United States District Court, E.D. Tennessee, Chattanooga
Steger, Magistrate Judge.
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.
December 5, 2016, United States Magistrate Judge Christopher
Steger filed his Report and Recommendation (Doc. 42) pursuant
28 U.S.C. § 636(b)(1), in which he recommends that the
Motion to Suppress (Doc. 29) filed by Defendant Billy Ray
Wilson be denied. The Court has now reviewed the entire
record relevant to the instant objections, and for the
reasons described below, the Court will ACCEPT and ADOPT IN
PART Magistrate Steger's Report and Recommendation and
will DENY Defendant's Motion to Suppress.
STANDARD OF REVIEW
Court must conduct a de novo review of those
portions of the Report and Recommendation to which an
objection is made and may accept, reject, or modify, in whole
or in part, the Magistrate Judge's findings or
recommendations. 28 U.S.C. § 636(b)(1)(C).
about October 21, 2015, police officers with the Chattanooga
Police Department executed a search warrant at the
Defendant's residence. Officers discovered multiple
firearms as well as methamphetamine on the premises and on
Defendant's person, and the items were seized. On
November 24, 2015, Defendant was indicted for several federal
drug and firearm crimes. (Doc. 1). On July 12, 2016,
Defendant filed a Motion to Suppress, arguing that the
affidavit used to obtain the search warrant for his residence
failed to provide probable cause, and that there was no
constitutional basis to search his person during the
execution of the search warrant. (Doc. 29). The motion was
referred to Magistrate Judge Steger the next day. (Doc. 30).
An evidentiary hearing was held before Magistrate Judge
Steger on November 21, 2016. Detective Jason Duggan with the
Chattanooga Police Department (CPD) was the only witness.
objects to the Magistrate Judge's recitation of the
facts, but does not indicate which portions are
inaccurate. For that reason, and for ease of
reference, the Court will recount the pertinent facts
surrounding the warrant and search as summarized by
Magistrate Judge Steger:
Det. Duggan was the officer in charge of the investigation
leading to the search warrant for Defendant's residence.
At the time the warrant was executed, Det. Duggan had been
working as a detective in CPD's narcotics division for
one and a half years. Prior to obtaining a search warrant for
Defendant's residence, Det. Duggan worked with a
confidential informant (CI). Det. Duggan used this informant
to conduct two controlled buys of methamphetamine at
Defendant's residence. This CI also had been in the
residence at other times and observed a person identified as
“Bubba” in possession and control of
methamphetamine. Based on his personal observations, the CI
reported to Det. Duggan that Bubba carried a firearm and
conducted drug transactions in the backyard of the residence.
During the 72 hours prior to obtaining the search warrant,
Det. Duggan conducted surveillance of the residence during
which he never saw anyone enter or exit the residence from
the front entrance. However, he did observe short term
visitors enter and exit the backyard of the residence by
picking up and moving to the side a section of the privacy
fence surrounding the backyard. When the privacy fence was
removed to allow someone to enter or exit, Det. Duggan could
see a tent in the backyard. Det. Duggan also personally
observed Defendant several times during his surveillance and
recognized Defendant as the individual identified by the CI
as “Bubba” based on the CI's description of
Bubba as a tall, thin, white man with a burr haircut. Det.
Duggan was unable to obtain Bubba's real name prior to
the execution of the search warrant.
The affidavit used to obtain the search warrant for
Defendant's residence was prepared and sworn to by Det.
Duggan on October 20, 2015. The affidavit provides in
2. That on October 12, 2015 your affiant received information
from a confidential informant.
3. The said informant advised me that within the last 72
hours said informant was on the premises of the potential
defendant in this case, John Doe alias "Bubba", who
is a tall, thin build W/M with a burr haircut, who resides in
or occupies and is in possession of the following described
premises, to wit: 4304 12th Ave, this is a brown house with a
front porch that has two large shrubs one on each side of the
sidewalk. The numbers 4304 are displayed on the front of the
house, Chattanooga, Hamilton County, Tennessee. See attached
photo herein and incorporated into this search warrant
affidavit. While there said informant saw legend and/or
narcotic drugs including crystal methamphetamine, the same
being on said premises in the possession of and control of
said John Doe alias "Bubba".
