USA v. Davis

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) Case No. 1:24-CR-41-SNLJ-ACL
) Case No. 1:23-CR-47-SNLJ-ACL
ANTWAN T. DAVIS, 	)
)
Defendant. 	)
REPORT AND RECOMMENDATION
This matter is before the Court1 on Defendant Antwan Davis’ Motions to Suppress
Evidence (Doc. 32), Compel (Doc. 33), and Dismiss (Doc. 34) in Case No. 1:24-CR-41.
Davis is charged with being a previously convicted felon in possession of a firearm
on March 18, 2024. At that time, he was on a term of supervised release after having been
convicted of Possession with Intent to Distribute 5.8 ounces of Marijuana in the Eastern
District of Texas. In addition to the pending Indictment, the Defendant faces revocation of
his supervised release. Davis also filed Motions to Suppress (Doc. 27) and Compel (Doc.
28) in the supervised release case, No. 1:23-CR-47.
On the evening of March 18, ShotSpotter technology utilized by the Sikeston
Department of Public Safety (DPS) registered six shots fired in the vicinity of Davis’
backyard. A Sikeston DPS officer, Lt. Scott Kim, proceeded to the location identified by
1 Pretrial matters have been referred to the undersigned United States Magistrate Judge
under 28 U.S.C. § 636(c).
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ShotSpotter, which led him inside Davis’ backyard. 	Lt. Kim walked halfway across the
yard while shining his flashlight on the ground. He did not observe any injured person or
other items that may have been related to the gunfire. Next, Lt. Kim immediately began
searching for shell casings. As other officers arrived, Lt. Kim instructed them to look for
shell casings and to not contact the homeowner.
One minute after Lt. Kim passed through the carport, Davis came out of the
residence to see what was going on. Within another minute the first shell casing was found.
Two more casings were located over the next 80 seconds. Ten minutes after the officers
arrived, Lt. Kim asked Davis if he would consent to the officers taking the shell casings
they found in his backyard. 	No one asked Davis if they could search his yard for spent
casings. A Search Warrant was secured based on the ShotSpotter report, casings found in
Davis’ backyard, and Davis’ criminal history. A gun and ammunition were seized during
the execution of the Search Warrant.
Davis contends that the officer entered his “backyard to search for evidence of a
crime and not based on any exigent circumstance” thereby making the search illegal.
(Doc. 32 at 4.) Davis claims that the accuracy of the ShotSpotter technology has “very
real limitations” and “no reasonable police officer would respond to a ShotSpotter alert
believing that the alert identified the true location- or even the right city block- of a noise
event.” Id. at 10. Davis further argues that “the casings w[ere] not discovered during a
search for injured persons.” (Doc. 49 at 4.) Lastly, Davis argues that since the search
warrant “issued for his home relied on both the ShotSpotter technology and the results of
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the illegal search of his backyard, any evidence gathered as a result of that search was
‘fruit of the poisonous tree’ and must be suppressed.” (Doc. 27 at 10.)
The Government initially responded that Davis’ claim “that the officers’ entry into
his backyard violated the Fourth Amendment” is without merit. (Doc. 41 at 4.) Adding
that the alert that six shots had been fired in Davis’ backyard gave “the officers…a
legitimate concern for public safety and a duty to confirm that no injured person was
either in Davis’ yard or inside his home.” Id. at 6.
Three officers testified at the evidentiary hearing. Both parties submitted exhibits
including body camera recordings from two officers, information related to ShotSpotter,
and photographs.
Following the evidentiary hearing, the Government asserted that the Court need
“go no further than simply applying the good-faith exception to adjudicate Davis’
motion, the totality of the circumstances clearly establish that the officers’ conduct was
nevertheless reasonable under the Fourth Amendment.” (Doc. 53 at 8.) Furthermore, the
Government asserted that ‘the officers’ pre-warrant conduct was ‘close enough to the line
of validity’ to make [their] belief in the validity of the warrant objectively reasonable.”
(Doc. 58 at 23-24, citations omitted.) The Government added that Davis, by his actions,
impliedly consented to the search of his backyard when he found the officers searching it.
More particularly, the Government stated that subjective consent is not the precise
question, but whether Davis’ conduct would have caused a reasonable officer to believe
the person consented. The Government further claims that Davis explicitly and
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voluntarily consented to the seizure of the casings when Lt. Kim asked, “do you mind if
we collect the casings right there?”
Davis disagrees with the Government’s assertion that Davis consented, first noting
that it is an argument that was not previously raised by the Government. Davis replied
that no officer who testified “believ[ed] that this was a consent search or that [consent]
was the reason [Lt. Kim] believed he was justified in his actions.” (Doc. 56 at 8.)
Following the traditional post-hearing briefing, the undersigned requested further
supplemental briefing and oral argument. This matter has been extensively argued and is
ripe for consideration.
The undersigned recommends that the Motion to Suppress be granted in the new
Indictment case and denied in the supervised release case based on the findings of fact
and conclusions of law set out below. In consideration of these recommendations, it is
further recommended that the Motions to Compel and Dismiss be found moot.
I. Findings of Fact
Around 8:45 p.m., on March 18, 2024, a new gunfire detection system
(ShotSpotter) utilized by the Sikeston Department of Public Safety registered six shots
fired at 1336 McDougal Street. The first officer on the scene was Lt. Scott Kim. He
parked his patrol car a distance from the area identified by ShotSpotter and made his way
toward 1336 McDougal on foot. As is typical of an investigation of a shooting incident,
Lt. Kim was on the lookout for any vehicles or people that might be fleeing the area. He
saw neither but encountered one bystander who stated that she was in the shower. She
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also believed the sound came from the next street. See Gov’t Ex. #9 (Lt. Kim’s body
camera video at 01:10).
