United States v. Taylor

• Decision Date: 14 June 2022
• Docket Number: 4:20CR058 SEP/NAB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ANTONIO TAYLOR, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTONIO TAYLOR, Defendant.

No. 4:20CR058 SEP/NAB

United States District Court, E.D. Missouri, Eastern Division

June 14, 2022

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

NANNETTE A. BAKER, MAGISTRATE JUDGE

Before the Court is Defendant Antonio Taylor's Motion to Suppress Evidence and Statements.^[1] (Doc. 54.) The United States filed a response. (Doc. 58.) On August 25, 2021, the undersigned held an evidentiary hearing. At the hearing the Court heard testimony from witnesses and received exhibits into evidence. Following the hearing, a transcript was prepared (Doc. 81) and the parties filed post hearing briefs. (Docs. 83, 88, 92.) After reviewing the transcript and considering the post hearing briefs, the undersigned ordered a supplemental hearing be held to consider the Fourth Amendment issues before the court. (Doc. 93.) The supplemental hearing was held on March 17, 2022. (Doc. 95.) Following the supplemental hearing, the parties filed post hearing briefing. (Docs. 102, 103.) On April 14, 2022, Mr. Taylor filed a notice that no reply brief would be forthcoming. (Doc. 104.)

Having heard and fully considered the testimony and evidence presented, and in full consideration of the parties' arguments and the relevant case law, and for the reasons stated below,

1

the undersigned recommends that the Court deny Mr. Taylor's Motion to Suppress Evidence and Statements.

I. PROCEDURAL BACKGROUND

On January 22, 2020, a five-count indictment was returned against Mr. Taylor. He is charged in Count One with being a felon in possession of a firearm on December 13, 2019, in violation of 18 U.S.C. § 922(g)(1); in Count Two he is charged with possession with the intent to distribute heroin, a schedule I controlled substance, on January 15, 2020 in violation of 21 U.S.C. § 841(a)(1); in Count Three he is charged with a possession with the intent to distribute cocaine base, a schedule II controlled substance, on January 15, 2020, in violation of 21 U.S.C. § 841(a)(1); in Count Four, he is charged with one count of possession of a firearm in furtherance of a drug trafficking crime on January 15, 2020, in violation of 18 U.S.C. § 924(c); and in Count Five he is charged with being a felon in possession of a firearm on January 15, 2020, in violation of 18 U.S.C. § 922(g)(1). (Doc. 1.)

The undersigned took up Mr. Taylor's suppression motion at the August 25, 2021 evidentiary hearing.^[2] Mr. Taylor was present with his attorney Assistant Federal Defender Kayla Williams, and the government was represented by Assistant United States Attorney Donald Boyce. The government presented three witnesses, FBI Special Agent Owen Cunningham, St. Louis County Police Detective Derek Machens, and Secret Service Special Agent Jason Davis. Mr. Taylor presented the testimony of two St. Louis County Police Detectives, Randall White and Serif Sadikovic.

The witnesses testified generally about the methods used to locate and arrest Mr. Taylor on January 15, 2020. He was located when officers first used precision location information supplied by the cell phone service provider and then employed a cell site simulator. Officers did not procure

2

warrants before using these techniques and Mr. Taylor contends this amounted to a violation of his Fourth Amendment rights.

At the supplemental hearing, the Court heard arguments of counsel regarding the warrantless search of Mr. Taylor's cell site location information and the Fourth Amendment implication of that search. In addition, the Government presented additional testimony from S/A Davis who testified about the use of the cell site simulator to locate Mr. Taylor and the Department of Homeland Security policy regarding the use of this technology.

II. FACTUAL FINDINGS

Officers testified that Mr. Taylor was taken into custody because he was wanted for questioning regarding a September 2019 murder, an incident on December 13, 2019 and a flourishing of a weapon on January 9, 2020. On January 13, 2020, St. Louis County Police Homicide Detective Serif Sadikovic entered a wanted for Mr. Taylor for a murder which occurred in September 2019. The wanted was entered after a witness identified Mr. Taylor as the murderer. Mr. Taylor is also accused of a December 13, 2019 assault. That day, a man backed into Mr. Taylor's car in the parking lot of a liquor store. In response, Mr. Taylor allegedly pointed a gun at the man and took approximately $400.00 from him. He is also accused of taking a gun from the man. Mr. Taylor later contacted the Berkeley, Missouri Police Department and arranged to return the firearm he had taken from the victim. Count One of the instant case is based on the December 13, 2019 incident. (Doc. 81, August 25, 2021 Transcript, Tr. 7-9.)

