United States v. Holmes

143 F.Supp.3d 1252

United States of America

v.Michael Holmes

Case No. 3:14-cr-21-J-32PDB

United States District Court, M.D. Florida, Jacksonville Division .

Signed November 11, 2015

Malisa Chokshi, U.S. Attorney's Office, Jacksonville, FL, for United States of America.

ORDER

TIMOTHY J. CORRIGAN, United States District Judge

When law enforcement officers, without a warrant, enter a homeowner's fenced property through a partially open gate with a "No Trespassing" sign posted on the fence nearby, and then proceed through an unlocked screen door onto an enclosed front porch and execute a "knock and talk" with the homeowner at the front door to his home, have they violated the Fourth Amendment?

Defendant Michael Holmes is charged in a three-count superseding indictment with possession of firearms by a convicted felon and possession with the intent to distribute cocaine and cocaine base. (Doc. 17). Holmes moves to suppress all evidence obtained subsequent to law enforcement's entry into his enclosed porch on December 29, 2013. (Doc. 24). The government responded in opposition (Doc. 26) and Holmes replied (Doc. 29). The assigned United States Magistrate Judge held an evidentiary hearing on May 22, 2014 (Doc. 37) and, at her instruction, the parties filed supplemental briefs (Doc. 35; Doc. 36). The Magistrate Judge issued a comprehensive Report and Recommendation (Doc. 43), to which Holmes objected (Doc. 46).

Because the Fourth Amendment issue seemed significant and unsettled, the Court appointed the Federal Public Defender to serve as co-counsel for Holmes and asked the appellate section of the U.S. Attorney's Office for its views. Upon Court Order, the parties then filed supplemental briefs. (Doc. 62; Doc. 63). The Court heard oral argument on the motions on April 27, 2015, and the transcript of that proceeding (Doc. 73) is incorporated herein. Before and after oral argument, both parties brought additional case law to the Court's attention. (Doc. 48; Doc. 52; Doc. 65; Doc. 67; Doc. 71) (referencing Brown v. State , 152 So.3d 619 (Fla. 3d DCA 2014); United States v. Bearden , 780 F.3d 887 (8th Cir.2015); Robinson v. State , 164 So.3d 742 (Fla. 2d DCA 2015); and United States v. Walker , 799 F.3d 1361 (11th Cir.2015)). On October 19, 2015, the Court held a supplemental hearing; the transcript of that hearing (Doc. 85) is also incorporated by reference.

I. FACTS

The United States presented three witnesses at the suppression hearing before the Magistrate Judge: Jacksonville Sheriff's Office Detectives Gary Thompkins and Z.M. Anderson and Bureau of Alcohol, Tobacco, and Firearms Special Agent Richard Samples. Holmes did not present any witnesses. Both sides presented exhibits without objection. The Magistrate Judge found the testimony of the law enforcement officers to be credible. The following recitation of facts is drawn from the Magistrate Judge's Report and Recommendation (Doc. 43), and from the transcript of the suppression hearing (Doc. 37) and exhibits admitted at that hearing (Doc. 42 attachments).

Michael Holmes lives in a single-family home on a street with few houses.¹ (Doc. 37 at 13). The property is surrounded by a chain-link fence with a large, chain-link two-door driveway gate. (Doc. 37 at 13; Doc. 42-8). The mailbox is outside of the fence. (Doc. 43 at 3). The fence and the gate are approximately four feet tall; they do not obstruct the view of the home in any way. (Doc. 37 at 21; Doc. 42-8). The main driveway gate has a standard latch, but no lock. (Doc. 37 at 22). Approximately five feet inside the gate, to the left of the driveway, is a screened-in porch approximately ten feet by ten or twelve feet. (Doc. 37 at 22). There is no separate walkway or path leading to the porch steps; the access is from the driveway. (Doc. 42-9). The porch is raised four steps off the ground and rests on concrete blocks; the porch roof appears to be an extension of the roof of the house; the bottom half of the porch walls is wood lattice, and the top half is mesh screen which is torn or missing in some places (Doc. 42-10 at 1). The mesh screen partially obstructs the view of the porch's interior such that someone outside the property's fence can see whether there is a person on the porch but cannot distinguish a face, but the view from inside the porch looking out through the screen is not obstructed (Doc. 37 at 130-133; Doc. 42-10 at 2). Within the screened-in porch, which has a door of its own, is Holmes' front door, which is protected by a burglar-bar door with a mesh screen. (Doc. 42-10 at 1-2).² A wall lantern is affixed to the right of the front door. (Doc. 42-10 at 2). The front door to the home has neither a door bell nor a knocker. (Doc. 42-10 at 2).

