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United States v. Sturdevant

United States District Court, D. Montana, Helena Division

April 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRY LYNN STURDEVANT, JR., Defendant.

          OPINION & ORDER

          CHARLES C. LOVELL, SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Terry Lynn Sturdevant, Jr.'s Motion to Suppress Evidence and Statements (ECF No. 19) and the Magistrate Judge's Findings and Recommendations (“F&R”) (ECF No. 34) thereon. The government has filed the “United States Objections to the Court's February 7, 2017, Findings and Recommendations.” (ECF No. 38.) The parties argued the objections before the undersigned on April 6, 2017, and the government submitted additional testimony in support of its objections.

         Pursuant to 28 U.S.C. § 636(b)(1) this Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” The district judge must review the magistrate judge's findings and recommendations de novo if objection is made. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). If an objection is made, the court reviews de novo only the portion to which the objection was made, and the remainder is reviewed for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). An objection having been made, this Court reviews the F&R accordingly.

         BACKGROUND

         Defendant Sturdevant is charged with being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g). The events in this case took place in Jefferson County, Montana, which the Court notes is a medium-sized, rural county in Montana comprising approximately 1, 659 square miles, and specifically the events took place in the town of Whitehall, which has a population of around 1, 038 (2010 Census figure).

         The testimony before the Magistrate Judge was that at 1:43 a.m., on Saturday, March 5, 2016, two Jefferson County Sheriff's deputies were assisting on a call in Elk Park, Montana, when their dispatcher requested that they respond forty miles away to the 911 call from a residence in Whitehall. Both officers were responsible for the southern half of Jefferson County, and due to the nature of the call they each drove the 40 miles to Whitehall, arriving 15 to 20 minutes later, at approximately 2:05 a.m. The call was placed by the mother whose three adult sons resided in her Whitehall home. The mother's 911 call was precipitated by two of the sons getting into a fight in the residence.

         Prior to the officers' arrival in Whitehall, their dispatcher informed them that the mother called 911 because her two adult sons were fighting in her home with a knife. Dispatch called an ambulance to the scene, and the ambulance arrived before the sheriff's deputies. An EMT with the ambulance called the cell phones of the officers while they were still en route and informed them that a knife was involved in the fight and also a gun. The EMT also said that one of the sons, Terry Lynn Sturdevant, had left the residence with the gun. The location of the knife was as yet unknown.

         Officer Dan Haggerty's Testimony. At 2:08 a.m., at Officer Korst's request, dispatch also called an off-duty officer, Officer Dan Haggerty, who left his home and drove to the Whitehall residence, arriving at approximately 2:30 a.m. Dispatch explained that there had been a disturbance at the Whitehall residence involving a gun and a knife and that the suspect had fled on foot. Officer Haggerty had had prior dealings with Sturdevant, and he had been to this Whitehall residence in the past on numerous occasions. (ECF No. 36[1]; TR 96:8-10.) Officer Haggerty was also involved with a Child and Family Services investigation relating to Sturdevant's 8-year-old son, who was living in the residence and present during the fight. From his prior visits to the residence, Officer Haggerty knew that the family had “a lot of issues, ” and he considered some of the family members to be unstable. (ECF No. 36; TR 91:13-17.) (The victim's statement indicates that on a previous occasion, the Defendant had stabbed one of his brothers. (ECF No. 22-3; Gvt. Ex. 4, Statement of Adam Hoyt.)) Officer Haggerty thought that Sturdevant had three other adult brothers (Adam, Dustin, and Chris) there at the house (ECF No. 36; TR 96:18-24), but when Officer Haggerty arrived and saw Terry being taken into custody, Haggerty did not know where the other three brothers were located (ECF No. 36; TR 102:21-22). Upon his arrival, Officer Haggerty was told that neither the knife nor the gun had been found, so Officer Haggerty felt a “sense of urgency” (ECF No. 36; TR 101:8-14) because the scene was not secure (ECF No. 36; TR 100:7-13). Haggerty knew that an assault with deadly force had taken place and that the weapons involved had not been located, and he was concerned for the sake of everyone's safety-his own safety and that of the other officers, the safety of the other family members, and the safety of the public. (ECF No. 36; TR 97:13-16; 99:24-100:2; 101:8-14.) He was concerned about not knowing where the firearm was dropped and who might pick it up. (ECF No. 36; TR 100:1-2.)

         Officer Jason Korst's Testimony. When Officer Korst arrived at the Peterson residence, he briefly searched around the driveway of the house for the Defendant and then entered the house. He photographed the interior of the house, where he found “a war zone.” “Everything in the kitchen was kind of in shambles. There was blood on the floor, the walls, the stove, the fridge, the table, the chairs, just scattered all through the kitchen area where there had been a struggle.” (ECF No. 36; TR 13:14-18.) He took a statement from the alleged victim (an adult brother of the Defendant), but Defendant's mother stated that she would not give a statement against one of her sons. (ECF No. 36; TR 21:4-8.) Someone told Deputy Korst that Deputy Mercer had found the alleged assailant, Terry Sturdevant, in the backyard. Deputy Korst immediately went out the backdoor of the residence to assist Deputy Mercer. Even though they were taking Sturdevant into custody, Deputy Korst believed that an emergency still existed because the gun and the knife were still missing. He believed the missing weapons posed a threat to anyone on the scene, including the residents of the house. (ECF No. 36; TR 36:24-37:3.) Deputy Korst had no idea where Sturdevant had dropped the gun, but he knew that Sturdevant had left through the front door and could have run through the neighborhood. Deputy Korst knew that there was a day care within a block of the residence and that newspaper delivery people would soon be out in the neighborhood to deliver papers. He knew that an eight-year-old lived in the residence. Deputy Korst felt that “[o]ur concern was the safety for everybody to find the weapons.” (ECF No. 36; TR 41:2-3.) The area of concern was several blocks, and Deputy Korst felt that “[w]e just couldn't secure the area. It is too big of an area.” (ECF No. 36; TR 41:8-9.) Deputy Korst testified he could have slowed down and gotten a search warrant if he had known where the weapon was and could have secured it for safety. (ECF No.36; TR 41:6-13.) Without knowing where the weapon was or having any ability to put manpower on the weapon to secure it, Deputy Korst felt this was an emergency. While Korst was escorting Sturdevant to the ambulance for treatment, Sturdevant told him that his brother, Adam, was the aggressor in the fight and that Adam was not taking his medication and was unstable. (ECF No. 44[2]; TR 15:8-15.)

