USA v. Crawford

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
NATHANIEL CRAWFORD,
Defendant.
4:22-CR-40052-KES
ORDER ADOPTING REPORT AND
RECOMMENDATION AS MODIFIED
AND DENYING CRAWFORD’S
MOTION TO SUPPRESS
Defendant, Nathaniel Crawford, is charged with possession of a firearm
by a prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Docket 1. Crawford moves to suppress all evidence obtained during a search of
his vehicle, as well as the statements he made during and after the search,
arguing that this evidence was obtained in violation of the Fourth Amendment
to the United States Constitution. Docket 31; Docket 32 at 6. The motion was
referred to a United States magistrate judge for a report and recommendation
under 28 U.S.C. § 636(b)(1)(B). After holding an evidentiary hearing, Magistrate
Judge Veronica Duffy recommended that Crawford’s motion to suppress be
denied. Docket 40 at 20. Crawford objects to the Magistrate Judge’s Report and
Recommendation. Docket 42.
Legal Standard
This court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
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recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Because motions to
suppress evidence are considered dispositive matters, a magistrate judge’s
recommendation regarding such a motion is subject to de novo review. 28
U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980)
(holding dispositive motions under 28 U.S.C. § 636(b)(1) are subject to de novo
review by the district court). In conducting a de novo review, this court may
then “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see
also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
Factual Background
According to the testimony given and the exhibits introduced at the
evidentiary hearing, the pertinent facts are as follows:
On February 5, 2022 at approximately 8:00 p.m., the Sioux Falls Police
Department received reports of an argument between a man and a woman
taking place on the 300 block of North Spring Avenue. Docket 41 at 7-8.
Multiple callers reported that the man was outside and threatening to “shoot
someone’s house.” Docket 37 at 9. The man then left in his vehicle, reported to
be a red Trailblazer or Cherokee. Id. at 9-10. The contents of these calls, along
with all other relevant calls received that night, were available to officers
through the Metro Communications command log (CAD). Docket 41 at 8.
Officer Michelle Smith responded to the call and arrived at the residence
at approximately 8:14 p.m., where she spoke with the woman involved in the
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incident, Christina Bryant. Docket 41 at 11; Exh. 1 at 20:15:52-22:25.1 Bryant
told Officer Smith that Nathaniel Crawford, her ex-boyfriend, had been at the
residence arguing and making threats. Docket 41 at 11-12. At that time,
Bryant reported that she did not think that Crawford would follow through on
his threats and that she did not know him to carry firearms. Id. at 12. But
Bryant also mentioned an incident that had occurred on January 28, 2022 in
which Crawford struck Bryant with a metal pipe. Id. at 11; Docket 32 at 2;
Docket 33 at 2. Officer Smith told Bryant to call the police if Crawford returned
to the apartment. Docket 41 at 12.
Officer Smith returned to her vehicle several blocks away and located a
bulletin indicating that Crawford was wanted for aggravated assault against
Bryant from the January 28 incident. Id. at 13-14. The bulletin noted that
Crawford may be in a red Chevy Trailblazer. Id. at 14.
Approximately twenty minutes after Officer Smith left the scene, at
20:37:48, Bryant called 911. Docket 37 at 9. Bryant reported to dispatch that
Crawford was right outside her door with a gun. Id. In response to the call,
Officer Smith returned to the apartment complex. Docket 41 at 13-14. Other
officers also arrived at the scene and, with Officer Smith, looked for Crawford.
Exh. 1 at 20:39:33-41:23. Officer Smith also spoke with Bryant, who was
uninjured and who stated that Crawford left in a red Trailblazer wearing blue
jeans and a white t-shirt. Docket 41 at 14-15; Exh. 1 at 20:41:30. Bryant did
not know where Crawford had gone. Docket 41 at 15.