Viewing the ShotSpotter cell phone application (app), Lt. Kim made his way to
the area identified by the app. He testified that the app is used “to find the location of the
shell casings and see if anyone is injured.” (Tr. 40.2) The primary area highlighted in the
ShotSpotter app was Davis’ home located at 1336 McDougal in Sikeston. There were
lights on inside the residence and two vehicles parked in the driveway. Lt. Kim walked
up the driveway and under the carport around a parked vehicle. He did not stop at the
home’s entry door under the carport rather walked along the outside of the house and
entered a partially open gate3 that led to the backyard.
(Image 1: Screenshot from Gov’t Ex. #9, Lt. Kim’s body camera video at 02:18.)
Lt. Kim testified that when using the ShotSpotter app, “[t]he first thing we do is
scan for anyone hurt.” (Tr. 60.) He conducted a quick scan of the southeastern quadrant
2 Pages in the Suppression Hearing Transcript (Doc. 46) are referred to as “Tr. ___.”
3 The Government acknowledges that Lt. Kim went inside the curtilage of the residence.
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of the backyard. He did not shine a light on any other area in the yard including the shed.
Nor did he conduct a perimeter search of the residence. It was immediately apparent that
no person was in the backyard. As to why he didn’t search the entire yard or the shed, Lt.
Kim explained:
…from three prior experiences from shots fired they were pretty effective.
I went to the general area, scanned around to see if I can see if there’s any,
…people…that looked like they were injured or…needed help or whatnot.
I didn’t see that.
And then I started looking more into the casing[s]…
(Tr. 61.)
After the brief scan for anyone in peril, Lt. Kim focused his attention on the
ShotSpotter app and the ground. Another officer arrived on scene and asked, “Lt., you want
me to make contact with this house?” Gov’t Ex. #9 at 02:40. Lt. Kim replied, “Not just yet,
it should be right here. Look on the floor for casings… Should be right at our feet.”
(Image 2: Screenshot from Gov’t Ex. #9 at 02:50, officers scouring the grass.)
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The pair searched the ground for thirty seconds before Davis calls out from the house,
“What’s going on?” Id. at 03:14. Another officer who had arrived on scene answered,
“There was shots fired in your backyard.” Id.
After Davis exited his home and made his way to the side of the residence, Lt. Kim
seemingly ignored Davis’ presence as he was focused on finding the spent casings. Instead
of acknowledging Davis, Kim addresses another officer on the scene about the image
displayed on the ShotSpotter app and states “Let’s look, it should be right around here
somewhere.” Id. at 03:22. Lt. Kim continues to study the ShotSpotter app while another
officer asks Davis if he heard the shots fired. Davis said he did. The officer then asks
whether Davis is in “a beef” with anyone to which Davis answers, “Hell, no. I’m on Fed
papers.”
(Image 3: Screenshot from Gov’t Ex. #9 at 03:14, depicting the ShotSpotter app’s
highlight of the likely location of casings.)
Still disinterested in Davis, Lt. Kim shows the ShotSpotter app to a fourth officer and
enlists his help to search the ground for casings. Id. at 03:43. When the officer agrees to
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help, Lt. Kim finally addresses Davis by asking his name. Id. at 03:49. Although Kim asks
Davis if they could go inside “real quick,” an officer calls out that a “rifle round” was found.
Distracted by the discovery of a casing, Lt. Kim redirects his attention to the search in
the backyard. He instructs the officers to keep searching as there should be a total of six
casings. Id. at 04:15. A second casing was found. Id. at 04:25. At this point, Lt. Kim
advised the dispatcher that casings had already been located. By this time, Davis entered the
backyard. Id. at 04:28. Still focused on locating the spent shell casings, Lt. Kim states “It’s
right here, but just to be diligent, look over there, too. But, I’m pretty sure it’s right here.
There should be six…Sikeston, it’s gonna be in the backyard of 1336…” Id. at 05:00.
Shortly thereafter, a third casing is found. Id. at 05:20. Around that time, Davis uses the
light on his cell phone to see what’s on the ground. Id. at 05:30.
Lt. Kim continues to be uninterested in Davis’ presence and talks to another office
about getting “the little numbers” to mark the location of the spent casings that had been
found. Kim decides to retrieve the numbers himself and walks away from the scene. Before
leaving, he orders Davis to stand in the area of the garage while the officers “investigate real
quick.” Id. at 05:35. Davis followed Lt. Kim’s instruction.
Next, Lt. Kim walks away from the scene and contacts his commanding officer to
report the status of the investigation. Id. at 08:20. After providing the basic details about
shots having been fired at Davis’ residence, Lt. Kim explains that “we’re gonna see if he’ll
let us voluntarily just look through his cars and his, what do you call, the house...” Id. at
08:35. After an inaudible question from the commander, Lt. Kim states that the casings were
found about ten feet inside the backyard. The commanding officer’s next question is barely
audible, he asks Lt. Kim, “…how did you get to the shell casings?” Id. at -8:55. Lt. Kim
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states, “I looked at, what do you call it, ShotSpotter. The backyard fence was open, and I
just went, walked straight to the dots…” Id. at -8:58. The commanding officer’s next
statement cannot be heard. Lt. Kim responds, “Oh, and that was my…I’ll make sure he has
no problem with us being there…” Id. at 09:12. After additional instruction from the
commander, Lt. Kim assures the commander that they’ll make sure there’s no one else inside
the residence.
Nearly five minutes after leaving Davis on the carport, Lt. Kim returns to the
residence. The following exchange occurs:
Kim: 	Hey, Mr. Davis, can you come over here real quick? Okay, we ca-, we came
right over here. …You know, we saw the casings, uh, we’re trying to figure
out what’s going on with the casings.
Davis: I understand.
Kim: 	You know. My question is, be honest, did you possibly, just, pop out some
rounds in the air?
Davis: Hell, no.
Kim: 	I’m not saying… I have to ask these questions.
Davis: No, sir.
Kim: 	Okay.
