United States District Court, D. Montana, Billings Division
OPINION AND ORDER
SUSAN P. WATTERS, District Judge.
On March 10, 2013, police officers forced their entry into an apartment located at 1301 Industrial Avenue, Billings, Montana. The police believed that the apartment was the scene of an ongoing domestic assault. Once inside, a protective sweep revealed the Defendant Mack Harris hiding beneath the kitchen sink. After placing Harris under arrest and taking him to a patrol car, officers located a handgun concealed underneath a bedroom dresser. That handgun formed the basis of Harris's subsequent Indictment. On January 23, 2015, Harris moved to suppress any evidence found within the apartment. Harris argues that the forced entry did not comport with the Fourth Amendment. Harris also contends that even ifthe police legally entered, they did not obtain valid consent to search the apartment.
On February 18, this Court held a hearing. At the hearing, the Court heard testimony from Officer Paul Lamantia,  Sergeant Patrick Curry, Officer Corey Kirkpatrick, Officer Jared Lausch, Officer David Raschkow, Officer Gearald McComb, and Leanna Devad. The Court has also reviewed recordings of body microphones attached to Officer Lamantia, Officer McComb, Officer Kirkpatrick, Officer Lausch, and Officer Raschkow.
The Court finds that law enforcement permissibly entered the apartment. The Court further finds that law enforcement obtained valid consent to search the apartment. For those reasons, the Court denies the Motion to Suppress.
Around 9:30 PM on March 10, 2013, Officer Lamantia was on routine patrol in a marked police vehicle when he received a dispatch to a disturbance at an apartment complex in Billings, MT. Dispatch relayed to Officer Lamantia that residents at the complex could hear a physical altercation between a male and a female inside an apartment. The residents reported hearing the occupants mention a gun. The residents also believed that they heard the sounds of strangulation coming from within the apartment.
Officer Lamantia arrived at the apartment complex and observed people gathering outside of the apartment building. On the second floor at 1301 Industrial Avenue, Apartment #36's windows were open and onlookers could hear the apartment's occupants arguing. Officer Lamantia entered the apartment building and walked up the stairs to the apartment's door. Outside the door, Officer Lamantia heard what appeared to be an intense verbal altercation between a male and a female. Officer Lamantia knocked on the door and identified himself as police. Nobody answered the door.
Soon after, an onlooker told Officer Lamantia that a male was attempting to jump from the apartment's window. Officer Lamantia went to the bottom of the stairwell, exited the building, and attempted to place himself in a position to watch both the apartment's door and the window. Eventually, Sergeant Curry, Officer Raschkow, Officer Lausch, Officer Kirkpatrick, and Officer McComb arrived as backup.
While Officer Lamantia stood at the bottom of the stairwell, a woman, later identified as Devad, began speaking to Officer Lamantia through the apartment's open window. Officer Lamantia told Devad to open the apartment's door. Devad told Officer Lamantia that everything was alright and said she was not going to answer the door. Devad also said that she was alone. Officer Lamantia asked Devad several more times to open the door. Devad ended up closing the window and walking away.
Officer Lamantia knew that Devad was likely lying about being alone. Both the onlookers and Officer Lamantia heard distinct male and female voices arguing within the apartment. Also, once Officer Lamantia knocked on the door, onlookers reported that a male was attempting to jump out of the apartment's window. Based on his training and experience, Officer Lamantia knew that victims of domestic violence are frequently untruthful to law enforcement out of fear of their abuser.
An officer called the apartment's maintenance man to unlock the apartment's door. The maintenance man arrived shortly with a key, and Officer Lamantia attempted to unlock the door. The key made several revolutions within the lock, yet the door would not open. The maintenance man noticed that there was a secondary lock located above the primary lock. This secondary lock was placed in violation of the apartment complex's rules. Police called Devad's phone, but she did not answer.
Sergeant Curry decided to make a forced entry into the apartment. The officers lined up on the door while Officer McComb prepared to forcibly open the door with a sledge hammer. Devad asked the police to not forcibly open the apartment door and asked "Why are you doing that?" Officer McComb disregarded that request and knocked the door open.
The door opened up, but it quickly recoiled back closed. Officer Lamantia saw that a couch was placed in front of the door. The officers asked Devad to move the couch. With the officers pushing on the door and Devad pulling the couch, the door eventually opened wide enough to allow the officers into the apartment.
The officers entered the apartment with their firearms drawn. At least one officer had a shotgun. Upon entrance, an officer told Devad to "sit down in the comer and don't move." (Doc. 48, Gov't Ex. 2,  Officer Kirkpatrick's body microphone at 27:20). The officers immediately performed a primary sweep of the apartment and cleared the apartment's rooms and closets. The apartment was small, with only a living room, a kitchen area, a bedroom, and a bathroom. The officers did not locate a male on the primary sweep.
During the secondary sweep, Officer Lausch found Harris hiding in a cupboard under the kitchen sink. The officers removed Harris at gunpoint and made him lay down on the floor. An officer told Harris to cooperate and made him aware that there was "a 12 gauge at the back of [his] head." (Doc. 48, Gov't Ex. 5, Officer Lausch's body microphone at 07: 15). Harris calmly told police that he had a knife in his pocket and that he did nothing wrong. The police told Harris that they would find his gun, with one officer claiming that they were "going to literally tear this place to pieces." (Officer Kirkpatrick's body mic at 30:10). Harris was handcuffed, read his Miranda rights, taken outside and placed into a patrol car for eventual transport to the Yellowstone County Detention Facility.
While the officers performed the protective sweeps, Sergeant Curry spoke to Devad. Devad was visibly shaken, and Sergeant Curry tried to calm her down. After the officers found Harris underneath the sink, Devad asked for an officer to bring her water bottle from the bedroom. Sergeant Curry retrieved Devad's water. In answering questions from Sergeant Curry, Devad spoke softly. Sergeant Curry believed that Devad was afraid of Harris hearing her answers.
What happened next is disputed by the parties. According to Sergeant Curry, he asked Devad for consent to search her apartment for a gun. Sergeant Curry claims that Devad initially shook her head affirmatively. Sergeant Curry asked Devad to respond out loud, and Devad quietly said "yes, yes." Based on Devad's consent, Sergeant Curry claims that he told the officers to begin searching the apartment. In contrast, Harris claims that Devad never consented to the search. At the hearing, Devad testified that when Sergeant Curry asked her for permission to search, she ...