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United States v. Balfour

United States District Court, E.D. Michigan, Southern Division

February 22, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KEVIN BALFOUR, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS [#26]

          Denise Page Hood Chief Judge.

         I. Introduction

         On May 19, 2016, Magistrate Judge Elizabeth Stafford signed a criminal complaint and arrest warrant against Defendant Kevin Balfour on the charge of impersonating a federal agent, in violation of 18 U.S.C. § 912, and felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The Government intends to introduce at trial evidence seized by officers on July 15, 2016. Defendant has filed a Motion to Suppress Illegally Seized Evidence [Dkt. No. 26], to which the Government has responded. On December 16, 2016, the Court conducted a hearing on Defendant's Motion. FBI Special Agents John Ryan and David Opperman testified at the hearing.

         II. Factual Background

         On July 15, 2016, at approximately 11:25 a.m., law enforcement arrived at Defendant's home in Warren, Michigan, for the purpose of arresting him. Officers approached the front door, which was open, and announced their presence and purpose. Defendant Balfour came to door wearing an empty gun holster and exited the house. Officers began to question Defendant whether there was anyone in the house and whether any weapons were in the house. Defendant acknowledged that there was a firearm in the house (under a pillow in the living room near the front door, according to the Government), but Defendant argues that he twice stated there was no one else in the house.

         According to Defendant, officers then began to enter the house to secure the firearm. Only after officers entered the house did he advise them that his son (it is not clear whether Defendant indicated that his son was an adult) was in the house, upstairs. The Government appears to argue that Defendant admitted that his son was upstairs before they entered the house. After entering the house, officers secured the firearm (which was loaded) from the living room and Defendant's son came downstairs. The Government also asserts that there were handcuffs sitting on a table in plain view.

         Defendant then was handcuffed, taken away from the house, and read his Miranda rights at approximately 12:05 p.m. According to the Government, Defendant orally waived his Miranda rights. Defendant did not consent to a search of the house, but he admitted he owned the firearm found in the living room and that he was a convicted felon. Defendant consented to a search of his car, and officers found a gun safe in the trunk of the car. After Defendant provided the combination to the gun safe, officers opened and found the safe empty.

         The Government applied for and obtained a search warrant for Defendant's house, which was signed by Magistrate Judge David Grand at 1:40 p.m. When the search warrant was executed, officers found a second firearm (a Kimber semiautomatic handgun in Defendant's bedroom), a silver Chicago Police detective badge, a gold Treasury Department badge, phony military ID cards, and other items.

         III. Analysis

         Defendant seeks to suppress the evidence seized by officers on July 15, 2016 because the “facts in this case are clear that the handgun and other items were seized immediately after the arrest of this Defendant and prior to receipt of the search warrant.” Dkt. No. 26, PgID 48 (emphasis added). Defendant argues that there were not exigent circumstances justifying a search before the warrant was obtained. Alternatively, Defendant argues that, to the extent any exigent circumstances existed, those circumstances were discovered improperly because Defendant was in custody and should have been Mirandized prior to any questioning, rather than well after the time he was arrested.

         Defendant argues that officers did not have the right to ask him about the presence of a gun in the house prior to advising him of his Miranda rights, where there was no evidence to suggest that there were any public safety concerns. Defendant's position is that officers had no reason to believe that any persons remained in the house, which Defendant asserts should have been the mind set of officers because Defendant had denied the presence of any individuals in the house before officers entered. The parties present contradictory versions of when Defendant told officers that his son was in the house. Defendant contends officers entered the home before Defendant admitted his son's presence; the Government suggests Defendant admitted his son's presence prior to the officers' entry.

         A. Protective Sweep

         The Government argues that the officers were entitled to conduct a protective sweep in this case. An entry into the privacy of a suspect's home to conduct a protective sweep is permissible if the officers had reason to believe that an individual was present who posed a danger to those on the scene. United States v. Biggs, 70 F.3d 913, 915 (6th Cir. 1995) (citing Maryland v. Buie, 494 U.S. 325, 331 (1990)); United States v. Colbert, 76 F.3d 773, 777-78 (6th Cir. 1996) (motion to suppress to be granted where there were no “articulable facts” to support a belief that anyone else remained in the house). Defendant argues that there was no need or basis for officers to enter his home to conduct a protective sweep because: (1) he was in custody; (2) he was away from the house and the weapon; and (3) there was no reason to believe anyone was in the house. Citing United States v. Akrawi, 920 F.2d 418, 420-21 (6th Cir. 1990) (granting motion to suppress where officers articulated no specific basis for believing second floor of residence harbored an individual posing a threat to officers that would justify a protective sweep of second floor).

         The Government states that officers had “articulable facts” that would warrant a reasonably prudent officer to believe that the area should be swept for individuals posing a danger to those present. Buie, 494 U.S. at 334. The articulable facts the Government cites are that Defendant: (a) appeared at the door of his house wearing an empty gun holster; and (b) ...


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