Davis: I’m on fed papers. I’m on federal parole.
Kim: 	Okay, so what did you hear? Tell me what—
Davis: I heard the gunshots, I did. I was listening to music. I was cleaning my house.
Then I heard, Pop, pop, pop. I’m like, damn, what the hell is that? I come
outside and I look around and it ain’t nothin’. So, I come back in the house.
Kim: 	Hey, guys [three officers inside backyard and one officer outside the gate],
step out over here for a second. [To Davis] Okay, do you mind if we collect
the casings right there?
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Davis: You c-c-can, you…yeah, yeah [laughs], get the mother f-ckers.
Kim: 	Okay, so you give us permission?
Davis: Yes, sir.
Id. at 10:08-11:18.
Another officer then asks Lt. Kim if he has the numbers to mark the casings. Kim
leaves the scene again to retrieve the numbers from his patrol car. When he returns and gives
the cards to another officer, Lt. Kim comments “Mr. Davis gave us permission to collect
it….” Id. at 12:14. He then speaks to Davis again.
Kim: 	Mr. Davis, come over here for a second…. My other questions is, I know
you’re on paper what not, but because it happened right here, you know. I
appreciate you letting us collect them, but you know, we’re probably gonna,
because it happened right on your property…And, you know, we didn’t see
any cars drive off, or whatnot, we’re probably gonna get a search warrant.
Davis: Well, that’s fine.
Kim: You have no problem with it.
Davis: Yeah, get a search warrant
Kim: No, I mean, you know. I’m just being honest.
Davis: Yeah, that’s fine.
Kim: 	Have you ever… I’m a straight shooter.
Davis: Yeah.
Kim: 	You know. N-, there’s no firearms in your…
Davis: There’s no firearms nowhere around here.
Kim: Okay. I appreciate that.
Davis: Most definite.
Kim: 	You know. Uh, what are you on paper for?
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Davis: Uh, weed
Kim: Okay. That’s it?
Davis: That’s it. Weed.
Id. at 12:17-13:12.
Once again, Lt. Kim steps away from the scene and contacts his commanding officer
who instructed Lt. Kim to conduct a protective sweep of the residence. Lt. Kim returns to
Davis and asks, “is there anyone else in the house?” Id. at 15:55. Davis responds that his
girlfriend is inside. He also agrees that it’s okay for the officers to check that no one else is
present. The protective sweep was completed within less than three minutes. During the
evidentiary hearing, Lt. Kim testified that the purpose of the walkthrough was that he “just
wanted to make sure that there was nobody shot.” (Tr. 44.) Officers located three more shell
casings in the backyard while the residence was being secured. (Tr. 83.)
A Detective applied for a Search Warrant based on the ShotSpotter technology
registering six shots as having been fired from the rear of Davis’ residence, the discovery of
shell casings in the backyard near the back door of the residence, along with criminal history
information concerning Davis and his girlfriend, which made them both prohibited from
possessing firearms. Based on that information, a judge issued a Search Warrant for Davis’
residence. When it was executed, officers seized an AK-47 style rifle with a magazine
containing 14 rounds of Wolf 7.62 ammunition that matched the spent casings recovered
from the backyard, miscellaneous ammunition, and an additional magazine for a firearm.
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At the time of the evidentiary hearing, Lt. Kim was employed by the Manchester
Police Department, a job he started one month prior to the hearing. He worked at Sikeston
DPS for the previous 17 years.
Davis is charged with being a previously convicted felon in possession of a
firearm. The Probation Office filed a Petition for revocation of Davis’ supervised release
based on the evidence seized on March 18, 2024, and assorted Grade C (non-technical)
violations. Davis requests suppression of the evidence seized from his backyard and
residence.
II. Discussion
As previously stated, Davis argues that there were no exigent circumstances
present to justify Lt. Kim’s warrantless entry into his backyard. He claims the “sole
purpose” of the entry into the backyard was to “search[ ] for evidence of a crime.” (Doc.
32 at 4.) Next, Davis claims that even if the warrantless search was justified, “there was
no probable cause for entering the backyard.” (Doc. 32 at 5.) To support this assertion,
Davis argues that “no reasonable officer would respond to a ShotSpotter alert believing
that the alert identified the true location- or even the right city block- of a noise event.”
Id. at 10. More specifically, Davis complains that body camera video shows the officers
were looking for shell casings not people. Post-hearing, Davis noted that “the purpose of
entering the backyard is the keystone of th[e] analysis because the scope of any
permissible search is limited to the permissible purpose of the warrantless entry onto the
premises.” (Doc. 49 at 6.)
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Following the suppression hearing, the Government asserted that Davis impliedly
and expressly consented to a search of his backyard. Alternatively, the Government argues
that “even assuming arguendo that shining flashlights in the grass just a few seconds before
Davis emerged from the house was somehow improper, his subsequent voluntary consent
purged the taint of any purported Fourth Amendment violation.” (Doc. 58 at 11.)
The Government further argues that suppression is not required under the good faith
exception to the warrant requirement, because even if “the officers’ conduct was
somehow unreasonable for Fourth Amendment purposes,” suppression is not required
because the officers’ prewarrant conduct was “close enough to the line of validity” for the
officers to have an objectively reasonable belief in the warrant’s validity. Id. at 24.
Davis further disputes the Government’s post-hearing assertions that the
challenged seizures are valid based on his consent and good faith.
The undersigned finds that suppression is required in the Indictment case but not
in the supervised release case based on the analysis below.
