was in the apartment and Lynch answered no. Id. At this point, Officer Dumonceau arrived and Scott briefly turned off the audio to his body camera (see id. ); he testified that he did not recall why the audio was turned off and that he informed Lynch he needed to check the apartment for anyone else. Tr. 28: 10-19. Lynch then said that her boyfriend was inside. Id. at 9: 15-24. Scott and Dumonceau both testified that they saw no indication that Lynch was injured. Id. at 30: 5-7; 54: 12-14. They also testified they could smell marijuana emanating from the apartment before entering it. Id. at 8: 11-14; 56: 9-14.

Officer Scott opened the door and walked toward the back of the apartment where he found Gunter sitting in a bedroom. Def. Ex. 2. Scott asked Gunter if he was okay and what he and Lynch were arguing about. Id. Gunter stood up and answered "nothing" and "just family stuff." Gunter approached the officer asking whether Lynch had allowed him to enter. Id. Scott answered in the affirmative and asked for Gunter's identification, which Gunter provided. Id. Scott then asked for Lynch's identification and she provided it. Scott asked Gunter and Lynch whether they were going to be home or were planning to leave; they both said they were leaving. Id. Scott handed his notes to Officer Dumonceau and told him to check the identifications; Dumonceau left the apartment and went back to his patrol vehicle. Id. At that point, Officer Merritt arrived and came into the apartment to provide "cover." Tr. 35:20-24. Scott waited outside the apartment for approximately one minute while Lynch put the infant in a stroller and left the apartment. Def. Ex. 2. Outside, Scott asked Lynch again whether she was "okay"; she responded that she was, and he let her go. Id. Scott went back to the apartment door and said to Merritt, "all's good"; Merritt left the apartment saying to Gunter, "have a good day now." Id. Notably, the officers did not search any enclosed spaces nor the persons of Gunter and Lynch. See Tr. 37: 16-23; 47: 21-25, 48: 1-2; 55: 22-24. All of the activity in the apartment during the initial entry was focused on investigating the domestic disturbance call and ensuring the safety of the occupants and officers. Id.

Officer Merritt went back to his patrol vehicle and drove away; Officer Scott stopped to get the maintenance supervisor's identification. Def. Ex. 2. The supervisor described the argument as "intense" and said that when he arrived, he could hear Lynch screaming repeatedly, "leave me alone!" Id. Scott walked to Officer Dumonceau's vehicle where he was reviewing Gunter's arrest history; Dumonceau told Scott, "he's definitely got a gun in there" and "could smell weed, too; might have to do a search." Id. Dumonceau explained that following a "shots fired" call, Gunter's car was searched and police found ammunition but no gun; another time Gunter was found with 32 grams of marijuana. Id. Dumonceau commented, "probably should search ... still can." Id. Scott answered, "well, we can always go back in." Id. Scott walked back to the maintenance supervisor and returned his identification. Id. Dumonceau joined Scott who said, "let's go talk to [Gunter], see if we can get consent." Id.

The officers returned to the apartment; Scott knocked on the door and Gunter answered. Id. Scott asked for and received Lynch's phone number. Id. Scott then stated, "here's the deal - your apartment smells like weed ... I'd like to search or if you have any in there, you can let me know about it." Id. Gunter answered, "I've got no weed." Id. Scott asked, "so, do you mind if we search then?" Id. Gunter said, "yeah, I mind." Id. Scott informed Gunter that they were going to "lock down" the apartment and apply for a search warrant. Id. The officers followed Gunter inside the apartment and Scott asked whether Gunter had a gun on him; Gunter answered "no." Id. Scott then "frisked" Gunter and placed the contents of Gunter's pockets on the couch. Id. Dumonceau left the apartment to apply for a search warrant. Id. ; Tr. 58: 16-22. After some time, Scott was alerted to an active arrest warrant for Gunter, so he handcuffed Gunter and informed him of the warrant. Def. Ex. 2.

In the affidavit attached to the search warrant application, Officer Dumonceau stated in part, "The strong odor of raw marijuana was observed while I was investigating a domestic dispute inside 3220 Walnut Creek Pkwy S Apt B.... Gunter was placed under investigative detention.... Gunter has an active arrest warrant, and was placed under arrest and subsequently searched ..." which "yielded $2,064 cash" and "keys belonging to a white 1998 Toyota Camry ... found parked in the parking lot directly in front of the building." Ex. A. The affidavit also stated that Officer Dumonceau "observed a green leafy substance" he knew "to be marijuana as well as a digital scale" inside the vehicle; a police K9 arrived on scene and "alert[ed] to the presence of narcotics inside the vehicle." Id. Finally, Dumonceau listed Gunter's criminal history including three charges in the previous six months for possession and possession with the intent to sell or distribute marijuana. Id. Wake County Magistrate C. Jones granted the application and issued the search warrant that day, September 20, 2019. Id.

Officers Scott and Dumonceau completed incident reports on September 20, 2019 following the encounter. Def. Ex. 4; Govt. Ex. 2. Scott noted information about his initial conversation with Lynch, including that she lied about whether anyone else was in the apartment. Def. Ex. 4. He did not note that he had smelled marijuana when he approached the apartment or stood outside it; rather, Scott noted that "[a] search warrant was completed on the residence due to the odor of marijuana." Id. at 2. Dumonceau noted in his report that he received notice of the 911 calls on his way to the apartment complex, including the report that a female yelled, "stop hitting me." Govt. Ex. 2. He also stated that, "[w]hile standing outside of apartment B, I observed an odor of marijuana emanating from within apartment B" and "[u]pon entering apartment B, I observed the strong odor of marijuana throughout the apartment." Id. at 6.

III. Legal Standards

The Fourth...