United States v. Childress
| Decision Date | 14 July 2021 |
| Docket Number | Criminal Action No. 7:21-cr-00011 |
| Parties | UNITED STATES OF AMERICA v. MELVIN MCKINLEY CHILDRESS |
| Court | U.S. District Court — Western District of Virginia |
MEMORANDUM OPINION AND ORDER
This case is before the court on the government's motion for a Lafler/Frye hearing (Dkt. No. 32), Childress's motion to preclude and suppress evidence from a cell phone search (Dkt. No. 49), and the government's notices of intent to introduce 404(b) evidence (Dkt. Nos. 39, 48). The matters have been briefed, and the court has heard argument from both parties. At the pretrial conference held on July 7, 2021, the court denied the motion to suppress with a written opinion to follow. In addition, the court denied the motion for the Lafler/Frye hearing and found the government's notices of intent to introduce 404(b) evidence adequate. This opinion will provide the court's reasoning regarding these decisions.
On January 27, 2021, Special Agent ("SA") D.R. Lambert obtained a warrant to search a residence in Roanoke, Virginia. The warranted provided authority to search the "residence, all adult persons, outbuildings, vehicles, and curtilage at [residential address redacted]" for "heroin/fentanyl and . . . cellular phones . . . or other information that may be found relating to [the] sale, distribution[,] or possession with intent to distribute controlled substances . . . ." (Dkt. No. 67-1 at 1.) The warrant also listed the year, make, model, registration number, and vin number for two vehicles expected to be at the residence: a Mercedes sedan and a Cadillac sedan. (Id.) The search warrant specified that "electronic items seized during the search may be analyzed at a future date and time at an off-site location designed for the analysis of electronic items." (Id.)
SA Lambert submitted a two-page affidavit in support of his application for the search warrant. (Id. at 4.) The affidavit explained that "[d]uring the month of January 2021, [SA Lambert] and other members of law enforcement [were] conducting an investigation of Melvin McKinley Childress [] based on information that Childress [was] distributing suspected heroin and/or fentanyl." (Id.) "This investigation proceeded by means of controlled purchases using a confidential informant working at the direction of the V[irginia] State Police." (Id.) Most of the controlled purchases between the confidential informant and Childress occurred inside or near the residence to be searched. (Id.) "[O]fficers conducting surveillance during controlled purchases [] observed Childress through covert audio and video equipment conducting [drug] transactions inside the residence." (Id. at 5.) SA Lambert explained that "Childress is believed to be residing" at the residence to be searched. (Id. at 4.)
The affidavit also provided information about the confidential informant, noting that "[t]he informant was searched prior to engaging in controlled activity, the informant was equipped with an audio/video recording and monitoring device, and surveillance officers were in place to observe where the informant went, and who the informant met with." (Id. at 4.) "After the controlled purchases, the informant turned over the substance purchased, and was searched again by the controlling officers, with nothing improper found." (Id.) SA Lambert noted that "[t]he confidential source used to conduct the controlled activities in this case is a self-admitted user of illegal narcotics, [] has pending charges for possession of illegal narcotics . . . [and] iscurrently working as an informant in hopes of mitigating certain state narcotics charges against [him]." (Id. at 6.)
On January 28, 2021, officers executed the search warrant on the residence which did not produce any significant evidence. (Dkt. No. 67 at 2.) Childress does not challenge this search warrant. Childress was not present at the residence during the search, but he was stopped by officers nearby while driving the Cadillac automobile that was listed on the search warrant for the residence. (Id.) During the traffic stop, officers seized Childress's cell phone. Childress does not challenge the seizure of the cell phone. SA Lambert then swore out an additional search warrant for the cell phone. The affidavit in support of the application for the cell phone search warrant stated:
On January [2]7, 2021 Special Agent Lambert conducted a search warrant operation of [residential address redacted]. During the investigation your affiant identified Melvin CHILDRESS as a source of supply of Heroin/Fentanyl. A traffic stop was conducted on CHILDRESS and subsequent [to] arrest a cell phone was located on his persons. The Affiant knows, due to his training and experience, that those involved in the illegal use/distribution of controlled substances often keep lists of customers/suppliers on their cellular devices, arrange for the illegal purchase/sale of controlled substances utilizing voice and text messaging, and often store digital photo/video files depicting themselves with controlled substances and/or the proceeds from their sale, this is often done on one or more cellular devices. The Affiant seeks the issuance of this in order to identify any sources for the illegal distribution of controlled substances. (Dkt. No. 67-2 at 3.)
