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United States v. Patterson

United States District Court, E.D. Virginia, Norfolk Division

November 29, 2017




         Before the Court is Defendant Richard Patterson's Motion to Suppress. Defendant has filed a Memorandum in Support of his Motion, ECF Nos. 22, 44-45, and the Government filed its response, ECF Nos. 29, 48. Defendant did not file a reply. Defendant seeks to suppress a search warrant and any and all evidence or leads derived from the search conducted on or about June 30, 2017. The Court held a hearing on this matter on November 22, 2017. ECF No. 63. The Court narrowed the scope of the hearing to address the third issue presented in Defendant's Motion to Suppress. For the reasons discussed below, Defendant's Motion to Suppress is DENIED.


         On June 5, 2017, Norfolk-based agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") received an anonymous email tip about someone in the area violating federal firearms laws. The tip stated that Defendant was a felon and illegally selling firearms he owned. An ATF agent verified the tip by checking Defendant's criminal history to confirm that Defendant was a convicted felon. Agents also confirmed that Defendant sold firearms online and Defendant sold guns that traveled in interstate commerce, an element of the crime of being a felon in possession of a firearm. On June 21, 2017, ATF undercover agents discussed purchasing firearms from Defendant at his dog business. On June 29, 2017, an agent applied for a warrant to search Defendant's property, which included his residence and business. On June 29, 2017, Magistrate Judge Leonard authorized the search warrant. Judge Leonard signed the warrant and mistakenly dated the deadline for the execution of the warrant as "June 13, 2017" instead of "July 13, 2017." Agent Ivone and the Government were present when Judge Leonard authorized the warrant but did not catch the error. On June 30, 2017, agents executed the warrant at Defendant's property, recovering ammunition, firearm parts, and firearm accessories throughout the house, including a box of ammunition in the master bedroom right next to Defendant's court documents listing his status as a convicted felon. Agents also seized 16 firearms from the safe in the residence.

         After the initial search and seizure conducted pursuant to the challenged search warrant, on July 10, 2017, ATF secured additional warrants to search the electronic media devices seized at the residence for evidence of the charged crimes. While reviewing the devices, agents discovered two videos of Defendant and his wife engaging in bestiality with one of their dogs. Since bestiality is a state crime and not a federal crime, an agent alerted the Suffolk authorities about the videos found during the search. A Suffolk police detective then sought and received a state search warrant for the video files. The Suffolk Commonwealth Attorney's Office is currently evaluating potential charges against both Defendant and his wife based on the videos.

         On July 11, 2017, an agent spotted the error of the date on the search warrant. The next day, an agent returned the warrant and an inventory of the items seized from Defendant's property to Judge Leonard to bring the error to Judge Leonard's attention. Judge Leonard then corrected the error by changing "June" to "July, " initialed the date, and filed the updated warrant.

         On August 6, 2017, Defendant's wife sold Defendant's business to an associate for free. While signing the documents, Defendant's wife told her associate that proving the existence of a second business address not mentioned in the June 30th federal search warrant at issue would invalidate the search warrant and allow Defendant to go free. That same day, Defendant's wife filed a "Statement of Change of Registered Office and/or Registered Agent Change" and a "Statement of Change of the Principal Office Address of a Limited Liability Company" with the Virginia State Corporation Commission. Defendant and his wife re-registered the business address to a new location after execution of the search and before the suppression hearing motion Defendant filed.

         On September 21, 2017, Defendant was indicted on seven counts pursuant to a superseding indictment (one count of Conspiracy to Commit Felon in Possession of a Firearm and Firearms, four counts of Felon in Possession of Firearms, and one count of Obstruction of Justice). ECF No. 30. On October 6, 2017, Defendant pled Not Guilty before Judge Leonard and his status in custody continued. ECF No. 35. Defendant's Motion to Suppress and Motion to Adopt Previously Filed Motion to Suppress were filed on August 29, 2017, and October 27, 2017, respectively. ECF Nos. 20, 44. The Government's Amended Response and its Motion to Adopt Previously Filed Motion to Suppress Response were filed on September 11, 2017, and November 1, 2017, respectively. ECF Nos. 29, 48. Defendant did not file a reply. The Jury Trial is set for December 12, 2017.


         In deciding a motion to suppress, the district court is empowered to make findings of fact, and conclusions of law. United States v. Stevenson, 396 F.3d 538, 541 (4th Cir. 2005) (citations omitted). "At a hearing on a motion to suppress, the credibility of the witness and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge." United States v. McKneely, 6 F.3d 1447, 1452-53 (10th Cir. 1993); see United States v. Massey, 257 Fed.Appx. 662, 664 (4th Cir. 2007); Columbus-Am. Discovery Group v. Atl. Mut. Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995). As a general rule, the burden of proof is on the defendant who seeks to suppress the evidence. United States v. Dickerson, 655 F.2d 559, 561 (4th Cir. 1981). Once the defendant establishes a basis for his suppression motion, the burden shifts to the government. United States v. Matlock, 415 U.S. 164, 177-78 n.14 (1974).


         A. Whether a Drafting Error of the Execution Deadline of a Search Warrant Renders a Search Warrant "Defective as a Matter of Law."

         A minor drafting error and date discrepancy of the execution deadline of a search warrant does not render a search warrant defective as a matter of law.

         The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. A warrant should be (1) issued by a neutral and detached magistrate, (2) contain a particular description of the place to be searched and the persons or things to be seized, and (3) the warrant should be based upon probable ...

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