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United States v. Wright

United States District Court, M.D. Alabama, Northern Division

August 23, 2018

UNITED STATES OF AMERICA
v.
ROGER LEWIS WRIGHT

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN, UNITED STATES MAGISTRATE JUDGE

         Two 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 DENIED.

         I. INTRODUCTION

         A Grand 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.

         In 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.

         II. FACTS

         The testimony and evidentiary materials offered at the hearing on Wright's motions established the following facts.

         Ebony (“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.

         Using 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.

         Dailey 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 warrant.

         Doc. 46-3 at 4.

         Dailey 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.

         Later 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.

         Following 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:

         Dailey: 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?
Wright: Yeah.
Dailey: You don't want to answer no questions?
Wright: Naw, but look here, what I'm [unintelligible]…
Dailey: Now hold on, hold on!
Wright: OK.
Dailey: I just read you your rights.
Wright: Yes, ma'am.
Dailey: You don't want to answer no questions?
Wright: Naw.
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 ...

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