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United States v. Spence

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

March 6, 2017




         I. BACKGROUND

         On August 29, 2016, a Complaint was filed against Defendant Tafari Spence (“Spence”). (Doc # 1) On September 13, 2016, Spence was charged by Indictment with one count of Felon in Possession of Firearms in violation of 18 U.S.C. § 922(g)(1). (Doc # 9) On October 27, 2016, Spence filed a Motion to Suppress Evidence. (Doc # 17) The Government filed a Response on December 1, 2016. (Doc # 21) Spence filed a Reply on December 15, 2016. (Doc # 22)

         Through the instant Motion, Spence seeks to suppress evidence seized during the warrantless entry and search of his alleged home, located at 8337 Almont Street in Detroit, Michigan. The evidence seized from the house includes a Glock, Model 27 semi-automatic handgun loaded with eleven live rounds in an extended magazine; an AR-15 magazine; a red dot sight; and a sight magnifier. The Court held an evidentiary hearing on January 25, 2017 and February 1, 2017. The Court heard and has considered testimony from Detroit Police Department (“DPD”) Officers Erik Peterson (“Peterson”) and Johnathon Gardner (“Gardner”), as well as from Cynthia Moody (“Moody”), David Henderson (“Henderson”), Walter Jackson (“Jackson”), and Steven Mason. The Court has also reviewed and considered the photo and video exhibits introduced at the hearing.


         On the night of July 31, 2016, DPD Officers Peterson, Jordan Napier (“Napier”), Gardner, and Eric Maxwell (“Maxwell”) were on patrol as members of a DPD Tactical Response Unit. They were specifically deployed to the area around 8337 Almont due to a high rate of gun violence in the area in the prior weeks. As members of the Tactical Response Unit, the officers were deployed to different areas of the city each day. Peterson testified that he has been a DPD officer for three years, and that he had patrolled the area around 8337 Almont approximately five times. Gardner testified that he has been a DPD officer for two and a half years, and that he had never before patrolled the area around 8337 Almont. The officers testified that they had no familiarity with 8337 Almont.

         While on patrol, at approximately 10:00 p.m., the officers observed a group of men drinking beer and playing music near three vehicles in the grass lot just west of 8337 Almont. The officers approached the men, and Peterson illuminated them with a handheld flashlight. Peterson saw Spence wearing a tight white tank top, red gym shorts, and a tether on his right ankle. Peterson also saw an object shaped like a handgun “swinging in” Spence's front right pocket. Spence separated from the group and began walking toward 8337 Almont. As Spence turned to walk toward the house, Peterson again illuminated him with the flashlight and observed the end of a handgun magazine sticking out of Spence's right pocket. Peterson ordered Spence to stop. Spence then removed a black handgun with an extended magazine from his pocket, as he fled toward the west door of the house. Peterson and Gardner gave pursuit, and as they neared the door, they observed Spence inside the house closing and locking the side door with the handgun still in his right hand.

         Peterson ran to the rear of the house to check for a rear door. There was no rear door. While at the rear, Peterson observed that the house's electric meter had been removed, and the wires were hanging low. See Gov't's Exh. 4. According to Peterson and Gardner, the house appeared to be vacant due to untrimmed landscaping, garbage littering the lot, a white van in the back of the lot that appeared abandoned with some flat tires and no license plate, and no lights turned on inside the house.

         Peterson returned to the side door, which was now locked. He forced entry into the house without knocking on the door. Gardner followed closely behind. They began to clear the house in search of Spence, while Napier and Maxwell secured the outside of the house. Peterson and Gardner testified that they made the following observations of the interior of the house. They tried to turn on the lights, but there was no electricity. In the kitchen, the officers observed a box of power tools, empty cabinets, and a refrigerator taped closed with what sounded like a rat inside. In the living room, the officers observed some garbage bags that were full, but they did not look inside the bags. They also saw a large sectional couch with some items on it, clothing and property that appeared to belong to a woman, and a hole in the ceiling. In the bathroom, the officers observed a hole in the ceiling, debris on the floor, and a toilet and bathtub that were both full of urine, feces, and other debris. In the northeast bedroom, the officers saw a bed and a dresser.

