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United States v. Attyberry

United States District Court, E.D. Michigan, Southern Division

May 31, 2017

UNITED STATES OF AMERICA Plaintiff,
v.
D-2, CALVIN ATTYBERRY, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS SEARCH OF RESIDENCE AND FOR EVIDENTIARY HEARING [ECF NO. 53]

          LINDA V. PARKER U.S. DISTRICT JUDGE.

         On August 3, 2016, Defendant Calvin Attyberry (“Defendant”) was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); one count of possession of a machine gun in violation of 18 U.S.C. § 922(o)(1); and one count of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. (ECF No. 14.)

         On September 20, 2016, this Court set a scheduling order requiring all pretrial motions be filed by November 14, 2016. (ECF No. 40.) On February 14, 2017, Defendant filed an untimely motion to suppress the evidence obtained during a search of his home. (ECF No. 53.) Defendant seeks to suppress evidence deriving from the search of Defendant's home that occurred on June 25, 2016. (Id. at Pg ID 242.) The government filed a response on March 7, 2017, articulating why Defendant's motion to suppress should not be granted. (ECF No. 65.) This Court held a hearing on the motion on May 2, 2017. (ECF No. 69.)

         I. Factual and Procedural Background

         On June 25, 2016, at approximately 2:00 a.m., officers of the Michigan State Police executed a search warrant at Defendant's home, located at 1383 W. Humphrey Ave, Mount Morris Township, Michigan. (ECF No. 53 at Pg ID 242; Mot. to Suppress Hr'g Tr. 35:24-36:14.) At his home, state police recovered the following: “.223 caliber machine guns with affixed silencers, two handguns, mason jars containing marijuana, and substances suspected to be cocaine.” (ECF No. 65 at Pg ID 369.)

         The affidavit used in support for the search warrant was signed by 67th District Court Judge Vikki Bayeh-Haley. The affidavit provided the following information related to Defendant's address:

25. BROOKS advised Sgt. Zook he physically observed marijuana, cocaine, and guns on 06/24/2016 and 06/20/2016 at “D's” residence (1383 W. Humphrey Ave, Mount Morris Township, Michigan).

(ECF No. 65-3 at Pg ID 386.) The affidavit does not state how the affiant determined that D's residence was at 1383 W. Humphrey Ave.

         In their opposition brief for the motion, the government contends that they learned the address of Mr. Attyberry's home through their interview with Sheldon Brooks. Brooks was stopped for a traffic violation on June 24, 2016 by Sergeant Duane Zook and Trooper Evan Nielson. (ECF No. 65 at Pg ID 366.) Brooks consented to a search of his person and car. (Id. at Pg ID 367.) During the course of the search, the police found marijuana amounting to 24 ounces and a bottle of promethazine with codeine syrup. (Id.)

         Brooks waived his Miranda rights and the officers interviewed him in their patrol car before driving him to the Michigan State Police post. (Id. at Pg ID 368.) Sergeant Zook then interviewed Brooks. During the course of the interview, Brooks said that “D” was the owner of the marijuana. (Id.) When asked where “D” lived, Brooks was unable to give his address but stated he knew where the house was located. (Id.) In response, Sergeant Zook stated: “[w]e can't exactly go by the house with you in a state police car…we can't do that can we?”

         The issue of where Defendant lives is not resolved during the course of the video interview of Brooks. After the filing of Defendant's motion to suppress, the government filed a supplemental incident report dated March 7, 2017 that states:

On the above listed time and date [Saturday, June 25, 2016] reporting officers were requested by Sgt Zook to take SHELDON BROOKS up to Humphrey ave [sic], west of Detroit st [sic] and have him point out a house so that we could get the physical description and address of the house.
BROOKS pointed out 1383 W Humphrey ave [sic] to officers.
BROOKS was then transported back to the State Police Post in Flint and the information on this residence ...

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