On January 29, 2021, a magistrate1 issued the search warrant providing authorization to search the cell phone. (Dkt. No. 67-2 at 1.) This search warrant is the subject of the motion to suppress. "The search of the cell phone was fruitful, uncovering records of a number of text messages and phone calls that [the government believes] corroborate[s] [Childress's involvement in] the various controlled buys." (Dkt. No. 67 at 2.)
On March 15, 2021, a grand jury returned a four-count indictment against Childress for distributing a measurable quantity of fentanyl on January 20, 2021 (Count 1), January 21, 2021 (Count 2), January 22, 2021 (Count 3), and January 26, 2021 (Count 4) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
Recently, at a pretrial conference, the court heard argument on several pending motions. The government filed a motion for a Lafler/Frye hearing (Dkt. No. 32), which Childress opposed (Dkt. No. 38). Childress filed a motion for release of Brady and Giglio materials. (Dkt. No. 36.) Later, the government filed two notices of intent to introduce 404(b) evidence (Dkt. Nos. 39, 48), to which Childress objected during oral argument. In addition, Childress filed a motion to suppress the evidence obtained from the search of his cell phone (Dkt. No. 49), which was opposed by the government and briefed extensively. (Dkt. Nos. 50, 53, 67, 73.) Childress has also filed a motion to exclude testimony of the government informant (Dkt. No. 57), to which the government objected at oral argument. Finally, at the pretrial conference held on July 7, 2021, Childress made an oral motion to compel discovery of police policies and procedures regarding confidential informants, to which the government objected. (Dkt. No. 75.) The court resolved most of these motions at the pretrial conference, but the court took the motion for Brady and Giglio materials under advisement.
On July 12, 2021, the court granted Childress's motion for Brady and Giglio material as it relates to a confidential informant agreement and denied Childress's motion to compel discovery of police policies and procedures related to confidential informants. (Dkt. No. 77.) Childress has since moved for reconsideration of the denial of the motion to compel. (Dkt. No. 79.) This opinion does not address the motion to reconsider.
The government "moves that the Court make formal inquiry on the record, prior to trial, into whether the Defendant has received, and had the opportunity to consider, the various plea agreements that were offered by the government in this case, and whether the defendant knowingly and willfully chose not to accept any of these plea agreements." (Dkt. No. 32 (citing Lafler v. Cooper, 132 U.S. 1378 (2012); Missouri v. Frye, 132 U.S. 1399 (2012)).) Childress opposes this motion because he claims, "the government has not made any plea offers . . . ." (Dkt. No. 38.) Childress further argues that "[i]t appears to be a new trend for the government to request pre-trial hearings on this issue" and but such hearings should only be conducted when they are "necessary and useful." (Id. at 2.)2
Generally, a Lafler/Frye hearing works to the benefit of defense counsel because it demonstrates on the record that they have fulfilled their responsibilities in the plea bargain process. See generally United States v. Bryant-Royal, No. CR ELH-12-0040, 2019 WL 1936734, at *7 (D. Md. Apr. 30, 2019), aff'd, 794 F. App'x 300 (4th Cir. 2020). Here, a Lafler/Frye hearing is not necessary as the government has not made any plea offers at this time. Even if an offer had been made, the court would forego the inquiry given Childress's objection and in reliance on defense counsel's assurances that he has fulfilled his duty to inform his client of any plea offers. Therefore, the court denied the government's motion for a Lafler/Frye hearing.
Childress argues that the court should suppress the information obtained from the cell phone search because: (1) the government delayed in producing the evidence to the defense; (2) the affidavit in support of the warrant for the search lacked probable cause; and (3) the police misrepresented information in the warrant application. (Dkt. No. 49.) For the reasons stated below, the court will deny the motion to suppress.
"Pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, 'the government is required to disclose...
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