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United States v. Calligan

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

June 28, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWIN CALLIGAN, Defendant.

          FINDINGS, REPORT, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(B)(1)(B) & (C)

          PAUL R. CHERRY UNITED STATES DISTRICT COURT.

         This 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 occur.

         On 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 Suppress.

         PROCEDURAL BACKGROUND

         Defendant 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.

         On 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.

         FACTUAL BACKGROUND

         1. 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.

         Attachment 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 documentation. Id.

         In the 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.

         The 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.

         U.S. 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.

         The 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.

         The 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.

         The 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 ...


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