1 Exhibit 1 is Officer Smith’s body camera footage from February 5, 2022. Docket 36.
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Officer Smith radioed to nearby officers that there was a bulletin
authorizing Crawford’s arrest, that he was reported to have been back at the
Bryant’s apartment with a firearm, and that he was in a red Chevy Trailblazer.
Id. Within a few minutes, Sergeant Harris radioed that he had located
Crawford’s vehicle at the northwest corner of the parking lot for the Minnehaha
County administration building, just a few blocks from Bryant’s apartment
complex. Docket 41 at 15-16, 99, 107.
Officers VanVoorst and Harris arrived first at the scene. Id. As the
officers pulled into the parking lot, Crawford finished parking and exited his
vehicle. Exh. A at 20:42:38.2 Officer VanVoorst exited his vehicle and took out
his dog, Hugo. Docket 41 at 99-100. Hugo is a dual-purpose dog. Id. at 106. He
is trained in the apprehension of subjects, as well as detecting narcotics. Id.
Officer VanVoorst got Hugo out of the patrol vehicle in case he was needed to
apprehend Crawford. Id. at 107. When Crawford complied with commands that
were issued by officers, Officer VanVoorst returned the dog to his patrol
vehicle. Id. at 100-01, 110-11.
Officers Robert Olson, Jason Banik, and Samual Buhr all arrived on
scene at 20:43:30. Exh. 2 at 20:43:303; Exh. 3 at 20:43:304; Exh. C at
2 Exhibit A is Officer VanVoorst’s body camera footage from February 5, 2022.
Docket 36.
3 Exhibit 2 is Officer Olson’s body camera footage from February 5, 2022.
Docket 36.
4 Exhibit 3 is Officer Buhr’s body camera footage from February 5, 2022.
Docket 36.
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20:43:305. At that time, Crawford was outside his vehicle and complying with
commands, but he had not yet been handcuffed. Exh. C at 20:43:30. Officer
Banik helped handcuff Crawford while Officers VanVoorst, Olson, and Buhr
visually inspected Crawford’s vehicle to see if any other persons were inside.
Exh. 2 at 20:44:49; Exh. C at 20:43:33. When they saw the vehicle was
unoccupied, they gave the other officers an “[a]ll clear.” Docket 41 at 51.
After handcuffs were placed on Crawford, an officer asked him if he had
any weapons on him. Exh. C at 20:43:33. He said that he did not. Id. Officer
Buhr approached and asked Crawford, “Where’s the gun at, man?” Id. at
20:45:31; Exh. 3 at 20:45:31. Crawford denied having a firearm. Id. Officer
Buhr then asked Crawford for consent to search the vehicle for firearms, but
Crawford said, “no.” Exh. 2 at 20:45:44.
After Crawford declined to consent to the search, Officer Olson remarked
that Crawford’s vehicle smelled of cannabis and they could probably search the
vehicle based on that fact. Id. at 20:45:52. At the hearing in this matter,
Officers Vanvoorst and Buhr also testified that they smelled marijuana
emanating from the driver’s side of Crawford’s vehicle. Docket 41 at 79, 108.
Officer Buhr asked Crawford if he had a medical marijuana card, to which
Crawford replied “no.” Exh. 2 at 20:46:07. Two other cars were parked near
Crawford’s vehicle on the passenger side. Exh. A at 20:44:40. No other vehicles
were visible nearby. Id. Officer Olson testified it might be possible that the
5 Exhibit C is Officer Banik’s body camera footage from February 5, 2022.
Docket 36.
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smell emanated from one of the other cars, but that the smell became
“exponentially” stronger next to Crawford’s vehicle. Docket 41 at 66.
Officer Olson approached Crawford’s vehicle and began peering through
the closed windows. Exh. 2 at 20:46:05. Officer Olson remarked that he saw a
wooden item in the slightly open center consul and speculated that it was the
hand grip of a firearm. Id. at 20:46:20. He called Officer Buhr over to confirm
his observation. Officer Buhr agreed it looked like a gun. Id. at 20:46:32. Other
officers can be heard discussing that the smell of marijuana gave them
probable cause to search. Id. at 20:46:41.
