United States v. Bolling

1

UNITED STATES OF AMERICA v. MARK BOLLING

Criminal No. 2:21-00087

United States District Court, S.D. West Virginia, Charleston

July 31, 2023

MEMORANDUM OPINION

David A. Faber Senior United States District Judge

On February 2, 2023, the court held a hearing on defendant's motions seeking a Franks hearing and to suppress evidence recovered from a search at 117 Keystone Drive in Charleston, West Virginia. Present at that hearing were defendant, his counsel, Brian D. Yost, and Assistant United States Attorney Nowles H. Heinrich. On February 9, 2023, the court denied defendant's motions. This Memorandum Opinion sets out more fully the reasons for those rulings.

I. Background

In September 2020, members of the Bureau of Alcohol, Tobacco Firearms and Explosives (“ATF”) began to investigate defendant Mark Bolling for drug trafficking and violation of federal firearms laws. Officers with an ATF task force received information from a Source of Information that Bolling was a drug dealer. The Source of Information was Brett Yates. Yates described Bolling's residence at 117 Keystone Drive, in Charleston, West Virginia, to law enforcement, as well as the layout of the driveway and outbuildings. Although Yates described the building as a two-story, four-unit apartment building, he told ATF that Bolling lived in the top-left apartment and used the rest of the units to store guns and drugs. According to Yates, the other apartments were unoccupied.

Yates reported observing multiple firearms and several ounces of suspected heroin and methamphetamine inside Bolling's residence. He also told ATF that Bolling was likely a convicted felon.

ATF conducted surveillance of Bolling's residence, searched tax records on the property, and ran Bolling's criminal history. After requesting a mail watch from the United States Postal Service, ATF was informed that 117 Keystone Drive was not receiving mail deliveries.

On September 16, 2020, ATF used Yates to make a controlled-purchase of methamphetamine from Bolling. The controlled-buy took place at Bolling's residence and Yates reported seeing a handgun near Bolling during the buy. A video recording of the controlled-buy captured Bolling discussing possessing and selling one or more firearms.

Three days later, on September 19, 2020, Bolling was arrested in Fayette County, West Virginia. A Fayetteville police officer, who was not affiliated with the ATF investigation, conducted a traffic stop and recovered approximately 100 grams of methamphetamine, 30 grams of suspected heroin (later identified as fentanyl), ammunition, and over $7,000.00 from a vehicle (Nissan Kick) Bolling was driving. During the course of Bolling's arrest, a cell phone was also seized from Bolling. That cell phone was transferred to ATF custody on September 23, 2020.

On September 21, 2020, ATF Special Agent David Bullard drafted an affidavit for a federal warrant to search Bolling's residence. In his affidavit, Special Agent Bullard included most of the information recounted above. In particular, as to the nature of the property, he swore:

4. On [] September 14, 2020, Task Force Officer Weaver (“TFO Weaver”) and Task Force Officer Thomas (“TFO Thomas”) interviewed a source of information (“SOI”) regarding the trafficking of illegal narcotics, such as heroin and meth. The SOI identified the target as Mark Alan BOLING^[1] living at 117 Keystone Drive in Charleston, WV 25311. He stated BOLING had in his possession several firearms.

5. The SOI advised he has known Boling for an extended period of time and is familiar with him. The SOI stated that he has purchased illegal narcotics from Boling. The SOI described the address/structure to be a yellowish in color, two story, 4 unit apartment building. SOI advised that the driveway to the apartment complex is a horseshoe and there are storage units behind it. The source's description of Boling's address has since been confirmed by surveillance and a controlled purchase of methamphetamine.

6. The SOI stated that he has seen several ounces of meth and several ounces of heroin inside Boling's residence, specifically in Boling's bedroom (top left apartment). The SOI stated that he has witnessed several firearms inside the residence and has personally witnessed [] BOLING trading a firearm for narcotics. The SOI believed BOLING to be a convicted felon because BOLING had stated he had done time in the 80-90's for weapon offenses. SOI also advised that he has witnessed individuals bring[] firearms to BOLING and sell them to him. . . .

7. The SOI stated that he knows firearms well and believes there are approximately 20 firearms inside the apartment complex housed in a safe in the building. SOI has stated that the other units are unoccupied but used to house guns and illegal narcotics by BOLING.