On January 9, 2020, Mr. Taylor was identified by a witness as having leaned out of a vehicle window and pointed an AK-47 style rifle at a person in Berkeley. The Berkeley Police Department responded to the incident and identified Mr. Taylor as the driver of a truck. At that point, there was an extended police pursuit of Mr. Taylor. Mr. Taylor escaped from officers on foot and drug

3

paraphernalia was located in the vehicle Mr. Taylor was driving. The officer pursuing Mr. Taylor observed him fleeing with the assault style rifle in his possession. A wanted was issued for Mr. Taylor following this incident. (Tr. 9-11.)

On January 15, 2020, an officer from the Berkeley Police Department reported that Mr. Taylor had called the department the previous evening demanding a charger for the ankle monitor that Mr. Taylor was wearing as a condition of his state probation. Special Agent Cunningham learned this information from a canine officer who did not actually speak to the caller. S/A Cunningham stated that “there was a cascade of calls that the defendant made to Berkeley demanding a charger be brought to him for his ankle monitor.” In addition, Mr. Taylor is reported to have stated that he would “wreak havoc” if he did not receive the charger. However, the Berkeley Police Department does not have any recordings of the calls. (Def. Exh. C) The testimony regarding the alleged calls to the Berkeley Police Department, involves hearsay upon hearsay. Special Agent Owens testified that he received a call from Canine Officer Sean Hendel at the Berkeley Police Department. (Tr. 13, 27.) Officer Hendel told S/A Owens that Mr. Taylor made “a cascade of calls” to the Department's nonemergency number demanding a charger for his ankle bracelet. (Id. at 28.) Officer Hendel did not speak to the caller, therefore he was relaying information from an unknown source. S/A Owens admitted that there is no recording of the calls and that the information was not relayed to him until the morning of January 15, 2020 when the decision had already been made to attempt to apprehend Mr. Taylor. (Id. at 28-30.) In addition, Mr. Taylor submitted AT&T call records for his telephone as Defendant's Exhibit B. Those call records indicate that no outgoing calls were made from Mr. Taylor's telephone number to the Berkely Police Department on January 14, 2020. Therefore, there is no credible evidence that Mr. Taylor actually called the police department and made those threats. It is also not credible that trained police officers would rely on a telephone number left by a caller with “someone”

4

at a police department as the number of the person they were seeking to arrest. Officers were able to locate previous addresses for Mr. Taylor through probation and parole, and it is highly likely that probation and parole would have had his telephone number.

On the morning of January 15, 2020, an arrest team made up of St. Louis County Detectives who are also FBI Task Force Officers attempted to arrest Mr. Taylor. They began looking for Mr. Taylor at about 9:00 in the morning. They determined that Mr. Taylor had a probation violation warrant and that he was wanted for questioning in the September 2019 homicide. Officers attempted to find Mr. Taylor at three different addresses they had for him. However, by mid-day, they were unable to locate him. After failing to find him at a residence, they checked his social media accounts and were unable to locate him.

Having failed to find Mr. Taylor, a decision was made to track his cell phone to locate him. Detective Machens contacted AT&T and requested “exigent real time location pings” of the phone number that the Berkeley Police Department had identified as Mr. Taylor's number. (Tr. 37.) The process of getting the exigent information involves calling the carrier and faxing a form with the target number on it. The officer also provides an email address which is used to receive the location information. Det. Machens explained that they did not get a search warrant because, “based on the information we had, we believed that that was exigent to locate him, that he was a risk, not only to the community as a whole, but law enforcement as well due to the recent phone call and his actions.” (Tr. 40.) Det. Machens stated that after employing exigent circumstances phone location, the department practice is to get a follow-up warrant with the court to show officers were acting in good faith and had probable cause at the time to believe the phone was being carried by this individual and that if not for time constraints they would have gone through the normal process to get a warrant. A

5

follow-up warrant was obtained on January 22, 2020, one week after the location information was procured, and was introduced as Government's Exhibit 1.

AT&T provided the location information in the form of emails every 15 minutes. The information officers received from the carrier was precise within 70 to 80 meters and it indicated that Mr. Taylor's phone was moving around. Officers were still unable to locate Mr. Taylor so they called Special Agent Davis to request the use of a...