United States v. Calhoun

236 F. Supp. 3d 537, 2017 WL 651943, 2017 U.S. Dist. LEXIS 21708
CourtDistrict Court, D. Connecticut
DecidedFebruary 16, 2017
DocketNo. 3:16-cr-92 (SRU)
StatusPublished

This text of 236 F. Supp. 3d 537 (United States v. Calhoun) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Calhoun, 236 F. Supp. 3d 537, 2017 WL 651943, 2017 U.S. Dist. LEXIS 21708 (D. Conn. 2017).

Opinion

RULING AND ORDER ON MOTION TO SUPPRESS. .

Stefan R. Underhill, United States District Judge

On the evening on April 13,2016, several Bridgeport police officers breached the apartment where Shannon Calhoun, was staying without first obtaining a warrant. They assert that their otherwise unlawful entry was justified by exigent circumstances, While in the apartment, officers identified various items of contraband, including a gun, a large amount of cash, and a baggie of what appeared to be cocaine.1 The officers arrested Calhoun and later obtained a search warrant for the apartment on the basis of, inter alia, the contraband they had identified. A subsequent search pursuant to the warrant uncovered several firearms, ammunition, quantities of various controlled substances, and' other indicia that Calhoun was involved in the drug trade. On the basis of that evidence, Calhoun was indicted for possession with intent to distribute cocaine base and MDMA in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii); possession of a firearm in furtherance of a" drug trafficking crime in violation of 18 U.S.C. § 924(c); and unlawful possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Calhoun moved to suppress the government’s evidence against him. (doc. 31) A suppression hearing was held on February 7, 2017, and the parties submitted post-hearing briefs thereafter.

Based on my findings of fact, set forth below, Calhoun’s Fourth Amendment rights were violated when the police entered the apartment where he was staying without a warrant, and were further'violated when-they exceeded even the scope of the warrant exception they assert should have applied. Calhoun is therefore entitled to a suppression of the evidence found as a result of the warrantless search, and his motion is granted.

A. Burden of Proof

“[T]he burden of production and persuasion generally rest upon the movant in a suppression hearing.” United States v. Arboleda, 633 F.2d 985, 989 (2d Cir. 1980) (collecting cases). “In a motion to suppress physical evidence, the burden of proof is initially on the defendant. Once the defendant has established some factual basis for the motion, the burden shifts to the government to show that the search was lawful.” United States v. O’Neill, 2016 WL 6802644, at *8 (W.D.N.Y. Nov. 17, 2016) .(citation omitted). “The standard of proof on the party who carries the burden is preponderance of the evidence.” Id. Accordingly, the government has the burden to show that exigent circumstances justified the initial entry and search. See United States v. Lopez, 723 F.Supp. 229, 234 (S.D.N.Y. 1989).

B. Findings of Fact

Around 10:16 p.m.2 on April 13, 2016, two people called 911 to report shots fired [541]*541in the vicinity of a CVS Pharmacy in Bridgeport, CT. Recording of 911 Calls, (Gov’t Ex. 2). The second caller also stated that a man had threatened a woman in the parking lot, and had broken the window of her car using a gun. The second caller asserted that she fled after the assault took place and she heard shots fired in the area behind her. She described the aggressor as a stocky black man in dark clothing, and stated that after he broke the car window he drove away in a black BMW. (Gov’t Exs. 2, 49) Around the same time, an off-duty police officer who lived in the area called the Bridgeport Police Department to report that she heard shots fired and then saw a black sports-utility vehicle drive quickly away from the area. (Gov’t Ex. 49); see also (Azevedo Test.). When an officer arrived at the CVS shortly thereafter, the owner, of the car that had been attacked identified the aggressor as Shannon Calhoun, and provided the officer with the license plate number for his car as well as Calhoun’s address, 49 Ridgewood Place, which was approximately one block away. (Gov’t Exs. 52, 53, and 54); see also (Martinez Test.). The car was also registered at 49 Ridgewood Place.3 None of the people interviewed at the CVS indicated that Calhoun had been shot.or was otherwise seriously injured, beyond the potential injuries to his hand sustained as a result of punch ing through a ear window. See (Gov’t Exs. 53 and 54).

Officers Diaz and Ortiz arrived at 49 Ridgewood Place approximately five minutes 4 after the initial calls. See Recording of Police Channel One (Gov’t Ex. 1); Police Incident Report (Gov’t Ex. 49). A black BMW sedan was located outside of 49 Ridgewood Place (Gov’t Ex. 6),5 and an officer confirmed that the hood of the car was warm, indicating that the car had recently been driven, see (Gov’t Ex. 1). A few minutes after locating the car, officers at the scene also identified a small amount of blood in the front portion of the driver’s seat of the car, on the console, and on the gear shift. See (Gov’t Exs. 7 and 8) (depicting a small amount of what appears to be blood on the gear shift, console, and driver’s seat); see also (Gov’t Ex. 49) (indicating a report of: “fresh blood in front seat of [the BMW]”). Specifically, the officer who first’ reported seeing blood in the car over Channel One stated that there was “not a lot, only a couple of drops.” (Gov’t Ex. 1) Shortly thereafter, an officer stated that it was “definitely the suspect’s vehicle.” Id. An officer then identified Shannon Calhoun as “the suspect” over Channel One. Id.

Officer Blackwell responded to the' call of shots fired, and arrived at 49 Ridgewood . Place shortly thereafter. He was informed [542]*542by officers already at the scene about the incident at the CVS involving the black BMW parked outside of the residence. (Blackwell Test.) He observed a few drops of what appeared to him to be “fresh blood” in the front seat of the car. Id. Blackwell and the other officers at the scene spent approximately fifteen minutes searching the area for shell casings. See (Gov’t Ex. 49); (Blackwell Test.). None were found; however, in the course of that search, the officers discovered a single drop of what appeared to be fresh blood on the sidewalk approximately seven feet from the car, and three additional drops of blood on the porch outside the door of 49 Ridgewood Place. See (Gov’t Exs. 11-13) (depicting drops of blood on sidewalk and porch). There was also a small amount of blood on the door handle and screen door of the residence. (Blackwell Test.); (Boro-na Test.) (describing the blood as a “smudge”). Blackwell saw a light on in the second floor of the residence. He pounded on the door and announced the police presence for approximately five minutes, receiving no response. Neither Blackwell nor any other officer appears to have heard any noises from the residence or seen any indication of property damage or disruption other than the few small spots of blood.

Detective Borona also responded to the shots fired call.

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Bluebook (online)
236 F. Supp. 3d 537, 2017 WL 651943, 2017 U.S. Dist. LEXIS 21708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-calhoun-ctd-2017.