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United States v. Parker

United States District Court, E.D. Texas, Sherman Division

December 21, 2017

UNITED STATES OF AMERICA
v.
DAMEON DEON PARKER

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          CHRISTINE A. NOWAK UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Defendant Dameon Deon Parker's Motion to Suppress Evidence (“Defendant's Motion to Suppress”) [Dkt. 120]. On December 15, 2017, the undersigned conducted an evidentiary hearing and heard oral argument from both the Government and Defendant on the pending Motion to Suppress. After considering the Motion to Suppress, the Government's Response [Dkt. 126], all other relevant filings and evidence, as well as the oral argument presented, the Court recommends that Defendant's Motion to Suppress [Dkt. 120] be DENIED.

         BACKGROUND

         I. The Indictment

         On February 9, 2017, Defendant was indicted for a violation of 21 U.S.C. § 846 (Conspiracy to Distribute and Possess with Intent to Distribute Cocaine, Methamphetamine, Cocaine Base, and Marijuana) and a violation of 21 U.S.C § 924(c) (Possession of a Firearm in Furtherance of a Drug Trafficking Crime) [Dkt. 15]. The Indictment was superseded on August 9, 2017; the Superseding Indictment charged Defendant in three counts with a violation of 21 U.S.C. § 846 (Conspiracy to Distribute and Possess with Intent to Distribute Cocaine, Methamphetamine, Cocaine Base, and Marijuana), a violation of 21 U.S.C § 924(c) (Possession of a Firearm in Furtherance of a Drug Trafficking Crime), and a violation of 18 U.S.C. § 841(a)(1)(Possession with the Intent to Distribute or Dispense Cocaine and Marijuana) [Dkt. 53]. The Superseding Indictment in pertinent part alleges that “[f]rom in or about 2012 and continuously through February 9, 2017, with codefendant Michelle Brittany Parker, Defendant knowingly and intentionally combined, conspired, and agreed with other persons to possess with the intent to distribute 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, 280 grams or more of a mixture or substance containing a detectable amount of cocaine base, and less than 50 kilograms of marijuana, a violation of 21 U.S.C. § 841(a)(1). In violation of 21 U.S.C § 846.” [Dkt. 53]. The Superseding Indictment further charges that “[o]n or about January 30, 2017, in Grayson County, Defendant and Michelle Brittany Parker knowingly and intentionally possessed with the intent to distribute or dispense 500 grams or more of a mixture or substance containing a detectable amount of cocaine and less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1)” [Dkt. 53]. The Superseding Indictment finally charges that “[o]n or about January 30, 2017, in Grayson County, Defendant and Michelle Brittany Parker knowingly possessed a Springfield Model XD .45 caliber pistol, serial number US606194 (a firearm) in furtherance of a drug trafficking crime for which they may be prosecuted in a Court of the United States, namely: conspiracy to distribute and possess with the intent to distribute cocaine and marijuana, a violation of 21 U.S.C. § 846, all in violation of 18 U.S.C. § 924(c)” [Dkt. 53].

         II. Motion to Suppress

         Defendant filed the instant Motion to Suppress on December 4, 2017, seeking suppression of “all the evidence obtained against Defendant” [Dkt. 120 at 30]. Defendant specifically asserts that all evidence obtained from the searches of 1126 Big Cedar Lane in Denison, Texas, 1408 Knottingham Road in Little Elm, Texas, Defendant's Snapchat account and iPhone, as well as any verbal statements by Defendant should be suppressed because “[t]he [Big Cedar Affidavit] is a barebones affidavit that contains stale information from 2012 and conclusory statements from 2016, and began a chain of bad search-warrants” [Dkt. 120 at 27].[1] Defendant thereafter argues that “the good-faith exception does not apply” because any reasonably well-trained officer would have known the Big Cedar Warrant was deficient, and thus, could not in good faith have relied on the warrant's validity and also that “the magistrate issuing the warrant did not have substantial basis for believing there was probable cause” [Dkt. 120 at 28]. Defendant further argues “under the ‘fruit-of-the-poisonous-tree' doctrine, ” that all evidence derived from and/or as a result of the Big Cedar Search Warrant must also be suppressed [Dkt. 120 at 28].[2] The Government filed its Response to Defendant's Motion to Suppress on December 14, 2017 [Dkt. 126]. The Court conducted an evidentiary hearing on December 15, 2017 [Dkt. 121], wherein Sergeant Shane Kumler of the Denison Police Department and ATF Special Agent Dustin Holbert testified and the Government admitted four exhibits;[3] the Hearing transcript was filed December 18, 2017 [Dkt. 130]. The underlying facts relevant to Defendant's Motion to Suppress are summarized as set forth below.

