United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANT'S MOTION TO SUPPRESS
WADDOUPS UNITED STATES DISTRICT JUDGE
the court is Defendant Dajuan Michele Lawley's Motion to
Suppress evidence obtained following two warrantless searches
of his home on October 21, 2017. The court held an
evidentiary hearing on May 9, 2018 (ECF No. 17), after which
the parties filed post-hearing briefs and exhibits. (ECF Nos.
20-23.) The court then heard oral argument on the Motion on
July 10, 2018. (ECF No. 26.) Having considered the evidence
and arguments, and based on the findings of fact and
conclusions of law contained herein, the court determines
that the Government has not shown that the warrantless
searches were justified under an exception to the warrant
requirement. Therefore, the court GRANTS Mr. Lawley's
Motion. (ECF No. 11.)
case is about two warrantless searches of a home in Ogden,
Utah. Mr. Lawley lived at this home with two of his
roommates-Shawna Gardener and Donald Denison. Officer Whitby
and Sergeant Ziegler were two officers from the Ogden Police
Department involved in this case. The facts of this case
involve four time periods: (1) the initial response resulting
in Mr. Denison's detention; (2) the first warrantless
entry and search of the home; (3) the time between the two
searches; and (4) the second warrantless entry and search of
The Initial Response Resulting in Mr. Denison's
October 21, 2017, at approximately 3:10 a.m., dispatch for
the Ogden Police Department notified all available units that
shots had been fired near the intersection of Madison Avenue
and 23rd and 24th streets in Ogden, Utah. (See Tr.
6: 7-8; 44: 7-8; 45: 3-5.) Officer Whitby, Sergeant Ziegler,
and “quite a few [other] officers” responded.
(See Tr. 6: 7-8; 45: 7-8.) Officer Whitby and other
officers arrived near the scene before Sergeant Ziegler. (Tr.
45: 14.) Officer Whitby was wearing a body camera at this
time. (See Tr. 35: 14-25.)
Officer Whitby arrived “in the general area where the
shooting had been reported” (Tr. 7: 3-4), he
“came across one male running across” 23rd Street
and Adams Avenue. (Tr. 7: 1-2.) Officer Whitby testified that
this individual “seemed pretty suspicious for the area,
” and “detain[ed] him at that time.” (Tr.
7:10-12.) But Officer Whitby did not activate his body
camera. (Tr. 35: 11-25.)
Whitby learned that this individual's name was Donald
Denison. (Tr. 7: 15-16.) Officer Whitby further testified
that Mr. Denison was initially uncooperative, but eventually
admitted that “he was coming from the area” of
the shooting. (See Tr. 7: 24-25.) Mr. Denison also
insisted that he was not the shooter but that he did not
“want to divulge any information.” (Tr. 8: 1-2.)
While Officer Whitby was questioning Mr. Denison, Shawna
Gardener approached “about 20 feet from where”
Officer Whitby was standing and began “watching”
him. (Tr. 8: 5-7; 13-14.)
Ms. Gardener approached, Mr. Denison was sitting on the
ground, handcuffed.(Tr. 108: 16-20.) Ms. Gardener testified
that she “referred to [Mr. Denison] as [her] street
son.” (Tr. 108: 10-11.) She also testified that there
were three police cars in the area. (Tr. 108: 15-16.) The
police officers told her that she could not approach Mr.
Denison. (See Tr. 109: 4.) Ms. Gardener responded
that “she [did not] care and that he [had not] done
anything wrong.” (Tr. 109: 5-6.) Ms. Gardener also told
the officers that Mr. Denison “was [her] son and that
[she] came looking for him because he had to come
back.” (Tr. 109: 7-10.) It was around this time the
officers, including Officer Whitby, began asking Ms. Gardener
questions about the reported shooting. (See Tr.
Whitby testified that Ms. Gardener told him that “she
was having a gathering at her house and there were shots
fired by [Mr Lawley], and she [did not] know who was there,
people were fleeing, she [did not] know who was still there .
. . .” (Tr. 9: 16-20.) Ms. Gardener testified that she
“let [the police officers] know that the only person
that would be up at the house would be [Mr. Lawley] and that
he should be the only one there.” (Tr. 109: 20-22.)