Officer Smith, at this point on the scene, approached Crawford to speak
to him. Exh. 1 at 20:46:47. While Officer Smith told Crawford that he was
under arrest for aggravated assault, another officer came up and took
Crawford’s keys from his pocket. Id. at 47:12.
Officer Olson used the keys from Crawford’s pocket to open the driver’s
side door to Crawford’s vehicle and the officers confirmed there was a gun in
the console. Docket 41 at 45-46. Officer Olson asked Officer Buhr to take
photos of the console with the gun in place. Id. at 54. The officers lifted the
console lid to view the gun; they replaced the lid as it was originally and then
took the photos. Id. The officers then took the car from the gun and determined
that it was a .38 special that was loaded with five rounds of ammunition. Id. at
78.
Officer Banik conducted a pat-down search of the exterior of Crawford’s
person and then placed him in the back seat of his patrol vehicle. Id. at 116-
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17. Officer Smith began to read Crawford his Miranda rights, but when he
interrupted her, she stopped and did not proceed with questioning. Id. at 16.
Crawford was then transported to jail. Id. at 117.
At 20:52:53 Officer Smith called Bryant and questioned her about the
second time Crawford made threats at her apartment. Exh. 1 at 20:52:53.
Bryant told Officer Smith that she did not see a gun in Crawford’s possession,
but speaking to him through the door of her apartment, she heard him accuse
her of pointing a gun at his sister and heard a “click-click,” which she
presumed to be a firearm. Id. at 20:54:06-54:20. Bryant said Crawford made
her afraid. Id. at 20:55:48.
After this phone call with Bryant, Officer Smith concluded she had
probable cause to arrest Crawford for domestic violence intimidation. She
conveyed this information to the other officers in the parking lot and asked
them to place the gun into evidence under the new charge rather than the
January 28 charge. Exh. 1 at 21:01:02. She also called the officers who were
taking Crawford to the jail to be booked and let them know she was opening a
new case for domestic violence intimidation. Id. at 21:02:05. She also stated
another charge for being a felon in possession of a firearm might be added,
depending on what was discovered regarding Crawford’s criminal history. Id.
When Officer Banik booked Crawford into the jail, he did not request that
any blood or urine be collected to be tested for drugs. Docket 41 at 118.
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Discussion
Crawford objects to three of the magistrate judge’s factual findings and
three of the magistrate judge’s legal conclusions. Docket 42 at 2-7. Factually,
he objects to the description of Officer VanVoorst’s arrival on the scene, to the
finding that officers saw the grip of a firearm in the center console of
Crawford’s vehicle, and to the finding that officers smelled marijuana near
Crawford’s vehicle. Id. at 2-3. Legally, he objects to the conclusion that the
automobile exception justified a search of the vehicle, that the plain view
exception justified a search of the vehicle, and that that his statements are not
fruit of the poisonous tree. Id. at 4-6. Crawford also highlights his agreement
with the magistrate judge’s finding that the search incident to arrest exception
to the warrant requirement does not apply in this case. Id. at 6.
A. Crawford’s Factual Objections
1. Officer VanVoorst’s Arrival at the Traffic Stop
Crawford objects to the magistrate judge’s description of law
enforcement’s original encounter with his vehicle. The Report and
Recommendation describes Officer Harris arriving first at the scene and Officer
VanVoorst arriving shortly afterward. Docket 40 at 4. Crawford argues that
“[c]ontrary to his testimony, Officer VanVoorst’s body camera indicates that
when he arrived on scene, Crawford’s vehicle was already parked, and Officer
VanVoorst was the first to encounter him.” Docket 42 at 2.
