United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN, UNITED STATES DISTRICT COURT CHIEF
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.
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].
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.
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.
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.
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. 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
Court has reviewed the submissions, and finds that no
evidentiary hearing is warranted. The Court adopts Magistrate
Judge Cherry's Report and Recommendation.
Standard of Review
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.
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).
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 ...