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United States v. McNair

United States District Court, E.D. Missouri, Southeastern Division

June 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL A. McNAIR, JR., Defendant.

          REPORT AND RECOMMENDATION

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE.

         This 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.)

         First, 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 person.

         The 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.

         In 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.

         I. Findings of Fact

         On 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 ammunition.

         Detective 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.

         Detective 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 drug trafficking.

         Within 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] apartment.” Id.
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.

         As to 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.

         When 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.

         Once 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 Louis, Missouri.

         Based 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.

         During 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 ...


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