This court has reviewed both the video footage and Officer Vanvoorst’s
testimony and found both comport with Crawford’s assertion that Officer
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VanVoorst was first on the scene. Officer VanVoorst agreed that he was “pretty
much one of the first on scene” and that “the vehicle was parked, and Mr.
Crawford was then getting out of the vehicle.” Docket 41 at 99-100. The video
evidence similarly shows Officer VanVoorst arriving at the scene when no other
police cars are visibly present. Exh. A at 20:43:02-43:10. Officer Harris arrived
at the scene only seconds later, while Officer VanVoorst was exiting his patrol
vehicle to remove his K-9. Id. at 20:43:02-:44:35.
Based on this evidence, the court finds that Officer VanVoorst was first
on the scene, followed shortly by Officer Harris. At the time that Officer
VanVoorst arrived, Crawford was exiting his vehicle, a red Chevy Trailblazer.
Officers VanVoorst and Harris gave Crawford verbal commands only after
Crawford had left his own vehicle. The court sustains Crawford’s first objection.
2. Officers’ Reports of Seeing the Grip of a Firearm in the
Center Console
The court next considers Crawford’s objection to the magistrate judge’s
factual finding “that officers saw a grip of a firearm in the center console of the
vehicle.” Docket 42 at 2. Crawford contends that the magistrate judge relied
solely on the statements of Officer Olson and Officer Buhr made at the scene
and during the evidentiary hearing. Id.; Docket 40 at 7. Video and
photographic evidence, Crawford argues, demonstrate that the grip could not
have been viewed as claimed and “raise serious questions about” the officers’
testimony. Docket 42 at 3.
Though the court is entitled to “give weight to the magistrate judge’s
credibility determination,” the magistrate judge did not make a specific finding
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of credibility on this issue. U.S. v. Martinez-Amaya, 67 F.3d 678, 681 (8th Cir.
1995). The Report and Recommendation does not discuss the photographic or
video evidence specifically, but finds that Crawford’s suggestion “that the
officers did not and could not possibly recognize the item they viewed through
the windows of Mr. Crawford’s vehicle as a gun grip . . . is defeated by the
evidence received at the hearing where Officers Olson and Buhr both testified
the item was clearly and immediately recognizable to them as a gun grip.”
Docket 40 at 11. This court has reviewed the photographic and video evidence,
as well as the testimony from the hearing, and finds that officers were able to
view the grip of the handgun and to identify it as a wooden handle.
At the hearing, Officer Olson testified that he “observed a wooden
handgrip that [he] believed to belong to a handgun” through the two-inch gap
in the center console. Docket 41 at 41. Officer Buhr also testified at the hearing
and said that he “agreed with [Officer Olson] that it did appear to be the pistol
grip of a firearm.” Id. at 76. These statements align with those from the video
footage. Officer Olson first states that he sees the handle, and then calls over
Officer Buhr to confirm. Officer Olson asks, “In that console, see the wooden
grip?” Officer Buhr agrees that it is consistent with a gun grip. This description
accurately describes the gun that was eventually discovered. Because the
officers had no way to know that the gun had a wooden handle and Crawford
provides no explanation for how the officers would have obtained that
knowledge absent observation, the court finds that the officers viewed the gun
grip. The court overrules Crawford’s second objection.
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3. Officers’ Reports of Smelling Marijuana
Crawford also challenges the magistrate judge’s finding that the officers
smelled marijuana emanating from his vehicle. Crawford argues that “[t]he
Magistrate Judge did not give sufficient weight to the inconsistencies in the
officers’ statements, the timing of the first mention of the smell of marijuana,
and Officer Buhr’s testimony that he ‘was advised by another officer that he
had smelled the odor of marijuana coming from the vehicle.’ ” Docket 42 at 3.
After careful consideration of the record, the court denies Crawford’s objection
and finds that the officers smelled marijuana emanating from the vehicle.