Officer Whitby also testified that Ms. Gardener told him that
Mr. Lawley fired the shots outside of the home-not inside it.
(See Tr. 25: 3-5.) Officer Whitby further testified
that he could not recall if Ms. Gardener had told him that
Mr. Lawley had fired shots into the air. (Tr. 25: 3-14.) But
Officer Whitby did testify that Ms. Gardener never told him
Mr. Lawley had shot anyone. (Tr. 25: 19-21.) Nor did the
police have any information that anyone had been shot.
(See Tr. 25: 25; 26: 1-2.) Ms. Gardener also showed
Officer Whitby a picture of Mr. Lawley on her cell phone so
that he would know what he looked like. (See Tr. 9:
Ms. Gardener answered the officers' questions, some of
the officers left the area where Mr. Denison had been
detained and went towards Ms. Gardener's house. (Tr. 109:
23-25; 110: 1.) Those officers that did not go to the house
stayed with Ms. Gardener and Mr. Denison. 36: 3.) Officer
Whitby then contradicted his prior testimony and stated
“He was not handcuffed, but yes.” (Tr. 36: 5.)
(Tr. 110: 2-7.) Ms. Gardener testified that she “was
told [she could not] leave, ” and that she and Mr.
Denison had “to stay there and wait.”
(See Tr. 110: 4-7.)
The First Warrantless Entry and Search of the Home
Whitby was one of the officers that went towards the house.
(See Tr. 10: 13-18.) Around this time, Officer
Whitby began “communicat[ing] the information” he
had received “from Ms. Gardener to the other officers
in the area.” (Tr. 12: 4-6.) When Officer Whitby
arrived near the home, other officers had already begun to
set up a containment around the house and were “still
kind of covering the street.” (See Tr. 10:
11-17.) When Officer Whitby arrived near the house, he
activated his body camera for the first time. (See
Defendant's Exhibit 2, Officer Whitby's Body Camera
Footage at 00:00-00:2:13.) While the other officers were
covering the street, Officer Whitby “made [his] way in
to actually observe the actual residence.” (Tr. 11:
Whitby was the first to approach the house. (See
Defendant's Exhibit 2 at 00:2:12-00:2:25.) He first stood
behind a bush near the front door of the home.
(Defendant's Exhibit 2 at 00:2:12-00:2:20.) Officer
Whitby saw Mr. Lawley open the door and he ordered him to put
his hands up. (Defendant's Exhibit 2 at 00:2:12-00:2:25.)
Mr. Lawley quickly retreated into the home. (See
Defendant's Exhibit 2 at 00:2:25-00:2:29.) Officer Whitby
walked from behind the bush towards the front of the home.
(See Defendant's Exhibit 2 at 00:2:24- 00:2:30.)
Mr. Lawley then reemerged from the home with his hands up,
coming through the front door. (Defendant's Exhibit 2 at
00:2:30-00:2:55.) The front door closed on its own behind Mr.
Lawley. (Defendant's Exhibit 2 at 00:2:36-00:2:40.)
Ziegler arrived at the house around the time Mr. Lawley
exited his home. (See Defendant's Exhibit 3,
Sergeant Ziegler's Body Camera Footage at
00:00-00:00:08.) Mr. Lawley walked down the front porch
stairs and laid on the ground-surrendering to the police.
(Defendant's Exhibit 2 at 00:2:30-00:2:55.) While Mr.
Lawley was on the ground, Sergeant Ziegler and a female
officer placed Mr. Lawley in handcuffs. (Defendant's
Exhibit 3 at 00:00:20-00:00:37.) Sergeant Ziegler and the
female officer then walked Mr. Lawley away from the house
back to one of the police officer's cars.
(Defendant's Exhibit 3 at 00:1:18-00:2:30.)
Whitby did not walk to the car but stayed at the home with
Officer Legua and another unidentified officer. (See
Defendant's Exhibit 2 at 00:3:00-00:5:10.) Officer Whitby
then began talking on the radio with Officer Thomas, who was
still with Ms. Gardener and Mr. Denison. (Tr. 22: 21-23; Tr.
