United States v. Dunford

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant's Motion to Suppress Evidence [Doc. 29] and the United States' Response [Doc. 32]. For the reasons herein, the Court will deny Defendant's motion.

         I. Background

         On October 30, 2018, Corporal Trevor Salyer, a local law enforcement officer with the Elizabethton Police Department, appeared before the Honorable Lisa Rice, a state criminal-court judge, with an affidavit in support of a search warrant for Defendant Chadwick Dunford's residence and vehicle. [Aff., Doc. 30, at 4]. In the affidavit, Corporal Salyer alleged that he had probable cause to believe that Mr. Dunford was currently, and unlawfully, in possession of firearms and ammunition, in violation of Tennessee Code Annotated § 39-17-1307. [Id.]. He noted that Mr. Dunford, in 2016, had been convicted of aggravated assault, a felony offense under Tennessee Code Annotated 39-13-102. [Id. at 5]. In addition, Corporal Salyer alleged that he had probable cause to believe that the firearms and ammunition were located in Mr. Dunford's residence and vehicle. [Id. at 4].

         As support for his belief that Mr. Dunford was unlawfully in possession of firearms and ammunition, Corporal Salyer recounted various events involving Mr. Dunford. The first event dealt with a complaint that an individual made against Mr. Dunford for harassment on October 28, 2018, ^[1] and it prompted an officer in the Elizabethton Police Department to issue a “complaint slip for incident reporting” to Mr. Dunford. [Id. at 4-5]. The second event, which took place on October 29, 2018, stemmed from a visit that Mr. Dunford made to the Elizabethton Police Department, where he inquired about pressing charges against the same person who had filed a complaint against him. [Id. at 5]. When the clerk advised him of the cost associated with filing charges, he “got upset and said, ‘I'll just take care of it myself. I was an Army Ranger . . . so I know how to handle it!'” [Id.]. Later in that same day, Mr. Dunford visited the local district attorney's office, where he met with an assistant district attorney and complained he had been robbed. [Id.]. When the assistant district attorney informed him that his complaint was not viable, he “became angry, ” and “he stated that he would have to handle things his way since no one would help him.” [Id.].

         On the following day, October 30, 2018, Mr. Dunford uploaded a post to his Facebook page, and, in part, it read:

ONE DAY SOON THE CITIZENS ARE GOING TO GET FED UP WITH THE OVER AND THE ALSO PATHETICALLY UNDER POLICING AND THEY WILL RISE UP AND FIGHT AND RETALIATE BACK AGAINST ALL THE . . . ASSHOLE COPS . . . IT'S GONNA BE HELL BUT I CANNOT WAIT TO SHOW WHAT COMBAT VETERANS ARE CAPABLE OF WHEN THEY'VE BEEN PUSHED AROUND ENOUGH AND DECIDE TO PUSH, FIGHT AND SHOOT BACK[.] I FEAR NOTHING OR NO MAN BUT GOD, JESUS AND THE HOLY SPIRT . . . . WE ARE COMING AND YOU'LL NEVER SEE OR HEAR U.S. COMING UNTIL IT'S WAY TOO LATE[.]

[Id. at 4].^[2] Mr. Dunford also contemporaneously uploaded photos alongside this post, including a photo of himself during his time in the military, a photo of himself with firearms at a shooting range, ^[3] a photo of the Elizabethton Police Department's “complaint slip for incident reporting, ” and a photo of a “magazine fed rifle, ” a “drum fed rifle, ” a “pistol with a magazine seated in it, ” and a combat vest with magazine pouches attached to it. [Id. at 5]. A short while later, he uploaded a second Facebook post, in which he referred to “PUNKS HIDING BEHIND A BADGE AND GUN” and wrote that “THEIR TIME IS COMING SOON.” [Id.].

         According to Corporal Salyer, the photo of the firearms and ammunition “appeared to be taken in a residence, ” [id.], though he noted only that it was uploaded to Facebook in the early morning hours of October 30, 2018, and that a grocery basket was visible in the background of the photo.^[4] Corporal Salyer, based on his training and professional experience, also asserted that rifles are “long guns” and “are extremely difficult to conceal on one's person.” [Id. at 6]. He stated that, as a result, “it is common practice” for individuals to store these types of guns “within a residence or the trunk compartment of a vehicle.” [Id.]. On October 30, 2018, Judge Rice, after reviewing the affidavit, approved a search warrant for the immediate search of Mr. Dunford's residence, vehicles, and outbuildings or parcels associated with his residence. [Search Warrant, Doc. 30, at 3].

         Officers executed the search warrant on that same date, and they found in Mr. Dunford's residence a Glock 43, a 9mm Glock magazine, a high-capacity 9mm magazine, five .223 loaded magazines, three 12 gauge shotgun shells, a Silver Eagle 12 gauge shotgun, a 75 round capacity 7.62 drum, a tactical vest, an ammo can full of assorted ammunition, an ammo belt with assorted ammunition, three boxes of 9mm ammunition, three boxes of .223 ammunition, and two boxes of shotgun shells. [Evid. Recovery Log, Doc. 30, at 8-9].^[5] In Mr. Dunford's vehicle, the officers found an AR-556 rifle, an AK-47 pistol, a .223 magazine, and a bandolier with shotgun shells. [Id. at 10]. On the day after the search, the United States charged Mr. Dunford with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). [Compl., Doc. 1; see Indictment, Doc. 12].

         Mr. Dunford now moves to suppress all the evidence that the officers discovered during their search of his residence and his vehicle, contending that Corporal Salyer's affidavit “failed to establish probable cause to believe that evidence of a crime would be found at the places to be searched.” [Def.'s Mot. Suppress at 3]. In response to his motion, the Court held a suppression hearing. The Court is now prepared to rule on Mr. Dunford's motion.

         II. Legal Standard

         “[I]t undoubtedly is within [a federal court's] power to consider the question whether probable cause existed” to support the issuance of a search warrant. United States v. Leon, 468 U.S. 897, 905 (1984). When reviewing a search warrant for probable cause, the district court does not write on “a blank slate.” United States v. Tagg, 886 F.3d 579, 586 (6th Cir. 2018). In other words, the district court does not engage in a de novo review, or “after-the-fact scrutiny, ” when considering whether the judicial officer who issued the search warrant had probable cause to do so. Illinois v. Gates, 462 U.S. 213, 236 (1983). Instead, the judicial officer “should be paid great deference” from the district court. Id. (quotation omitted). The United States carries the burden of establishing that the four corners of a search warrant support a finding of probable cause. United States v. Abboud, 438 F.3d 554, 572 (6th Cir. 2006).

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