The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
RECOMMENDATION REGARDING MOTION TO SUPPRESS (Docket No. 38)
Defendant Charles Chaney moves to suppress evidence derived from the warrantless entry to arrest him and search his home including evidence derived from that entry. Docket 34. The motion is opposed by the government. Docket 43. An evidentiary hearing was conducted before the magistrate judge on April 14, 2011. Upon due consideration of the evidence adduced and the arguments of counsel the magistrate judge recommends that the court adopt findings of fact and conclusions of law set forth below and that the motion to suppress be GRANTED in part and DENIED in part.
On December 8, 2009, Jerry Herrod a police officer for the City of Bethel, Alaska, responded to a disturbance call at 543 7th Avenue in Bethel. While there he observed that his police vehicle was missing. Officer Herrod called the dispatcher and advised that his vehicle had been stolen. Inside the stolen vehicle were investigation items including an AR-15 rifle with a 141/2 inch barrel. The AR-15 was concealed in a black padded case. The rifle had four 30-round magazines.
Lt. Achee of the Bethel Police picked up Officer Herrod and they began a search of the city but were unable to locate the vehicle in Bethel. Police officers in a village down river, Napaskiak, reported to dispatch that they had heard sirens and gun shots. They reported a four-wheeler following a vehicle. One of the officers contacted the persons on the four-wheeler and identified Charles Chaney Jr, (the defendant herein) along with a radar gun from Herrod's police vehicle. Napaskiak is about a ten minute drive from Bethel on the river when it is frozen as it was during this time of year.
Another report received by dispatch identified Chaney on a four-wheeler at Napakiak, a few minutes drive away from Napaskiak further down the river. These reports were received about an hour and a half after the vehicle was stolen.
Officers decided to locate Chaney's residence. They determined from APSIN that it was 841 6th Avenue, in Bethel. Chaney's residence was about one block away from where the police vehicle had been stolen. Officer Herrod, Officer Travis Wixom and Officer Anna Geomer went to Chaney's house. Initially they observed a red four-wheeler chained to the foundation of 841 6th Avenue and the engine hood was cold. On the other side of the house there was another red four-wheeler which was wet with water and the engine block was hot. On this four-wheeler the officers observed a radar gun from Herrod's vehicle strapped to the front of the four-wheeler.
The officers sat and observed the house for a few minutes. They could tell there were persons inside. They decided to knock on the door. A female answered and they announced they were police looking for Charles Chaney. The female stepped back and pointed into the living room and the officers made entry with guns drawn. The officers contacted Alexie Alfred in the living room and asked him where Charles Chaney was. He pointed to a back bedroom.
The officers did not have an arrest warrant or a search warrant. They decided to go into the house without a warrant because the village police officers had reported the police car down river along with gun shots, and after observing the radar gun on the four-wheeler at Chaney's residence they were concerned that someone might have the AR-15 rifle inside. Officer Herrod testified that they were concerned that a person might use the rifle against them.
An officer knocked on the bedroom door where Alfred had pointed and announced "police." They observed Charles Chaney come out. At that time they detained him and he was handcuffed behind his back. They gave him the Miranda warnings and Chaney consented to speak with them.*fn1 The officers continued to ask him questions as they were advising him of his Miranda rights. They began to question Chaney about the incident. They asked him if they could look around the house and he gave consent. When the officers began to look around Chaney retracted his consent and the officers stopped their search.
The officers questioned other persons in the residence and observed in plain view a pair of police patrol gloves that Officer Herrod recognized as sitting on the chair. Officer Herrod also recognized some paperwork from his vehicle. The officers remained in the residence about 45 minutes to an hour.
Sgt. Chris Salyers directed the officers to remove Chaney from the residence. Chaney was placed in the back of a patrol vehicle and questioned further. There is no claim or showing that Chaney's statements made to the police in the police vehicle were the product of coercion. Chaney was told he was under arrest.
While the officers were outside the house they did not hear any gunshots fired. They did not hear any people arguing or fighting. They heard no one shouting or calling for help. There was no indication that anyone was hurt nor did it sound like any property was being destroyed. Instead, they heard music playing inside and people talking. Officer Herrod characterized this as normal noise coming from a residence. The officers had received no report that Chaney had been seen driving the patrol car or that he had been seen possessing a weapon.
The residence had only one door. The residence is elevated on stilts about 6 to 8 feet high. From where the officers were located they could have seen anyone jump out a window or leave the residence. Bethel has a magistrate on duty 24-hours a day. Subsequent to the officers entry into the residence of ...