United States v. Bolling
| Docket Number | Criminal 2:21-00087 |
| Decision Date | 30 August 2023 |
| Parties | UNITED STATES OF AMERICA v. MARK BOLLING |
| Court | U.S. District Court — Southern District of West Virginia |
On February 2, 2023, the court held a hearing on defendant's motions seeking a Franks hearing and to suppress evidence recovered from a search of defendant's LG phone. Present at that hearing were defendant, his counsel, Brian D Yost, and Assistant United States Attorney Nowles H Heinrich. On February 9, 2023, the court denied defendant's motions. This Memorandum Opinion sets out more fully the reasons for those rulings.
In September 2020, members of the Bureau of Alcohol, Tobacco Firearms and Explosives (“ATF”) began to investigate defendant Mark Bolling for drug trafficking and violation of federal firearms laws. Officers with an ATF task force received information from a Source of Information that Bolling was a drug dealer. The Source of Information was Brett Yates.
On September 16, 2020, ATF used Yates to make a controlled-purchase of methamphetamine from Bolling. The controlled-buy took place at Bolling's residence and Yates reported seeing a handgun near Bolling during the buy. A video recording of the controlled-buy captured Bolling discussing possessing and selling one or more firearms.
Three days later, on September 19, 2020, Bolling was arrested in Fayette County, West Virginia. A Fayetteville police officer, who was not affiliated with the ATF investigation, conducted a traffic stop and recovered approximately 100 grams of methamphetamine, 30 grams of suspected heroin (later identified as fentanyl), ammunition, and over $7,000.00 from a vehicle (Nissan Kick) Bolling was driving. During the course of Bolling's arrest, a cell phone was also seized from Bolling. That cell phone was transferred to ATF custody on September 23, 2020.
On September 21, 2020, a warrant authorizing a search of Bolling's residence at 117 Keystone Drive was issued by United States Magistrate Judge Omar J. Aboulhosn. The search warrant was executed the same day. Bolling was not present when the warrant was executed as he was still incarcerated on the traffic stop. During execution of the search warrant, law enforcement discovered that other people were residing in the building located at 117 Keystone Drive. Agents recovered an AR-style rifle with a silencer, a .380 caliber pistol, and a box of .45 caliber ammunition in an apartment where a man named Donald Jordan was living. Jordan denied ownership of the firearms and told agents executing the search warrant that Bolling and his wife had access to his apartment. Also recovered during the search was a .45 caliber pistol in the trunk of a Toyota Camry parked outside the building.
On September 30, 2020, ATF Special Agent David Bullard drafted an affidavit for a federal warrant to search Bolling's phone recovered during the traffic stop. That affidavit is almost an exact replica of the one submitted on September 21, 2020, to obtain a search warrant on 117 Keystone Drive. In particular, as to the nature of 117 Keystone Drive, Bullard swore:
ECF No. 117-2. Special Agent Bullard did not update his affidavit to indicate that a search of 117 Keystone Drive had occurred on September 21, 2020, and that, as a result of that search, it was clear that Bolling was not the sole occupant of 117 Keystone Drive. He also did not inform the magistrate judge that narcotics were not found on the property nor was a safe with twenty guns.
On September 30, 2020, a warrant authorizing a search of Bolling's phone was issued by United States Magistrate Judge Omar J. Aboulhosn. Ultimately, that search was not fruitful as a Digital Forensic Examiner for the Kanawha County Sheriff's Office Laboratory was not able to unlock the phone.
On February 10, 2022, ATF Special Agent Asa Gravley drafted an affidavit for a second federal warrant to search Bolling's phone. Of his reason for seeking a new warrant, Special Agent Gravley stated:
Pursuant to a previous federal search warrant, on October 1, 2020, the LG phone recovered from BOLLING was submitted to Detective J.A. Payne, a Digital Forensic Examiner for the Kanawha County Sheriff's Office Laboratory (KCSO) for analysis. Detective Payne advised the LG phone was not supported by UFED for unlock/secure start-up bypass at that time. However, on January 24, 2022, Detective Payne advised that as of December 2021, specialized tools, that is, UFED-P Version 7.21, is now available to perform an unlock on the LG phone.
ECF No. 117-3. In all other respects, the affidavit is almost an exact copy of the ones submitted on September 21, 2020, and September 30, 2020. Once again, the affidavit did not indicate that a search of 117 Keystone Drive had occurred on September 21, 2020, and that, as a result of that search, it was clear that Bolling was not the sole occupant of 117 Keystone Drive. It also did not inform the magistrate judge that narcotics were not found on the property nor was a safe with twenty guns.
The application for the search warrant specified that the search was related to a violation of 21 U.S.C. § 841(a)(1), distribution of methamphetamine and possession with intent to distribute fentanyl. In his affidavit, Special Agent Gravley stated:
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