23: 1-2; see also Defendant's Exhibit 2
00:3:40-00:4:00.) Officer Thomas can then be heard on Officer
Whitby's radio recording saying “she” (Ms.
Gardener), “is saying it is just her and then the two
guys that live there, but she is not sure if he is there. She
just said he might be.” (Defendant's Exhibit 2 at
00:3:52-00:3:59.) As Officer Whitby was walking up the front
porch stairs he responded to Officer Thomas by asking
“what's his name?” (Defendant's Exhibit 2
at 00:4:00-00:4:05.) Officer Whitby then opened the
home's front door, which was closed at this time, and
yelled “Ogden Police, K-9, call out now if you're
in here.” (Defendant's Exhibit 2 at
00:4:05-00:4:11.) No. one responded. (See
Defendant's Exhibit 2 at 00:4:13-00:4:16; see
also Tr. 22: 19-20.) In response to the front door
beginning to close on its own, Officer Whitby pushed it open.
(Defendant's Exhibit 2 at 00:4:15-00:4:20.) Officer
Whitby continued to hold the door open and look inside the
home-seeing no one. (Defendant's Exhibit 2 at
00:4:20-00:4:30.) Officer Thomas then said over the radio:
“she is saying his name is Gee.” (Defendant's
Exhibit 2 at 00:4:32-00:4:35.) Officer Whitby then asked
Officer Thomas “Jayden?” (Defendant's Exhibit
2 at 00:4:34-00:4:36.) Officer Thomas responded “[s]he
is saying Gee as in golf, echo, echo.” (Defendant's
Exhibit 2 at 00:4:40-00:4:42.) Officer Whitby then replied
“copy, we got him. Is there anybody else?”
(Defendant's Exhibit 2 at 00:4:43- 00:4:46.) Officer
Thomas responded “negative.” (Defendant's
Exhibit 2 at 00:4:50-00:4:51.)
after Officer Thomas confirmed that Ms. Gardener did not
believe anyone else was in the home, and after having not
seen or heard anyone inside the home, Officer Whitby entered
the home with Officer Legua and another officer.
(Defendant's Exhibit 2 at 00:4:52- 00:5:05.) Officer
Whitby went through the living room to the edge of the
kitchen. (Defendant's Exhibit 2 at 00:4:53-00:5:10.)
Officer Legua and the other officer went through the living
room and then entered Mr. Denison's bedroom.
(Defendant's Exhibit 2 at 00:4:59-00:5:09.) While Officer
Legua and the other officer were searching other areas of the
home, Officer Whitby stood at the entrance of the kitchen.
(Defendant's Exhibit 2 at 00:5:05-00:5:37.) Officer
Whitby then walked through the kitchen to the edge of a small
laundry room in the back of the house. (Defendant's
Exhibit 2 at 00:5:38-00:5:43). The laundry room had a
stairway that connected to the basement. This laundry room
and the kitchen were connected by a doorway. (Defendant's
Exhibit 2 at 00:5:38-00:5:43). Officer Whitby passed through
this open door to the top of the laundry room's stairway.
(Defendant's Exhibit 2 at 00:6:19-00:6:30). The other
officers then also entered the laundry room behind Officer
Whitby. (See Exhibit 2 at 00:6:30-00:6:34.) Officer
Whitby and the other officers then walked down the stairs to
the basement. (Exhibit 2 at 00:6:40-00:7:05.)
searching the basement, the officers observed a box of
ammunition, a bullet magazine, and a drug pipe. (Tr. 17:
3-11.) After completing their search of the basement, the
three officers then regrouped in the basement room just below
the laundry room. (Defendant's Exhibit 2 at
00:8:49-00:8:53.) Officer Whitby and Officer Legua then made
eye contact with one another and simultaneously put their
hands towards their body cameras-shutting them off.
(See Defendant's Exhibit 2 at 00:8:54-00:8:57;
see also Tr. 32: 22-24 (Q.
“So you turn off your video and he turns off his video
at the same time, correct?” A.
Officer Whitby and Officer Legua turned off their body
cameras, there is no video recording of the officers walking
back up the basement stairs. (Tr. 30: 22-23.) Nor is there a
video recording of the officers walking through the kitchen.
