United States v. Hartsell

432 F.Supp.3d 805

UNITED STATES of America, Plaintiff,

v.Charles HARTSELL (02), Defendant.

CAUSE NO. 3:19-CR-14 DRL-MGG

United States District Court, N.D. Indiana, South Bend Division.

Signed January 7, 2020

Luke N. Reilander, US Attorney's Office, South Bend, IN, for Plaintiff.

Donald J. Schmid, Law Offices of Donald J. Schmid LLC, South Bend, IN, for Defendant.

OPINION AND ORDER

Damon R. Leichty, Judge, United States District Court

The government charged Charles Hartsell with one count of unlawfully possessing a firearm as a felon after law enforcement secured the firearm from his vehicle at the Four Winds Casino. 18 U.S.C. § 922(g)(1). On October 17, 2019, Mr. Hartsell filed a motion to suppress the evidence obtained by law enforcement, including his statements to officers, the firearm, and other evidence secured after he was placed in custody, arguing that his search and seizure violated the Fourth Amendment. The court held an evidentiary hearing on December 3, 2019 given the factual discrepancies. See United States v. Coleman , 149 F.3d 674, 677 (7th Cir. 1998) ; United States v. Berkowitz , 927 F.2d 1376, 1384 (7th Cir. 1991). The court now grants the motion to suppress.

FACTUAL FINDINGS

These facts emerged from the evidence and testimony presented to the court.¹ See Fed. R. Crim. P. 12(d). On February 23, 2019, Charles Hartsell arrived at the Four Winds Casino in South Bend, Indiana where he played a slot machine. On the same day, Pokagon Tribal Police Department (PPD) Officer Erick Jordan was dispatched to the casino to investigate use of counterfeit money. Specifically, a patron, Randall Heidrich, told casino security that he exchanged a $100 bill for five $20 bills with another patron (eventually identified as Jason Clevenger).² When Mr. Heidrich tried the $20 bills in a slot machine, they would not work, so he contacted casino security about the fake bills. The investigation, including review of security videotape, led law enforcement to an apparent association between Charles Hartsell and Jason Clevenger and their eventual simultaneous arrest.

Before PPD's involvement, Mr. Heidrich's complaint circled back to Jennifer Clopton, Director of Surveillance Operations at Four Winds Casino. She oversaw surveillance at the casino with a team of twenty-five individuals. Her department was responsible for surveilling the casino assets for protection and suspicious activity. The casino maintained a separate security department. Both casino departments interfaced with the PPD for law enforcement needs.

On that day, Ms. Clopton learned that a guest had been passed five $20 counterfeit bills, so she reviewed security video coverage of the casino to identify the suspect and his activity both before and after that exchange. The casino typically maintains videotape for 14-28 days. Ms. Clopton isolated videotape showing the counterfeit exchange with the suspect (who law enforcement determined to be Jason Clevenger) and reviewed videotape showing the suspect leaving the casino and later returning with another man (who law enforcement later identified as Charles Hartsell). The casino preserved at least most of the relevant video coverage.

As seen on video, at approximately 11:14 a.m. that morning, Messrs. Hartsell and Clevenger met on the casino floor and shook hands. Ex. 1A. They walked the casino floor while Mr. Hartsell counted and then handed Mr. Clevenger what appear to be separate bills of money at about 11:15 a.m. Exs. 1B, 1C. There was no evidence presented to discern whether the bills Mr. Hartsell handed to Mr. Clevenger were counterfeit or real. The two men separated and played at different slot machines. At 11:44 a.m., while sitting at a slot machine, Mr. Clevenger exchanged counterfeit bills with the casino patron, Mr. Heidrich. Tr. 19-20, 47-49; see also Exs. 1D, 1E, 2A, 2B.

About nine minutes later (11:53 a.m.), Mr. Hartsell approached Mr. Clevenger, who was sitting beside Mr. Heidrich at the slot machines. Ex. 1F. The two men talked momentarily for about thirty seconds as Mr. Clevenger printed out a TITO (ticket in; ticket out). The two men then proceeded to a CXC machine at the casino. Exs. 1F, 1G. A patron can use a CXC machine to cash in a TITO, exchange currency, and obtain change for larger bills. The two men left the casino floor at about 11:55 a.m. Ex. 1H.

The two men proceeded to Mr. Hartsell's vehicle—a gray Chrysler PT Cruiser—in the parking garage at about 11:57 a.m. Ex. 1I. About five minutes later, the two men parked the PT Cruiser in the casino's outdoor parking lot. Ex. 1J. Mr. Hartsell opened the rear driver-side door, as Mr. Clevenger exited the passenger seat and walked over to a white Buick near the PT Cruiser. Id. Mr. Hartsell stood next to the car as he surveyed the parking lot; and, at one point, he appeared to be on his cellphone. Id. Mr. Clevenger walked over to a white Buick, removed a long item covered in what appears to be a sheet or sheets, and placed the item in the backseat of Mr. Hartsell's PT Cruiser through the door that Mr. Hartsell had opened. Id . The two men then departed the parking lot in the PT Cruiser at about 12:03 p.m. Id.