Facing the house from the street, there is a "BEWARE OF DOG" sign on the left portion of the driveway gate. (Doc. 42-8). About four feet to the right of the driveway gate is a "NO TRESPASSING" sign. (Doc. 42-8). On December 29, 2013, another driveway was under construction approximately twenty feet to the right of the main driveway. (Doc. 42-2; Doc. 42-3). A sliding gate operating as a continuation of the chain-link fence sat in front of the construction project, which held piles of lumber and other construction materials. (Doc. 42-2; Doc. 42-3). The sliding gate had a "BEWARE OF DOG" sign as well as a "PRIVATE PROPERTY" sign that said "NO TRESPASSING" in small letters underneath. (Doc. 42-8).

On November 8, 2013, the Jacksonville Sheriff's Office received a narcotics-based complaint from a private citizen regarding Holmes' house. (Doc. 37 at 12). Detectives then twice instructed confidential informants to attempt to purchase drugs at the home, but the informants were rebuffed on each attempt. (Doc. 37 at 17). A team of detectives went back to the home on December 19, 2013, but received no answer when they knocked on the door. (Doc. 37 at 17).

The Magistrate Judge described the events that followed:³

On December 29, in the afternoon, [Detective Thompkins] and Detective Anderson, along with two other detectives, all in tactical clothes and masks to protect their identities, returned to try another "knock and talk." Tr. 20, 102. A pick-up truck was parallel parked in front of the house, outside of the fence, and partially blocking the completed driveway. Tr. 23, 60–61. The main gate was "partially open." Tr. 25, 60. Reacting to the "beware of the dog" sign on the gate [ ], Detective Thompkins rattled the gate [ ], and the dog ignored them [ ]. Tr. 21, 60, 104, 137–38.

....

Detective Thompkins and another detective went through the main gate, walked up to and opened the porch door, walked through the porch, and knocked on the front door. Tr. 28, 61–63, 89. Detective Thompkins put his mask up so that his face was visible. Tr. 20. The porch was bare except for a few empty planters. Tr. 88–89. To ensure everyone's safety, the other detectives stayed outside of the fence in front of the house. Tr. 103. At least one of them stood near the "no trespassing" sign on the fence. Tr. 37.

Holmes, shirtless, opened the door and said hello. Tr. 30–31, 67. Detective Thompkins introduced himself and asked if Holmes would mind stepping outside to speak to him for a second. Tr. 31. He stepped outside. Tr. 31. Detective Thompkins asked his name, if he owned the house, and if he had identification. Tr. 31. He identified himself and said that it was inside. Tr. 31. Detective Thompkins asked if he would get it. Tr. 31. He said yes and went back inside, closing the burglar-bar door behind him but leaving the front door open. Tr. 32, 64. The detectives had but did not draw guns. Tr. 34, 66. The tone of the conversation was "very calm." Tr. 33.

Holmes took longer than what seemed appropriate to Detective Thompkins. Tr. 32. Upon hearing a suspicious sound that he thought might be Holmes destroying evidence, he stepped closer to the front door. Tr. 32, 64–65, 69–70, 79. There, he smelled freshly burnt marijuana wafting from inside. Tr. 32, 64–65, 70. He thought that he had smelled it before, when he had been talking to Holmes, but the smell was stronger closer to the front door. Tr. 71. The other detective confirmed the scent and radioed the new development to Detective Anderson, who then joined them on the porch. Tr. 35, 140, 115.

When Holmes returned with his identification, Detective Thompkins told him about the complaint of drug-dealing there and asked him if he used drugs, like marijuana. Tr. 33–34. He responded, " 'Yeah, I smoke marijuana.' " Tr. 34. Detective Thompkins said they could smell it and asked if he had any inside. Tr. 34. He said no. Tr. 34. Detective Thompkins asked if they could search the house. Tr. 34. He said no again. Tr. 34, 65. Deciding to get a search warrant, Detective Anderson handcuffed him and moved him to the tailgate of the pick-up truck. Tr. 34–36. He impulsively said that he had "had a good run" and was "not going to see the streets anymore." Tr. 35. He remained calm and never told any of the detectives to get off of his property. Tr. 33–34, 111–12, 140–141.

While Detective Thompkins was drafting a warrant affidavit, Holmes asked if he could go inside to get a shirt. Tr. 36–37, 112. The detectives told him that they would have to escort him. Tr. 37, 112. While he led Detective Anderson and another detective to his bedroom, Detective Anderson saw marijuana in a bag on a desk in his living room and marijuana cigarettes on a dresser in his bedroom. Tr. 37, 114–115, 117. Detective Thompkins added those discoveries to the affidavit. Tr. 37.

Detective Thompkins obtained a warrant to search the house for drugs, drug paraphernalia, and cash. Tr. 36, 119; Def. Ex. 4. After he returned, he advised Holmes of his Miranda rights. Tr. 38. In a safe in a bedroom and elsewhere, the detectives found a dozen guns, ammunition, a bulletproof vest, a tactical vest, $3600, pills, marijuana, and cocaine. Tr. 39.

(Doc. 43 at 6-9).

Although the detectives only specifically recalled seeing the "BEWARE OF...