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United States v. Morton

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

February 2, 2018

UNITED STATES OF AMERICA
v.
FRED MORTON, Defendant.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge.

         This matter is before the Court on Defendant's MOTION TO SUPPRESS (ECF No. 16) all evidence and information seized during the execution of a search warrant at 1704 Mechanicsville Turnpike on October 6, 2017.[1] For the reasons discussed below, the motion will be denied.

         BACKGROUND

         On October 5, 2017, Officer Eric O'Brien ("O'Brien") of the Richmond Police Department presented to a state magistrate an affidavit for a search warrant[2] for the residence and curtilage of 1704 Mechanicsville Turnpike, Richmond, Virginia. Search Warrant (ECF No. 16-1) at 2.[3] The affidavit described in detail the location and appearance of the residence at that address, as well as the items to be searched for and seized.[4] Id. For the "material facts constituting probable cause that the search should be made, " O'Brien attached a page that stated, in relevant part:

On or about July and August of 2017, investigators observed heavy foot and vehicle traffic originating from 1704 Mechanicsville Tpke., in particular the rear alley area and the corner of the alley and Redwood Ave. which is just 2 lots away from 1704 Mechanicsville Tpke.
On or about August 16th of 2017, [O'Brien] and investigators conducted a controlled purchase of suspected crack cocaine from a dealer in the immediate area of Redwood Ave. and Mechanicsville Tpke.
On October 5, 2017, [O'Brien] conducted a "trash pull" at 1704 Mechanicsville Tpke in order to confirm or dispel if this address is involved in narcotics distribution. [O'Brien] went to the rear of this address and observed a green city of Richmond garbage can outside of the fence line of the address in the alley. This garbage was put out for collection, and the city of Richmond lists Thursday as the collection day for this address. [O'Brien] retrieved from this garbage can one black garbage bag that had been tied off, hereafter referred to as Bag 1; and one open black garbage bag, hereafter referred to as Bag 2.
These items were secured in a separate empty garbage bag and transported to 1st Precinct. At 1st Precinct [O'Brien] sorted through the collected items.
From Bag 1 [O'Brien] collected 9 whole sandwich bags with white powder residue on them, 4 whole sandwich bags with no residue on them, 6 sandwich bags with the corners missing, and 3 ripped sandwich bags with knots in them. Also collected from Bag 1 was an empty carton of baking soda, a tied bag containing approximately 30 unmarked brown pills [O'Brien] suspect[ed] to be some sort of vitamin (such as B12), and 1 document with the name "Latesha Eberhardt" written on it.
From Bag 2, [O'Brien] collected 2 whole sandwich bags with white residue, 7 whole sandwich bags with no residue, and 1 sandwich bag with the corner ripped off. Also collected from Bag 2 was 1 one dollar bill and a google maps document giving directions, with a starting address of 1704 Mechanicsville Tpke.
In one of the whole sandwich bags with residue from Bag 2 [O'Brien] observed some particles appearing to be an off white rock like substance. It was enough for a cocaine field test. [O'Brien] conducted a field test on the narcotics sample and it was positive for the presence of cocaine.

Id. at 5. A separate attachment also stated that, based on three years of experience in narcotics investigations, O'Brien knew that individuals trafficking narcotics often keep records of controlled substance purchases and sales in their residences and "stash houses[s], " and keep receipts, money transfers, ledgers, firearms, and ammunition in their residences. Id. at 7.

         After reviewing this information, the magistrate issued the warrant at 11:46 a.m. on October 5, 2017. Id. at 1. During the ensuing search of 1704 Mechanicsville Turnpike on October 6, the police seized an AK-47 firearm with ammunition, green plant material and a grinder, U.S. currency, several security cameras, digital scales, a Pyrex cup with white residue, and a container with a false bottom. Id. at 4; Criminal Complaint (ECF No. 1) ¶ 6. Defendant was arrested during the execution of the search and advised of his rights. He admitted that the seized property was his, including the AK-47, and that he deals drugs. Criminal Complaint ¶ 7. A subsequent review of Defendant's criminal history revealed that he has five previous felony convictions. Id. ¶ 8.

         On December 5, 2017, Defendant was indicted on one count of possession of a firearm by a convicted felon. ECF No. 13 at 1. After pleading not guilty at his arraignment, Defendant filed this motion on January 3, 2018. ECF. No. 16.

         At the suppression hearing, after O'Brien reviewed a map of 1704 Mechanicsville Turnpike and the surrounding neighborhood, he clarified that the controlled purchase referenced in the affidavit began at the intersection of the alley behind Mechanicsville Turnpike and Redwood Avenue, after which an individual went to 1616 Mechanicsville Turnpike to retrieve the narcotics being purchased before the transaction was finalized on Carver Street near the intersection with Mechanicsville Turnpike. O'Brien also stated that the area around Mechanicsville Turnpike and Redwood Avenue was a high-crime area. Finally, he said that he had searched the trashcan behind 1704 Mechanicsville Turnpike only after an individual stated, when being debriefed after his arrest, that there was suspicious narcotics activity at that address. The individual further stated that Defendant was involved in ...


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