United States v. Morgan

537 F.Supp.3d 972

UNITED STATES of America

v.Frederick J. MORGAN a/k/a Fredrick J. Morgan, Sr.

CASE NO.: 1:20-CR-48-HAB

United States District Court, N.D. Indiana, Fort Wayne Division, FORT WAYNE DIVISION.

May 6, 2021

Stacey R. Speith, Government Attorney, Brent A. Ecenbarger, AUSA, US Attorney's Office, Fort Wayne, IN, for United States of America.

AMENDED¹ OPINION AND ORDER

HOLLY A. BRADY, UNITED STATES DISTRICT JUDGE

Who in the world is Erica Robinson? Oddly, in the pages of briefing delving into the validity of a search warrant in which her name appears, the Court has been left guessing. What has been revealed by the Government is the most innocent of explanations, to wit, the inclusion of her name in the warrant was a typographical error. Seizing on the Government's admitted mistake, Defendant Frederick Morgan, Sr. filed his Motion to Suppress Evidence (ECF No. 109) on March 25, 2021. Morgan Sr. asserts that the mistaken inclusion of Erica Robinson's name in the warrant invalidates the Magistrate Judge's finding of probable cause as to the search of his home for evidence of narcotics trafficking in violation of the Fourth Amendment. Likewise, he asserts that the warrant violates the Fourth Amendment's particularity requirement. He requests that the Court suppress all evidence discovered during that search. The Government filed its response in opposition on April 7, 2021, (ECF No. 113) to which Morgan replied on April 21, 2021 (ECF No. 117). For the following reasons, the Defendant's Motion will be DENIED.

FACTUAL BACKGROUND

The Government indicted Defendant, Frederick J. Morgan, Sr. ("Morgan, Sr."), on three counts of a nineteen count, seven defendant indictment, alleging: one count of conspiracy to distribute and possess with intent to distribute various controlled substances, 21 U.S.C. § 846 (Count 1); and, two counts of distribution of 28 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 4 and 18). The indictment followed from an extended investigation into the alleged drug conspiracy.

On August 25, 2020, Special Agent Sean Skender (SA Skender) with Alcohol, Tobacco, Firearms, and Explosives (ATF) sought and obtained a search warrant for Morgan Sr.’s home at 1933 Morgan Creek Drive, Fort Wayne, Indiana. See Case No. 1:20-MJ-73 (ECF No. 1). Officers executed the search warrant on August 27, 2020, the day following Morgan Sr.’s indictment in this case.²

The factual predicate for the warrant is found within the Application for Search Warrant (Application) in SA Skender's affidavit, to which the Court shall return momentarily. In addition to Skender's affidavit are two attachments, A and B, affixed to both the Application and to the Search and Seizure Warrant (Warrant) itself. (ECF Nos. 109-1 and 109-2). Both the Application and the Warrant are designated forms (AO 106 and AO 93, respectively) from the Administrative Office of the United States Courts intended to be used by law enforcement to obtain a warrant in cases such as this one. Both forms bear the signature of United States Magistrate Judge Susan Collins and are dated August 25, 2020. On the Application itself (AO 106), Magistrate Judge Collins attests that the application was "sworn to before me and signed in my presence." (ECF No. 109-2). SA Skender likewise signed the form as the applicant. The Application further contains a checked box noting that the Application is based on facts which continue "on the attached sheet." Although there are some rumblings in the briefing as to whether SA Skender's affidavit was, in fact, "an attached sheet" to the Application, a review of the docket from 1:20-MJ-73 puts those rumblings to rest as there is no question but that SA Skender's affidavit was part of the filings presented to and reviewed by the Magistrate.³ If the docket entry was not enough to solidify this fact, Magistrate Judge Collins’ signature is, as it appears at page 19 of the affidavit noting that the affidavit was "subscribed and sworn before me on this 25^th day of August, 2020" (ECF No. 109-3 at 19).

So too, the Magistrate Judge's signature appears on the Warrant (AO 93). Affixed to the Warrant are the aforementioned attachments. "Attachment A" contains the description of the property to be searched while "Attachment B" identifies the property sought in the search. Morgan Sr. concedes that "Attachment A" is a valid description of the property to be searched, i.e., his residence at 1933 Morgan Creek Drive. As described more fully below, his quarrel is with "Attachment B."