Though Crawford correctly points out that Officer Buhr admitted that he did
not recall smelling marijuana when he first encountered the vehicle, Crawford
fails to acknowledge that Officer Buhr’s first encounter with the vehicle was
cursory. See Exh. 3 at 20:44:49. He was performing a brief visual inspection to
ensure that no one else was present in the vehicle. Docket 41 at 41. As such,
that he did not pay close attention to or later remember specific odors is not
unusual. The court also finds that the timing of the discovery of the odor is not
suspicious causing the officers’ testimony to be discredited. Though their
comments came after Crawford’s refusal of consent to search the vehicle, the
events of the stop progressed quickly, and the officers did not have a chance to
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inspect the vehicle until Crawford was already in custody and being questioned
by Officer Smith. See generally Exh. 3. Crawford’s objection is therefore denied.
B. Crawford’s Legal Objections
1. The Automobile Exception
“The Fourth Amendment provides in relevant part that the ‘right of the
people to be secured in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.’ ” Collins v. Virginia,
138 S.Ct. 1663, 1669 (2018). The usual rule is that a reasonable search is one
supported by probable cause and for which a warrant has been issued.
California v. Carney, 471 U.S. 386, 390 (1985). The Supreme Court, however,
has recognized exceptions to this rule when a reasonable search may occur
without a warrant. Id. At issue in this case, “[t]he [Supreme] Court has held
that the search of an automobile can be reasonable without a warrant.” Collins,
138 S.Ct. at 1669. “[O]fficers may search an automobile without having
obtained a warrant so long as they have probable cause to do so.” Id. at 1670.
“Probable cause exists when, given the totality of the circumstances, a
reasonable person could believe there is a fair probability that contraband or
evidence of a crime would be found in a particular place.” Kleinholz v. United
States, 339 F.3d 674, 676 (8th 2003) (citing United States v. Fladten, 230 F.3d
1083, 1085 (8th Cir. 2000)). Probable cause is “not a high bar: It requires only
the kind of fair probability on which reasonable and prudent people, not legal
technicians, act.” Kaley v. United States, 571 U.S. 320, 338 (2014) (cleaned up).
The court need not, and indeed must not, inquire into the subjective intentions
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of officers in making the determination for probable cause. Devenpeck v. Alford,
543 U.S. 146, 153 (2004) (“[A]n arresting officer’s state of mind . . . is irrelevant
to the existence of probable cause.”) Instead, to determine the existence of
probable cause, the court “examine[s] the events leading up to the arrest, and
then decide[s] ‘whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to’ probable cause.” Maryland v.
Pringle, 540 U.S. 366, 371 (2003) (quoting Ornelas v. United States, 517 U.S.
690, 696 (1996)). “Probable cause may be based on the collective knowledge of
all of the law enforcement officers involved in an investigation if, as here, some
degree of communication exists between them.” United States v. Gonzales, 220
F.3d 922, 925 (8th Cir. 2000) (citing United States v. Twiss, 127 F.3d 771, 774
(8th Cir. 1997).
The magistrate judge found that the automobile exception to the warrant
requirement applied in this case because police officers had two bases for
probable cause: their view of the gun grip in the center console of Crawford’s
vehicle and the smell of marijuana emanating from the vehicle. Docket 40 at
11-17. Crawford objects to both findings and argues that officers did not have
probable cause to search his vehicle. Docket 42 at 4-6.
a. Did the Viewing of the Gun Grip Give Rise to Probable
Cause?
The magistrate judge’s Report and Recommendation found that officers
had probable cause to search Crawford’s vehicle based on their view of the gun
grip in the center console. Docket 40 at 13-14. Combined with “the credible
reports to dispatch, the information relayed from dispatch at 20:39:17 that Mr.
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Crawford had returned to Ms. Bryant’s apartment a second time with a gun . . .
[and] the fact that only a few minutes had elapsed between Mr. Crawford’s
second visit to Ms. Bryant’s apartment” the magistrate judge held that the view
of the gun grip could lead a reasonable officer to believe that there was a fair
probability that evidence could be found in the vehicle. Docket 40 at 13
(internal citation omitted).
