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United States v. Tidrow

United States District Court, N.D. Texas, Amarillo Division

May 15, 2018




         Defendant Kory Wayne Tidrow (“Tidrow”)-charged with possessing two unregistered firearms, [1] in violation of 26 U.S.C. §§ 5861(d) and 5871-moves to suppress all evidence-19 firearms-seized on July 20, 2017, following execution of a search warrant at his residence. After an evidentiary hearing, and for the reasons that follow, [2] the court denies the motion.


         In July 2017 the Dalhart Police Department (“DPD”) was investigating the disappearance and possible murder of Joel Frazier (“Frazier”). DPD requested the assistance of the Texas Rangers in the investigation. After meeting with one of Frazier's family members and gathering information, DPD obtained on July 20, 2017 a search warrant from a state district judge to search 2003 E. 13th, Dalhart, Hartley County Texas, 79022, including the “place, vehicles, and premises.” The property located at 2003 E. 13th is the residence of Frazier, Tidrow, Tidrow's wife Camilla, and Tidrow's minor son. The property covers about ten acres and has multiple outhouses and buildings throughout, including a metal building shop with a red metal roof to the east of the residence. The warrant authorized the seizure of nine items, including Frazier's iPhone, any of Frazier's writings expressing concern about his safety, personal and business bank records from several banks, including Wells Fargo National and First National Bank of Mexico, blood or biological fluid, digital storage devices, computer files, including inter alia, CDs and DVDs, emails referencing trips to a state park, and any and all human remains. The officers were searching for evidence of Frazier's whereabouts as well as for a will that related to the investigation. The warrant listed specific places to be searched on the property, including the shop. The warrant did not authorize the seizure of any firearms.

         Texas Ranger Scott Swick (“Ranger Swick”) was one of 30 officers from DPD, Harley County Sheriff's Office, Dallam County Sheriff's Office, Potter County Attorney's Office, and the Federal Bureau of Investigation who assisted in executing the search warrant. Swick has served as a Texas Ranger with the Texas Department of Public Safety Texas Ranger Division since September 2014. Before working as a Texas Ranger, Ranger Swick worked in law enforcement with the Robertson County Sheriff's Office and the Hearne Police Department, and as a highway patrol sergeant. As part of his training, he has taken numerous classes on the Fourth, Fifth, and Sixth Amendments, search and seizure, and writing search warrants. During his career, Ranger Swick has executed over 50 search warrants and has participated in investigating over 15 murder cases.

         While searching the shop-a place that the warrant specifically authorized to be searched-Ranger Swick discovered a large locked safe. He estimated that the safe was approximately two to four feet wide and five-and-a-half to six feet tall. Ranger Swick suspected that the safe could contain several items listed in the warrant that were small enough to fit in the safe, including writings, computer S.D. cards or chips, banking records, the cell phone, and human remains. The officers could not readily access the digital lock on the safe, so they contacted Tidrow, who was in jail at the time. Tidrow provided the combination for the lock, and the officers successfully opened the safe.

         Upon accessing the safe, Ranger Swick immediately observed a number of firearms and writings sticking out of boxes. He decided to search the boxes because he believed they could contain smaller items listed in the warrant, including writings, the cell phone, or the S.D. cards. He initially found bills, residential paperwork, and warranties that listed the name “Kory Tidrow.” Based on the name on the paperwork and Tidrow's knowledge of the combination to the lock, Ranger Swick believed that Tidrow had some type of connection to the safe.

         Ranger Swick also found a court document in the boxes. The document had Tidrow's name on it, and upon review of the document, Ranger Swick learned that Tidrow was on felony deferred adjudication. The document was captioned State of Texas versus Kory Wayne Tidrow, and appeared to be a court order signed and issued by a district judge in the 69th District Court of Hartley County, Texas. The order had been filed January 20, 2016 and placed Tidrow on community supervision for seven years. The order listed a number of conditions of the deferred adjudication, including that “[d]efendant shall not possess any type of firearm (as defined in Chapter 46 of the Texas Penal Code) during the term of their community supervision.”

         After inspecting the writings, Ranger Swick located 19 firearms in the safe, which he inspected for biological and blood evidence.[3] He did this as part of a practice of examining every weapon located during a search based on the possibility that a violent blood-letting event had occurred. As part of a law enforcement routine procedure for inspecting weapons, Ranger Swick also checked whether any of the firearms in the safe were stolen. Because it is common that searches yield stolen items, it is standard law enforcement practice to run checks on weapons discovered while executing a search warrant.

         Ranger Swick discovered two weapons in particular that he believed to violate the National Firearms Act (“NFA”). Through legal training and personal experience, Ranger Swick is familiar with the NFA's requirements for possessing certain firearms. Ranger Swick personally owns two firearms with suppressors that are regulated by the NFA and is familiar with the documentation required to possess such firearms.

         The first potential NFA violation that Ranger Swick discovered inside the safe was a short-barrel rifle.[4] The weapon was a typical metal rifle with a stock on it. It also had a lever-style action and appeared to be fired from the shoulder. One of the first observations made by Ranger Swick and the officer who accompanied him was that the barrel of the rifle was fairly short. It was obvious to Ranger Swick that the firearm had a barrel length of less than 16 inches. Ranger Swick believed he had a basis to seize the rifle because Tidrow possessed by in violation of federal and state law.

         Ranger Swick also found in the safe a pistol to which a suppressor had been added.[5]While inspecting the firearm for biological evidence, Ranger Swick concluded on the basis of a number of observations that the suppressor was homemade. First, federal law requires suppressors to have a serial number for documentation and registration purposes, but this suppressor did not contain a serial number. Second, the suppressor was attached to the barrel of the pistol with electrical tape; the suppressor appeared to be an oversized CO2 cannister; and it contained a front hole from which a projectile could exit. Ranger Swick thus believed he had a basis to seize the silencer because Tidrow possessed it without proper documentation, in violation of federal and Texas law. Ranger Swick also found the use electrical tape and the absence of serial number to be suspicious.

         During the search, neither Ranger Swick nor the other officers searching the property located any registration documents connected to Tidrow's possession of either the short-barrel rifle or the suppressor. The officers discovered over 100 other firearms on the property that day, but did not seize the weapons because they had no connection to Tidrow.

         On the same day the search was conducted, sometime before the close of business, Ranger Swick conducted a criminal history check on Tidrow and learned that he had been arrested for numerous violations. Ranger Swick then contacted Larry Fadler (“Fadler”), the First Assistant District Attorney for Moore County in the 69th District. Ranger Swick informed Fadler of the court document and the weapons in the safe. Based on the fact that Tidrow's deferred adjudication status prohibited him from possessing firearms, and the belief that the weapons in the safe were connected directly to Tidrow, Ranger Swick and Fadler decided to allow DPD to seize the weapons inside the safe.

         DPD ultimately took possession of the seized firearms. At the time of the seizure, it was expected that another federal agency would handle the gun violations. Because those officers were unable to travel to the property at that time, DPD stored the weapons for further investigation by the federal agency at a later date.

         Tidrow was initially indicted for unlawfully possessing the short-barrel rifle-in violation of 26 U.S.C. §§ 5861(d) and 5871. The superseding indictment-handed up after the suppression hearing, see supra note 1-charges Tidrow with unlawfully possessing the silencer, in violation of 26 U.S.C. §§ 5861(d) and 5871.

         Tidrow moves to suppress the evidence-19 firearms-seized during the search of his ...

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