         Officer Scott Mercer's Testimony. Officer Mercer, responding to the 911 call in his separate vehicle, did not go directly to the residence, but instead began driving around the neighborhood looking for the Defendant in a two- or three-block area. Not finding Sturdevant, Officer Mercer drove to the residence and parked in the alley behind the residence, where he began looking for the Defendant. He knew that the suspect was Terry Sturdevant and that Sturdevant reportedly had both a gun and a knife. (ECF No. 36; TR 51:1.) Deputy Mercer walked around the residence, staying outside of the fenced portion of the backyard, but eventually he was able to see Sturdevant laying face down inside of the wire fence, laying on the ground between a shed and a neighbor's privacy fence. (ECF No. 36; TR 50:5-7.) While assisting Officer Korst in taking Sturdevant into custody and immediately thereafter, Deputy Mercer kept looking for the gun. He was concerned about the families living in the neighborhood and about the children living in the residence itself. (ECF No. 36; TR 51:19-21.) He was concerned that if the gun was just laying anywhere in the neighborhood, it could easily be picked up by someone. (ECF No. 36; TR 51:21-23.) It was a public safety issue, not knowing whether the gun was in the yard or in the neighborhood, and not knowing where the gun had been tossed or hidden. (ECF No. 36; TR 52: 9-10.)

         Search for the Gun. When Officer Haggerty arrived, he could see that Officers Korst and Mercer were taking the suspect into custody, and he could see them escorting Sturdevant inside of the fenced yard. Officer Haggerty met them at a gate and untied the cords and ropes that kept the gate closed. Officer Mercer told Officer Haggerty that the knife and the firearm had not been found. While the other two officers took Sturdevant to the ambulance for treatment of a non-life-threatening knife wound, Officer Haggerty entered the backyard and found the shed (shed #1) where Sturdevant had been found lying face down between the shed and the adjacent neighbor's tall, wooden, privacy fence. With the other two officers tending to Sturdevant, Officer Haggerty then walked along the backyard fence line with his flashlight, looking for the missing weapons. Sweeping his flashlight along the fence line as he walked, in a matter of a few minutes (ECF No. 36; TR 101:13-14) he saw the firearm in plain view about one foot on the other side of the pig-wire fence. The .22 revolver's hammer was still cocked, and the handgun lay between the pig-wire fence and a second shed (shed #2) that stood just outside of the fence but still on the residential property. The distance between the point where Sturdevant was found in the fenced backyard to the point where shed #2 was located (outside of the fenced backyard) was approximately 75 feet.

         Thus, a few minutes after Officer Haggerty opened the gate, but about 10 minutes after Sturdevant was discovered, Officer Haggerty yelled to Officers Mercer and Korst that he had found the firearm. Officers Mercer and Korst responded to Haggerty's shout and took photographs and secured the handgun, leaving Sturdevant cuffed to a cot in the ambulance under the supervision of the ambulance attendant and EMT.

         Testimony regarding search warrants. Officer Korst testified that obtaining a search warrant would have taken many hours. Apparently the state district judge was located in Madison County, and it would have taken an hour to take a search warrant application to the judge and an hour to drive back to the scene. (ECF No. 44; TR 14:11-14). At a minimum, a search warrant application would have taken four to six hours. (ECF No. 44; TR 14:21-25.) Officer Korst also testified that the state district judge with jurisdiction over Jefferson County and Madison County did not accept telephone search warrant applications. (ECF No. 44; TR 14:15-20.) Officer Mercer also testified that they could not get a search warrant by telephone and that a paper application would have taken hours. (ECF No. 44; TR 29:13-18.)

         LEGAL STANDARD

         The Magistrate Judge properly outlined the Fourth Amendment standards that are applicable to the motion to suppress. See ECF No. 34 at 3-4. In addition, the Magistrate Judge outlined the law applicable to the exigent circumstances exception. See ECF No. 34 at 11. The Magistrate stated that

“The law recognizes that in certain circumstances, ‘the exigencies of the situation make the needs of law enforcement so compelling' that the Fourth Amendment's warrant requirement is lifted. Mincey v. Arizona, 437 U.S. 385 (1978). These circumstances typically occur when the delay caused by seeking a warrant would lead to physical harm to the officers or members of the public, lead to destruction of valuable evidence, the escape of a suspect, or otherwise permanently frustrate law enforcement efforts. United States v. Furrow, 229 F.3d 805 (9th Cir. 2000). The mere presence of a gun does not create an exigent circumstance. United States v. Gooch, 6 F.3d 673, 680 (9t ...

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