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United States v. Hammond

United States District Court, N.D. Indiana, South Bend Division

October 24, 2018

UNITED STATES OF AMERICA
v.
REX HAMMOND

          OPINION AND ORDER

          Robert L. Miller, Jr. Judge

         Defendant Rex Hammond moves to suppress certain evidence in connection to his January 10, 2018 indictment and subsequent arrest. Mr. Hammond is charged with five counts of violating the Hobbs Act, 18 U.S.C. § 1951, two counts of using, carrying and brandishing a firearm during the commission of a crime in violation of 18 U.S.C. § 924(c), and one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The indictment alleges that these violations occurred during multiple robberies of Indiana and Michigan gas stations and at least one liquor store. A hearing on Mr. Hammond's motion to suppress was held on October 9, 2018. For the following reasons, the court denies Mr. Hammond's motion

         I. Background

         Between October 6 and 10, 2018, armed robberies were committed at convenience stores in the Indiana towns of Logansport, Peru, and Auburn, and in the Michigan towns of Portage and Kalamazoo. In each instance, the robber had roughly the same build, wore roughly the same clothes, took roughly the same actions, and carried a handgun that was unusual because it was tan. Agent Andrew Badowski of the Bureau of Alcohol, Tobacco and Firearms called a meeting in Coldwater, Michigan of law enforcement officers who were investigating those robberies. After viewing the surveillance videos, the officers concluded that a single robber had committed all of the crimes. They also viewed surveillance videos from nearby businesses and saw what they thought might be the getaway vehicle (a light-colored mid-sized American car) and a person who they thought might have been the robber without his mask.

         Each of the attending officers resumed their investigations. On the same day as the Coldwater meeting, a convenience store was robbed at gunpoint in Decatur, Indiana; another armed robbery took place two days later at a Logansport liquor store. Those robberies bore the hallmarks of the robberies discussed at the Coldwater law enforcement meeting.

         Agent Badowski undertook the tracing of the firearm. During the Kalamazoo robbery, the perpetrator had set the handgun on the counter to collect money, and the cashier knocked the gun onto the cashier side of the counter; the robber fled with the money but without the gun. Agent Badowski traced the gun's serial number to the last federally licensed dealer to have it, and worked from purchaser to purchaser until, on October 28, he spoke with a man who said he had sold the gun to a man he knew only as “Rex” and was able to provide “Rex's” phone number. Agent Badowski passed that information on to Indiana State Police Detective Jacob Quick the next day, Sunday, October 29.

         Detective Quick asked an Auburn police officer to run the number through a program (“Whooster”) to obtain the name identified with it, and learned the number was assigned to a Rex Hammond. Detective Quick accessed motor vehicle records and got copies of Rex Hammond's most recent driver's license, and the registration for a light-colored Chrysler Concorde that the officers thought might have been the getaway car. The photograph, height and weight on Rex Hammond's driver's license was consistent with what the officers had seen in the videos. Detective Quick sent the information around to the other investigators.

         Kalamazoo Police Detective Cory Ghiringhelli was one of the investigators who received the information from Detective Quick. On Monday, October 30, Detective Ghiringhelli learned from the internet that Mr. Hammond's phone number was associated with AT&T, so he asked AT&T to “ping” the phone - meaning to identify the phone's location. Detective Ghiringhelli didn't have a warrant, but asked AT&T to provide the pinging service on the basis of an exigency: the robber had been entering places of business with his finger on or just adjacent to the trigger of a handgun, had handled the handgun unsafely in the Kalamazoo robbery when he laid it on the counter, and had committed an armed robbery two days before and two days before that, suggesting the next armed robbery might be imminent. AT&T agreed to provide the service. AT&T started “pinging” Mr. Hammond's phone at about 6:00 p.m. AT&T would report the phone's location every 15 minutes.

         Detective Ghiringhelli notified Detective Quick that the “ping” showed Mr. Hammond's phone first in, then moving away from, Elkhart. Detective Quick and Auburn police detective Stacy Sexton set out in separate unmarked vehicles to track Mr. Hammond's phone. After getting to South Bend, they saw Mr. Hammond's car headed southbound and pursued it, radioing for assistance as they did. Given the time of night and the frequency of the robberies, Detective Quick believed that Mr. Hammond was going to commit another one that night. Mr. Hammond turned off the highway in Marshall County (about 35 miles into the pursuit) and Detective Sexton reported that Mr. Hammond had realized he was being followed. Detective Quick radioed other officers that they had lost Mr. Hammond.

         Later that evening, Patrolman Ryan Hollopeter of the Marshall County Police reported seeing the car and that he was going to stop it. By the time Detective Quick arrived, Mr. Hammond's car was parked with several Marshall County Police cars behind it. Mr. Hammond was ordered out of the car. Logansport Police Detective Tyler Preston, who had been traveling toward the reported pings arrived, told everyone on the scene that his county's prosecutor had issued an “arrest on sight” order with respect to Mr. Hammond. Mr. Hammond was taken to jail, and Detective Preston arrived the next day with an arrest warrant for Mr. Hammond on the two Logansport robberies.

         Police found a gun, masks, grocery bags (the robber had a grocery bag attached to his wrist to collect the money) and other items of evidentiary value.

         On January 10, 2018, the United States Attorney's office applied for a warrant under 18 U.S.C. §2703(d) for phone records from September 6 through October 31, 2017. Magistrate Judge Michael Gotsch Sr. issued the warrant.

         II. Discussion

         A. Evidence gathered from warrantless search Mr. Hammond moved to suppress everything that flows from the “ping” information obtained from AT&T, including the items found in his car after his arrest. He also moved to suppress information acquired through the 2018 warrant for phone records. Mr. Hammond's argument is based on Carpenter v. United States, 138 S.Ct. 2206, 2221 (2018), in which the Supreme Court held that the Fourth Amendment requires a warrant for police to get certain cell phone information. See also Utah v. Strieff, 136 S.Ct. 2056 (the Constitution protects against unreasonable searches and seizures). Mr. Hammond contends that the historic data and “ping” information obtained by Detective Ghiringhelli is inadmissible because it violates the constitutional protections guaranteed to him by the Fourth Amendment. Mr. Hammond further argues that searches ...


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