Crawford objects and argues that, “even if law enforcement had
recognized a firearm, they did not have probable cause to believe that a crime
had been committed with the firearm.” Docket 42 at 5. Crawford contends that
Officer Smith did not believe that she had probable cause to “arrest or charge
Crawford with any new crimes based on the events of February 5.” Id. He states
that Officer Smith only had “ ‘vague’ reports of threats and that Bryant
reported that she was ‘not really afraid[]’ ” and that no one confirmed that they
saw a firearm. Id. (citing Docket 41 at 26).
The question before the court is whether the officers, based on the
information available to them at the time of the search, could reasonably
believe that there was a “fair probability” that evidence of a crime could be
found in Crawford’s vehicle. Though Crawford asserts that the magistrate judge
was incorrect in “finding that . . . law enforcement had sufficient evidence that
Crawford had a firearm that night and threatened to use it to shoot Ms.
Bryant[,]” Crawford rests the majority of his argument on Officer Smith’s
subjective perception of probable cause to arrest. Docket 42 at 5. Because an
officer’s subjective opinion on the existence of probable cause is not
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determinative, the court instead reviews what information was available to
officers at the time of the search from the perspective of a hypothetical
reasonable officer. See Devenpeck, 543 U.S. 153.
Officers knew at the time of the search that multiple callers had reported
that Crawford had a firearm and was threatening to use that firearm to shoot
Bryant. Docket 37 at 9-10. Though the first of these calls was from an
anonymous neighbor of Bryant, Bryant is personally familiar with Crawford
and confirmed details of the call when talking to Officer Smith. Exh. 1 at
20:15:52-20:22:25. These details were again corroborated by the reports of the
January 28 incident and by police who spotted Crawford. Docket 41 at 82; see
United States v. Roberts, 787 F.3d 1204 (2015) (holding that a corroborated tip
can constitute probable cause). Bryant also called the police herself to report
that Crawford had returned and again threatened to shoot her. Docket 37 at 9.
Though Bryant first told officers that Crawford was not known to carry
firearms, she told police on a later call that Crawford was armed. Docket 37 at
9; Exh. 1 at 20:52:00. This difference in her reports implies that she had
reason to change her mind about whether Crawford was armed. That Bryant
later clarified that she did not actually see the gun is irrelevant, because
officers at the time could reasonably believe that her information was reliable.
Exh. 1 at 20:52:00.
When considered together, this information could lead a reasonable
officer to believe that Crawford had a gun and had used it to threaten Bryant in
violation of state law. Because the report came only three minutes before
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officers arrested Crawford, a reasonable officer could also believe that the
weapon would still be either on Crawford’s person or in his vehicle. Thus, the
officers had probable cause upon viewing a wooden handle in the center
console of Crawford’s vehicle to search the vehicle for a firearm. The court
overrules this objection.
b. Did the Odor of Marijuana Give Rise to Probable
Cause?
Crawford also objects to the Magistrate Judge’s finding that law
enforcement officers had probable cause to search his vehicle based on the
smell of marijuana. The Magistrate Judge relied on United States v. Caves, 890
F.2d 87, 90 (8th Cir. 1989), United States v. McCoy, 200 F.3d 582, 584 (8th Cir.
2000), and United States v. Neumann, 183 F.3d 753, 756 (8th Cir. 1999) to
establish that the smell of marijuana can give rise to probable cause for the
search of a vehicle. See Docket 40 at 15-17. Crawford argues that these cases
are not controlling because “each . . . is unique on its own facts” and “law
enforcement [in those cases] observed other factors . . . that were not present
in this case.” Docket 42 at 6. The other factors cited by Crawford, however,
such as the fact that the “vehicle just emerged from another state, [the] strong
smell of air freshener, [or the defendant] lighting a cigarette to cover up the
smell[,]” are not dispositive. Id. In fact, none of them overcome the well-
established principle that the smell of marijuana alone can give rise to probable
cause to search a vehicle. See United States v. Williams, 955 F.3d 734, 737 (8th
Cir. 2020); United States v. Mayfield, 678 F. App’x 437, 439 (8th Cir. 2017).
