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United States v. Lawley

United States District Court, D. Utah

July 26, 2018




         Before 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.)


         This 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 home

         1. The Initial Response Resulting in Mr. Denison's Detention

         On 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.)

         When 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.)

         Officer 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.)

         When Ms. Gardener approached, Mr. Denison was sitting on the ground, handcuffed.[1](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. 12-13.)

         Officer 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: 20-21.)

         After 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.)

         2. The First Warrantless Entry and Search of the Home

         Officer 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: 17-18.)

         Officer 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.)

         Sergeant 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.)

         Officer 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.)

         Immediately 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.)

         While 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. “Yes”).)

         Because 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.

         3. The Time Between the Two Searches

         By the 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.)

         For 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.

         Ms. 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.”[2] (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.”[3] (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.

         Ms. 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: 9-10.)

         4. The Second Warrantless Entry ...

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