II.A. 	ShotSpotter
The parties did not cite, nor has the undersigned found an Eighth Circuit ruling
involving a ShotSpotter alert. The Seventh Circuit in United States v. Rickmon concluded
that ShotSpotter alerts are analogous to an anonymous tip and can contribute to an officers'
reasonable suspicion when corroborated by other sources of information describing the
general area and nature of the same crime. 952 F.3d 876, 882 (7th Cir. 2020). See also
United States v. Jones, 1 F.4th 50, 53 (D.C. Cir. 2021) (Totality of circumstances supported
officers’ reasonable suspicion to stop individual one minute after ShotSpotter alert and
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dispatch report of shots fired at location as he was only person on that block). Although the
issue was not raised in the appeal, the Rickmon majority concluded that ShotSpotter alerts
equate to a report of an “emergency.” Rickmon, 952 F.3d at 883 (“inherent danger of gun
violence sets shootings apart from other criminal activity”).
In addressing ShotSpotter alerts where there was a reasonable suspicion challenge, a
Massachusetts appellate court commented that “ShotSpotter alerts created an acoustic trail of
breadcrumbs, from which it was reasonable to infer that the person responsible for the
potential gunshots would be at or near the location where the ShotSpotter had last activated.”
Commonwealth v. Ford, 182 N.E.3d 1013, 1018 (2022) (multiple ShotSpotter alerts indicated
a specific trajectory from various points, defendant was the only person in the area, and
officers contacted defendant less than one minute after last ShotSpotter alert).
II.B. 	Curtilage
“The Fourth Amendment protects the right of the people to be secure in their
homes against unreasonable searches and seizures . United States v. Maxwell, 89 F.4th 671,
676 (8th Cir. 2023). “[W]arrants are generally required to search a person's home or his
person unless ‘the exigencies of the situation’ make the needs of law enforcement so
compelling that the warrantless search is objectively reasonable under the Fourth
Amendment.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (alteration in original)
(citation omitted).
“The area ‘immediately surrounding and associated with the home—what our cases
call the curtilage—is part of the home itself for Fourth Amendment purposes.’” Luer v.
Clinton, 987 F.3d 1160, 1165 (8th Cir. 2021) (quoting Florida v. Jardines, 569 U.S. 1, 6
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(2013)). “Where a legitimate law enforcement objective exists, a warrantless entry into the
curtilage is not unreasonable under the Fourth Amendment , provided that the intrusion
upon one’s privacy is limited.” United States v. Robbins, 682 F.3d 1111, 1115 (8th Cir.
2012).
In Florida v. Jardines, police approached Jardines’ home with a drug sniffing dog
and the dog began “energetically exploring” the area around his front door and then
alerted at its base. 569 U.S. 1, 4 (2013). The Court found this area was a “classic
exemplar” of curtilage. Discussing Jardines as it relates to a similar canine search, the
Eighth Circuit noted that while “the officers had an implicit license to ‘approach the
home by the front path, knock promptly, wait briefly to be received, and then (absent
invitation to linger longer) leave,’ they had no invitation to ‘introduce a trained police
dog to explore the area around the home in hopes of discovering incriminating
evidence.’” United States v. Hopkins, 824 F.3d 726, 731 (quoting Jardines, 569 U.S. at
8.) The Court characterized the “investigation” by the canine an “‘unlicensed physical
intrusion’ of the curtilage which violated the Fourth Amendment.” Id. (quoting Jardines,
569 U.S. at 7.)
II.C. 	“Community Caretaker” and “Emergency Aid” Exceptions
The Eighth Circuit has described the “emergency or exigency doctrine” exception
as follows:
“…police officers may enter a dwelling without a warrant to render
emergency aid and assistance to a person whom they reasonably believe to
be in distress and in need of assistance. In applying this doctrine, two prin-
ciples must be kept in mind. (1) Since the doctrine is an exception to the
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ordinary Fourth Amendment requirement of a warrant for entry into a home,
the burden of proof is on the state to show that the warrantless entry fell within
the exception. (2) An objective standard as to the reasonableness of the officer’s
belief must be applied.
“ * * * [I]n justifying the particular intrusion the police officer must
be able to point to specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant that
intrusion. * * * And in making that assessment it is imperative that
the facts be judged against an objective standard:
would the facts available to the officer at the moment
of … the search ‘warrant a man of reasonable caution
in the belief’ that the action taken was appropriate?
Terry v. Ohio, 392 U.S. 1, 21-22 (1968).”
United States v. Goldenstein, 456 F.2d 1006, 1009-10 (8th Cir. 1972) (quoting Root v.
Gauper, 438 F.2d 361, 364-65 (8th Cir. 1971)).
“Actions within [the] heartland of the community caretaker exception includes
those taken to . . . provide an infinite variety of services to preserve and protect
community safety.” Luer v. Clinton, 987 F.3d 1160, 1166 (8th Cir. 2021) (quoting
Castagna v. Jean, 955 F.3d 211, 221 (1st Cir. 2020)). Examples of caretaking functions
that fall under the exception include helping young children to cross busy streets,
“navigating the sometimes stormy seas of neighborhood disturbances,” and entering a
home to abate the nuisance of loud music causing a late night peace disturbance. Id.
(citations omitted).
In United States v. Chipps, the Eighth Circuit held that law enforcement’s observation
of blood on the ground in front of a defendant’s door provided exigent circumstances
because the officer who observed the blood could reasonably have believed someone’s life
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was in danger. 410 F.3d at 442-44 (8th Cir. 2005). See also United States v. McGhee, 129
F.4th 1095, 1101-02. (8th Cir. 2025) (officers responded to shots fired calls and observed
eight shell casings in front of the house, which gave them reason to believe there was at least
one victim triggering exigent circumstance exception); United States v. Schmidt, 700 F.3d
934, 937–38 (7th Cir. 2012) (concluding that warrantless search of a backyard to check for
injured persons was permissible where officers responded to shots fired in the neighborhood
and bullet holes and bullet casings were found in areas adjacent to backyard); United States
v. Huffman, 461 F.3d 777, 781–86 (6th Cir. 2006) (finding that officers responding to reports
of gunshots at a residence, who subsequently viewed bullet holes in the structure and
received no response after knocking on the door, lawfully entered under the exigent
circumstances exception to ensure nobody was injured inside).