         III. The Investigation

         Dating back as early as 2012, various law enforcement agencies, namely Denison Police Department and the Bureau of Alcohol, Tobacco, and Firearms, were investigating Defendant for his alleged drug trafficking activities in Grayson County [Dkt. 129, Ex. 1]. Throughout the course of such investigation, Sergeant Kumler attested to speaking with several confidential informants regarding Defendant's involvement in the distribution of cocaine, methamphetamine, and marijuana in the Grayson County area [Dkt. 129, Ex. 1]. Sergeant Kumler testified that he and other law enforcement learned from various confidential sources that Defendant kept quantities of cocaine, methamphetamine, and marijuana at locations in the Grayson County area, one of those locations identified is co-defendant, Michelle Parker's residence at 1126 Big Cedar Lane in Denison, Texas.

         IV. Defendant's Arrest

         On January 30, 2017, Sergeant Shane Kumler conducted surveillance on 1126 Big Cedar Lane in Denison, Texas (the “Big Cedar residence”) [Dkt. 129, Ex. 1]. Sergeant Kumler testified that while watching the Big Cedar residence, he observed Defendant leave the residence and enter a silver Ford passenger vehicle [Dkt. 130 at 11-12]. Sergeant Kumler testified that on January 30, 2017, he was aware of Defendant's alleged drug trafficking activities and Defendant's prior arrests, and followed Defendant to a gas station where he observed Defendant pump gas into the vehicle and drive back towards the Big Cedar residence. Sergeant Kumler further testified that Officer Deering of the Denison Police Department attempted to stop Defendant for an observed traffic violation, but Defendant failed to stop the vehicle until parked in the driveway of the Big Cedar residence [Dkt. 130 at 12]. Defendant was subsequently arrested for failure to display his driver's license [Dkt. 130 at 13]. $7, 083 in cash was found on Defendant's person and inside his vehicle [Dkt 130 at 13].

         Sergeant Kumler testified that during Defendant's arrest, Defendant's wife and co-defendant, Michelle Parker, was standing on the front porch of the Big Cedar residence; Sergeant Kumler stated that he approached Michelle Parker and spoke with her [Dkt. 130 at 13- 14]. Sergeant Kumler testified that while on the front porch of the Big Cedar residence, he detected a strong odor of marijuana from inside the residence and also heard people inside [Dkt. 130 at 14]. Sergeant Kumler testified that he asked Michelle Parker if she consented to a search of the residence; she refused to give her consent [Dkt. 130 at 14]. Sergeant Kumler stated he was aware from his investigative efforts that Defendant was typically accompanied by another person on his visits to Grayson County. Specifically, Sergeant Kumler testified that he “had information that [Defendant] when he came to Grayson County, never came alone …. [and] had someone else with him to … protect his money. So at that time, [Sergeant Kumler] thought [Defendant] probably had a partner inside the house” [Dkt. 130 at 14-15]. Sergeant Kumler and several other Denison Police Officers entered the Big Cedar residence and conducted a protective sweep to ensure the safety of the officers present and to secure the residence [Dkt. 130 at 14-15]. Sergeant Kumler testified that he conducted the protective sweep because of this information and also the strong smell of marijuana emanating from inside the residence [Dkt. 130 at 20]. Sergeant Kumler found Michelle Parker's children inside the residence, but did not find any contraband in plain view. Officers detained Michelle Parker and her children while Sergeant Kumler left to apply for a search warrant for the Big Cedar residence [Dkt. 130 at 15].

