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United States v. Gilmore

April 2, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CARLTON GILMORE, DEFENDANT.



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

MEMORANDUM & ORDER

This matter is before the Court on the defendant's motion to suppress evidence (Doc. 20) and motion to suppress statements (Doc. 21). The government has filed responses to the motions (Docs. 24, 25) and the defendant has filed a supplement to the motion to suppress evidence (Doc. 28) to include affidavits of several eyewitnesses. The Court held an evidentiary hearing on the motion and took the matter under advisement. The parties have now filed post hearing briefs (Docs. 34, 35).

The defendant is charged by the grand jury with possession with intent to distribute crack cocaine (Count 1) and possession of a firearm in furtherance of a drug trafficking crime (Count 2). These charges stemmed from the execution of a search warrant at the defendant's residence at 766 North 81st Street, East St. Louis, Illinois, on June 24, 2006. The defendant asserts that the warrant was improperly executed because the officers did not "knock and announce" before entering the residence and did not give the defendant a copy of the warrant at the outset of the search of the premises. In addition, the defendant seeks to suppress statements he made to the officers on the scene as to the location of guns in his home because he did not receive his Miranda warnings before making the statement. The Court will address each motion in turn.

BACKGROUND

The defendant introduced the testimony of the defendant himself, his wife, Denise Gilmore, his daughter, Chyna Gilmore, and Joyce Ann Harper, the defendant's mother to testify about events which occurred during the search of the defendant's residence.

The defendant testified that on the night before the June 24, 2006, search of his home, which occurred early in the morning, the defendant and his wife had been at the Casino Queen for a "recreational" evening, staying out all night and arriving home around 5:50 a.m. He indicated that he had not had a lot to drink, but had a couple of beers. Immediately upon arriving home they went into their bedroom and changed for bed. The next thing they heard was a loud noise, and then saw agents with guns pointed at them. The defendant stated affirmatively that there was no announcement by the officers before they executed the warrant.

The defendant and his wife were moved into the livingroom, placed on the couch and handcuffed. The defendant testified that he repeatedly asked for a copy of a warrant, but that it was not given to him until they were finished with the search, about an hour and a half later. The defendant's daughter was in her bedroom and was also placed on the couch and handcuffed.

The defendant testified that he was asked, without being given any warnings, if there were guns and drugs in the house. He told them where the drugs were located (in the kitchen cabinet) and where the weapons and ammunition could be found (in his dresser). The defendant stated that the guns were locked up in a box, and that he had a Firearms Owner Identification Card, which he had obtained before buying the guns.

The defendant further testified that he was not arrested for more than a year after the search, despite the fact that they found marijuana in the kitchen, cocaine in his bedroom as well as firearms and ammunition.

The defendant's wife, Denise Gilmore, testified that they had gone to the Casino Queen around 9:00 p.m. the night before the search, and had returned home early that morning. She had not had anything to drink while out because she was pregnant at the time. When they came home, she saw their daughter, Chyna, who was in her brother's room, which is at the front of the house, watching a DVD. They immediately got into bed, and were talking, not yet asleep, when she heard a loud crash, heard voices, a couple of agents came into the bedroom and threw her onto the floor and handcuffed her. She was then taken into the livingroom and put on the couch, and the agents questioned the defendant about the presence of guns and drugs. She confirmed that the defendant was not given any warnings before being questioned and repeatedly asked about the warrant, but was not given a copy until they were done with the search.

The defendant's daughter testified that she had awakened when her parents came in from the Casino Queen when she heard them at the door.*fn1 She stated that she was watching a movie in her brother's room, and heard a loud noise as the door crashed in. She stated that she did not hear any announcement or knock before the door was broken. The officers had guns drawn and directed her to get onto the floor. She was not handcuffed, but was also told to sit on the couch. She confirmed that her father was not given or shown the warrant until the officers were leaving.

The defendant's mother, Joyce Harper testified that she went to the defendant's home that morning after receiving a call from the defendant's wife about the ongoing search. She was escorted into the house upon her arrival and was told to sit on the couch with the others. She stated that only the defendant was handcuffed. She also stated that the defendant was not given a copy of the warrant until the officers were leaving.

The government presented the testimony of ATF Special Agent Jeff Eleveld, who testified that on the morning of June 24, 2006, the defendant was assisting in the execution of a search warrant for the Fairview Heights Office of ATF. He testified that it is standard procedure to knock and announce before executing a search warrant, and that this procedure was followed in this search. There is a standard pre-operation meeting where assignments are given for roles in the search. The meeting for this search warrant occurred the night before and that there were Illinois State Police task force officers and ATF agents present at the meeting. Officers were stationed at the front and back doors and given an order of approach. One officer was assigned to man the door ram, and another was given the task of knocking and announcing because this was not a no-knock warrant.*fn2 Special Agent Brett Boarm from MEGSI was given the duty to knock before entering the residence. S/A Eleveld testified that after Boarm knocked and announced their presence, the team took down the door of the residence. Boarm knocked and announced a couple of times before S/A Eleveld gave the team the directions to take the door by forced entry. The door was knocked down approximately 10-15 seconds after the knock and announce was given.

When they entered the house, they were yelling "police" and "search warrant" as they are trained to do. They located several adults and an infant in the initial sweep. The adults were secured, to limit their possible threat to the officers, and placed on the couch. He asked the defendant who lived there, and told him what they were searching for. The defendant was shown, but not given a copy of the warrant at the beginning of the search. He was given a copy of the warrant after the search was completed. S/A Eleveld testified that ...


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