United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN, CHIEF JUDGE.
Defendant, Timothy Harris, is charged in a single count
Indictment of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). This matter is
before the Court on a Motion to Suppress [ECF No. 27], filed
by the Defendant on July 20, 2017. In his Motion, the
Defendant seeks to suppress all evidence confiscated from his
home. Although the home was searched pursuant to a search
warrant, the Defendant maintains that the warrant should not
have been issued because the supporting affidavit was
insufficient on its face to establish probable cause to
believe that the evidence sought would be found at the
Defendant's residence. The Defendant asks the Court to
find that his arrest was pursuant to the illegal search and
seizure and was therefor also illegal, and find that any
drugs or weapons found in his home and any statements he made
after his arrest be suppressed and excluded from use by the
Government during the trial of this matter.
the only evidence presented to the judge who issued the
warrant is an affidavit, “the warrant must stand or
fall solely on the contents of the affidavit.”
United States v. Koerth, 312 F.3d 862, 866 (7th Cir.
2002) (quoting United States v. Roth, 391 F.2d 507,
509 (7th Cir. 1967)). The duty of a reviewing court is simply
to ensure that the issuing court had a substantial basis for
concluding that probable cause existed. Illinois v.
Gates, 462 U.S. 213, 238-39 (1983). Accordingly, the
following sets out the contents of the Search Warrant
Affidavit [ECF No. 27-2], completed by Fort Wayne Police
Department Detective Mark Gerardot on February 23, 2017.
first paragraph identifies the affiant, Detective Gerardot,
wherein he also states that he has probable cause to believe
that evidence of possession of marijuana, synthetic drugs
commonly referred to as Spice, and equipment related to the
manufacture of synthetic drugs will be found at a particular
residence, which is identified by address and the physical
appearance of the exterior. Detective Gerardot also
identifies other evidence related to the illegal drug
transactions and possession that he believes will be located
at the residence.
second paragraph, Detective Gerardot declares his personal
knowledge of the facts within the Affidavit. He submits that
detectives began investigating a criminal enterprise of
marijuana and Spice distribution taking place at the
identified residence and involving Kayla Langston and Timothy
Harris. The residence was owned by Carrie and Lance
Morningstar, who were currently incarcerated for Corrupt
Business Influence and Manufacturing a Synthetic Drug.
Langston was the Morningstars' daughter, and she was
living in her parent's residence along with Harris. The
Spillman system listed the residence as the address for
Langston and Harris. On January 10, 2017, detectives began
conducting surveillance at the address, which also confirmed
that Langston and Harris were staying there. Finally, jail
calls confirmed that the two were staying at the residence.
third paragraph explains that on the date detectives began
surveillance, Langston and Harris were observed leaving the
residence and driving away in a small Dodge pickup truck.
Detectives conducted a traffic stop. The detectives arrested
Harris pursuant to an active warrant. Langston, who was
driving, was cited for driving while suspended, but she was
allowed to call a licensed driver to come retrieve the truck.
next paragraph, Detective Gerardot provides information about
a jail call that detectives reviewed later that same day. In
the recorded call, Harris is speaking to Langston. He asks
her if she is inside the truck. She says yes, and Harris
states that there are two clips on the floor board behind the
driver's seat. Langston acknowledges his comment and they
continue to talk about being worried about the police finding
the clips, and indicate that the clips are illegal in nature.
Detective Gerardot states that, in his training and
experience, he knows the term “clip” to reference
a quantity of narcotics.
5 of the affidavit refers to events occurring the next day,
January 11, 2017. Detectives against listened to a recorded
jail call. In this call, Lance Morningstar calls his
daughter's phone and asks to talk to “Timmy.”
Harris talks to Lance about the traffic stop the previous
day, and admits that he had two onions on him, and that they
were stinky. Harris went on to say that if they only knew
(referring to the police) and they both laughed. Detective
Gerardot states that he knows, from his training and
experience, that onions are slang for an ounce of narcotics,
and that stinky references either marijuana or Spice.
next paragraph cites to events officers observed around 5:25
p.m. on February 21, 2017, while they were conducting
surveillance of the residence. A vehicle arrived at the
residence and a white male “suspect” walked up to
the front door, knocked, and was let inside. He left after
only a short time, which Detective Gerardot stated was
indicative of drug trafficking. Detective Gerardot observed
the vehicle drive away at a high rate of speed and then, by
pacing the vehicle, determined that he was going about 40
miles per hour in a 30 miles per hour zone. Detective
Gerardot conducted a traffic stop. As a result of the traffic
stop, the suspect was found to have a bag of marijuana in his
pocket that weighed about 5.2 grams. The suspect and his
passenger were both placed in the cage portion of Detective
Gerardot's squad car and read Miranda rights. All of this
was recorded by car camera and Detective Gerardot's body
camera. Detective Gerardot asked the suspect where he bought
the marijuana. The suspect stated that they had just come
from the street of the target residence where they met with
Tim Harris, who weighed the marijuana and sold it to them for
$30.00. Detective Gerardot asked the suspect if Harris had
tattoos on his face, which the suspect confirmed that he did.
When Detective Gerardot asked the suspect and passenger if
anyone else was at the house, they stated that Harris's
girlfriend was there. They identified her as having blonde
hair. This matched Detective Gerardot's known description
of Langston from his past experience with her. The suspect
stated that they have purchased marijuana from Harris on
several occasions, both at the residence and other places.
When asked how many times they did this, the suspects
answered more times than they could remember-over a dozen
times, maybe a couple dozen.
next paragraph, Detective Gerardot explains that he was
notified the next day by a citizen who lived near the
residence about the neighbor's concerns about a very
strong chemical smell that had been coming from the area of
the target residence. The neighbor indicated that the odor
caused a burning and bleeding nose, a sore throat, dizziness,
and a headache. Detective Gerardot stated that he knew, from
his experience and training, that production of Spice creates
a very strong noxious chemical smell that can irritate the
eyes, nose, and lungs of people who are in close proximity.
next paragraph summarizes that the jail calls, past
involvement and arrest for Spice, and the current tip
corroborating what was said in the jail calls, provide
probable cause to believe that the residence may contain
evidence of the drug offenses he identified above.
final paragraph before the request for the warrant to be
issued notes that, in a recorded jail call from January 11,
2017, Harris told Lance Morningstar that he had started
carrying a handgun for protection. This was noted to support
Detective Gerardot's request for a no knock search
warrant because of the risk to law enforcement associated
with serving the warrant.
on Detective Gerardot's Affidavit, Judge Wendy Davis of
the Allen Superior Court signed a search warrant for the