While an officer may make a warrantless entry into a person’s home or curtilage
pursuant to the community caretaker or emergency aid exceptions, the intrusion “must be
‘limited in scope to the extent necessary to carry out the caretaking function.’” Clinton,
987 F.3d at 1166 (quoting South Dakota v. Opperman, 428 U.S. 364, 275 (1976)). In
Clinton, a civil rights case, an officer searched for an individual who reportedly skipped
paying the fare to his taxi driver in the area where the cab driver said the person fled.
The officer “made only a limited search of outdoor places where the thief might be
hiding, not a search inside the home from the vantage point of the curtilage.” Id. The
Eighth Circuit characterized the officer’s search as a “sweep” of the area through which
the fare skipper had fled and concluded it was an “arguably reasonable exercise of [the
officer’s] community caretaker function ‘to preserve and protect community safety.’” Id.
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at 1167 (citation omitted; the panel clarified the officer’s action “was a protective sweep
of a neighborhood for complained-of community hazards, not unlike an inspection for
outdoor property hazards”).
The issue in Clinton was whether qualified immunity applied. The Eighth Circuit
concluded that it was reasonable for the officer to look for the fare skipper in two yards,
underneath a deck, behind an air conditioning vent, and within the open door of an
attached garage. Subsequent entry into the residence, however, was unreasonable. That
said, the Eighth Circuit clarified that “[t]he community caretaker exception does not
apply where a ‘law enforcement officer physically intrudes on the curtilage to gather
evidence’ of a crime.” Id. at 1168 (quoting Collins v. Virginia, 584 U.S. 586, 593 (2018),
emphasis added in Clinton).
II.D. Search for Shell Casings was Objectively Unreasonable
The Government relies on Robbins, supra, to support their position that Lt. Kim’s
search for casings in the grass was objectively reasonable. The facts of Robbins are
distinguishable from this case. The officers in Robbins responded to a 911 call that they
reasonably believed came from the Robbins’ home. Upon their arrival, they proceeded
down the driveway and through an open gate to the front door. They knocked on the
door, but no one answered. The officers then “conducted a short, minimally intrusive
exterior perimeter search and glanced at the windows for someone in need of assistance.”
Robbins, 682 F.3d at 1116. “To complete their good faith attempt to conduct a brief
welfare check, they returned to knock again at the front door, at which point they noticed
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the odor of marijuana, leading to the seeking of a search warrant.” Id. This perimeter
search was limited in nature and constitutionally reasonable.
Within 20 seconds of Lt. Kim entering Davis’ backyard, he discerned that there
was not an emergency. He did not observe any person or item that led him to believe
there was a person in need of assistance or evidence of danger. Having determined there
was not an emergency, Lt. Kim directed his full attention to locating spent shell casings.
He advised the first backup officer to not contact the homeowner and instead instructed
that officer and other officers to focus their attention on searching the grass for spent
shell casings. The moment Lt. Kim cleared the area identified by the ShotSpotter app,
the potential emergency in that area ceased. Had the spent casings been in plain view
during his sweep of the backyard for anyone in distress or in need of assistance, the
seizure of such casings would have been lawful. Searching through the grass in earnest
was an investigation aimed at finding evidence related to the earlier shots fired. This
investigation extended the scope of Lt. Kim’s intrusion into Davis’ backyard beyond the
limits of what was reasonable.
In analyzing the reasonableness of Lt. Kim’s actions, the Court notes that upon his
initial approach to Davis’ residence Lt. Kim did not observe any people, weapons, shell
casings (spent or otherwise), indications of damage to the property in plain view, or any
sounds consistent with an active emergency. The ShotSpotter app showed that the likely
area of the shots fired was in the southeast quadrant of the backyard, which he could
easily view by shining a flashlight over the fence. Perhaps most disconcerting is Lt.
Kim’s failure to check on the well-being of the home’s occupants when it was clear no
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one was in distress outside of the residence. Lt. Kim also left the residence to secure
evidence markers from his patrol car when he claims that he was responding to an
emergency. “This belies any bonafide claim of exigency and leads to the conclusion that
the claim was really a pretext to enter upon [Davis’] property to investigate the true
object of the investigation, which was not” locating a shooter or victim, but the location
of spent shell casings. United States v. Wells, No. 1:09CR00130, 2010 WL 2520525 at
*3 (E.D. Mo. Jun. 14, 2010) (unpublished).
Although Lt. Kim’s entry into the backyard was warranted for the limited purpose
of confirming whether someone needed immediate aid, the scope of the intrusion became
unreasonable when he began searching the ground for spent shell casings. The intrusion
into Davis’ backyard was not properly limited based on the facts known to Lt. Kim. The
appropriate next step would have been to contact the homeowner as Officer Fobbs was
inclined to do upon his arrival.
Based on the facts presented, the undersigned finds that Lt. Kim’s warrantless
entry into Davis’ backyard was justified by exigent circumstances and the need to
determine whether emergency aid was needed. Within a matter of seconds, however, it
was clear there was no need for Lt. Kim to harbor concern there was an emergency in the
backyard. At that point, he should have exited the backyard to confirm there was no one
in danger inside the residence or around the perimeter of the house. Instead, Lt. Kim
initiated a search without contacting the homeowner and without a warrant. Like the use
of the drug sniffing dog at Jardine’s front door, a physical intrusion to gather evidence in
a backyard is presumptively unreasonable absent a warrant. Lt. Kim abandoned his duty
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to render aid to potential victims. He prioritized an unlawful search of the backyard and
enlisted other officers to assist him in that unlawful search.
The undersigned finds that Lt. Kim’s continued intrusion in Davis’ backyard after
completion of the protective sweep was not objectively reasonable. Thus, the discovery
and seizure of the casings in the backyard was violative of the Fourth Amendment.
