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United States v. Sullivan

United States District Court, S.D. Illinois

August 22, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
BLAKELY D. SULLIVAN, Defendant.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE

         This matter comes before the Court on defendant Blakely D. Sullivan’s motion to suppress evidence seized on February 5, 2014 (Doc. 87). The Government has responded to the motion (Doc. 88). The Court held a hearing on the motion on August 9, 2016, at which the Government called as witnesses Illinois State Police Sergeant Jonathan Edwards and retired Illinois State Police Master Sergeant David Bartoni, and at which Sullivan testified on his own behalf.

         Sullivan challenges a warrantless search of a vehicle he was using[1] on the afternoon of February 5, 2014, which yielded items claimed to be a cannabis grinder, a zippered “drug kit” with drug pipes, butane lighters, three glass jars with suspected residue, twenty pseudoephedrine tablets, coffee filters, an empty Aleve box and one gram of cannabis. Sullivan claims that the search violated his Fourth Amendment rights because law enforcement officers had no probable cause for the search. The Government claims a number of exceptions to the warrant requirement apply to justify the search.

         Sullivan is charged in this case with one count of conspiracy to manufacture methamphetamine (Count 1), one count of conspiracy to possess pseudoephedrine knowing it would be used to manufacture methamphetamine (Count 2), two counts of possession of a listed chemical (pseudoephedrine) knowing it would be used to manufacture methamphetamine (Counts 3 and 4), and two counts of possession of items knowing they would be used to manufacture methamphetamine (Counts 5 and 6). The evidence seized is expected to be used in an effort to convict Sullivan of Counts 1, 2, 4 and 6.

         I. Facts

         The Court found the witnesses to be credible as to facts about which they had personal knowledge based on their demeanor while testifying, the foundations they had for testifying to certain facts and the consistency of each witness’s material testimony with other evidence in the case. The evidence at the hearing established the following facts.

         Prior to February 5, 2014, Sergeant Edwards was aware that Sullivan might have been involved in methamphetamine-related activity. He and Master Sergeant Bartoni knew of Sullivan’s prior federal conviction for methamphetamine activities. Additionally, Edwards’ law enforcement colleagues had arrested Sullivan in 2009 for methamphetamine on a warrant for a violation of his conditions of supervised release and had found methamphetamine manufacturing items in his home following that arrest.

         About 3:45 p.m. on the afternoon of February 5, 2014, Inspector Sneed of the Southern Illinois Enforcement Group (“SEIG”) contacted Edwards and told him that SEIG had a confidential sources (“CS”) who had been in contact with Sullivan regarding purchasing pseudoephedrine pills and who said he would be able to get involved with drug activities with Sullivan. The CS had reported that he was currently at Double D’s bar in Benton, Illinois, and was to meet with Sullivan shortly. Upon receiving the information and in an effort to corroborate the CS’s information, Edwards and several other law enforcement officers went to Double D’s to set up surveillance in anticipation of Sullivan’s arrival.

         Before the surveillance was completely set up, the CS called one of Edwards’ colleagues to report he and Sullivan had left Double D’s but would return soon. He reported that he had seen in the vehicle Sullivan was driving a clear plastic bag like the kind in which a comforter or bedding would be sold at a department store (a “bedding bag”). According to the CS, the plastic bag contained glass jars, coffee filters and other items the CS thought were involved with methamphetamine manufacturing. Edwards’ colleague gave the CS instructions about where to go when he returned to Double D’s. Edwards and his colleagues shared among themselves the information from the CS, discussed Sullivan’s prior drug history, and completed the surveillance set-up in anticipation of Sullivan’s return to Double D’s. Around 4:30 p.m. Sullivan and the CS returned to Double D’s in a green Toyota Solara. The CS got out and went where law enforcement had instructed him to go, and Sullivan drove away. Officers attempted to follow Sullivan but lost track of him. The officers did not seek a warrant at this time because they did not know where Sullivan’s car was.

         Edwards and another law enforcement officer picked up the CS and went to a designated meeting area where they talked with the CS in more depth. In that conversation, the CS told the officers that Sullivan had asked him to purchase pseudoephedrine pills for use in manufacturing methamphetamine and that the CS and Sullivan had discussed whether the CS would be able to buy the pills in light of his prior conviction for a methamphetamine offense. The CS also reported that Sullivan had also been interested in whether the CS could obtain anhydrous ammonia, a catalyst in the method Sullivan said he preferred to use when manufacturing methamphetamine. The CS reported to the officers that Sullivan had had a small amount of methamphetamine on his person at that time. The information received from the CS was consistent with other information the officers had received indicating that Sullivan had numerous, identified people buying pseudoephedrine pills for him to use in manufacturing methamphetamine, which was, in turn, consistent with National Precursor Log Exchange records reflecting that those particular people made such purchases.

         Under Edwards’ and another officer’s supervision and observation, the CS called Sullivan around 5:30 p.m. to tell him he had come to believe he would be able to buy pseudoephedrine pills for Sullivan after all, but that he needed a ride to the store and money for the purchase. After his conversation with Sullivan, the CS told the officers that Sullivan agreed to meet him at the nearby Huck’s convenience store and give him a ride to the store. Edwards searched the CS for weapons, cash and contraband and found nothing. Another officer then drove the CS to Huck’s, where law enforcement officers had set up surveillance to follow Sullivan and the CS to Wal-Mart, where they thought Sullivan would have the CS buy pseudoephedrine pills. Bartoni joined the surveillance team at this time.

         Shortly before 6:00 p.m., Sullivan arrived at Huck’s in the Solara, picked up the CS and headed toward Wal-Mart. However, before getting to Wal-Mart, Sullivan pulled into the parking lot of a CVS Pharmacy and parked close to the main entrance of the building. The CVS is on the northwest corner of a busy intersection between the Interstate 57 Benton exit and Benton and in a heavily commercial area. The CS got out of the car and entered the CVS. Edwards and another officer followed the CS inside, secured and searched him, and found a $20 bill the CS said Sullivan had given him to purchase pseudoephedrine. Edwards took the CS out of the CVS and joined other officers in the parking lot.

         In the meantime back in the parking lot, Bartoni and another officer approached Sullivan and asked him to get out of his vehicle. They advised him that he was not under arrest but that he was not free to leave and advised him of his Miranda rights. Bartoni conducted a pat-down search for weapons and felt a long, cylinder-type object in Sullivan’s jacket pocket. Thinking it could have been a weapon, Bartoni removed the object and found it was a glass smoking pipe of the kind that is used to smoke methamphetamine. Bartoni asked Sullivan if he had anything else illegal on him, and Sullivan answered that he probably did. Officers continued to search Sullivan’s person and located in Sullivan’s pocket three small containers with methamphetamine residue.

         From his position in the parking lot, Bartoni could see lots of items in the car, including on the back floorboard behind the center console of Sullivan’s car a clear plastic bedding bag containing jars like the bag described by the CS. Thinking the bag might contain an active, volatile, flammable methamphetamine lab and concerned for the safety of the public in and around the CVS, Bartoni had one of the agents of the Meth Response Team (“MRT”), which is comprised of officers trained to deal with methamphetamine-manufacturing hazards, remove the plastic bag from the car and make sure it there was no active ...


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