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United States v. Ray Gerdon

United States District Court, W.D. Oklahoma

May 2, 2018




         Before the Court is defendant's Motion to Suppress, filed April 16, 2018. On April 25, 2018, the government filed its response. On April 30, 2018, the Court conducted an evidentiary hearing on defendant's motion to suppress. At the hearing, Officer Greg Van Brunt and Corporal Michael Myers of the Shawnee Police Department testified.[1]

         I. Factual Background

         On January 24, 2018, law enforcement executed the search warrant on the property. There were a number of teams of law enforcement that were executing the warrant. One team was assigned to Gerdon's trailer. As that team was entering the property, they were advised over the radio that a white male had been seen running south. This team went directly to Gerdon's trailer, and because the vehicle he was known to drive was parked by the trailer, the team believed Gerdon was inside the trailer. As they approached the trailer, the team saw that both doors to the trailer were open. When they were at the trailer, Officer Van Brunt announced that it was the police and that they had a search warrant. Officer Van Brunt, with another officer behind him, then entered the trailer through the first doorway.[2] As these officers were entering the trailer, Corporal Myers walked by the first doorway and went to the second doorway. As he was walking by, Corporal Myers saw a rifle inside the first doorway propped up against the doorway.

         Shortly after Officer Van Brunt and the other officer entered the trailer, Officer Van Brunt heard a man call out “Whoa” from the back of the trailer. Corporal Myers saw Gerdon through the second doorway and told him he was under arrest. Gerdon did not put up any resistance, followed Corporal Myers' directions, exited the trailer, and was handcuffed. Officer Van Brunt was advised that Gerdon was in custody, and immediately, he and the other officer conducted a secondary sweep to look for any other people hiding in the trailer. During the secondary sweep, Officer Van Brunt saw a cushioned bench that appeared to also function as a storage area that Officer Van Brunt believed was large enough to hide a person. Officer Van Brunt moved the bench cushion and saw a pistol.[3]

         Once the officers were satisfied that no other persons were in Gerdon's trailer, they secured the trailer and went to another travel trailer and cleared it. Less than ten minutes later, the officers went back to Gerdon's trailer and conducted a search of the trailer pursuant to the search warrant. During the search, the officers found thirty-nine .22 caliber bullets and nineteen 9mm bullets, two mobile phones, one methamphetamine pipe constructed from a prescription pill bottle with Gerdon's name on the label, one glass methamphetamine pipe, and one Zosi H 264 High Definition Digital Video Recorder. After searching the trailer, the officers searched Gerdon's vehicle. During the search, the officers found a handwritten index card, forty-nine .45 caliber bullets, a handwritten letter, a Wal-Mart receipt, a small disk, and three silver keys.

         On March 7, 2018, the grand jury returned an Indictment charging Gerdon with being a felon in possession of a firearm. The firearms at issue in the Indictment are the rifle and the pistol found in Gerdon's trailer. Gerdon now moves this Court to suppress the firearms and any other evidence found during the search of his trailer and his vehicle.

         II. Discussion

         A. The rifle

Under the plain view doctrine, police officers may properly seize evidence of a crime if (1) the officer was lawfully in a position from which the object seized was in plain view, (2) the object's incriminating character was immediately apparent (i.e., there was probable cause to believe it was contraband or evidence of a crime), and (3) the officer had a lawful right to access to the object.

United States v. Thomas, 372 F.3d 1173, 1178 (10th Cir. 2004) (citation omitted). Further, “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603 (1980).

         Having heard the evidence presented at the hearing, the Court finds that the rifle should not be suppressed because it was found in plain view during Gerdon's lawful arrest based upon his outstanding felony warrants. Specifically, the Court finds that the officers had reason to believe Gerdon was inside his trailer based upon the fact Gerdon's vehicle was parked outside and, thus, had a right to enter Gerdon's trailer to execute the arrest warrant. Additionally, the Court finds the rifle was in plain view to the officers who were executing the arrest warrant. Corporal Myers specifically testified that he saw the rifle propped up against the doorway as he was going to the second doorway. Further, as the officers were aware that Gerdon was a convicted felon, the Court finds that the rifle's incriminating character was immediately apparent. As such, the Court finds the officers were authorized to seize the rifle as contraband and evidence of a crime.

         Accordingly, the Court finds that defendant's motion to suppress should be denied as to the rifle.

         B. ...

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