Consequently, for the reasons set out in the next section, the undersigned also concludes
that the evidence seized pursuant to the Search Warrant for Davis’ home (firearm,
ammunition, and other items) is fruit of the poisonous tree.
Notwithstanding this conclusion, an analysis of the Government’s alternative
theories follows.
II.E. 	The Exclusionary Rule and Good Faith
In United States v. Leon, the Supreme Court held that there is an exception to the
exclusionary rule if “an officer acting with objective good faith has obtained a search
warrant from a judge…and acted within its scope,” even though a court were to later
conclude that the warrant was invalid. 486 U.S. 897, 920 (1984). For the good faith
exception to apply to a warrant based on evidence obtained through a violation of the
Fourth Amendment, “the detectives’ prewarrant conduct must have been close enough to
the line of validity to make the officers’ belief in the validity of the warrant objectively
reasonable.” United States v. Cannon, 703 F.3d 407, 413 (8th Cir 2013) (emphasis
added).
The exclusionary rule “is a judicially fashioned remedy whose focus is not on
restoring the victim to his rightful position but on deterring police officers from
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knowingly violating the Constitution.” United States v. Allen, 625 F.3d 830, 836 (5th Cir
2010). It “serves to deter deliberate, reckless, or grossly negligent conduct, or in some
circumstances recurring or systemic negligence.” Herring, 555 U.S. at 144. “The extent
to which the exclusionary rule is justified by these deterrence principles varies with the
culpability of the law enforcement conduct.” Id. at 143.
Generally, the rule requires exclusion of evidence that is “directly” or “primarily”
discovered as the result of an unlawful search. Wayne R. LaFave, 6 SEARCH AND
SEIZURE § 11.4 (4th ed. 2004). When applied, it prohibits the “introduction into
evidence of tangible materials seized during an unlawful search, and of testimony
concerning knowledge acquired during an unlawful search.” Murray v. United States,
487 U.S. 533, 536 (1988) (internal citation omitted).
In Hudson v. Michigan, the Supreme Court cautioned that suppression should not
be a court’s first impulse. 547 U.S. 586, 591 (2006). The Hudson Court further
instructed that “exclusion may not be premised on the mere fact that a constitutional
violation was a ‘but-for’ cause of obtaining evidence.” Id. at 592. It should not be
applied to “nonculpable, innocent police conduct.” Davis v. United States, 564 U.S. 229,
237 (2011).
Real deterrent value is a necessary condition for exclusion, but it is not a
sufficient one. The analysis must also account for the substantial social
costs generated by the rule. Exclusion exacts a heavy toll on both the
judicial system and society at large. It almost always requires courts to
ignore reliable, trustworthy evidence bearing on guilt or innocence. And
its bottom-line effect, in many cases, is to suppress the truth and set the
criminal loose in the community without punishment. Our cases hold that
society must swallow this bitter pill when necessary, but only as a last resort.
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For exclusion to be appropriate, the deterrence benefits of suppression must
outweigh its heavy costs.
Davis v. United States, 564 U.S. at 237 (quotations and citations omitted).
The Sixth Circuit emphasized that the “crucial finding” to support suppression is
that the “‘police [mis]conduct [is] sufficiently deliberate that exclusion can meaningfully
deter it, and sufficiently culpable that such deterrence is worth the price paid by the
justice system.’” United States v. Master, 614 F.3d 236, 243 (6th Cir. 2010) (quoting
Herring v. United States, 555 U.S. 135, 144). Evidence should be suppressed “only if it
can be said that the law enforcement officer had knowledge, or may properly be charged
with knowledge that the search was unconstitutional under the Fourth Amendment.”
Herring, 555 U.S. at 143 (quoting Illinois v. Krull, 480 U.S. 340, 348-49 (1987). Herring
held that “[w]hen police mistakes leading to an unlawful search are the result of isolated
negligence attenuated from the search, rather than systemic error or reckless disregard of
constitutional requirements, the exclusionary rule does not apply. Even so, when the
police act in good faith and “the facts surrounding the [ ] warrantless search [are] close
enough to the line of validity to make the [ ] officers’ belief in the validity of” their
search “objectively reasonable,” the Leon exception bars application of the exclusionary
rule.” United States v. McClain, 444 F.3d 556, 566 (6th Cir. 2005).
This case is distinguishable from cases in which the Eighth Circuit and
other Circuits have concluded that “in certain circumstances, the good faith exception can
overcome a taint from prior unconstitutional conduct.” United States v. Massi, 761 F.3d
512, 525-28 (5th Cir. 2014) (collecting cases). It is also distinguishable from United
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States v. Fletcher, 91 F.3d 48, 51–52 (8th Cir.1996), where the Eighth Circuit held that
the Leon exception was applicable to the warrant-authorized search of a bag, even though
the officers' initial detention of the bag to conduct a dog sniff violated the Fourth
Amendment. The court explained that the circumstances surrounding both the initial
detention of the bag, and the subsequent issuance of the warrant were “sufficiently close
to the line of validity” that the officers had “an objectively reasonable belief that they
possessed a reasonable suspicion such as would support the valid detention of [the] bag
as well as an objectively reasonable belief that the warrant issued was valid.” Id. at 52.
See also United States v. Kiser, 948 F.2d 418, 421–22 (8th Cir.1991) (same); United
States v. White, 890 F.2d 1413, 1419 (8th Cir.1989) (same); United States v. Thomas, 757
F.2d 1359, 1368 (2d Cir.1985) (holding Leon applicable to the subsequent warrant-
authorized search of an apartment, even though the affidavit contained evidence obtained
in violation of the Fourth Amendment, because the officer, who was acting in good faith,
disclosed all information to the magistrate and had no reason to believe that his actions
were unconstitutional); McClain, 444 F.3d 556, 566 (good faith exception applied as it
was objectively reasonable for officers to suspect criminal activity was occurring in the
home, there was no evidence that officers knew their protective sweep violated the Fourth
Amendment, and officers who secured and executed search warrant were not involved in
unlawful search, plus the affidavit fully disclosed the circumstance of the warrantless
entry.)