         V. The Big Cedar Residential Search Warrant

         The Big Cedar Affidavit, prepared by Sergeant Kumler, generally describes Sergeant Kumler's credentials and outlines the background investigation of Defendant's drug trafficking activity in Grayson County [Dkt. 129, Ex. 1]. Sergeant Kumler specifically attests that “[o]ver the past several years [he] has received information from Confidential Sources and Confidential Informants that [Defendant and Michelle Parker] are involved in the distribution of Cocaine, Methamphetamine and Marijuana in the Denison, Grayson County, Texas area. [Sergeant Kumler] has received information from Confidential Sources that [Defendant] keeps a quantity of Cocaine, Methamphetamine and Marijuana at [Michelle Parker's] residence located at 1126 Big Cedar Lane, Denison, Texas” [Dkt. 129, Ex. 1 at 3]. Sergeant Kumler then outlined certain instances from the investigation of Defendant, including several where Defendant was found in possession of large sums of cash, similar to the amount he was arrested with on January 30, 2017. Sergeant Kumler noted that on September 12, 2012, a Grayson County Deputy stopped a vehicle for a traffic violation: the driver was in possession of marijuana and a large sum of cash, marijuana and a large sum of cash were found in the center console. Defendant was a passenger in the vehicle [Dkt. 129, Ex. 1 at 3-4]. The driver later told law enforcement that Defendant hired him to drive them to Dallas for the purpose of purchasing narcotics. On November 1, 2012, Sergeant Kumler conducted surveillance at an apartment building reputedly known for drug activity; he observed multiple vehicles pull up to an apartment, the vehicles' occupants enter the apartment for short time, and then leave [Dkt. 129, Ex. 1 at 4]. Defendant was observed leaving the apartment with another individual associated with Defendant's drug trafficking; Defendant was shortly thereafter pulled over by law enforcement, and officers found $7, 063 in cash on Defendant's girlfriend. On November 15, 2012, after receiving word that Defendant was in Denison, Sergeant Kumler followed Defendant to a Denison residence where he observed Defendant make a short visit inside the residence [Dkt. 129, Ex. 1 at 4]. Defendant's vehicle was pulled over for a traffic violation shortly thereafter, and Defendant was found with $2, 246 in cash and marijuana and $6, 000 in cash in the center console (the majority of which consisted of $20 and $100 bills, which Sergeant Kumler attested are commonly used by narcotics dealers in conducting drug transactions). On November 18, 2016, an officer attempted to conduct a traffic stop of a vehicle registered to Michelle Parker, wherein Defendant was a passenger and alleged to have large amounts of U.S. currency on his person; the vehicle fled at a high speed and the officer terminated the pursuit [Dkt. 129, Ex. 1 at 5]. Shortly thereafter, the officer located the wrecked vehicle and the driver thrown from the vehicle. Three bags of cocaine and mail addressed to Michelle Parker were found at the scene. Defendant fled the scene. Sergeant Kumler also detailed his surveillance of the Big Cedar residence on January 30, 2017, from his observation of Defendant's drive to the gas station and subsequent arrest, to officers' finding over $7, 000 in cash on Defendant's person, to his conversation with Michelle Parker and detection of a strong smell of marijuana from inside the Big Cedar residence.

         Sergeant Kumler further added that he has had multiple conversations with confidential informants that detail specific instances and observations of Defendant with large amounts of narcotics, and Defendant's use of the Big Cedar residence in his drug trafficking. Sergeant Kumler detailed Defendant's past arrests in 2012, 2007, 1997, and 1996 for Money Laundering >$1, 500, Manufacture/Delivery of a Controlled Substance <1 gram, Manufacture/Delivery of a Controlled Substance >1 gram, Possession of a Controlled Substance >4 grams, three counts of evading arrest/detention, and unlawful carry of a weapon [Dkt. 129, Ex. 1 at 3]. Sergeant Kumler did not include in the Big Cedar Affidavit that he and other officers conducted a protective sweep of the Big Cedar residence prior to applying for the search warrant, and that during the sweep no contraband was found in plain view.

