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United States v. Barnes

October 28, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
FORRESTT G. BARNES, DEFENDANT.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it Defendant's Motion to Suppress Evidence (Dkt. 29). The Court conducted a suppression hearing on October 6, 2010, and the parties submitted supplemental briefing on October 13, 2010. The Court now issues the following decision.

BACKGROUND

On October 5, 2009, Moscow Police executed a search warrant at Defendant Forrestt Barnes' residence. The search warrant was authorized by State Magistrate Judge, John C. Judge. Gov't Ex 1. Officer Dani Vargas provided the Magistrate Judge with a signed search warrant affidavit. Gov't Ex. 2. Attached as part of the affidavit was a document entitled "Statement of Officer Dani Vargas." Id.

The search warrant affidavit explains that on October 4, 2009, Kimberly Atchinson, Barnes' then girlfriend, called police and reported that Barnes assaulted her. Id. Officer Vargas spoke to Atchinson on the phone and agreed to meet her at a local gas station. Id. After a brief meeting, Atchinson and Officer Vargas went to the Moscow Police station for an interview. Id.

While at the police station, Atchinson described a "history of domestic violence that had been occurring since approximately September 7, 2009," between herself Barnes. Id. Atchinson explained that she was living with Barnes at his residence. Id. She said that during the week of September 7, 2009, Barnes became agitated after he was contacted by two detectives who wanted to interview him about a past case. Id. According to Atchinson, Barnes "consumed a large quantity of alcohol" and physically assaulted her. Id. Atchinson stated that on or about September 11, 2009, Barnes pushed her into a door, into a wall, onto the floor, and put "his hands around her neck slightly." Id. She said that she sustained a "very large bruise on her right forearm that took several weeks to heal." Id.

Atchinson reported that Barnes "then obtained a handgun that was kept in the bedroom in a black hard plastic case, and pointed it at her." Id. Barnes then put a single bullet in the gun and "pulled her head next to his and pointed the gun at his head and said: 'See we could do this with one bullet and could get the both of us.'" Id. She reported that Barnes pulled the trigger but the gun did not fire. Id. She described the gun as a silver, revolver type handgun. Id. Atchinson told Officer Vargas that the defendant "had at least 2 handguns, one 12 gauge shot gun, one sawed-off shotgun, ammunition, and numerous knives in his residence." Id. She said the guns "were stored in gun cases in the bedroom next to the dresser." Id.

Atchinson also described an incident occurring on October 1, 2009. She reported that Barnes hit her in the eye with the back of his left hand and told her that "she needed to know when to shut up." Id. This occurred after she asked him for a second time if he wanted to come to bed. Id. Officer Vargas observed a "bruised area under her right eye where Barnes struck her during the incident on October 1, 2009." Id.

During the October 4 call, Atchinson also described an incident occurring earlier that day. Id. She described Barnes as being "irritated." Id. She explained that Barnes demanded that she give him money she had set aside from her paycheck to pay rent. Id. Atchinson said that after giving Barnes the money he "told her to get out of his house." Id. Atchinson told Barnes that she wanted her money back "since she had none left." Id. She then "reached into his pocket and removed the $400." Id. Atchinson said that she refused to give the money back and Barnes pulled her to the ground by grabbing her hair and jacket. Id. She fell, striking her head on a coffee table. Id. Atchinson said she had a large "goose egg" bump on her head. Id.

Officer Vargas' affidavit explained that she "could see some redness and feel the 'goose egg' bump on Atchinson's head." Id. Officer Vargas also reported that she could also see "the skin was slightly broken where Atchinson's head hit the table." Id.

Atchinson said that when she began to stand up, Barnes "grabbed her by her hair and jacket and drug her out to the front porch." Id. Atchinson reported that she left Barnes' residence and went to an adjacent trailer belonging to Barnes' mother, Kathryn Barnes. Id. Atchinson stated that Kathryn Barnes "called her a liar and pushed her out of her residence." Id. Atchinson then went to a friend's house where she later called the police. Id. Officer Vargas observed bruises on Atchinson's "left writs, her left elbow, and her right forearm that she sustained from this incident." Id.

After the interview of Atchinson, Corporal Blaker, Officer Swanson, Officer Foreman, and Officer Vargas went to Barnes' residence at approximately 2:07 a.m. on October 5, 2010. Id. Corporal Blaker knocked on the door and asked Barnes to come outside to speak with the officers. Id. Barnes came to the door several times and stated that it was too cold and too early to go outside. Id. Barnes then went back into a back room and said he needed to get something. Id. He came outside wearing jeans and a baggy sweatshirt. Id. He sat on the porch, and Corporal Blaker asked him to stand up. Id. He stood up quickly and made a move toward the residence. Id. Corporal Blaker and Officer Vargas detained Barnes and handcuffed him. Id. Corporal Blaker arrested Barnes, and Officer Keen transported him to jail. Barnes was not questioned about the incidents relayed to the officers by Atchinson.

At 11:28 a.m. that morning, October 5, 2009, the Magistrate Judge issued the search warrant. The search warrant authorized a search of Barnes' residence for the following items:

* Firearms, knives and other instrumentalities of injury, ammunition, holsters, cases, magazines, portions or elements of ammunition or other items associated with firearms, knives and other instrumentalities of injury, and receipts or documentation from purchases or acquisition of such items;

* Items belonging to Kimberley Atchinson including clothing, documents, personal items, etc.;

* Indicia of residency or cohabitation in, or ownership or possession at the premises and any of the above items.

Gov't Ex. 1.

At 1:55 p.m. that day, officers searched Barnes' residence pursuant to the search warrant. Among other things, they recovered a sawed-off shotgun with a barrel length of approximately twelve inches. Gov't Ex. 3. That gun is the subject of the Indictment in this case.

ANALYSIS

1. Probable ...


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