The circumstances presented in this case are more akin to those found in cases
where Leon was not applied. See United States v. Reilly, 76 F.3d 1271, 1281–82 (2d
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Cir.1996) (holding Leon inapplicable where officers seeking warrant acted in clear bad
faith by failing to disclose to the magistrate in their warrant affidavit the circumstances
surrounding a dubious pre-warrant search); United States v. O'Neal, 17 F.3d 239, 243 n. 6
(8th Cir.1994) (holding that a judge's issuance of a search warrant could not sanitize prior
illegal conduct when the method by which evidence supporting the search warrant was
seized was “clearly illegal”).
Here, the intrusion into Davis’ backyard exceeded the justification for Lt. Kim’s
entry. His action of prioritizing investigation to recover shell casings over the safety of
the community, other officers, and himself was violative of the Fourth Amendment.
Lt. Kim placed the discovery of evidence above his duty to determine whether any person
needed emergency aid. His decision to do so was deliberate.
It was also objectively unreasonable for Lt. Kim to prioritize a warrantless search
for shell casings over community safety. The first backup officer’s instinct was to
contact the occupants in Davis’ home to confirm no one was in danger or had been
harmed; the gunman could have been inside holding individuals against their will, or
injured persons could have been inside the residence. Lt. Kim prevented the backup
officer from determining whether anyone inside the residence was in danger. The body
camera video further supports that the commanding officer was concerned about how Lt.
Kim managed the danger presented by the shots fired information. He instructed Lt. Kim
to clear the residence of any danger. Even after that, Lt. Kim’s focus remained on
securing the three shell casings that had been located. Lt. Kim did not confirm whether
there was a threat posed to any person, or anyone injured inside the residence until nearly
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14 minutes after the backyard was clear of danger. In addition, it took Lt. Kim a total of
7 minutes from the time his commanding officer directed him to clear the residence, to do
so. The facts surrounding Lt. Kim’s warrantless search of the backyard were not close
enough to the line of validity to make belief in the validity of the search warrant
objectively reasonable.
What’s more, the above information was not presented to the judge who
authorized the search of Davis’ residence. A plain reading of the Affidavit would lead
the reader to believe the shell casings were observed in plain view and not as part of an
intrusive search that was violative of the Fourth Amendment. That omission resulted in
the reviewing judge being misled. Additionally, removal of the information concerning
the unlawfully seized shell casings from the Affidavit results in a lack of probable cause.
To allow the information gathered from the unlawful search to provide the basis for
probable cause in the Search Warrant would render the exclusionary rule meaningless.
In these circumstances, the good faith exception to the warrant requirement does not
apply.
While exclusion is a bitter pill to swallow, the benefits outweigh the cost. As
more law enforcement agencies adopt the use of ShotSpotter and similar technologies, it
is important for officers to understand the limits of the exigency or emergency aid
doctrine in responding to reports of shots fired. Shots fired technology does not provide a
license to search for evidence. The deterrence value of suppressing the evidence as to the
pending Indictment is worth the price paid by the justice system. This is also a rare
scenario where the cost to society is lessened by virtue of the fact the evidence will not be
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suppressed in Davis’ supervised release case. Although he will not face the potential of a
new criminal conviction absent the evidence that was seized, Davis may still be held
accountable for the conduct as it relates to alleged violations of his supervision. This
issue will be discussed further in Section II.F.
II.E. Consent
Next, the Government’s argument that Davis consented to the search of his
backyard will be addressed. The Government claims that an analysis of the totality of the
circumstances supports a conclusion “that Davis freely consented to the officers’ search
for shell casings in his yard.” (Doc. 58 at 8.) In support of this position, the Government
submits Davis impliedly consented based on 1) Davis’ statements indicating he was
concerned about shots being fired in his backyard, 2) Davis did not “object to the
officers’ presence, or express any type of complaint concerning the officers looking for
casings,” 3) Davis didn’t object to Lt. Kim’s instruction for him to step aside while the
officers continued searching for casings, 4) the encounter was not coercive or contentious
as the interaction between Davis and the officers was conversational, and 5) Davis’
mannerisms and interactions with the officers “demonstrates that any search for casings
in [the backyard] was entirely consensual.” Id. at 8-10.
As to Davis giving his express consent for the backyard search, the Government
notes that when Lt. Kim asked if it was okay for the officers to “collect” the casings that
had been located, Davis agreed the casings could be seized. The Government
emphasized the fact Davis was on federal supervision and experienced with the criminal
justice system. Plus, he agreed with Lt. Kim’s announcement that a search warrant
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would be secured to search the interior of his residence. Based on these circumstances,
the Government argues “the officers had an objectively reasonable basis to enter Davis’
backyard.” Id. at 11.
Davis argues that a valid consent search requires an “unequivocal and specific consent
to the search, uncontaminated by any duress or coercion, actual or implied.” (Doc. 56 at 8,
quoting Channel v. United States, 285 F.2d 217, 219 (9th Cir. 1960)). Based on the
circumstances he faced, with three uniformed officers engaged in a search of his backyard
that did not terminate upon his appearance, “Mr. Davis’s words and actions cannot be seen as
anything but an acquiescence to [the officers’] assertion of authority.” Id. at 10. His “failure
to specifically object to the show of authority” by the officers “searching his backyard cannot
be considered consent.” Id. at 11.
Generally, “[l]aw enforcement officers do not violate the Fourth Amendment’s
prohibition of unreasonable seizures merely by approaching individuals on the street or in
other public places and putting questions to them if they are willing to listen.” United States
v. Drayton, 536 U.S. 194, 200 (2002). That said, “acquiescence to police conduct that a
reasonable person would have perceived as tantamount to a claim of lawful authority to
search is not voluntary consent.” United States v. Weidul, 325 F.3d 50, 54 (1st Cir. 2003).
