United States District Court, E.D. Missouri, Eastern Division
REPORT AND RECOMMENDATION AND ORDER OF UNITED STATES
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.
accordance with the Memorandum filed herein, IT IS
HEREBY RECOMMENDED that Defendant's Motion to
Suppress Statements (Doc. 46) be GRANTED, in part,
and DENIED, in part. The motion should be granted
with respect to Defendant's pre-Miranda
statement that the closet in the residence belonged to him;
but, should be denied in all other respects.
IS FURTHER RECOMMENDED that Defendant's Motion
to Suppress Physical Evidence (Doc. 48) be
IS HEREBY ORDERED that Defendant's Motion for
Disclosure of Confidential Informant (Doc. 54) is
parties are advised that they have fourteen
(14) days in which to file written objections to
this report and recommendation pursuant to 28 U.S.C.
§636(b)(1), unless an extension of time for good cause
is obtained, and that failure to file timely objections may
result in a waiver of the right to appeal questions of fact.
See Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
in this case has been set before the Honorable
John A. Ross on April 2, 2018, at 9
matter was referred to the undersigned United States
Magistrate Judge for all pretrial matters pursuant to 28
U.S.C. §636(b). Defendant Cortez Davis is charged in a
one count indictment with being a felon in possession of a
firearm. Davis was arrested on January 4, 2016, following
execution of a search warrant at his residence during which
police seized physical evidence, including two firearms, and
obtained a statement from Davis.
filed a motion to suppress statements in which he asserted
that any statements he made were not voluntary, were made
without any Miranda warnings, and were made as the
result of an unlawful arrest. (Doc. 46). Davis also filed a
motion to suppress physical evidence in which he asserted,
among other things, that the search warrant was not supported
by probable cause, the search warrant contained materially
false statements reflecting the affiant's bad faith in
applying for the warrant, and agents failed to announce their
identity prior to entering the premises to be searched. (Doc.
48). Finally, Davis filed a motion for disclosure of the
confidential informant referenced in the search warrant
affidavit based upon Rovario v. United States, 353
U.S. 53, (1957). (Doc. 54).
January 18, 2018, Davis and counsel for all parties appeared
for an evidentiary hearing. The United States presented the
testimony of St. Louis Metropolitan Police Department Officer
Keith Burton along with three exhibits, which included a copy
of the search warrant and warrant affidavit. Counsel for
Davis questioned Officer Burton but did not offer any
additional testimony or evidence. At the close of the
evidentiary hearing, counsel for Davis requested, and was
granted, time to file a post-hearing brief, which was filed
on January 25, 2018. See Doc. 59. The matter is now
ready for a ruling.
on the evidence presented at the evidentiary hearing and the
written submissions of the parties I make the following
findings of fact and conclusions of law.
The Search Warrant
December 29, 2015, Officer Keith Burton applied for a warrant
seeking authorization to search a residence located at 2919
Chippewa Apt. A, and to seize heroin or any other illegal
narcotics, currency, firearms, and other instruments of
crime. See Gov. Ex. 1. The search warrant
application was supported by an affidavit which was attested
to and signed by Officer Burton (the
“Affidavit”). Id. According to the
Affidavit, Officer Burton was advised by an individual
identified in the affidavit only as “John/Jane
Doe” or “JJD” that an individual known to
JJD as “Tez” was selling heroin from the target
residence; that JJD provided Officer Burton with a telephone
number believed to belong to “Tez”; that JJD had
been in the residence within 48 hours before the affidavit
was submitted and had observed “Tez” in
possession of heroin packaged for sale; that JJD knew
“Tez” had served time in federal prison; and JJD
had observed “Tez” in possession of a
semi-automatic handgun while JJD was in the residence.
Burton further attested that, in addition to the observations
of JJD, a computer inquiry of the telephone number provided
by JJD revealed Cortez Davis, who matched the physical
description JJD provided. Govt. Ex. 1. Officer Burton further
attested that JJD identified Davis as “Tez” when
shown a photograph of Davis and that a police database
inquiry revealed an extensive criminal history for Davis
including a federal conviction and imprisonment for
distribution of crack cocaine. Id.
Burton attested that on December 23, 2015, he conducted
physical surveillance of the target residence and personally
observed heavy pedestrian traffic entering and exiting the
residence and observed someone matching Davis's
description standing in the front yard of the residence.
Id. However, after observing Officer Burton's
marked police car the person matching Davis's description
quickly entered the residence. Id. Finally, the
Affidavit stated that a “no knock” warrant was
being requested due to Davis's extensive criminal history
and the belief that he was armed with firearms. Id.
Affidavit and warrant application were presented to St. Louis
City Circuit Judge Brian Hettenbach on December 29, 2015. In
addition to Officer Burton, JJD appeared before Judge
Hettenbach. After being duly sworn, both Officer Burton and
JJD signed the Affidavit. Id. Judge Hettenbach
issued the warrant on December 29, 2015, and it was executed
on January 4, 2016.
evidentiary hearing, Officer Burton credibly testified that
he first encountered JJD approximately one week before he
applied for the warrant. JJD was not a known or documented
confidential source who had previously provided information
to the St. Louis Metropolitan Police Department. Rather, JJD
was simply a “tipster” or “concerned
citizen” who came forward with information of alleged
criminal activity. Consistent with the Department's
policy, JJD's identity was concealed in the Affidavit for
his/her protection. After the first encounter with JJD,
Officer Burton conducted the investigation outlined in the
Affidavit to corroborate the information provided by JJD.
Less than 48 hours before applying for the warrant, Officer
Burton contacted JJD a second time and obtained confirmation
that JJD had recently been in the target residence and had
seen narcotics in the residence during that timeframe.
Officer Burton's third contact with JJD was when JJD
appeared before Judge Hettenbach to sign the Affidavit under
oath. Although the Affidavit requested permission to enter
without knocking, it is unclear from the face of the warrant
itself whether Judge Hettenbach granted permission to do so.
Execution of the Search Warrant on January 4, 2016
January 4, 2016, Officer Burton and a SWAT team, which did
not include any federal agents, executed the warrant issued
by Judge Hettenbach. The SWAT team breached the entry doors
to the residence, but it is unclear from the hearing
testimony whether they knocked before breaching the door.
Upon entering the residence, SWAT team officers observed
marijuana in plain view. In addition, an adult female, Ms.
Holmes, who was believed to be Davis's girlfriend, told
the officers that Davis had run to the back bedroom or the
rear of the residence as the SWAT team was entering. Officers
from the SWAT team placed Davis in handcuffs and secured the
residence so the search warrant could be executed. Officer
Burton and a search team followed the SWAT team into the
residence and conducted the search. Ultimately, they seized
two firearms, suspected marijuana, suspected heroin,
ammunition, and paperwork belonging to Davis. See
Govt. Ex. 1. Some of the items were hidden in the residence.
For example, the firearms were found tucked in a child's
toy box and ammunition was found in a closet and on top of
the refrigerator in the kitchen. Officer Burton photographed
items observed and seized during the search, including items
used for packaging narcotics such as plastic baggies and
boxes for a digital scale. See Govt. Exs. 2A-2T.