(Tr. 31: 1-2.) Nor is there any video recording of the
officers walking through the living room and out the
home's front door. (Tr. 30: 24-25; 31: 3-4.) It is
unclear from the record how much time lapsed before the
officers again turned their body cameras on. While Officer
Whitby, Officer Legua, and the other officer were in the
house, Sergeant Ziegler was by a police car talking to Mr.
Lawley with the female officer.
The Time Between the Two Searches
time Sergeant Ziegler had walked back to the house from the
police car, Officer Whitby, Officer Legua, and the other
officer had completed their search and were standing outside
of the home. (See Defendant's Exhibit 3 at
00:8:00-00:8:31.) As Sergeant Ziegler approached Officer
Whitby and Officer Legua, Officer Whitby told Sergeant
Ziegler “we just cleared the residence.”
(Defendant's Exhibit 3 at 00:8:00-00:8:32.) After some
more discussion, Sergeant Ziegler then asked Officer Whitby
“now she's [Ms. Gardener] given us consent to be in
there, or?” (Defendant's Exhibit 3 at
00:8:49-00:8:52.) Officer Whitby then responded “well,
I . . . I went in because of exigency.”
(Defendant's Exhibit 3 at 00:8:53-00:8:56.) Sergeant
Ziegler then muted his body camera's microphone.
(Defendant's Exhibit 3 at 00:8:56-00:8:57.)
approximately another one minute and twenty seconds, the
officers appear to be talking, but because the microphone has
been muted, it is impossible to know what they are saying.
(Defendant's Exhibit 3 at 00:9:00-00:10:20.) Sergeant
Ziegler then walked from the house (Defendant's Exhibit 3
at 00:10:20-00:11:30), got in his police car, and began
driving. (Defendant's Exhibit 3 at 00:11:30-00:11:40.)
After about fifteen seconds, it appears that he arrived at
the area where Ms. Gardener had been waiting with Mr.
Denison. (See Defendant's Exhibit 3 at
00:11:40-00:11:55; see also Tr. 48: 16-18.) For
approximately seven seconds, Ms. Gardener can be seen holding
her cell phone, walking up to, and standing near, Sergeant
Ziegler's car. (Defendant's Exhibit 3 at
00:11:58-00:12:02; 00:12:05-00:12:08.) But any conversation
that occurred at this point cannot be heard because Sergeant
Ziegler's body camera's microphone is still muted.
Gardener testified that, as ordered by the police officers,
she had been sitting with Mr. Denison for about 15-20 minutes
before two of the officers returned from her house.
(See Tr. 110: 8-13; see also Tr. 122: 1-5.)
Ms. Gardener testified that “[a]fter the two officers
had been up to the house . . . that . . . they came back
down, [and] the one officer pulled up and said that he needed
[her] to go back and escort them to the house so they could
do a clean sweep of [her] house.” (Tr. 110: 12-15.)
Ms. Gardener asked the officer “what the heck” a
clean sweep was. (Tr. 110: 16-17.) The officer responded that
“they wanted to verify that nobody else was in [Ms.
Gardener's] residence and there were no weapons in [her]
residence.” (Tr. 110: 8-13.) To be clear, this was
after the police officers had already searched the home and
had confirmed that no one was in it.
Gardener testified that she told the officers that “if
they had [Mr. Lawley] in custody, then everybody should be
out of the house and there should be nobody else
there.” (Tr. 121: 21- 24.) She also testified that
“it was ridiculous, ” that she
“shouldn't have had to sit down there on the street
for over 20 minutes, ” and that she “should have
been able to go back to [her] house.” (Tr. 121: 21-24.)
Despite her frustration, Ms. Gardener did not feel like she
could tell the police officers that they could not conduct a
clean sweep. (Tr. 111: 1-10.) She felt “like [she] was
being swarmed by police, ” and “felt like if
[she] was not cooperative . . . that [she] was going to be
the one going away as well.” (Tr. 111: 1-5.) She felt
like if she “held [her ground and boundaries, that
[she] would be arrested.” (Tr. 121: 15-16.) She was
also concerned that Mr. Denison could be arrested. (Tr. 111:
The Second Warrantless Entry ...