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United States v. Antoine

United States District Court, N.D. West Virginia

June 5, 2018


          KEELEY, JUDGE



         This matter is before the undersigned pursuant to a Referral Order (ECF No. 53) referring the case to the undersigned to enter a report and recommendation as to the appropriate disposition of the case.


         On March 6, 2018, an indictment was filed against Amanze Antoine (“Defendant”) charging him with one count of Conspiracy to Violate Federal Firearms Laws from approximately May 15, 2017, until June 20, 2017. (ECF No. 1). The indictment alleged that Defendant recruited drug users/addicts to provide false documentation when purchasing firearms and would then drugs for the firearms. Id. at 2. The firearms were then transported to New York City, New York and sold to other individuals. Id. The indictment indicated that Margaret Parker and Tommy Calhoun were Defendant's co-conspirators who provided false information on the ATF forms to purchase firearms. Id. On May 14, 2018, Defendant filed a Motion to Suppress arguing that 1) law enforcement lacked probable cause to justify the issuance of a search warrant and 2) the search warrant is facially deficient because it lacked a sufficient nexus between the contents of the cell phone and the alleged crime.

         The Government's response was due on May 21, 2018, and the motion hearing was scheduled for May 29, 2018. The Government did not provide a response before the scheduling order's deadline of May 21, 2018. On May 22, 2018, Defendant filed a pro se Motion for New Counsel arguing that his current counsel was threatening him to take a plea and that she was racist. (ECF No. 62). Following a sealed hearing, Defendant was appointed new counsel. (ECF No. 69). To give new counsel time to review the Motion that was previously filed by defense counsel, the Motion hearing was continued. (ECF No. 68). On May 25, 2018, after the undersigned's office was notified that Defense Counsel wished to continue with the hearing as previously scheduled and the undersigned again scheduled the hearing for May 29, 2018, at 10:00 am. (ECF No. 70). On May 29, 2018, at 9:26 a.m., the Government filed a Motion to Continue the hearing. (ECF No. 71). The Government stated that due to the Assistant United States Attorney and support staff leaving early on May 25, 2018 for the holiday weekend, the United States was unable to issue a subpoena to the witness for the May 29, 2018 hearing.

         At the hearing on May 29, 2018, the Government was not present and the undersigned granted the Motion to Continue (ECF No. 73). The Hearing was rescheduled for June 1, 2018, at 9:00 a.m. (ECF No. 73). On May 29, 2018, the Government filed its Objection to Defendant's Motion to Suppress (ECF No. 74). The Objection states, in its entirety:

Now Comes the United States of America and William J. Powell, United States Attorney for the Northern District of West Virginia by Zelda E. Wesley, Assistant United States Attorney for District, and hereby notices the Court of its' objection to defendant's Motion to Supress Cell Phone Evidence. The United States disagrees with the facts as presented by defendant, as well as defendant's conclusions. The United States will present evidence disputing defendant's erroneous facts and conclusions, and will submit a memorandum addressing the evidence presented following the suppression hearing.

         Following the United States' Objection, the undersigned entered an Order[1] requiring that the United States file any memorandum that it wishes the Court to review on or before May 30, 2018. (ECF No. 80). The Government filed no such memorandum.[2] On June 1, 2018, Defendant in person and by newly appointed counsel, William Pennington, as well as, the United States, by Zelda E. Wesley, Assistant United States Attorney, were present for the Motion hearing.


         At the Motion hearing, the Government called Patrolman Nicholas John Junkins to testify. Patrolman Junkins was employed at the Star City Police Department on the night of June 19, 2017 At approximately 10:00 p.m., Patrolman Junkins, in a marked police car, pulled over a 2004 Ford Track Super Duty for having no running taillights. This vehicle belonged to Tommy Calhoun, the driver of the vehicle. When the Patrolman approached the vehicle, he noticed that Tommy Calhoun was in the driver's seat and Defendant was in the back right passenger's seat seated next to a black suitcase. Patrolman Junkins asked for and was provided with the driver's identification. Defendant voluntarily handed police officer's his identification. Patrolman returned to his vehicle to “run the ID's through dispatch.” Mr. Calhoun exited the vehicle to talk to the Patrolman to explain the reason for the broken taillights. When speaking with Mr. Calhoun, Patrolman Junkins noticed that Mr. Calhoun's pupils were constricted and he had blood shot eyes. Patrolman Junkins asked Mr. Calhoun if he was on any controlled substances. He admitted to using crack cocaine approximately one hour prior to the stop and then gave Patrolman his consent to search the vehicle.