4. The said informant further advised your affiant that
"Bubba" is dealing crystal methamphetamine and
marijuana from the above described location.
5. The said informant further advised your affiant that there
is a large amount of short term traffic at the above
6. Your affiant was able to corroborate some of the
information provided by the said informant. This affiant has
conducted surveillance on the said location at which time
observing the short term traffic. This traffic is consistent
with known drug houses in the area.
7. The said informant has made at least two "controlled
buys" from the above said address for your affiant, with
one of these buys occurring within the last 72 hours from
October 20, 2015. The following controls were in place: Under
the direction and control of your affiant, the said informant
was physically checked or searched by your affiant for any
type of contraband, your affiant found none on the informant
who was visually monitored entering the premises. The
informant conducted the hand to hand drug transaction,
specifically money for crystal methamphetamine. Your affiant
then observed the informant leave the said premises. Your
affiant, close in time thereafter personally retrieved from
the informant crystal methamphetamine purchased by the
informant and suspected to be crystal methamphetamine. Your
affiant personally inspected the crystal methamphetamine and
found it to match in color, texture, shape, and odor the
controlled substance known as crystal methamphetamine. Your
affiant followed appropriate procedures or safeguards which
ensured that the currency supplied to the informant prior to
the purchase was spent as directed, and your affiant again
physically checked or searched the informant and found no
other contraband on the informant. This purchase was made by
the informant, the informant made no stops or had no contact
with any individuals before handing the crystal
methamphetamine to your affiant.
8. Your affiant has known the said informant for approx. 3
9. The said informant has provided your affiant information
on one occasion in the past that have lead [sic] to the
arrests of individuals in violation of narcotics laws, this
[Affidavit, Doc. 32-1].
Based on Det. Duggan's affidavit, a state court judge in
Hamilton County, Tennessee issued a search warrant on October
20, 2015 to search Defendant's residence, “the
premise located at 4304 12th Ave” [sic] and “all
persons, containers, outbuildings and motor vehicles found
within the curtilage, for the said John Doe alias,
‘Bubba.' This is a tall, thin build W/M with burr
haircut, for evidence of crystal
methamphetamine…” [Search Warrant at p.1, Doc.
32-1]. On October 21, 2015, immediately before executing the
search warrant, Det. Duggan met with the raid team from CPD
to brief them about the search operation. In addition to
giving the team details about the investigation and the
impending search, Det. Duggan also briefed the team on
potential safety hazards including that Defendant carried a
firearm on his person. Det. Duggan further testified at the
evidentiary hearing that, in his experience, drug traffickers
commonly possess and use firearms to protect themselves and
their businesses from other dealers and police.
On October 21, 2015, Det. Duggan and the raid team executed
the search warrant at Defendant's residence. They arrived
at the privacy fence around the backyard and announced
“police, search warrant.” Receiving no response,
the offices removed the section from the privacy fence and
entered the backyard. Officers found Defendant and another
person, Amber Pemberton, in a tent in the yard. Det. Duggan
testified he immediately recognized Defendant as the man he
observed during his surveillance and identified by his CI as
“Bubba.” Defendant was standing on one side of
the cluttered tent in a leather jacket and Pemberton was
sitting on a cot. Officers conducted a pat down of Defendant
for their safety and discovered a firearm in Defendant's
jacket pocket. Det. Duggan testified that within one minute
of discovering the firearm, Defendant was “placed into
custody, ” taken from the backyard and walked to
Defendant's vehicle in the driveway where Defendant was
asked for his name and his criminal history. Defendant said
his name was Billy Wilson, confirmed that he was also called
Bubba, and stated he has prior felony convictions. Det.
Duggan then gave Defendant his Miranda warnings.
Subsequently, officers searched Defendant more thoroughly and
discovered a baggie of methamphetamine in one of his pockets.
Defendant's mother was the only person on the premises
other than Defendant and Pemberton. Officers also conducted a
pat-down for officer safety of Defendant's mother and
Pemberton. After securing the premises, police conducted a
more thorough search and found another firearm on the tent
floor, a baggie of methamphetamine stored in a refrigerator
in the tent, and digital scales in the house. Finally, Det.
Duggan testified at the evidentiary hearing that every time
he has brought a suspect to the Hamilton County ...