United States District Court, N.D. Indiana, Fort Wayne Division
FINDINGS, REPORT, AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(B)(1)(B)
R. CHERRY UNITED STATES DISTRICT COURT.
matter is before the Court on Defendant's Motion to
Suppress Physical Evidence and Incorporated Memorandum in
Support Thereof [DE 53], filed by Defendant Edwin Calligan on
January 23, 2018. Calligan requests that any physical
evidence gathered from XXXX Encino Drive, Fort Wayne,
Indiana, pursuant to the June 16, 2017 search warrant be
suppressed because, he alleges, the search warrant was an
anticipatory warrant and there was no probable cause to enter
the residence when the triggering condition-delivery of the
Target Parcel containing controlled substance 5F-ADB-did not
February 26, 2018, District Court Chief Judge Theresa L.
Springmann entered an Order [DE 65] referring this matter to
the undersigned Magistrate Judge for a report and
recommendation on the instant motion pursuant to 28 U.S.C.
§ 636(b)(1)(B). This Report constitutes the undersigned
Magistrate Judge's combined proposed findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C).
Finding that the search warrant was not an anticipatory
warrant and that probable cause existed to support the search
warrant without delivery of the Target Parcel, the Court
recommends that the District Court deny the Motion to
Edwin Calligan is charged by way of a three count Superseding
Indictment (ECF 35) charging him with being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1), importing a controlled substance into the United
States, in violation of 21 U.S.C. § 952, and attempted
possession with intent to distribute a controlled substance
in violation of 21 U.S.C. § 846. The Indictment also
includes a forfeiture allegation. Evidence supporting the
Superseding Indictment was recovered from the residence at
XXXX Encino Drive, Fort Wayne, Indiana, during the execution
of a search warrant on June 20, 2017, which was authorized by
the undersigned United States Magistrate Judge on June 16,
2017, in cause number 1:17-MJ-36.
January 23, 2018, Defendant Edwin Calligan filed the instant
Motion to Suppress, requesting than any physical evidence
seized from XXXX Encino Drive, Fort Wayne, Indiana, be
suppressed because the evidence was seized in violation of
his Fourth Amendment rights. The Government filed a response
on January 31, 2018, and Calligan filed a reply on February
5, 2018. The Court ordered a supplemental brief, which
Calligan filed on February 12, 2018. On March 19, 2018, the
Court held an evidentiary hearing on the motion, receiving
testimony and other evidence, including Exhibits A and B. On
May 29, 2018, Calligan filed a post-hearing brief, to which
the Government filed a response on June 12, 2018. Calligan
filed a reply brief on June 19, 2018.
The Search Warrant Application and Supporting Affidavit
On June 16, 2017, United States Immigration and Customs
Enforcement Homeland Security Investigations Special Agent
Jonathan Goehring presented a search warrant application for
XXXX Encino Drive, Fort Wayne, Indiana, to the undersigned
magistrate judge. (Def. Ex. A). The search warrant
application indicates that it is related to a violation of 21
U.S.C. §§ 841(a)(1), 844, and 856 for the offenses
of “possession with intent to distribute a controlled
substance; possession of controlled substances; and
maintaining a drug involved premises.” (Def. Ex. A).
The application further indicates that the “basis for
the search under Fed. R. Crim. P. 41(c)” is
“evidence of a crime, ” “contraband, fruits
of crime, or other items illegally possessed, ” and
“property designed for use, intended for use, or used
in committing a crime.” Id.
B to the application lists the items the agent had reason to
believe were presently concealed at the XXXX Encino Drive
address, including 5F-ADB or other controlled substances;
various itemized materials relating to the distribution of
controlled substances; cash, currency, and records indicative
of the distribution of controlled substances; items of
personal property related to residency, occupancy, control,
or ownership of the premises; firearms and other dangerous
weapons, firearms magazines, and ammunition; communications
devices; paraphernalia related to the distribution of
controlled substances; contact/identification data relating
to the distribution of controlled substances; and shipping
affidavit attached to the search warrant application, the
agent states that “there is probable cause to believe
that evidence of violations of 21 U.S.C. §§ 841,
844, and 856 is located at XXXX Encino Drive, Fort Wayne,
Indiana . . . .” (Ex. A, p. 3). Later, the agent again
states, “I have set forth only the facts that I believe
are necessary to establish probable cause to believe that
evidence, fruits, and instrumentalities of violations of 21
U.S.C. §§ 841(a)(1), 844, and 856 are presently
located at the Subject Premises.” Id. at p. 4.
affidavit provides the following information. On June 5,
2017, the agent was contacted by the United States Customs
and Border Protection, Tactical Analytical Unit, which had
identified a shipper from another country believed to be
shipping large quantities of synthetic drugs to the United
States. The agent was made aware of a specific parcel
containing contraband from the suspected shipper that had
entered the United States on May 31, 2017, and was informed
of the name of the shipper, the address of the shipper, the
manifest of the parcel, the declared value of the parcel, and
the actual contents of the parcel identified as contraband
during a border search of the parcel. Id. at p. 5.
This parcel was not addressed to Defendant Calligan.
Customs and Border Protection had also identified a parcel
from the same suspected shipper being shipped to “Edwin
Calligan” at the XXXX Encino Drive, Fort Wayne, Indiana
address with indicia identical to that of the May 31, 2017
parcel from the suspected shipper-the same name and address
of the shipper, the same manifest, and the same declared
value. The parcel addressed to Edward Calligan is identified
throughout the affidavit as the “Target Parcel.”
A border search was conducted of the Target Parcel.
Id. at 5-6. The affidavit describes the contents of
the parcel, including how the contents were packaged, and
states that the parcel contained approximately 1 kilogram of
5F-ADB, a Schedule I Controlled Substance. The agent states
that 1 kilogram of 5F-ADB is capable of making 100 kilograms
of finished product, which is indicative of a distribution
amount and not personal use. Id. at 6.
agent discusses over many paragraphs his knowledge of the
manufacture, traffic, use, and effects of smokable synthetic
cannabinoid products, including that 5F-ADB is one of the
most potent synthetic cannabinoids. Id. at 6-8.
Elsewhere, the agent sets out in detail his related training
and experience as well as his knowledge of the practices of
the importation and distribution of controlled substances.
Id. at 1-3, 10-13.
agent goes on to describe the cargo bill for the Target
Parcel, which identifies the consignee of the Target Parcel
as Edwin Calligan at the Encino Drive address; his
preliminary investigation into Calligan, linking Calligan to
the Encino Drive address, including that Calligan's
girlfriend's mother owned the residence; and
Calligan's criminal history of a conviction for attempted
murder, criminal recklessness, and resisting law enforcement
in 1999, a conviction for resisting law enforcement in 1997,
and an arrest that was still pending for gun possession by a
serious violent felon in 2016. Id. at 8-9.
agent then states that Calligan received approximately 58
international parcels from 2015 to the present (June 2017),
with most of the shipments delivered to the Encino Drive
address and at least one delivered to a different address in
Fort Wayne where Calligan's mother resides and which is
listed as Calligan's residence in the charge against
Calligan for serious violent felon in possession of a
firearm. Id. at 10. Also, in the six ...