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United States v. Calligan

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

July 30, 2018




         The Defendant, Edwin Calligan, is facing charges that (1) in June 2017, he illegally possessed a firearm, having previously been convicted of a felony, (2) from April to June 2017, he intentionally and knowingly imported a controlled substance (5F-ADB) from Hong Kong SAR, China, to the United States, and (3) in June 2017, he knowingly and intentionally attempted to commit an offense against the United States, namely the possession with intent to distribute a controlled substance. The Defendant has moved for the suppression of any physical evidence gathered pursuant to a search warrant from a particular address on Encino Drive, Fort Wayne, Indiana. The Defendant claims that the warrant, which was issued on June 16, 2017, was anticipatory and that, when the triggering condition-delivery of a target parcel containing contraband to the residence-did not occur, probable cause was lacking to enter the residence on June 20, 2017. Instead of contraband, the only substance law enforcement had fair probability to believe would be found inside the residence was the sham material that officials placed in the package to replace the drugs they removed.

         This Court referred the matter to Magistrate Judge Paul R. Cherry to review the Motion and the Government's response, to conduct any and all necessary evidentiary hearings, to order additional briefing, and to issue a report and recommendation that included proposed findings of fact and recommendations for the disposition of the Defendant's Motion to Suppress. The Magistrate Judge presided over an evidentiary hearing and received post-hearing briefs before issuing a Report and Recommendation [ECF No. 79].

         In the June 28, 2018, Report and Recommendation, the Magistrate Judge concluded that the search warrant was not an anticipatory warrant, but that it contained facts providing probable cause to believe that the residence would presently contain evidence, fruits, and instrumentalities of drug offenses related to the importation of distribution amounts of the synthetic cannabinoid 5F-ADB. In sum, probable cause existed to support the search warrant without delivery of the target parcel containing the controlled substance. Accordingly, the Magistrate Judge recommended that the Court deny the Motion to Suppress.

         On July 12, 2018, the Defendant filed his Objections to Findings, Report, and Recommendation. He objects to the conclusions that the search warrant was not intended to be an anticipatory warrant, and that the warrant was based on probable cause. He maintains that there was only minor evidence connecting the place to be searched with evidence of a crime absent the actual delivery of the contraband. He characterizes the search warrant affidavit as containing merely conclusory statements based on the agent's training and experience.

         Also on July 12, 2018, the Government filed its Notice of No. Objection to the Magistrate Judge's Findings, Report, and Recommendation [ECF No. 81]. The Government asks the Court to adopt Magistrate Judge Cherry's Findings, Report and Recommendation and deny the Defendant's Motion to Suppress. The Government asks the Court to rely on the prior filings in this case along with the transcript from the evidentiary hearing, standing by the arguments made in its Response [ECF No. 74]. Additionally, the Government asserts that, even if the search warrant was determined not to have been supported by probable cause, good faith and the inevitable discovery doctrine would apply.

         On July 23, 2018, the Defendant filed a Motion to Supplement Defendant's Objection to Findings, Report, and Recommendation [ECF No. 83], requesting to supplement his previous objections.[1] The Defendant highlights language in the affidavit stating that the warrant “will” be executed after the delivery of the Target Parcel, and argues that the agents did not “follow the directive that they set out and when they decided to serve the warrant without the triggering event occurring.” (Mot. to Supplement 1.) The Defendant also compares his case to an anticipatory warrant case from the Eastern District of Tennessee, United States v. Perkins, 258 F.Supp.3d 868, 879 (E.D. Tenn. 2017), where the court found that police officers violated the defendant's Fourth Amendment rights in executing the search of the defendant's residence when they failed to abide by the triggering event. Finally, the defendant requests that the objection be set for further evidentiary hearing.

         The Court has reviewed the submissions, and finds that no evidentiary hearing is warranted. The Court adopts Magistrate Judge Cherry's Report and Recommendation.


         A. Standard of Review

         Under 28 U.S.C. § 636(b)(1)(A)-(B), a magistrate judge does not have authority to issue a final order on a motion to suppress evidence in a criminal case. Instead, the magistrate judge submits proposed findings of fact and recommendations to the district court. Parties have fourteen days to file “specific written objections” to a magistrate judge's report and recommendation on a motion to suppress evidence. Fed. R. Crim. P. 59(b)(2). If a party files a timely objection to the magistrate judge's report and recommendation, § 636(b)(1) provides that

the district judge is to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. The court may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge also may receive further evidence or recommit the matter to the magistrate judge with instructions.

         Portions of a recommendation to which no party objects are reviewed for clear error. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         The Court finds that the record before the Magistrate Judge is sufficient to allow this Court to make a de novo determination, where necessary. See United States v. Raddatz, 447 U.S. 667, 673-76 (1980) (holding that de novo review does not require a de novo evidentiary hearing). Although the Defendant has filed objections, and requested a hearing, he has not challenged the credibility of any of the witnesses, or identified any factual issues that would warrant a second evidentiary hearing. The Defendant's objections focus on the Magistrate Judge's conclusions regarding the legal implications of the undisputed facts. These undisputed facts include what information was presented in the search warrant affidavit, that the drugs in the target parcel scheduled for delivery to the Defendant at the Encino Drive residence were replaced with a legal substance, and that the warrant was executed after the delivery ...

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