Attachment B is lengthy; it contains three and a half pages of items sought by the Warrant. These include a laundry list of items typically used in the drug trade. Broadly speaking, the Warrant authorizes the search for controlled substances, firearms, ammunition, magazines, weighing scales, and U.S. Currency. More specifically, it identifies a number of categories of items to be seized: (1) any materials and/or equipment used, or intended to be used for counting, processing, or packaging of U.S. currency or controlled substances; (2) any papers or documents related, or tending to be related, to the sale of controlled substances; (3) documents related to the purchase, sale, leasing or ownership of any real estate, and any utility bills, mail, photographs or other evidence of home or business ownership or residency; (4) all cellular telephones, cellular telephone records, cellular telephone boxes, accessories such as chargers, directories of telephone numbers, and any information tending to establish the identity and role of the primary users of telephones and the identities and roles of the primary users of any telephones in contact with these telephones, to include any digital contact and directory information, photographs or videos, data or audio files, information pertaining to the call number or other identifying, stored text or other electronic messages and emails, Internet or other online search history and communications, calendar information, lists of incoming or outgoing calls, lists of missed calls, or any other information contained on cellular telephones for later forensic examination which relates to drug trafficking; (5) documents related to the purchase or sales or ownership of any motor vehicles; (6) bank records or similar financial records; (7) documents related to the mailing of packages to include receipts of shipments, receipt of delivery from all and any postal and delivery carriers. There appears to be no dispute between counsel as to these categories of items or whether they were supported by the Application and set forth with the particularity required under the Fourth Amendment.

That is, until the final paragraph of Attachment B. In that paragraph, for the first time, Erica Robinson's name appears. That paragraph reads, in relevant part:

It is common in your Affiant's training and experience for persons dealing in drugs to use telephone communications and/or computers/tablets to conduct and coordinate illegal drug transactions. In general, cellular telephones contain a directory, a list of recent contacts, photographs or videos, saved text messages, or other information, which may provide evidence of Erica ROBINSON's drug transactions.

(ECF No. 109-1 at 6). The remainder of that paragraph elaborates on SA Skender's experience in drug investigations and his knowledge that evidence of drug trafficking and drug associates are often discovered via information obtained from cellular telephones as well as other media devices such as hard drives, thumb drives or other storage media.

The Government's explanation for Erica Robinson's name appearing in Attachment B is simple – it either failed to edit the Attachment (i.e., a cutting and pasting error) or it erroneously attached the wrong Attachment B.⁴ Either way, the Government concedes that the name was wrongly contained within Attachment B.

As referenced earlier, the Warrant was the product of the Application containing the affidavit of SA Skender. SA Skender's affidavit consists of 19 pages and incorporates Attachments A and B by specific reference. The affidavit outlines his vast experience in enforcing federal firearms and narcotics laws. Counsel agree that his credentials are impeccable and without disrepute. Pages 2 through 9 of the affidavit set forth SA Skender's experience and knowledge in the common practices of narcotics traffickers, including the types of records kept, contraband held, where and how contact information is stored, and the manner in which those items are utilized by such individuals. The remaining nine pages detail in scrupulous fashion the investigation of the Defendant and his son, Frederick Morgan, Jr. (Morgan, Jr.), as well as a series of controlled buys between two confidential informants (CIs) and Morgan, Jr.⁵ Facts describing controlled buys nos. 3, 8, and 16 are set forth in the affidavit and are relevant to connect the Defendant's involvement and his residence, 1933 Morgan Creek Drive, with narcotics trafficking activity. In the concluding paragraph SA Skenders avers:

Based upon the foregoing information, your Affiant has probable cause to believe that Morgan Sr.’s property located at 1933 Morgan Creek Drive, Fort Wayne, Indiana and fully described in Attachment A, contains evidence of a crime; contraband, fruits of crime, or other items illegally possessed; and property designed for use, intended for use, or used in committing a crime, as listed in the application and Attachment B, and pertaining to violations of 21 U.S.C. §§ 841, 846 and 856, 18 U.S.C. § 922(g)(1), and 18 U.S.C. § 924(c).

In consideration of the foregoing, your Affiant respectfully requests that this Court issue a search warrant for the premises located at 1933 Morgan Creek Drive, Fort Wayne, Indiana, further described in Attachment A, authorizing the search of the aforementioned for the items described in Attachment B.

(ECF No. 109-3 at 18).

Based on the above facts, De...