United States District Court, E.D. Missouri, Southeastern Division
REPORT AND RECOMMENDATION
CRITES-LEONI UNITED STATES MAGISTRATE JUDGE.
matter was referred to the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b). Pending
before the undersigned are the Defendant's Motions to
Disclose and Produce the Confidential Informant, to Conduct a
Franks Hearing and to Suppress Evidence Seized
pursuant to the Search Warrant. (Doc. 28.)
McNair argues that the Search Warrant in his case was not
supported by probable cause because the information relied
upon in the Affidavit was stale. Next, he argues that the
Affidavit in support of the Search Warrant contained false
statements and without the false statements probable cause is
lacking. On this point, McNair argues he's entitled to a
Franks hearing based on allegations that the affiant
for the warrant: a) falsely stated that McNair lived at the
apartment that was the subject of the search and b) omitted
information related to the informant's criminal history.
Finally, McNair argues that the officers exceeded the scope
of the Search Warrant when they conducted a search of his
Government filed a response in opposition to McNair's
claims. (Doc. 30.) At the conclusion of the evidentiary
hearing, both parties relied on the arguments in their
written briefs. McNair submitted two additional exhibits
following the hearing.
consideration of the pleadings identified above, as well as
all exhibits admitted into evidence, the undersigned
recommends that the following findings of fact and
conclusions of law be adopted and that McNair's pretrial
motions be denied.
Findings of Fact
February 25, 2016, Southeast Missouri Drug Task Force Officer
Jason Morgan applied for a search warrant to search an
apartment on Cynthia Street in Poplar Bluff where he believed
the Defendant, Michael McNair, Jr., was living with his
girlfriend. Morgan is also a detective for the Poplar Bluff
Police Department. Along with his Application for a Search
Warrant, Detective Morgan attached an Affidavit (Gov't.
Ex. #1, hereinafter referred to as Doc. 28-1, Affidavit) and
presented it to a Butler County Circuit Court Judge. The
Affidavit explained that Detective Morgan had been part of an
investigation which led him to believe that McNair possessed
controlled substances and drug paraphernalia; records and
money related to drug sales; firearms and ammunition; as well
as documents reflecting McNair lived at the apartment.
Detective Morgan believed the information he summarized in
the Affidavit constituted probable cause to support the
issuance of a search warrant for items related to both drug
trafficking and unlawful possession of firearms and
Morgan's Affidavit included information about
McNair's criminal history, information received from a
confidential source, and communications with other law
enforcement officers. Detective Morgan noted that McNair had
a felony drug trafficking conviction from 2007 and was also
known as “Bam.” Detective Morgan's Affidavit
set out information that had been provided by a confidential
informant (CI). The CI reported that McNair lived in an
apartment on Cynthia Street with his girlfriend, Kristen
Chilton. The CI also provided a cellular phone number that
was used by the girlfriend.
Morgan confirmed that the lease and utilities for the
apartment were listed in the girlfriend's name and that
the girlfriend recently reported both the Cynthia Street
apartment as her residence and the cellular phone number
reported by the CI. Additionally, Detective Morgan learned
that another officer received intelligence information from a
different confidential source that McNair was involved in
the Affidavit, Officer Morgan summarized the information that
had been reported by the CI, including:
1) “he/she has, between the months of January and
February 2016, brought individuals to th[e Cynthia
Street] apartment specifically to purchase narcotics from
McNair.” See Doc. 28-1, Affidavit at ¶ 2.
2) “McNair sells methamphetamine and heroin to
customers who buy from McNair at [the Cynthia Street]
3) “. . . he/she had observed a large rifle inside
[the] apartment. . .on the night of February 4,
2016, McNair answered the door of [the] apartment
holding [a large] rifle. . . .after [the CI] was allowed in,
McNair placed the rifle on the kitchen table. The CI. .
.observed an additional handgun on an end table in the living
room during the same visit. . .[and] believe[d] those
firearms were real firearms. Id. at ¶ 4.
4) On February 12, 2016, the CI. . .observed the
same rifle inside [the] apartment located on the kitchen
table. . .[and] McNair sells methamphetamine and heroin from
[the] apartment where the firearms were observed.
Id. at ¶ 5.
5) . . .on February 17, 2016, . . .[Officer Morgan
spoke to the CI and t]he CI stated that she had spoken to
McNair and that McNair said he had just returned from a trip
to St. Louis, Missouri where McNair replenished his supply of
heroin for sale. Id.
the informant's reliability, Officer Morgan stated:
The CI has provided, to date, accurate and reliable
information on other narcotics distributors and users,
locations and vehicles utilized by these individuals and also
firsthand information about receiving narcotics from mid to
upper level dealers located in the Eastern District of
Missouri. In return for information provided by the CI to law
enforcement, the CI has received subsistence in the form of
cash and pre-paid phone cards.
Id. at ¶ 8.
the Search Warrant was executed on February 25, 2016,
officers observed lettering on the apartment's entry
door, which included the names “Kristen” and
“Bambam.” See Gov't. Ex. #2. McNair,
who investigators learned was also known as “Bam,
” was found in the combination living room and kitchen
area of the apartment. McNair's girlfriend and father
were found in the adjoining bedroom and bathroom areas. The
apartment consisted of those two areas.
inside the apartment the officers conducted a search. On a
dresser, officers observed white powder that was believed to
be methamphetamine or heroin on a scale. There was also a
credit card on the washing machine that had powder on it.
Detective Morgan testified that in his experience credit
cards, hotel key cards, and other similar items are commonly
used to mix controlled substances with cut. Two additional
sets of digital scales were found. On the bed in the bedroom
was a blue soccer bag that contained a .38 caliber pistol, as
well as a document from a bondsman with McNair's name on
it dated October 1, 2015 for a 2013 possession of a firearm
case. The address listed on the receipt was 6618 Barr, Saint
on his investigation and what was observed in the apartment,
Detective Morgan believed he had probable cause to arrest
McNair. A pat down search of McNair's outer clothing was
completed and Detective Morgan found approximately two ounces
of methamphetamine in McNair's groin area and nearly $2,
000 cash in his pants pocket.
the suppression hearing, Officer Morgan testified that he
believed McNair lived at the Cynthia Street apartment with
his girlfriend, Kristen Chilton. Although it is not mentioned
in his Affidavit, in December of 2015, Detective Morgan was
one of the surveillance officers during a controlled purchase
of drugs from McNair via an unwitting informant at the
Cynthia Street apartment. When asked about the CI's
criminal history, Officer Morgan testified that the informant
had a prior drug conviction. During the Fall of 2016, Officer
Morgan communicated with McNair's probation officer who
advised that McNair reported he was living with his mother at
6618 Barr in St. Louis from May 2015 through September 2016.
The probation officer indicated, however, that McNair stopped
reporting around March 2016 because he had moved back to