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United States v. Upton

March 23, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TAVON UPTON, DEFENDANT.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM & ORDER

Defendant, Tavon Upton, has filed three motions related to suppressing evidence and statements. Doc. 19 seeks suppression of the defendant's confession; Doc. 20 seeks a Franks Hearing and an Order directing the government to produce the confidential informant for the hearing and to suppress the evidence seized as a result of the search warrant; and Doc. 23 seeks to suppress evidence seized as a result of the search warrant. The government has filed responses and defendant replies. The Court held two days of evidentiary hearings on the matter and took it under advisement pending further briefing by the parties. The parties have now filed their post hearing briefs (Doc. 68, 69).

EVIDENCE RECEIVED AT THE HEARINGS

Timothy M. Bedard testified that in July of 2003, he was a police officer for the Cahokia Police Department, assigned to the Drug Tactical Unit of the St. Clair County Sheriff's Department. At that time he was a six year veteran of the Cahokia Police Department and had received drug related training and certification, and prepared two written reports of investigation, one dated July 16, 2003, and the other October 16, 2003. Those reports concerned July 9 and July 15, 2003, controlled buys made from the defendant by a confidential source. Bedard had used this CS on other occasions on an intermittent basis for other drug purchases. Bedard was aware that the CS was a drug user, but it was his belief on the dates he used her that she was not under the influence at that time.

Before the CS went into make the drug purchases, she was searched by Bedard in the presence of other officers. She remained with Bedard or another officer from the time of her search until she entered the defendant's home. Because she was a female and there was not a female office present, the search consisted of having her shake out her shirt and pants and checking her pockets.*fn1 She was accompanied to the defendant's home by Investigator Mark Hort who drove her in one of the undercover vehicles. The CS went to the front door and was waived to the back door. During the first buy, Sgt. Eversman, Investigator Nuemescheimer (phonetic) and Bedard were all present, positioned throughout the area with different views of the defendant's home.

The CS was in the defendant's home a few minutes, and then returned to the unmarked police car. She was searched in the same manner as before she made the buy. A similar process was followed both before and after the second buy on July 15th. Bedard testified that he had used the CS on other occasions, and that she has made multiple purchases of narcotics for the Drug Tactical Unit.

Based on these controlled buys, Bedard sought a search warrant from the St. Clair County Circuit Court for the defendant's address. When the application for the search warrant was presented to Judge Milton Wharton, he swore in Bedard, and asked him for a synopsis of the complaint, evidence or probable cause for the search warrant. Judge Wharton was advised of any buys that were made. Judge Wharton granted the application on July 15, 2003 (the same day as the second controlled buy), and on July 16, 2003, the search warrant was executed on the defendant's home.*fn2 The defendant attempted to flee the area, but was seized and placed in the back of a squad car by another officer. Bedard attempted to read the defendant his Miranda warnings, but the defendant was acting very aggressively, kicking and cursing at Bedard. In addition, the defendant attempted to get out of the car and had to be restrained and pushed back into the car by Bedard and Sgt. Eversman. Bedard testified that they both used open hands to push the defendant back into the car. Bedard participated in the search of the defendant's home. He testified that in addition to finding drugs and drug paraphernalia, he also found a loaded automatic pistol.

The defendant was transported to the Cahokia Police Department by Detective Phillip Taylor and Officer Karla Heine. The Cahokia Police Department is approximately four minutes away from the defendant's home. Bedard testified that he later learned that there was an incident during that transportation and that Det. Taylor had injured the defendant because he was trying to get out of the squad car.

Bedard went to the Cahokia Police Department to interview the defendant and again gave him his Miranda warnings. Gary Brewer, of the DEA Task Force, was present during some of the questioning of the defendant. The defendant indicated that he understood his rights, and did not appear to Bedard to be under any impairment or have an inability to understand. However, the defendant refused to sign his Miranda waiver form and refused to give a written statement. Although he refused to sign the waiver, the defendant did, however, indicate some interest in cooperating with law enforcement, and acknowledged that he was selling crack cocaine at his house to support his daughter and that he knew there was a firearm in his house. He said, however, that the firearm belonged to a friend, although the defendant admitted touching the gun. As the defendant began making a statement, Bedard advised him that he could stop at any time. The defendant eventually asked for a lawyer and was returned to his cell at that time. The defendant was bleeding slightly from his nose, but did not ask for medical treatment or to see a doctor. Bedard did not observe any bruising around the defendant's face. A photograph was taken of the defendant after he was in custody (See. Govt. Ex. 2). The photograph shows him in a button shirt and a t-shirt with bloodstain on the front of his shirt.

Bedard prepared two reports concerning the defendant's arrest. The first report, dated July 16, stated that "Upton refused to give statements in reference to the incident." The amended report was prepared at the request of St. Clair County Assistant State's Attorney Fold, and reflects the oral statements made by the defendant. Bedard testified at the second day of hearing that the reference in the first report was intended to refer to written statements.

William Kenny, an investigator for the St. Clair County Sheriff's Department testified as to the arrest of the defendant. Kenny testified that there were two baggies of cocaine, one powder, one crack cocaine, found inside a box within arms reach of the defendant at the time of his arrest. Kenny transported the defendant to the St. Clair County jail and prepared a report. He did not observe the defendant was bleeding. During the drive, the defendant said that he wanted to talk with Sgt. Eversman about doing some work for him, but he would have to get out of jail.

Phillip Taylor, a detective with the Cahokia Police Department, testified that he and Det. Heine transported the defendant in a marked police car from the place where he was arrested back to his residence at 37 St. Justin. He did not observe any injuries on the defendant and the defendant did not ask for medical treatment. When the arrived at the defendant's home, other officers took over talking to the defendant. Taylor and Heine then transported the defendant from his home to the Cahokia Police Department. During the few minutes drive, the defendant tried to get out of the police car by kicking the window and the door hard enough to make them bow out. Taylor told him to stop kicking the door, and when he continued, Taylor stopped the car got out, opened the rear door on the passenger side and told the defendant to stop kicking the window and the door. Although the defendant was handcuffed, his feet and legs came out of the car and he was kicking both officers. Taylor ordered him several times to get back into the car and tried to push him back into the car. The defendant kept saying "I'm not going back to jail. I'm not going back to jail." Taylor was attempting to push the defendant back into the car by pushing on his upper torso area while avoiding being kicked, but the defendant lowered his head and Taylor actually struck the defendant in the face one time with his open palm. When they arrived at the police department Taylor observed that the defendant had a laceration across the bridge of his nose which was bleeding. He offered the defendant medical attention, got out a medical kit, patted his nose dry, stopped the bleeding and cleaned up the defendant. The defendant did not request further medical attention. The defendant was crying and very emotional, and said that he did not want to go back to prison.

The defendant presented the testimony of Clifton Moulton, Jr., who, in May of 2002, was the head of security at Pop's Night Club in Sauget, Illinois. Moulton testified as to an incident involving Detective Taylor who, while involved in a struggle with another person, hit Moulton on the left side of his face underneath his eye as Moulton approached him to break up the fight. Moulton was left with a mild contusion and a residual scar. As a result of an investigation of the incident by the Illinois State Police, Moulton, and several other Pop's employees, were eventually charged with misdemeanor assault and were later found guilty. In addition, a civil law suit was filed against Pop's Night Club as a result of the incident.

Mark Donald, the General Manager of Pop's Night Club, testified that he investigated the incident in question and determined that there were a two groups of bachelorette girls who got into a fight, and that as they were being taken outside by security guards, another group of males ...


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