10. R.A.C. Black pulled tax information from the Kanawha County Assessor's Office for BOLING and found that BOLING owns [] 117 Keystone Drive and [the] land around it, which includes a multi bay storage unit.

11. SA David Bullard requested a mail watch on 117 Keystone Drive, and he was informed that 117 Keystone Drive does not receive mail. SA David Bullard has not been able to find any information that individuals other than BOLING are living in any of the rooms at 117 Keystone Drive.

12. SA David Bullard listened to a recorded jail call from BOLING to an unknown female asking her to move his “tools” from his bedroom to the room across the hall. This is consistent with the information from the SOI that BOLING is in sole possession of the residence and all of the rooms therein.

14. After arriving at 117 Keystone Drive, Charleston, WV, 25311, the CI entered through the front door and then made contact with BOLING....

17. On September 16, 2020, SA McNees along with SA Knoll reviewed the recordings of the above mentioned controlled purchase. BOLING is visible on the recording inside of 117 Keystone Drive, Charleston, West Virginia.

ECF No. 115-1.

On September 21, 2020, the warrant was issued by United States Magistrate Judge Omar J. Aboulhosn. The search warrant was executed the same day. Bolling was not present when the warrant was executed as he was still incarcerated on the traffic stop. During execution of the search warrant, law enforcement discovered persons other than Bolling were residing in the building located at 117 Keystone Drive. Agents recovered an AR-style rifle with a silencer, a .380 caliber pistol, and a box of .45 caliber ammunition in an apartment where a man named Donald Jordan was living. Jordan denied ownership of the firearms and told agents executing the search warrant that Bolling and his wife had access to his apartment. Also recovered during the search was a .45 caliber pistol in the trunk of a Toyota Camry parked outside the building.

II. Analysis

A. Franks Hearing

Bolling argued that he was entitled to a Franks hearing because law enforcement made false statements and material omissions from the search warrant for 117 Keystone Drive. The gist of his argument is that Special Agent Bullard was not truthful when he stated there were no other occupants at 117 Keystone Drive and that he did so in order to search all the apartments, including Donald Jordan's.

At the February 10, 2023, hearing, Special Agent Bullard testified that he sought the search warrant because of the controlled buy and the traffic stop. He confirmed that he checked property records and determined that Mark Bolling was the owner of record for 117 Keystone Drive. Property records indicated that 117 Keystone Drive was a single-family residence. Of his assertion in the affidavit that Bolling had access and control over all the rooms in the apartment building, SA Bullard testified that he came to that conclusion “[b]ased off conversations with the CI, the jail calls, the property tax return, and also we spoke with postal about the inbound mail, which they said there was no inbound mail going to that address.” ECF No. 227 at 8-9. Bullard stated that he only discovered anyone other than Bolling was living at 117 Keystone Drive when they were executing the warrant. During execution of the search warrant, Jordan informed law enforcement that he had been living there for “some time.” Id. at 13. A rental agreement between defendant's wife, Teresa Bolling, and Jordan for the apartment was admitted into evidence. Jordan informed SA Bullard that “other than to fix a water leak or things of that nature,” he had not given anybody else permission to enter his apartment. Id. at 14.

Of his reliance on information provided by Yates, Bullard testified that he considered Yates's criminal history but found him reliable because the information he provided was partially corroborated during the controlled buy. See id. at 42-45. Of his assertion in the affidavit regarding surveillance on the property, Bullard stated that officers drove by the area after initially speaking to Yates and then again in connection with the controlled buy. He testified about a pole cam that was in place for a few days but stated that any video from that time was not available. According to Bullard, “[t]here [wa]s nothing of evidentiary value to the case on there. I don't believe Mr. Bolling was home for the entirety of the pole cam being up.” See id. at 49. As for the lack of observation of anyone receiving mail at 117 Keystone Drive, Bullard explained that “nobody saw mail coming and going or Mr. Bolling coming and going because they'd be watching it in real time.” Id. at 50. Special Agent Bullard testified that, prior to seeking the search warrant, he never saw any tenants coming and going and nobody in the parking lot that would suggest tenants were living there. Bullard also explained that he later discovered his request for a mail...