See also United States v. Tovar-Rico, 61 F.3d 1529, 1536 (11th Cir. 1995) (“Tovar opened
the door in response to a ‘show of official authority’ and cannot be deemed to have
consented to the agents’ entry or to have voluntarily consented to the search”).
As found in the preceding section, the emergency that justified Lt. Kim’s initial entry
into the backyard expired before Davis exited his residence to see what the police were
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doing. The situation in Davis’ backyard was different than a consensual encounter with an
officer on the street, or even at his front door. By the time Davis appeared in the backyard,
Lt. Kim had already confirmed there were no injured persons nor an active emergency. Lt.
Kim was engaged in a full-fledged search of Davis’ backyard when Davis exited his home to
see what was happening in his backyard. Lt. Kim paid Davis no notice when he appeared.
When Davis approached the officers in the backyard, they mentioned the earlier gunfire
which Davis acknowledged. No one asked Davis for consent to search. The message
conveyed to Davis was that the officers were going to search his backyard until they found
the shell casings. While Davis may have retained freedom of movement and even shined his
own cell phone light on the ground his actions did not imply voluntary consent. He was a
man on federal supervision who acquiesced to law enforcement’s warrantless search of his
backyard. Davis did not consent to that search. The only time Davis was asked to consent
was when Lt. Kim asked for consent to secure the shell casings that were found pursuant to a
warrantless search of the backyard. Davis’ response was not a consent to the search.
Based on the record before the Court, Davis did not consent to the search of his
backyard.
II.F. 	Evidence is admissible in supervised release case
The Government asserts that the exclusionary rule does not apply to revocation
hearings. Davis disagrees.
Generally, circuit courts have held that the costs of applying the exclusionary rule in
the revocation context dwarf the negligible deterrence benefit. Virtually all courts have held
that illegally obtained evidence may be relied upon as a basis for revocation of various types
of post-conviction supervision. See United States v. Charles, 531 F.3d 637, 640 (8th Cir.
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2008) (the exclusionary rule generally does not apply in revocation of supervised release
proceedings); United States v. Hebert, 201 F.3d 1103, 1104 (9th Cir. 2000) (same); United
States v. Armstrong, 187 F.3d 392, 393 (4th Cir. 1999) (same); United States v. Montez, 952
F.2d 854, 857-59 (5th Cir.1992) (absent a showing of harassment by police, the exclusionary
rule does not apply to revocation of supervised release hearings); United States v. Alexander,
No. 97-3089, 1997 WL 592807, at *1 (6th Cir. Sept. 24, 1997) (exclusionary rule does not
apply in supervised release revocation proceedings); United States v. Bazzano, 712 F.2d 826,
832-34 (3d Cir. 1983) (per curiam) (exclusionary rule inapplicable to evidence illegally
seized by police that was used at probation revocation proceeding); United States v. Farmer,
512 F.2d 160, 162 (6th Cir. 1975) (same); United States v. Brown, 488 F.2d 94, 95 (5th Cir
1973) (per curiam) (same); United States v. Hill, 447 F.2d 817, 818-19 (7th Cir. 1971)
(same).
Davis argues that in Scott, the Supreme Court “emphasized the ‘flexible,
administrative nature of parole revocation proceedings’ and found that application of the
exclusionary rule would be incompatible with the nature of such proceedings.” (Doc. 64 at
5.) Davis added that in a more recent case, the Court established that revocation hearings
“cannot be considered ‘flexible’ or ‘administrative’ in nature,” which “calls into question the
ruling of Scott as appli[ed] to Supervised Release revocation proceedings.” Id. (citing
Esteras v. United States, 606 U.S. 185, 201 (2025).)
Notwithstanding the foregoing arguments, Davis does not dispute the holdings in
Scott and Charles. Because this Court is bound by prevailing Eighth Circuit law, the
undersigned must recommend that Davis’ Motion to Suppress in his supervised release case
be denied.
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II.G. 	Other Motions
As to Davis’ Motions to Compel disclosure of ShotSpotter technology information in
both pending cases, the undersigned finds that the requests are mooted considering the
Court’s findings related to the admissibility of the evidence seized in each of the cases.
Additionally, the standard for consideration of the reliability of the ShotSpotter technology
as it relates to Lt. Kim’s reliance on the ShotSpotter reports is that of an objectively
reasonable officer. Lt. Kim was trained on the use of the technology. He also had prior
experience with the use of the technology in other cases wherein the ShotSpotter reports
were found to be accurate.
Finally, in consideration of the findings herein, it will be further recommended that
Davis’ Motion to Dismiss on Second Amendment grounds be found moot.
In accordance with the Memorandum above,
IT IS HEREBY RECOMMENDED that as to Case No. 1:24-CR-41-SNLJ-
ACL, the Defendant’s Motion to Suppress Evidence (Doc. 32) be granted.
IT IS FURTHER RECOMMENDED that the Motions to Compel (Doc. 33)
Dismiss (Doc. 34) in Case No. 1:24-CR-41-SNLJ-ACL be found moot.
IT IS FURTHER RECOMMENDED that as to Case No. 1:23-CR-47-SNLJ-
ACL, the Defendant’s Motion to Suppress Evidence (Doc. 27) be denied.
IT IS FURTHER RECOMMENDED that as to Case No. 1:23-CR-47-SNLJ-
ACL, the Defendant’s Motion to Compel (Doc. 28) be found moot.
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Further, the parties are advised that they have until December 26, 2025, to file
written objections to this Report and Recommendation, unless an extension of time for
good cause is obtained. Failure to file timely objections may result in a waiver of the
right to appeal questions of fact. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
Dated this 12th day of December, 2025.
s/Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
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