United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
SUPPRESS SEARCH OF RESIDENCE AND FOR EVIDENTIARY HEARING [ECF
V. PARKER U.S. DISTRICT JUDGE.
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.)
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.)
Factual and Procedural Background
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.)
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
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.
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.)
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?”
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
BROOKS was then transported back to the State Police Post in
Flint and the information on this residence ...