United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE
motions filed by Defendant Roger Lewis Wright are pending
before the court. The first is a Motion to Suppress (Doc.
16), which has been amended and supplemented (Doc. 27), and
the second is a Motion for Disclosure of Informant (Doc. 18).
The court held an evidentiary hearing on the motions on July
12 and August 3, 2018, and has reviewed the Government's
responses to the motions (Docs. 19 & 20), along with the
parties' evidentiary materials. For the reasons to
follow, the Magistrate Judge RECOMMENDS that the Motion to
Suppress (Doc. 16) be GRANTED in part and DENIED in part, and
that the Motion for Disclosure of Informant (Doc. 18) be
Jury sitting within the Middle District of Alabama indicted
Wright on a single count for the possession of a firearm by a
convicted felon. Doc. 1. Wright claims in his motion to
suppress that the Government obtained the evidence supporting
this charge through an illegal search of his residence.
Specifically, Wright seeks to suppress “all evidence
found, statements made, and information obtained” as a
result of the search of his home. Doc. 16 at 1. He also seeks
to suppress the statements he made to police officers after
his arrest. The court recommends that his request to suppress
the information obtained during the search of his apartment
be denied, but that his post-arrest statement be suppressed.
addition, Wright claims in his motion for disclosure of the
identity of the confidential informant that he must know the
informant's identity in order to challenge the propriety
of the search warrant. The court finds that the disclosure of
the informant's identity is not warranted and that this
motion is due to be denied.
testimony and evidentiary materials offered at the hearing on
Wright's motions established the following facts.
(“E.L.”) Dailey is employed as a narcotics
detective for the Montgomery Police Department
(“MPD”). Transcript of July 12, 2018 Hearing
(“Tr. I”) at 80-81. Around September 2016, a
confidential informant approached her about an individual
who, according to the informant, was selling drugs from his
residence in the Cambridge Park Apartments in Montgomery,
Alabama. Tr. I at 82-83 & 88. Dailey had a prior
relationship with this informant, who had been providing
information to MPD for payment for more than two years.
Transcript of August 3, 2018 Hearing (“Tr. II”)
at 12-13. A day or two later, Dailey used the informant to
conduct a controlled buy of cocaine powder in Cambridge Park
from a man the informant identified by the nickname
“Ballhead.” Tr. I at 83 & Doc. 46-3 at 4. The
informant surreptitiously made an audio and video recording
of the transaction, and Dailey listened to the audio feed in
real time. Tr. I at 100.
the information generated by the informant, Dailey prepared a
search warrant and affidavit for Ballhead's apartment. On
the face page of the warrant and within the affidavit, Dailey
listed the property to be searched as “2243 Bonaparte
Boulevard Apartment D.” Doc. 46-3 at 2-5. In the
affidavit, she described Ballhead as a “black male in
his 40's, dark complexion, approximately 6'1,
approximately 240 pounds and ball haircut.” Doc. 46-3
at 4. Dailey disclosed that this information came from a
confidential informant identified in the affidavit with the
shorthand “A.” Doc. 46-3 at 4. Dailey did not
disclose in the affidavit that she paid for the information,
but she did include the statement that the informant
“has provided accurate and reliable information to the
Montgomery Police Department that has led to the prosecution
of numerous offenders.” Doc. 46-3 at 3. Dailey also
included the qualifier that the affidavit was “based on
the personal knowledge of this affiant and on facts obtained
by the Montgomery Police Department Narcotics and
Intelligence Bureau.” Doc. 46-3 at 4.
disclosed in the affidavit that, according to the informant,
the man known as Ballhead had been selling illegal drugs from
his apartment during the month of September 2016. Doc. 46-3
at 4. In addition, Dailey's affidavit described the
controlled purchase of cocaine powder as follows:
[I]n the month of September 2016; “A” under the
direct control and supervision of Detective E.L. Dailey #2464
and Detective M.T. Dees #1736 went to 2243 Bonaparte
Boulevard Apartment D Montgomery, AL to attempt to make a
controlled purchase. “A” advised he/she walked to
the residence and was allowed to enter the apartment by
“Ballhead.” Once inside the residence
“A” asked “Ballhead” for a quantity
of powder cocaine. “Ballhead” then retrieved the
powder cocaine from the hallway closet and handed it to
him/her. “A” advised that he/she gave
“Ballhead” the quantity of the Montgomery Police
Department Drug Buy Money. This controlled buy
occurred within 72 hours of the issuance of this
46-3 at 4.
included three attachments to her affidavit. Attachment I
lists the items subject to the search. Doc. 46-3 at 6.
Attachment II is a picture of a door marked with a small
letter “D.” Doc. 46-3 at 7. Attachment III is an
aerial photograph of a portion of the Cambridge Park
Apartments. Doc. 46-3 at 8. To this image, Dailey added the
text “Target Apartment, 2nd floor on right.” Tr.
I at 88. She also circled one of the buildings in the complex
and drew an arrow from her text to this building. Doc. 46-3
at 8. On this showing, a municipal court judge sitting within
the City of Montgomery authorized the warrant on September
15, 2016 at 11:50 a.m. Doc. 46-3 at 5.
on September 15, Dailey assembled an MPD Special Weapons and
Tactic (“SWAT”) team to brief them on the search.
Tr. I at 102-03. She used the image in Attachment III to
explain where the search would be conducted. Tr. I at 69-70
& 102-05. What Dailey did not know at the time is that
the building identified in Attachment III was not 2243
Bonaparte Boulevard, as described in the warrant, but 2247
Bonaparte Boulevard. See Doc. 46-3 at 7 & 8.
Although Dailey did not know then that she had used the wrong
address in her affidavit, she knew the route the informant
had walked to Ballhead's apartment from her review of the
video recording immediately after the controlled buy, and she
knew that this route leads to Apartment D in the building
depicted in Attachment III. Tr. I at 102 & 104. Following
Dailey's briefing, the SWAT team executed the search
warrant at 2247 Bonaparte Boulevard, Apartment D, where they
arrested Wright, Tr. I at 103, and found evidence of drug
trafficking along with the firearm supporting Wright's
pending federal charge. Doc. 46-5 at 10.
the arrest, Dailey and Detective Robert Franklin Hubbard,
also of MPD, conducted an interview of Wright. Tr. II at
18-19. The interview was audio recorded and began at 2:57
p.m. on September 15, 2016. Government's Exhibit 4
(“Gov't Ex. 4”) at 00:07. After a few
preliminary questions, Dailey advised Wright of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966),
during the following exchange:
Alright, I'm gonna read your rights to you. Before I ask
you any questions, I must explain to you that you can remain
silent and that anything you say can be used against you in
the court. You can talk to a lawyer first, and that you have
the right to advice and the presence of a lawyer even though
you cannot afford to hire one. If you cannot afford to hire a
lawyer, and want to have one present during interrogation,
the court would appoint one before we ask questions. If you
want to answer questions now, you can do so, but you can stop
at any time.
Wright: Naw, I'd like my lawyer.
Dailey: You'd like your lawyer?
Dailey: You don't want to answer no questions?
Wright: Naw, but look here, what I'm
Dailey: Now hold on, hold on!
Dailey: I just read you your rights.
Wright: Yes, ma'am.
Dailey: You don't want to answer no questions?
Dailey: So you're ready for us to send you to jail?
Wright: Yeah…what, what questions I'm answering?
What, what y'all got? What y'all