United States v. Gater
| Decision Date | 10 September 2015 |
| Docket Number | Case No. 1:15 CR 52 SNLJ (ACL) |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JERRY L. GATER, pro se, Defendant. |
This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). Pending before the undersigned is the Defendant Jerry L. Gater's pro se Motion to Suppress (Doc. 26) evidence seized from his residence and truck on December 16, 2014. On that day, officers executed a search warrant and seized drugs, digital scales, money, keys to the residence, and other evidence.
The Defendant asserts the following grounds for suppression: 1) the officers didn't have a valid search warrant, because the warrant was not filed in the Clerk's Office until the day after the search warrant was executed, 2) the search warrant was not supported by probable cause, 3) the search warrant affiant omitted facts regarding the informants from the Affidavit, 4) the officers did not follow policies on use of informants 5) the search warrant was an unlawful "general warrant" authorizing a search of the whole house, and 6) the execution of the warrant was unlawful, because entry was made through a window.
Gater also filed a Motion to Suppress the statements (Doc. 33) that were taken from him in early 2015 regarding his written "Request [for] Remission or Mitigation of an Administrative Forfeiture" concerning the money seized from his residence on December 16, 2014. The Government announced that it will not use any of the statements made by Gater during a March 20, 2015 interview, which was conducted in response to the written mitigation request. As a result, Gater's Motion to Suppress statements1 is moot and need not be examined.
During the suppression hearing, Gater asked for his written mitigation request to be suppressed. Gater did not make any argument, or offer legal support for this request. Based on the record of the case, there are no grounds to suppress the written mitigation request that Gater voluntarily submitted to authorities. Gater made the written request in an effort to have the money that was seized during the December 16, 2014 search, returned to him. As no grounds for suppression of the written mitigation request have been offered, Gater's request should be denied. The admissibility of Gater's written request, however, may be further litigated at the pretrial phase of the case.
In addition, Gater filed several motions (Docs. 24, 28, and 31) requesting that the Court compel the Government to disclose various items of evidence. He also filed a supplement to his suppression motion. (Doc. 35.)
The Government filed a Response to the Defendant's claims. (Doc. 41.)
A hearing was held on July 23, 2015. The witnesses included Drug Enforcement Task Force Officer Bobby Sullivan and Detective Bobby Penrod, both employed by the Sikeston Department of Public Safety. After all evidence was received the parties offered oral argument. Following the hearing, Gater submitted a post-hearing memo. (Doc. 47.)
More than three weeks after the suppression hearing, Gater filed a "Motion for Dismissal of Charges and Case No. 1:15CR52." (Doc. 49.) To support his request for dismissal, Gater restates many of the arguments raised in his prior pleadings. He also filed a Motion to Compel (Doc. 53), which was electronically filed on September 8, 20015 and restates several of his previous arguments.
A supplemental evidentiary hearing was held on September 9, 2015, in order for the parties to "submit additional evidence regarding the timing of events between December 16, 2014 at 2:25 p.m. and the completion of the execution of the search warrant." (Doc. 51.) Prior to the hearing, the parties received the transcript of Officer Sullivan's testimony from the July 23, 2015 hearing. Officer Sullivan testified at the September 9 proceeding.
In consideration of the pleadings, all of the testimony of the witnesses, the exhibits admitted into evidence, as well as the oral and written arguments of the parties, the undersigned recommends that the following findings of fact and conclusions of law be adopted and that the Defendant's Motions to Suppress, Compel, and Dismiss be denied.
Around the fall of 2014, law enforcement officers in Sikeston, Missouri received information that the Defendant, Jerry L. Gater, and others had been obtaining quantitiesof cocaine and marijuana from a source in California for distribution in and around Sikeston, Missouri. By the middle of December, Drug Enforcement Task Force Officer (TFO) Bobby Sullivan received information from two separate confidential informants that Gater was actively distributing controlled substances, including cocaine, crack cocaine, and marijuana. According to TFO Sullivan, both informants had a history of cooperating with law enforcement officers in a manner that resulted in successful drug prosecutions at the state and federal levels.