         Judge Jim Fallon of the 15th District Court in Grayson County issued the Big Cedar Search Warrant on January 30, 2017 [Dkt. 129, Ex. 1 at 1]. Sergeant Kumler and other officers executed the warrant on the same date. Sergeant Kumler provided a return as follows: a Planet Audio box inside an opening in the master bedroom closet's wall held three (3) plastic bags of cocaine and two (2) sets of digital scales; one (1) plastic bag of marijuana on the master bedroom closet's floor; and a Springfield XD .45 caliber handgun, serial number US606194 on top of a nightstand in the master bedroom [Dkt. 129, Ex. 1 at 8]. Defendant seeks suppression of each of these items.

         VI. The Knottingham Residential Search Warrant

         On February 1, 2017, ATF Special Agent Justin Holbert prepared an application and affidavit in support of a search warrant for Defendant's residence located at 1408 Knottingham Road in Little Elm, Texas [Dkt. 129, Ex. 2]. The Knottingham Affidavit contains similar information as is contained in the Big Cedar Affidavit [Dkt. 129, Ex. 2 at 2]. In addition to the information provided in the Big Cedar Affidavit, the Knottingham Affidavit details more conversations with confidential informants, the search of the Big Cedar residence, and the items seized from the search of the Big Cedar residence [Dkt. 129, Ex. 2]. Agent Holbert specifically attested that in 2014, he spoke to two different confidential informants that both stated Defendant had supplied them with substantial quantities of methamphetamine and cocaine. One of these confidential informants stated that Defendant kept his narcotics at the Big Cedar residence and his money at the Knottingham residence. In 2016, Agent Holbert spoke with another confidential informant who detailed his history of dealing methamphetamine and cocaine with Defendant. Agent Holbert also received pictures and video taken from Defendant's Snapchat account that depicted large sums of cash, jewelry, narcotics, and a firearm [Dkt. 129, Ex. 2 at 5-6]. Specific to the Knottingham residence, Agent Holbert attested that within the weeks preceding his affidavit, Sherman Police Department had received an unsolicited statement that Defendant kept large amounts of cash resulting from his sale of narcotics at the Knottingham residence. Additionally, “within [] several weeks” preceding the Knottingham Affidavit, officers observed a vehicle registered to Defendant parked in the Knottingham residence's driveway and Defendant coming and going from the residence [Dkt. 129, Ex. 2 at 8]. Agent Holbert also noted that the Knottingham residence is listed as Defendant's address on his driver's license and Defendant gave the Knottingham residence as his address to officers on January 30, 2017 [Dkt. 129, Ex. 2 at 8].

         The undersigned issued the Knottingham Search Warrant on February 1, 2017. Agent Holbert and other officers executed the search warrant on February 1, 2017. Agent Holbert provided a return as follows: nine (9) photographs, two (2) credit cards in Defendant's name, one (1) document in Michelle Parker and Defendant's names, and one (1) document depicting drug transaction notes [Dkt. 129, Ex. 2 at 16]. Defendant seeks to suppress each of these items.

         VII. The Snapchat and IPhone Search Warrants[4]

         On April 6, 2017, Agent Holbert prepared an application and affidavit in support of a search warrant for Defendant's Snapchat account [Dkt. 129, Ex. 3]. The Snapchat Affidavit describes Agent Holbert's credentials, provides insight into the background of Snapchat and defined various terms specific to the use of Snapchat, and outlines the background investigation of Defendant's drug trafficking activity in Grayson County [Dkt. 129, Ex. 3]. Magistrate Judge Kimberly Priest Johnson issued the Snapchat Search Warrant on April 6, 2017. Agent Holbert provided a return as follows: “digital ...


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