         A secondary officer was called to the scene, as Patrolman Junkins indicated was protocol. Defendant was asked to step out of the vehicle and he appeared agitated and told Patrolman Junkins that he need to use the restroom. Patrolman told Defendant that he needed to wait until the end of the traffic stop to use the restroom. Defendant repeatedly asked for permission to use the restroom. The secondary officer arrived on scene and Defendant and Mr. Calhoun were instructed to approach Patrolman Junkin's vehicle. At that time, Defendant turned and fled the scene. Defendant ran across a parking law, over a retaining wall and crossed into the woods. Law enforcement initially pursued Defendant; however once he jumped over a wall, law enforcement ceased attempting to follow Defendant.

         The car was initially searched, with permission of the owner Mr. Calhoun. Law enforcement found three firearms, two that had been recently purchased and a third firearm that had been reported stolen. There were also two cell phones found in the bag in the backseat-a white Motorola and a black Samsung. Sometime after the pursuit, law enforcement also found a cell phone, a black ZTE, in the field near where Defendant fled, that they believed to have belonged to Defendant. Patrolman Junkins, however, testified that he did not see Defendant with a cell phone in his hands and did not see him toss a cell phone in the field.

         Following the completion of the traffic stop, Mr. Calhoun's vehicle was impounded and Patrolman Junkins was ordered to obtain search warrants for two cell phones that were found in the suitcase in the rear left passenger seat next to where Defendant was seated. The warrants for the White Motorola and the Back Samsun were executed and signed by the magistrate on June 28, 2017. Following the request for those search warrants, a week later, a search warrant for the third cell phone that was found in the field was issued.

         The actual substance of the search warrants for the cellphones found in the vehicle are substantively different than the warrant for the cell phone in the field. The search warrant for the Black ZTE cell phone states in pertinent part that Patrolman Junkins was investigation a violation of West Virginia Code S 61-3-18 “Receiving or transferring stole goods.” The search warrant describes the property to be seized as “any and all data to include, but not limited to, messages received and deleted files, photographs and videos contained within the hard drive and any portable storage device contained within the cellular phone.” The warrant details the facts for the belief are: “On 6/19/2017 I conducted a traffic stop. After speaking with the driver, who gave consent to search, I had the rear passenger get out of the vehicle. The rear passenger, Antoine, then fled on foot and is still at large. While looking for Antoine, a black cell phone was located in the vicinity of where Antoine fled towards. During search of vehicle three firearms were located, on which was reported stolen. These items were located in the vehicle near Antoine.” The search warrant does not describe the belief of the necessary for the search.[3]

         The other two warrants, for a white Motorola and black Samsung, warrants detail a similar factual scenario, but also states that “the affiant has cause to believe and does believe that property [is] designed and intended for use which is and has been used as a means of committing such criminal offense [and] which is and has been used in violation of the criminal laws of the state, [and is] evidence of a crime.” These two search warrants also specifically indicate that the affiant believed the property, the cellphone, was designed and intended for use which is and has been used as a means of committing such criminal offense and was evidence of the crime Receiving or transferring stolen goods. (ECF No. 52-1 at 2, 3). These two search warrants also states that “[t]hese items may assist in determining the whereabouts of Antoine and hold the evidence of a crime.” Id. Patrolman stated that he had no reason to believe that he did not have a valid search warrant.

         This search warrant was signed by a different magistrate than the other two search warrants. Patrolman Junkins stated that he was unsure of why there was a delay in obtaining the third search warrant and states that “he didn't have time to get around to it.” Notably, Patrolman Junkins does not remember which officer took the warrants to the magistrate to get them signed nor does he know what information was relayed to the magistrate during the warrant meetings. Patrolman Junkins testified that during search warrant application meetings with magistrates, some ...

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