         Peterson and Gardner located Spence lying down on a bed with bed sheets in the southeast bedroom. This bedroom had several pieces of furniture including a dresser, a cabinet, and an older TV. The dressers had several items on top. Gardner testified that there were many personal items on the floor of the bedroom. Peterson testified that Spence told the officers that he lived there. Peterson testified that he did not follow up on that statement because, in his experience, a statement like that is true only “50” percent of the time.

         Peterson and Gardner handcuffed Spence. Peterson secured Spence in a police car, while Gardner stood by in the house. Peterson testified that he patted Spence down for safety, but that he did not look at Spence's ID (which had the 8337 Almont address) at that time. Peterson testified that he then returned to the house to search for the handgun. Gardner testified that he knew he had to look for the handgun in order to arrest Spence. The officers testified that additional officers responded and came to the scene at some point during the searches.

         During this second search, Peterson recovered a red dot sight for a firearm and a sight magnifier from the top of the tall dresser in the southeast bedroom. Gardner advised him of the recovery of an AR-15 magazine from another dresser in the southeast bedroom. Peterson and Gardner continued the search for the handgun, and Peterson found it on the insulation in the attic, on the edge of a hole in the ceiling of the bathroom. He testified that the insulation was wet from an apparent leak, but the handgun was dry and debris-free.

         After the officers recovered the handgun, they filmed a re-creation of the recovery inside the house on the personal cell phone of Officer Eric Maxwell, which they then shared amongst each other. The Snapchat video shows various pieces of furniture inside the house, personal belongings, and items hanging on the wall of the southeast bedroom, including a Jamaican flag. Def.'s Exh. 10. Peterson continued searching the house after recovering the handgun, testifying that he is depicted in a photograph which shows him searching the ceiling inside a closet filled with personal belongings. Def.'s Exh. 4. Peterson testified that this photograph is not of a re-creation.

         Cynthia Moody, Spence's mother, testified that Spence has lived at 8337 Almont for 17 years and has never used another address on any identification. Moody's name has been on the deed of the house since 1997. She testified that she visits the house periodically to pick up mail, approximately once per month. Moody visited the house during the summer of 2016 and saw that Spence had building materials and was working on making improvements to the house. She testified that Spence had a fire pit in the front lawn and a generator chained to a tree in the front of the house. Garbage was collected from the house this summer. Spence regularly mowed the lawn. Spence regularly received mail at the house and still does. See Def.'s Exh. 11. Moody testified that she went into the interior of the house this summer and saw that Spence had installed a new kitchen sink. See Gov't's Exhs. 8B, 8C. She was aware that the roof was damaged, and she testified that it has continued to deteriorate and gotten worse. She was also aware that the bathtub was not functional, but testified that the bathroom sink was. Moody had boxes and bags of her personal belongings in the living room, which she was planning to take with her. These items included clothing, books, cassette tapes, VHS tapes, school trophies, pictures, and figurines. See Gov't's Exh. 8A. Moody testified that most houses in the neighborhood look like theirs and have occupants who are doing the best they can. Some houses in the neighborhood are abandoned, and she testified that they have broken or no windows and one can look right inside them.

         David Henderson, Spence's friend, testified that he has been visiting Spence at 8337 Almont since they were kids. He visited the house four to five times per week during the summer of 2016. He mowed the lawn with Spence several times during the summer of 2016. He also picked up garbage from the lot with Spence several times per week. Henderson testified that Spence put a tarp on the roof to cover the holes, but had not fixed the roof. See Gov't's Exh. 3. He also testified that the white van in the driveway belonged to one of their friends. Henderson testified that they mostly spent time inside Spence's bedroom, which had a bed, a dresser, a mirror, a TV, Spence's clothing and shoes, a radio, a DVD player, pictures of his family and a Jamaican flag hanging on the wall, a chair, and a working mini refrigerator. See Def.'s Exhs. 5-7. Spence and Henderson would drink and watch TV in the bedroom. They used the generator to power the appliances in the bedroom, and they went down the street when they needed to use the bathroom.

         Walter Jackson, Spence's friend, also lives on Almont Street. He testified that many of the occupied houses in the neighborhood are not in good condition, but residents are often seen going in and out and have fixed or covered their windows. There are also several abandoned houses in ...

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