The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On February 10, 2011, Defendant Razhan Broadnax ("Defendant" or "Broadnax") was charged with being a felon in possession of a firearm and ammunition on January 25, 2011, in contravention of 18 U.S.C. § 932(g)(1). On June 23, 2011, counsel for Broadnax filed a Motion to Suppress Evidence and Statements gained as a result of an alleged unconstitutional search of Defendant's property, and an unlawful seizure of his person as a result of that search. Defendant alleges that said search and seizure violated his rights under the Fourth Amendment, and he seeks an order suppressing all fruits of that constitutional violation.
Both Defendant and the government requested an evidentiary hearing in order to resolve contested issues of fact germane to the Court's determination as to whether any constitutional violation had occurred. An evidentiary hearing was conducted over the course of two days on August 24, 2011 and August 29, 2011. Evidence was presented from numerous witnesses, and the Court heard oral argument from both sides at the conclusion of the hearing. Based on the totality of the circumstances and weighing the credibility and veracity of each witness, the Court makes the following Findings of Fact and Conclusions of Law.
1. On the afternoon of January 25, 2011, an anonymous citizen informant called 911 disptach to report that he/she had observed what appeared to be a drug transaction involving both a silver-colored handgun and a green leafy substance that appeared to be marijuana. The caller observed a black male adult siting in the driver's seat of a newer parked Chrysler Sebring parked on the street. The caller described the black male along with the clothes he was wearing. The caller further provided a license plate number for the vehicle.
2. Police investigation made subsequent to the call revealed that the license plate matched a rental car obtained from Hertz by an individual Kimyatta Horton. Ms. Horton's address was reported to be 2045 Fenmore Way in Sacramento, California.
3. A records check on the Fenmore Way address revealed that officers had previously responded to that location some six months earlier to conduct a parole search involving Defendant Broadnax. A criminal check on Broadnax reflected previous convictions for assault with a deadly weapon, sale of cocaine base, and sale of marijuana.
4. Given the above information, Sacramento Police Officers Jeffrey Kuhlmann and Matthew McPhail responded to the 2054 Fenmore Way address in an attempt to locate the vehicle described by the citizen informant. Three other officers, including Todd Bevins and Rachel Goodpastor, also responded. A canine officer also arrived at the scene with his dog, and ultimately a police sergeant, Lai Lai Bui, responded as well. The officers described the number of police who responded as consistent with safety concerns attendant to a call potentially involving a firearm.
5. Officer Kuhlmann testified that he proceeded to knock on the door. A black male adult answered whose physical description and clothing matched the information in that regard provided by the citizen informant. The black male adult identified himself as Defendant Broadnax. Officer Kuhlmann proceeded to engage Broadnax in conversation. Although Broadnax's large frame initially blocked the doorway leading into the home, during the course of his discussion with the officers he turned and stepped aside. Officer Kuhlmann and Officer Bevins both perceived that gesture as an invitation to enter the foyer of the home.
Officer McPhail, who originally was stationed to the side of the residence when Officers Kuhlmann and Bevins went to the front door, further described seeing Broadnax step aside and allow the officers to enter the home. The officers' testimony, then, corroborated what Broadnax did in permitting entrance into the home. Officers Kuhlmann and Bevins further confirmed that Broadnax never voiced any objection to them entering the residence. In addition, the officers denied drawing their weapons despite their admission to being armed.
6. Broadnax's version of his initial contacts with the police stand in stark contrast to the officers' testimony as set forth above. He testified that the officers' weapons were drawn and that he moved aside only to avoid being shot. He further testified that he specifically denied the officer's request to enter the home, and states that the officers "pushed their way through" anyway. Broadnax also claimed that he told the officers to leave once they did enter the home without his permission.
7. Not only was Broadnax' testimony diametrically opposed to the version of events offered by the officers, it also was at odds with information he previously had himself provided. As the government established on Broadnax' cross examination, his declaration submitted in support of the motion to suppress contained no indication either 1) that the officers' weapons were drawn; 2) that Broadnax specifically denied consent to the officers when they asked to search his residence; or 3) that Broadnax unequivocally told the officers to leave once they did come into the house.
Instead, that information was presented for the first time when Broadnax took the stand during the suppression hearing.
8. Divergence between the officers' testimony and that provided by Broadnax continued with regard to their respective versions of the circumstances under which contact was made with Kimyatta Horton. According to the officers, Broadnax told them that he did not live at 2045 Fenmore Way despite spending significant time there with his girlfriend, Ms. Horton, and their daughter Noglia Broadnax. When asked about searching the house, the police claim that Broadnax stated he was uncomfortable giving permission to search the house because it was Ms. Horton's home. The police then asked Broadnax to call Ms. Horton, which he did on his cellular telephone. After briefly talking to Ms. Horton himself, the police state that Broadnax gave the phone to Officer McPhail, who by that time had moved to the front door area of the home. Officer McPhail went outside and talked to Ms. Horton. McPhail claims he told her why the police had been summoned to her home. In response to McPhail's request that Horton consent to the search of her home, he states that she replied "you do what you got to do." When he confirmed to Ms. Horton his understanding that she had accordingly consented to search, Horton again reiterated to McPhail that ...