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United States v. Davis

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

February 1, 2018

CORTEZ DAVIS, Defendant.



         In 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.

         IT IS FURTHER RECOMMENDED that Defendant's Motion to Suppress Physical Evidence (Doc. 48) be DENIED.

         IT IS HEREBY ORDERED that Defendant's Motion for Disclosure of Confidential Informant (Doc. 54) is DENIED.

         The 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).

         Trial in this case has been set before the Honorable John A. Ross on April 2, 2018, at 9 a.m.


         This 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.

         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).

         On 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.

         Based 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.


         A. The Search Warrant

         On 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. Id.

         Officer 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.

         Officer 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.

         The 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.

         At the 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.

         B. Execution of the Search Warrant on January 4, 2016

         On 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.

         C. ...

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