In the meantime, the casino had called the Pokagon Police Department (PPD) to report the alleged exchange of counterfeit currency, and Officer Erick Jordan arrived soon thereafter. Tr. 45-46 He interviewed the victimized patron, Mr. Heidrich, at around 12:40 p.m. and then proceeded to the surveillance department to review videotape. Tr. 46, 50, 66-67. En route, he made contact with Ryan McCormick, the casino's Supervisor of Security, who shared that they had identified Jason Clevenger as the person who had exchanged the counterfeit bills with Mr. Heidrich. Tr. 50. Law enforcement had not identified Charles Hartsell by name at this time. Tr. 51, 74-75.

Officer Jordan then met with Justin Weber who worked in the casino's surveillance department. Tr. 51. Officer Jordan spent about ten minutes speaking with Mr. Weber and reviewing surveillance videotape. Tr. 73. Officer Jordan watched the video of Mr. Clevenger exchanging counterfeit bills with the patron (Exs. 1D, 1E) and the moment when Mr. Hartsell approached Mr. Clevenger to leave the casino (Ex. 1F). Tr. 51. Explaining that he had seen video of the two men arrive separately but leave together after the exchange with the patron, Mr. Weber provided Officer Jordan with a picture of Mr. Hartsell's vehicle and his license plate. Tr. 52, 59. Officer Jordan requested a picture of Mr. Clevenger's vehicle too. Id. Mr. Weber also provided information concerning Mr. Clevenger from his recorded driver's license associated with his casino player's card. Tr. 60.

While in surveillance, Officer Jordan reviewed the videotape of the two men proceeding to Mr. Hartsell's car (Ex. 1J). In Officer Jordan's words, he "just kind of want[ed] to see what they were doing, because [he] knew that counterfeit bills had been passed, [and he was] trying to see if Hartsell was involved with him in any sort of a way, because obviously they're walking around the casino together." Tr. 52.

From the video (Ex. 1J), Officer Jordan immediately believed he had identified a firearm being hidden under the sheets, which raised his concern knowing the casino was a soft target. Tr. 53. Officer Jordan, aside from being a trained police officer, is a hunter and outdoorsman, and he noticed how Mr. Clevenger held the apparent longarm rifle in a manner that indicated it was such a rifle and not some other long item. Id. ; Tr. 56. The presence of sheets to attempt to cloak the firearm, and the manner in which Mr. Hartsell appeared to keep a lookout solidified Officer Jordan's impression. Id.

The video recording and covering of the firearm make the identification of a weapon difficult, but how Mr. Clevenger held the item in this court's view objectively suggested a firearm, so the court credits Officer Jordan's testimony given his experience both professionally and personally. That he promptly reported his finding not just to the surveillance employee but to his superior officer underscores his credibility.

Officer Jordan did not review any other videotape at that time.³ Proceeding on the video he had reviewed (Exs. 1D, 1E, 1J), information provided by surveillance employee Justin Weber, and interview of patron Randall Heidrich, Officer Jordan reported the firearm transfer to his superior, Sergeant Adam Schaaf. Tr. 54. Officer Jordan went outside to look in the white Buick (since both suspects had departed in the PT Cruiser), but he observed nothing within plain view. Id.

PPD's substation sat but a few hundred yards from the casino, so Officer Jordan reported there to coordinate with Sergeant Schaaf. Law enforcement requested casino security to monitor the white Buick in the meantime, anticipating that Mr. Clevenger would return for his vehicle. Tr. 54-55. Officer Jordan confirmed at the substation that Jason Clevenger owned the white Buick and that he had an outstanding arrest warrant for counterfeiting. Tr. 60-61.

To Sergeant Adam Schaaf, a police officer since 2009 and sergeant since about 2017, the report of counterfeit bills was one thing, but the apparent transfer of a firearm in the parking lot afterwards elevated his concern. Tr. 92-93. He notified command, including Lieutenant Scott Hanley, who then called the Federal Bureau of Investigation (FBI) given its ultimate authority over tribal land. Id. Sergeant Schaaf also arranged for additional law enforcement support when the two men returned to the casino.

About twelve minutes later, law enforcement heard from the casino that Mr. Clevenger had returned. Tr. 61. The two men returned to the casino at about 2:17 p.m. Ex. 1K. The surveillance team at this time monitored the two men using a PTZ camera that could pan, tilt, and zoom—effectively tracking their movements. Tr. 30. When so alerted, Sergeant Schaaf and his team put together a brief plan based on their time constraints. PPD requested backup...