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United States v. Wilson

United States District Court, E.D. Tennessee, Chattanooga

January 26, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BILLY RAY WILSON, Defendant

          Steger, Magistrate Judge.

          ORDER

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE.

         On 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.

         I. STANDARD OF REVIEW

         This 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).

         II. FACTS

         On or 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.

         Defendant objects to the Magistrate Judge's recitation of the facts, but does not indicate which portions are inaccurate.[1] 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 relevant part:
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 described location.
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 months.
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 includes marijuana.
[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 ...

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