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United States v. Saunders

United States District Court, N.D. West Virginia, Wheeling

April 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SHAWNDALE SAUNDERS, Defendant.

          ORDER RULING ON MOTIONS AND OBJECTIONS

          JOHN PRESTON BAILEY, UNITED-STATES DISTRICT JUDGE

         Pending before this Court are defendant's Motion to Suppress Evidence [Doc. 17], Motion to Suppress Statements [Doc. 21], Motion to Dismiss - Lack of Jurisdiction and Improper Venue [Doc. 36], Amended Motion to Dismiss - Lack of Jurisdiction and Improper Venue [Doc. 37], Motion to Suppress Search of Residence of Shawndale Saunders Located at 417 N. 7th Street, Martins Ferry, Ohio [Doc. 39], Motion in Limine - Audiotapes [Doc. 40], Motion in Limine - Chain of Custody [Doc. 41], Demand for Notice of Intent to Use Convictions More than Ten Years Old [Doc. 42], Motion to Suppress Search of Cell Phone AT&T ZTE s/n 322252701128 black [Doc. 44], Motion to Suppress Search of Cell Phone AT&T Samsung White with pink case s/n R38F30WAB6F [Doc. 45], Motion to Suppress Search of Cell Phone - White Iphone with a Black Case [Doc. 55], Motion to Suppress Search of Cell Phone Verizon Samsung Phone Blue Model SM-8311V UD cell phone [Doc. 56], Motion to Suppress Search of Cell Phone AT&T Samsung White s/n R28H235B6SP [Doc. 57], Motion to Suppress Data Obtained from Cell Phone Service Providers [Doc. 60], Motion in Limine - Cell Phone Data [Doc. 61] and Adoption of Motions [Doc. 63], as well as two Reports and Recommendations issued by Magistrate Judge James Seibert [Docs. 86 and 96] and Defendant's Objections to Report and Recommendation that Pre-trial Motions Be Denied [Doc. 108].

         Motions to Suppress

         In his first Report and Recommendation, Judge Seibert recommended that the motions to suppress bearing Document Nos. 17, 21, 39, 44, 45, 55, 56, 57, and 60 be denied. In so doing, Judge Seibert found the following facts:

Tim Starkey is an officer with the Belmont County Ohio Major Crimes Unit. On May 23, 2016, Officer Starkey was contacted by Detective Dave Drahos of the Wheeling, West Virginia Police Department regarding the Defendant. Detective Drahos informed Officer Starkey that a large amount of crack cocaine was seized in the Northern District of West Virginia. Detective Drahos believed that the seized drugs were supplied by the Defendant. Detective Drahos further believed that the drugs were “fronted” thus, the drugs were provided on consignment and the individual in possession of the drugs still owed approximately $7, 300 to the Defendant as payment for the drugs. The individual to whom the drugs were fronted was willing to cooperate as a confidential informant (“CI”).
Officers arranged for the CI to pay the Defendant for the previously fronted drugs. The officers provided the CI with $7, 300 in marked dollar bills and wired the CI with an audio and video recording device. The officers observed the CI enter and exit the Defendant's residence. However, the officers did not search the CI before he entered the Defendant's residence. After the $7, 300 was paid for the previously fronted drugs and additional crack cocaine was fronted, the officers picked up the CI and recovered a large amount of crack cocaine, which the CI stated he acquired from the Defendant.
Following the delivery of the $7, 300 and the new fronted crack cocaine, Officer Starkey drafted an affidavit and application for a search warrant for the Defendant's residence. Officer Starkey emailed the affidavit to the local prosecutor for review. The prosecutor advised that it “looked good.” At 8:30 p.m., Officer Starkey presented the affidavit to Belmont County Judge Chris Berhalter. Judge Berhalter reviewed the affidavit and issued the search warrant. The search warrant authorized the search for “drugs, drug paraphernalia, guns, safe, cash, ledger, scales, electronic devices such as cell phones, computers, tablets, cameras or recording systems and the contents thereof that were either purchased, used or facilitated the use of drug transactions” located at “417 N. 7th St. upstairs rear apartment on the south side of the structure Martins Ferry, Oh 43935.” The officers executed the warrant and seized a variety of evidence related to drug trafficking.
Following the payment of the $7, 300 and additional crack cocaine was fronted, officers initiated a traffic stop of the Defendant. The officers arrested him for trafficking cocaine. The officers found $7, 300 in cash and four cellphones. Officer Starkey applied for a second search warrant to search the contents of the cellphones. The affidavit cited evidence of drug trafficking discovered in the search of the residence as well as Officer Starkey's experience that the cellphones may lead to information regarding drug trafficking. Judge Berhalter issued the warrant. The search of the cellphones contents was performed in London, Ohio. In seeking suppression, the defendant argues that the affidavit supporting the warrant to search the residence was insufficient and that the warrant for the seizure and inspection of the cellphones constitutes fruit of the poisonous tree.

         Accordingly, this Court must focus on the information provided to Judge Berhalter in the affidavit for the warrant. A review of the affidavit [Doc. 82-1] discloses the following information:

         1. That Officer Starkey is an experienced officer with specialized training in the areas of case preparation, case investigation, drug enforcement, drug indentification, and clandestine lab investigation.

         2. That Officer Starkey has been a member of the Belmont County Drug Task Force since 2010.

         3. That Officer Starkey was contacted by Detective David Drahos of the Ohio Valley Drug Task Force, who provided the remainder of the information contained in the affidavit for warrant.

         4. That the Ohio Valley Drug Task Force recently executed a search warrant in West Virginia, on a person other than Mr. Saunders, seizing a large amount of crack cocaine and marijuana.

         5. The person (“CI”) wished to cooperate and arranged for a controlled delivery of 4 to 5 ounces of crack cocaine and for the CI to pay $7, 300 for drugs previously fronted to the CI.

         6. The drug transaction took place at Mr. Saunders' residence at 417 North Seventh Street in Martins Ferry, Ohio, in the upstairs rear apartment on the south side of the structure.

         7. The residence is a two story structure cream in color with a brown roof and a covered porch ...


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