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United States v. Harris

United States District Court, N.D. Indiana, Fort Wayne Division

August 28, 2017

UNITED STATES OF AMERICA
v.
TIMOTHY HARRIS

          OPINION AND ORDER

          THERESA L. SPRINGMANN, CHIEF JUDGE.

         The 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.

         SEARCH WARRANT AFFIDAVIT

         When 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.

         The 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.

         In the 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.

         The 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.

         In the 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.

         Paragraph 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.

         The 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.

         In the 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.

         The 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.

         The 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.

         Based on Detective Gerardot's Affidavit, Judge Wendy Davis of the Allen Superior Court signed a search warrant for the residence ...


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