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United States v. Haywood

United States District Court, W.D. Louisiana, Shreveport Division

October 1, 2018


          JUDGE FOOTE




         Federal agents were monitoring a Title III wiretap on a drug case when they overheard Defendant bragging about a drive-by shooting he conducted earlier that day. Govt. Ex. 1 (audio recording). Defendant said on the wiretap that he was going to “get the others tonight.” The agents notified Shreveport Police and requested an emergency ping for Defendant's cell phone provider. It took about two hours for the first set of coordinates to arrive. Over the course of the next few hours, the confidence level or certainty factor of the coordinates (the likelihood that the phone was within the specified area) continued to narrow. The agents provided the ping information to Shreveport police as it was received.

         At around 4:30 p.m. on the day of the search, the agents believed that the confidence level of the coordinates was sufficiently strong to identify the location of Defendant's phone: 725 Damaka Street. The agents already suspected from prior wiretap intercepts that Defendant resided at that location. The agents provided that address to Shreveport police as Defendant's likely location. At that point, the federal agents' involvement ceased.

         Shreveport violent crime detectives, accompanied by a Shreveport police officer, arrived at the residence and obtained consent to enter and look for Defendant. During a protective sweep, the officers found an M16A2 machine gun, a Colt AR15 rifle, ammunition, a ballistic military vest, and other items. The owner of the residence stated that the items belonged to Defendant. Defendant was charged with gun crimes, and he moved to suppress the evidence discovered during the search. Doc. 24.

         Following an evidentiary hearing, the undersigned issued a Report and Recommendation (Doc. 38)[1] that recommended the motion to suppress be denied. The District Judge adopted the recommendation. About the time of the pretrial conference, the Government produced additional discovery to Defendant. That discovery led counsel for Defendant to question the accuracy and credibility of some of the testimony and evidence introduced at the hearing on Defendant's motion.

         Defendant's New Arguments

         With permission of the court, Defendant filed a supplemental memorandum in support of his motion to suppress (Doc. 65). First, Defendant argues that, contrary to the court's earlier conclusion, Defendant has standing to contest the search of the residence because the police officers and/or federal agents believed that the residence in question was Defendant's residence. Second, Defendant argues that the police officers gave incorrect and contradictory testimony which casts doubt on this court's prior conclusion that the owner of the residence, Ms. Wells, consented to the search of her residence. Finally, Defendant argues that the search was not justified as a protective sweep due to exigent circumstances, because the officers did not arrive at the residence until about 5:00 p.m., even though federal agents had received information at about 1:45 p.m. about the possibility of another drive-by shooting. Defendant suggests that the delay belies any argument that police approached the residence or performed a protective sweep due to an emergency.



         Federal agents were aware of Defendant and believed that he lived in the residence in question. But what the agents and police officers may have subjectively believed about Defendant's connections to the residence is not what matters. Even if the agents and officers believed that Defendant lived in the residence, a third party's subjective belief has no bearing on the legal question of whether Defendant had an expectation of privacy in the property. United States v. Taylor, 2015 WL 4946124 *3 (N.D. Ind. 2015). As explained in this court's prior ruling, Defendant did not live in the residence, he had not been in a relationship with Ms. Wells in years, he had no control or authority over the home, and he could not come and go as he pleased. Defendant presents nothing new on this point to reverse the court's prior conclusion on his lack of standing to contest the search.

         Discrepancies and Inconsistencies

         Defendant points out the following discrepancies and inconsistencies: (1) Detective Curtis testified in the first hearing that the residence had burglar bars on the front door, but Curtis admitted he was mistaken after he was confronted with photographs of the residence at the second hearing; (2) Officer Pollit testified at the first hearing that he arrived at the residence at around 3:00 p.m., when an “event chronology” introduced at the second hearing showed that he arrived at 5:00 p.m.; (3) Detective Curtis testified at the first hearing (consistent with his report) that he arrived at the residence at 3:30 p.m., when, in fact, he arrived at 5:00 p.m.; and (4) Officer ...

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