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Here, multiple officers reported the smell of marijuana, and Crawford
admitted that he did not possess a medical marijuana card. Exh. 2 at
20:45:44-20:46:07. Crawford does not point to any facts that would detract
from the logical conclusion by officers that there may be marijuana in the car,
in violation of state and federal law. Thus, the court denies Crawford’s
objection.
2. The Plain View Exception
In his next objection, Crawford contests the magistrate judge’s finding
that the plain view exception to the warrant requirement applies. Docket 42 at
6. For the plain view exception to the warrant requirement to apply, (1) the
item seized must be in plain view, (2) the officer viewing the item must be in his
vantage point lawfully, and (3) the incriminating nature of the item must be
immediately apparent. Horton v. California, 496 U.S. 128, 136-37 (1990). The
magistrate judge found that the warrantless search of Crawford’s vehicle was
justified under this exception because law enforcement saw the gun grip while
standing outside the vehicle and immediately recognized it as evidence of his
earlier unlawful behavior. Docket 40 at 8. Crawford disputes that the gun was
visible and asserts that, if it was, “its incriminating nature was not immediately
apparent.” Docket 42 at 6.
This court has already found that the gun was partially visible.
Statements by officers on the scene corroborate their testimony at the
evidentiary hearing that they saw a wooden handle consistent with a gun grip
in the center console of Crawford’s vehicle. But officers’ view of the grip was
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highly limited and identifying details were likely impossible to view with
complete certainty. And complete certainty is not required for an item to be
“immediately apparent” under the plain view exception. United States v. Hatten,
68 F.3d 257, 261 (8th Cir. 1995) (quoting United States v. Garner, 907 F.2d 60,
62 (8th Cir. 1990)). Instead, “[t]he ‘immediately apparent’ requirement means
that officers must have ‘probable cause to associate the property with criminal
activity.’ ” Id. Because, as discussed above, the reports by Bryant and the
anonymous caller already gave rise to probable cause that Crawford was in
possession of a gun and that the gun was tied to criminal activity, partial view
of the gun grip in the center console justifies the search under the plain view
exception. Crawford’s objection is denied.
3. Search Incident to Arrest
Crawford highlights his agreement with the magistrate judge’s finding
that the warrantless search was not justified by the search incident to arrest
exception to the warrant requirement. The exception does not apply because it
requires either that the defendant be unrestrained or that the officer have
reason to believe that there may be evidence of the offense of arrest within the
vehicle. See Arizona v. Gant, 556 U.S. 332, 343-44 (2009). Here, Crawford was
in handcuffs and the incident of arrest was an assault on January 28; officers
had no reason to expect that they would find evidence of that offense five days
later during the search at issue. Exh. C at 20:43:33; Docket 41 at 11. As such,
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this court affirms the finding of the magistrate judge that search incident to
arrest does not apply in this case.
4. Crawford’s Statements are Fruit of the Poisonous Tree
Because this court finds that there was no Fourth Amendment Violation,
and thus no “fruit of the poisonous tree,” Crawford’s objection is denied.
CONCLUSION
The court adopts Magistrate Judge Duffy’s recommendation as modified
and denies Crawford’s motion to suppress. Thus, it is
ORDERED that the Report and Recommendation (Docket 40) denying
Crawford’s motion to suppress is adopted as modified by this opinion. The
motion to suppress (Docket 31) is denied.
Dated October 18, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
Case 4:22-cr-40052-KES Document 52 Filed 10/18/22 Page 19 of 19 PageID #: <pageID>