On December 9, 2014, the first informant (CI #1) told TFO Sullivan that he/she had observed Gater selling cocaine powder and crack cocaine from his truck in the area of Luther, Dixie, and Osage streets in Sikeston, Missouri. CI #1 indicated that he/she had observed Gater in possession of more than one ounce of powder and crack cocaine inside of Gater's truck. CI #1 had a five year history of providing information to law enforcement regarding narcotics trafficking. During that timeframe, CI #1 made controlled purchases of drugs while wearing recording devices.
The following day, December 10, 2014, a second confidential informant (CI #2), provided information regarding Gater to TFO Sullivan. CI #2 reported that he/she had been to Gater's residence located at 101 DL Fulton in Sikeston, Missouri, at times when other people purchased cocaine from Gater. CI #2 estimated that each time this happened Gater was in possession of more than one ounce of crack cocaine.
On December 16, 2014, around 2:25 p.m., CI #2 contacted TFO Sullivan to report that he/she had just been to Gater's residence (101 DL Fulton) and Gater was in possession of approximately five ounces of cocaine and two pounds of marijuana. CI #2added that Gater had a large quantity of cash which CI #2 estimated to be twenty thousand dollars; and described it as three large rolls of cash with one hundred dollar bills visible.
Neither CI #1 nor CI #2 participated in a controlled purchase of drugs from Gater, nor did they provide TFO Sullivan or any other law enforcement officer with a sample of drugs acquired from Gater. Each CI had a history of acting as a law enforcement informant and making controlled purchases of drugs that resulted in convictions of drug traffickers at the state and federal levels.
Upon receiving the information from CI #2 on December 16, 2014, TFO Sullivan asked Detective Bobby Penrod to initiate surveillance of Gater's residence. Detective Penrod responded to 101 DL Fulton to begin surveillance, which consisted of visually monitoring the residence by driving by or watching the residence from a location approximately one block away. Around 3:02 p.m., Detective Penrod observed a black male, wearing a gray hooded sweatshirt and tan pants, exit the residence and get into Gater's white Ford truck parked in front of the residence. Detective Penrod watched as the person manipulated something inside the truck, exited and closed the truck door, and then walked away from the area.
Around 3:14 p.m., TFO Sullivan and other officers went to Gater's residence with the intent of asking Gater for consent to search the residence. TFO Sullivan knocked on the door, but no one answered. Around 3:30 p.m., TFO Sullivan called Gater and asked Gater to meet at 101 DL Fulton. Gater declined the invitation, but agreed to meet TFO Sullivan at the police station. TFO Sullivan then returned to the police station and beganworking on an application and affidavit for a search warrant to search Gater's residence and truck.
While at the police station, TFO Sullivan called Gater at least three times to find out when Gater was coming to the station. During the hearing, both parties asked questions that suggested Gater did not arrive at the station for questioning until roughly 6:33 p.m. TFO Sullivan's Affidavit (Gov't. Ex. #1; Doc. 41-1 at 5-7) that was attached to the Search Warrant Application, on the other hand, reflects that he received considerable information from Gater prior to 6:33 p.m., because TFO Sullivan recited many details regarding statements from Gater in the Affidavit which was signed by Judge Winchester at 5:33 p.m. (Gov't. Ex. #1; Doc. 41-1 at 7.)
Gater's cross-examination of TFO Sullivan on July 23, 2015, revealed that TFO Sullivan's written Report of Investigation summarizing the incident stated that TFO Sullivan did not speak with Gater until 6:33 p.m. The ROI also reported, however, that the Search Warrant was secured after TFO Sullivan spoke with Gater at the station. (Def. Ex. A at 3.) Nevertheless, during TFO Sullivan's testimony on July 23, he agreed that he had secured the warrant prior to interviewing Gater at the station and that he had returned to the station after securing the search warrant to conduct the interview of Gater.
The times that were reported for TFO Sullivan's interview of Gater are not consistent between the ROI (Def. Ex. A) and TFO Sullivan's Affidavit that was attached to the Search Warrant Application. Both the ROI and the Affidavit, however, reflect that TFO Sullivan presented the Search Warrant to Judge Winchester after he interviewedGater. While TFO Sullivan agreed during his suppression hearing testimony that Gater's statement was not received at the police station on December 16, 2014, until around 6:33 p.m., 1) TFO Sullivan's Affidavit and his ROI reflect that he interviewed Gater at the police station prior to applying for the Search Warrant and 2) the Sikeston DPS Dispatch Log (Govt....
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